High Court
Case Details
WP(C) 398/2013 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN
Legal Reasoning
Heard Ms. S. B. Choudhury, learned counsel for the petitioner and Mr. S. Baruah, learned Government Advocate. Also heard Mr. T. J. Mahanta and Ms. P. Bhattachar ya, learned counsel appearing for respondent No. 6. By way of this petition under Article 226 of the Constitution of India, petition er seeks a direction to the respondents, more particularly respondent No. 2, to release his share of compensation for acquisition of land amounting to Rs.28,77, 361.60. Case of the petitioner as projected in the writ petition is that he is one of th e legal heirs of Late Phanidhar Borgohain, who was the pattadar of land measurin g 16 Bighas 4 Kathas 2 Lechas covered by Dag No. 96 Periodic Patta No. 63 of vil lage-Block 3 under Dhemaji town. Government of Assam had acquired 8 Bighas 5 Lechas out of the aforesaid land in the year 1978 for which due compensation was paid. But the remaining land measur ing 8 Bighas 3 Kathas 17 Lechas were utilized by the Dhemaji district administra tion without acquiring the land and consequently not paying any compensation for the same.
Decision
Respondent No. 6, who is also one of the legal heirs of Late Phanidhar Borgohain , was the constituted attorney of all the legal heirs. On behalf of all the patt adars, respondent No. 6 filed WP(C) No. 1116/2007 before this Court seeking a di rection to the respondents for payment of compensation in respect of the aforesa id plot of land. This Court by order dated 03.05.2010 disposed of the writ petit ion by directing the respondents to either give up the land which was under thei r illegal occupation or to take steps for acquiring the land. In compliance to the order of this Court dated 03.05.2010 passed in WP(C) No. 11 16/2007, an amount of Rs.2,30,18,892.00 was sanctioned as the compensation amoun t to be paid to the legal heirs of Late Phanidhar Borgohain, pattadar of the afo resaid land. In the meanwhile, power of attorney granted by the legal heirs of late Phanidhar Borgohain in favour of respondent No. 6 was revoked. Respondent No. 6 as the plaintiff then instituted Title Suit No. 2/2012 before t he Court of District Judge, Dhemaji against revocation of power of attorney. An injunction petition was also filed which was registered as Misc.(J) Case No. 3/2 012. Petitioner has been arrayed as defendant No. 2 in the said suit. Learned Di strict Judge by initial order dated 26.03.2012 restrained the parties from relea sing the money as an interim measure. Petitioner and the others, who have been arrayed as defendants, contested the su it as well as the injunction petition by filing written statement and written ob jection respectively. Misc. (J) Case No. 3/2012 was thereafter taken up for cons ideration on 13.07.2012. Learned District Judge after hearing the matter rejecte d the injunction petition. As the injunction petition was rejected, petitioner was under the expectation th at respondent No. 2 i.e. Deputy Commissioner, Dhemaji would release his share of compensation of amount but that was not released. Thereafter, when a writ petition was filed being WP(C) No. 3597/2012 for release of the compensation amount, other legal heirs of Late Phanidhar Borgohain were paid their shares of compensation. When the petitioner approached respondent No. 2 for release of payment, he was asked to produce certificate of mental status before releasing the compensation amount. According to the petitioner, his compensation has been held up because of a comp laint submitted by respondent No. 6 stating that petitioner is a person of unsou nd mind and, therefore, the compensation amount should not be released to him. P etitioner submitted his objection to such complaint of respondent No. 6 denying any mental ailment and demanded release of his due compensation. However, the co mpensation amount of Rs.28,77,361.60 has still not been released. Aggrieved, petitioner has filed the present writ petition. State respondents have not filed any affidavit. Respondent No. 6 has filed affidavit. In his affidavit, he has stated that petit ioner is not a mentally sound person and is not capable of handling money. Writ petition has been filed at the behest of another brother Sri Amrit Borgohain who is trying to grab petitioner’s share of land acquisition compensation. All the legal heirs of Phanidhar Borgohain had constituted him as their lawful attorney by virtue of which it was he who had pursued the land acquisition case and in th e process had to incur substantial expenditure. Because of his efforts, the auth ority had to formally acquire the land and sanctioned an amount of Rs.2,88,87,08 4.00 as compensation. Since petitioner would not be able to handle the compensat ion amount, a guardian should be appointed under the Mental Health Act, 1987. In his reply affidavit, petitioner has denied that he is not mentally sound. He has stated that as his dwelling house was damaged because of storm on 06.04.2010 , he was paid some compensation by respondent No. 4 which he personally received . Such compensation was not denied on the ground of petitioner being of unsound mind. He submits that there is no question of producing or submitting any mental status certificate before any authority as he is not afflicted by any mental il lness. Objection of respondent No. 6 is to deprive petitioner of his dues so tha t he can make unlawful gain. Submissions made by learned counsel for the parties are on pleaded lines. Theref ore, it is considered not necessary for a detailed narration of the submissions made. As already noticed above, this case has already seen a series of litigation whic h ultimately led to acquisition of the remaining portion of land of late Phanidh ar Borgohain and payment of compensation. All the legal heirs of Late Phanidhar Borgohain have received their share of compensation except the petitioner. Respondent No. 6 had earlier pursued the land acquisition matter on behalf of al l the legal heirs as the constituted attorney. His power of attorney was subsequ ently revoked. This has been challenged by respondent No. 6 before the Civil Cou rt. Nowhere in the plaint as well as in the injunction petition filed before the Civil Court, it was stated that petitioner is a person of unsound mind. The sam e is not a ground for challenging revocation. On the contrary, in paragraphs-7 a nd 8 of the plaint as well as in paragraphs-4 and 5 of the injunction petition, it has been stated that petitioner and the other legal heirs refused to pay any amount to the plaintiff (respondent No. 6) though he had spent a substantial amo unt in pursuing the land acquisition case. He, therefore, sought for a decree of Rs.7,50,30.00 from the defendants, including the petitioner. In such circumstances, the plea taken by respondent No. 6 that petitioner is men tally unsound and, therefore, should not be paid the compensation amount and his anxiety that is discernible, clearly betrays an attempt by respondent No. 6 to frustrate payment of due compensation to the petitioner. The Mental Health Act, 1987 is an act to consolidate and amend the law relating to the treatment and care of mentally ill persons, to make better provision with respect to their property and affairs and for matters connected therewith or in cidental thereto. Chapter VI of the said Act deals with judicial inquisition reg arding alleged mentally ill person possessing property, custody of his person an d management of his property. Section 50 of the Act provides for filing of an ap plication before the District Court having territorial jurisdiction for holding judicial inquisition into the mental condition of an alleged mentally ill person who is possessed of property. Amongst others, such application can be filed by any of his relatives. Such inquisition has to be carried out by the District Co urt following the procedure prescribed, who is thereafter required to record his finding as to whether the alleged mentally ill person is infact mentally ill or not, and where such person is mentally ill, whether he is incapable of taking c are of himself and of managing his property, or incapable of managing his proper ty only. Sections 53 and 54 provides for appointment of manager in the event of finding being reached that the person is mentally ill. Respondent No. 6 has not taken any such steps under the Mental Health Act 1987. He also cannot claim to be the legal guardian of the petitioner. That being the position, withholding of the due compensation amount to the petitioner by the re spondent No. 2 on the complaint of respondent No. 6 is not justified. Accordingly, respondent No. 2 is directed to release the due compensation amount to the petitioner on proper identification within a period of 4 (four) weeks’ f rom the date of receipt of a certified copy of this order. Writ petition is allowed. However, there shall be no order as to cost.