High Court
Case Details
WP(C) 946/2009 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN Since the subject matter of both the writ petitions is inter-related, those were heard together and are being disposed of by this common judgment and order. For the sake of convenience, facts of WP(C) No.946/2009 are brie
Legal Reasoning
02. fly narrated hereunder. Petitioner Nos. 1, 2 & 3 are the partners of petitioner No.4, wh 03. ich is a partnership firm carrying on the business of rice mill under the name a nd style of Maa Kali Rice Mill at Raha in the district of Nagaon. According to t he petitioners, in the year 1954, father of petitioner Nos.1 & 2, late Biswanath Kedia, entered into an agreement with late Jogeswar Kundu, father of respondent No. 6, taking on lease one godown and an existing mill on yearly rental basis. Though agreement entered into between the parties was initially for a period of five years, the same had been extended subsequently from time to time. In the me anwhile, predecessor-in-interest of petitioner Nos. 1 & 2 made constructions ove r the land on which the godown and the rice mill stood. The said constructions w ere made as per business requirement. 04. The land in question measures 4 bighas 1 katha 2 lechas, covered by Dag Nos. 49, 53 & 54 of Patta No. 52 & 242 of village Raha Town under Raha M ouza in the district of Nagaon. 05. The construction carried out by the predecessor-in-interest of p etitioner Nos. 1 & 2 included one RCC building, which presently houses the Punja b National Bank on the ground floor. Because of certain differences between the parties, petitioners instituted a civil suit in the court of the Civil Judge, Na gaon for declaration of right, title and interest over the suit land and for con firmation of their possession. The said suit was registered as TS No. 42/2004. I n the connected injunction petition filed by the petitioners, learned Civil Judg e passed an order directing maintenance of status quo in respect of the suit lan d and building. 06. In the meanwhile, notification was issued by the Sub-Divisional Officer(S)-cum-Competent Authority, Nagaon on 04.06.2005 stating that the Centra l Government had declared that the land specified in the schedule annexed theret o would be acquired for the purpose of building, maintenance, management and ope ration of National Highway 37. The above land in question was included in the sa id notification. Petitioners lodged claim before the competent authority claimin g compensation. When there was no response to the claim of the petitioners, plea der’s notice was issued to the respondents. On the other hand, on inquiry, petit ioners could come to know that an amount of Rs. 20,54,000.00 had been sanctioned for compensation against acquisition of land and building. Apprehending that th e entire amount would be released in favour of respondent No.6, petitioners file d a writ petition before this Court seeking a direction to the State respondents to restrain them from making any payment to respondent No. 6 and other persons. The said writ petition was registered as WP(C) No. 260/2007. This Court vide or der dated 19.02.2007 issued notice and directed that 50% of the compensation amo unt only should be released to the respondent No. 6 and his other relations. 07. National Highway Authority started demolishing houses and cleari ng the acquired lands, which are situated nearby by the land in question. Appreh ending that the godown, rice mill, RCC building and other structures built by th e petitioners over the land in question would be demolished without payment of c ompensation, the present writ petition has been filed. Prayer made in the presen t writ petition is for a direction to the State respondents restraining them fro m demolishing structures of the petitioners standing on the acquired land withou t payment of due compensation and without prior notice. 08. This Court vide order dated 25.03.2009, while issuing notice, di rected that the RCC building and the structures of the petitioners standing on t he land in question should not be demolished. Respondent Nos. 1, 2 & 3 (National Highway Authority of India) h 09. ave filed a common affidavit. Stand taken is that though this Court had directed release of 50% of the compensation amount to the respondent No. 6 and his relat ions in WP(C) No.260/2007, the competent authority is yet to finalize the award since there is dispute over ownership of land in question. It is stated that it would be difficult on the part of the competent authority to determine the compe nsation. It is further stated that following publication of notification under s ection 3-D of the National Highways Act, 1956, since the acquired land vested wi th the Central Government, the district administration had carried out demolitio n drive over the acquired land to hand over the land to the National High Author ity of India free from all encumbrances for completion of the project relating t o 4 laning of National Highway 37. It is further stated that assessment of compe nsation is completely within the purview of the competent authority. 10. Heard Mr. RL Yadav, learned counsel for the petitioners and Mr. C Baruah, learned Central Government Counsel. Also heard Mr. Nur Mohammad, learn ed Govt. Advocate, Assam and Mr. Z Mukit, learned counsel for the private respon dents. 11. Mr. Yadav, learned counsel for the petitioners has referred to v arious provisions of the National Highways Act, 1956 (Act), more particularly pr ovisions from sections 3-A to 3-H, to contend that petitioners are persons inter ested in the land and, therefore, they would also be entitled to compensation un der the provisions of the Act along with the owner i.e., respondent No. 6. The c ompetent authority has to first make a proper determination of the quantum of co mpensation, then apportionment between the two claimants and without paying comp ensation, no demolition or eviction drive can be carried out as per provisions o f the Act. He submits that petitioners have no grievance as to acquisition of th e land and their only claim is that they should be suitably compensated for demo lition of the rice mill, RCC building and other structures standing on the land before demolition is carried out and possession of the land is handed over to th e Central Government. Learned counsel submits that duty is cast upon the compete nt authority, which, in the present case, is the Sub-Divisional Officer(S) to de termine the quantum of compensation of the rival claimants and if the parties ar e aggrieved by such determination, the parties can taken recourse to the provisi ons as provided under the Act for enhancement of compensation. 12. Mr. C Baruah, learned Central Government Counsel appearing for t he National Highway Authority of India submits that because of the pendency of t he two writ petitions and the interim orders passed therein, physical possession of the land in question could not be taken over, though legally the land stood vested with the Central Government following issuance of the notification under section 3-D of the Act. He, however, fairly submits that petitioners may also be entitled to compensation, if they can show to the satisfaction of the competent authority that they are persons interested in the land. He, therefore, seeks im mediate resolution of the dispute in the larger public interest as completion of the project is being held up because of the stay order.
Legal Reasoning
Mr. Z Mukit, learned counsel appearing for the private responden 13. ts submits that it is the private respondents, who are the owners of the land in question, though they do not dispute that petitioners and their predecessor-in- interest had been using the rice mill and godown over the land as lessees. They however dispute the claim of the petitioners to have constructed the RCC buildin g and other structures on the land. He submits that TS No. 42/2004 instituted by the petitioners seeking declaration of right, title and interest over the suit land has been dismissed by the civil court. Replying to the above, Mr. Yadav, learned counsel for the petiti 14. oners submits that petitioners have filed appeal against dismissal of their civi l suit and the said appeal is pending. He however submits that dismissal of the civil suit by the civil court would have no bearing on the claim of the petition ers for compensation as persons interested. 15. 16. y be briefly referred to. 17. Submissions made have been considered. Before proceeding further, the relevant provisions of the Act ma The Act has been enacted by the Indian Parliament to provide for declaration of certain highways to be National Highways and for matters connect ed therewith. Section 3(a) defines ’competent authority’ to mean any person or a uthority authorized by the Central Government, by notification in the Official G azette, to perform the functions of the competent authority for such area as may be specified in the notification. It is stated at the Bar that Sub-Divisional O fficer(S), Nagaon is the competent authority in so far the land in question is c oncerned. ’Land’ is defined in section 3(b) to include benefits arising out of l and and things attached to the earth or permanently fastened to anything attache d to the earth. Thus, building or any structure attached or fastened to anything attached to the earth would also come within the purview of the definition of ’ land’ within the meaning of section 3(b) of the Act. Section 3-A to section 3-J of the Act contain a comprehensive scheme for acquisition of land for the purpos e of building, maintenance, management or operation of national highway or part thereof and for determination of compensation for such acquisition of land and i ssues connected therewith or related thereto. It is also provided that provision s of the Land Acquisition Act, 1894, would not apply to an acquisition under thi s Act. 18. While section 3-A empowers the Central Government to acquire lan d by declaring its intention through publication by notification in the official gazette and newspaper publications, section 3-C deals with filing of objections by any person interested in the land and hearing of objection. Section 3-D prov ides for declaration of acquisition. Once such a declaration is made after takin g a decision on the objections filed, the land shall vest absolutely in the Cent ral Government free from all encumbrances. Power to take possession of the land vested in the Central Government is laid down in section 3-E. It provides that o nce any land is vested in the Central Government and the amount determined by th e competent authority with respect to acquisition of such land is deposited with the competent authority by the Central Government, the competent authority may, by notice in writing, direct the owner as well as any other person who may be i n possession of such land to surrender or deliver possession thereof to the comp etent authority within 60 days from service of notice. Thus, section 3-E mandate s the following things: - i) the land is vested in the Central Government following issuance of declaratio n under section 3-D, ii) the amount determined by the Central Government is depo sited with the competent authority, iii) the competent authority has to issue no tice to the owner or any other person in possession of such land to handover pos session thereof to the competent authority within 60 days. As such, without such a notice, the owner or possessor of land acquired cannot b e dispossessed of the land. 19. Section 3-G deals with determination of the amount payable as co mpensation. Such determination shall be made by the competent authority. As per sub-section (2), a person having even easementory right would be entitled to com pensation. Procedure for compensation is laid down in sub-sections (3), (4) and (7). If the amount determined by the competent authority is not acceptable to ei ther of the parties, the amount shall, on an application by either of the partie s, be determined by the Arbitrator to be appointed by the Central Government and in such arbitration, the provisions of the Arbitration and Conciliation Act, 19 96 shall apply. 20. Under section 3H, the amount determined under section 3-G shall be deposited by the Central Government with the competent authority before takin g possession of the land. As soon as such amount is deposited, the competent aut hority shall, on behalf of Central Government, pay the amount to the person or p ersons entitled thereto. In case, there are several persons claiming to be inter ested in the amount deposited, the competent authority shall determine the perso ns who in its opinion are entitled to receive the amount payable to each of them and if there is any dispute as to the apportionment, the dispute is to be refer red to the principal civil court of the concerned district i.e., within the limi ts of whose jurisdiction the land is situated by the competent authority. 21. w turn to the facts of the present case. 22. As already noticed, respondent No. 6 or the private respondents have not disputed the factum that petitioners are in possession of the rice mill Having noticed the broad contours of the Act as above, let us no and godown standing over the land in question since 1954 though construction of the other structures have been disputed. It is true that petitioners’ claim of title over the said land has been rejected by the civil court. Having regard to the broad scheme of the Act, the Court is of the view that notwithstanding rejec tion of the claim of the petitioner for title of the suit land, claim of the pet itioners as persons interested over the land in question would still survive and can stand on its own strength. The Act mandates the competent authority to take a fair decision on the quantum of compensation for acquisition of land as well as apportionment of the same between rival claimants. The competent authority i. e., respondent No. 5 is thus duty bound to take a decision in this regard. He ca nnot shirk his responsibility or shy away from taking a decision on the plea tha t there is dispute over ownership of the land. Once such a decision is taken, if the parties are aggrieved by the quantum, it will be open to them to make neces sary application under sub-section(5) of section 3-G of the Act for determinatio n of the quantum by the Arbitrator to be appointed by the Central Government. If there is dispute as to the apportionment of the compensation amount, the disput e may be referred to the principal civil court of the district for resolution. I t is also clear from a reading of the relevant provisions of the Act that withou t notice in writing to the owner as well as to any other person in possession of the land, they cannot be dispossessed. Thus in view of the discussions made above, respondent No. 5 i.e 23. ., the competent authority is directed to determine the compensation amount due to be paid for acquisition of the land in question and thereafter the apportionm ent of the same between the petitioners and respondent No. 6 and his other relat ives within a period of sixty (60) days from the date of receipt of a certified copy of this order. Once the determination is made and payment is released to th e parties, notice to deliver possession of the land under section 3-E shall be i ssued and possession taken over accordingly. If either of the parties are aggrie ved by the quantum of compensation or apportionment thereof, it will be open to them to take recourse to the provisions of sub-section (5) of section 3-G of the Act and/or for the competent authority to take recourse to the provisions of su b-section (4) of section 3-H of the Act. This disposes of the writ petitions. No costs.