THE UNION OF INDIA v. The Deputy Commissioner and Anr.

question involved in the writ petitions is a community land of the writ petitioner or it is the Government land. In causing the enquiry the Deputy Commissioner would also consult the land revenue record pertaining to the land prior to 1955.

4. Thereafter the respondent No. 1 has made Land Acquisition Award amounting to Rs. 12,93,00,519/- only for land measuring 21.9773 hectares in respect of land at Alinye, Dembuem, Mipi and Maliney, in Dibang Valley, Anini and the same was notified vide Notification No. DML-184/18-19/5006-09, dated

06.09.2018. Thereafter in respect of WP(C) No. 28(AP)/2019 and WP (C) No. 74(AP)/2019, the land owners of Village Alinye, Dembuem, Mipi and Malini in Dibang Vally filed claim compensation petition of their land as per Land Page No.# 4/16 Acquisition Award order dated 06.09.2018, for a sum of Rs. 2,25,51,244/- and this Court vide order dated 07.11.2019 directed the respondent Authority to deposit the award in the office of the Deputy Commissioner, Anini, Dibang Valley District within a period of 3 months from the date of judgment, which is under challenge in the Writ Appeal No. 2110/2020 and Writ Appeal No. 2415/2020 before this Court which is still pending now.

5. In the land acquisition award, dated 06.09.2018, the land of Etalin, has not been included by the respondent No. 1. Thereafter, land acquisition award, dated 17.12.2019, and dated 01.06.2020, has been made for land measuring

2081.21 square meters in Etalin of Dibang Valley District for establishment of Border Outpost of ITBPF as per Section 23 of the RFCT & LARR Act, 2013. In both the land acquisition award dated 17.10.2019, and 01.06.2020, an application regarding objection under Section 4 of the RFCT & LARR Act, 2013 were filed before the respondent No. 1 on 27.04.2020, and on 26.8.2020 the same was referred to the Authority, i.e. the learned District Judge, East Session, Tezu District of Arunachal Pradesh.

6. The leaned District Judge then directed the parties to file proper petition, and thereafter, the appellant has filed proper petition before the leaned District Judge, Tezu by the appellant and during the course of hearing of the reference, the State respondent No. 2 filed objection contending that the award prepared by the respondent No. 1 is correct and required no interference of this Court. Thereafter vide impugned judgment and order dated 7.8.2021, the learned District Judge, Tezu directed the appellant to make payment of the awarded amount to the respondent No. 2. Page No.# 5/16 7. Then, being highly aggrieved, the appellant preferred this appeal on the following ground:- (i) That, the learned court below has decided the reference without properly framing the issues and without affording an opportunity to submit documents and to adduce any evidence before it. (ii) That, the learned court below has not considered all the issues raised by the appellant and decided the matter against it. (iii) That, the learned court below has not ascertained the category of land in view of this Court in the case of Gita Mihu vs. Union of India and others (supra). (iv) That, the learned court below has failed to decide the issue as to whether the building existed on the disputed land was constructed by the Assam Rifle, and that it has wrongly decided that the respondent No. 2 has constructed the beguiling. (v) That, the learned court below has failed to take into account that on initiation of the respondent No. 1, the headquarter, vide letter dated 04.01.1980, of the appellant has sanctioned a sum of Rs. 18,78,690/- in respect of the land at Anini, Alinye, Dembuel, Mipi, Etalin and Malinye (12038 square meters.) (vi) That, the learned court below has failed to ascertain the compensation and issuance of preliminary notification dated

21.08.2019, the ownership of land at Etalin was prepared by the respondent No. 2. (vii) That, the conclusion so arrived at by the learned court below is contrary and not born on the record. Page No.# 6/16

8. Therefore, it is contended to set aside the impugned judgment and order. The opposite party No. 2 entered appearance and submitted affidavit-in- opposition denying the averments made in the memo of appeal. It is also contended that the appeal is barred by limitation and no application has been filed to condone the delay and that the decree passed by the learned court below has not been annexed with the appeal and affidavit has also not been annexed. Further, it is stated that notice is required to be issued to the ‘interested person’ only and the appellant herein is a ‘requiring authority’ and not the ‘person interested’ as defined in the Act and that under Section 95 of the Act no reference can be made by the ‘requiring authority’ as the appellant is not the ‘person interested’ and the appeal is not maintainable and a joint verification was conducted by the respondent No. 1 with the representative of the appellant and at that time no objection has been raised regarding RCC building that existed in the land at Etalin and the Executive Engineer, PWD was directed to prepare estimate for two assets belong to the respondent No. 2 and thereafter the award was passed vide order dated 1.06.2020 awarding an amount of Rs. 83,8,331.00. Therefore, it is contended to dismiss the appeal.

9. The appellant also filed affidavit in reply, wherein it is stated that:- (i) That, the appeal is not barred by the limitation as certified copy of the impugned judgment and order was received on 7.05.2021 and the appeal was filed on 7.7.2021. (ii) That, the appeal may be filed against the award under Section 74 of RFCT & LARR Act, 2013 and Page No.# 7/16 (iii) That, the learned District Judge has not decided the issues/points raised by the appellant in the reference. (iv) That, the issue of maintainability of objection under Section 64 has not been raised by the respondent before the learned District Judge, Tezu. (v) That, in WP (C) No. 80(AP)/2017, vide judgment and order dated

14.3.2017, this court was pleased to dispose of the writ petition by directing the Deputy Commissioner Anini, Dibang Valley District to cause an enquiry and to ascertain as to whether the land in question involved in the writ petition is a community land of the writ petitioner or it is the Government land and in causing such an enquiry the Deputy Commissioner would also consult the land revenue record pertaining to the land prior to 1955, but such an exercise has never been carried out by the respondent No.1- the Deputy Commissioner, Anini. (vi) That, Section 95(2) of the Act provides that ‘requiring body’ may appear and adduce evidence for the purpose of determination of compensation, but the appellant was not called upon to adduce such evidence. (viii) That, the land owner certificate produced by the respondent No. 2 is doubtful and that one Empi Meya was the writ petitioner of WPC No. 80(APP)/2017, who has withdrawn his claim on 18.10.2017, vide Annexure- 8, relinquishing it in favour of the respondent No. 2, but Section 100 of RFCT & LARR Act, 2013 provides that without permission from the Government, the change of ownership is not permissible and the land owner certificate dated 11.05.2020 and Page No.# 8/16 dated 22.06.2020 issued by the Deputy Commissioner, Anini and by the Gaon Burah is doubtful and the respondent No. 2 came in the picture on 18.05.2017, on the basis of Annexure -8 and no permission of transfer of ownership was granted by the appropriate Government and the leaned court below has not answered the issues, which were raised before the Deputy Commissioner by the appellant. Therefore, it is contended to set aside the impugned judgment and order.

10. I have heard Mr. M. Kato, learned counsel for the appellant and Mr. K. Ete, learned Senior Additional Advocate General, Arunachal Pradesh appearing for the respondent No. 1 and Mr. R. Saikia, leaned counsel for the respondent No.

11. Though number of grounds has been taken by the appellant’s side in the memo of appeal, yet, Mr. M. Kato, learned counsel for the appellant, has mainly hammered the impugned judgment and order basically on following two grounds: (a) That, the opportunity to adduce evidence was not given to the appellant and (b) That, the issues raised by the appellant before the respondent No.2, i.e. the Deputy Commissioner, have not been addressed by the learned court below.

12. Mr. Kato also pointed out that the learned counsel for the respondent No. 2 Page No.# 9/16 has invoked the urgency closed under Section 40(1) of RFCT & LARR Act and in fact there was no such issue and the land in question was in the possession of Assam Rifle since 1955 and the respondent No. 1 has issued the notification without consulting the ITBP and the appellant is ready to deposit the awarded amount of Rs. 1,21,380/- and that the respondent No. 2 has no document to establish his ownership except, however, some undated documents. Therefore, Mr. Kato contended to set aside the impugned judgment and order and to remand the matter back to the learned District Judge to determine the issue afresh.

13. On the other hand, Mr. K. Ete, learned Advocate General appearing on behalf of the respondent No. 1 submits that the reference made by the Deputy Commissioner Anini, Dibang Valley District is not in accordance with the law and it is irregular reference and that in deciding the appeal only the spirit of CPC is required to be followed and the object and reason behind the Act is also to be looked into and that Section 64 is not the proper Section to seek relief by the appellant and that the opportunity, whether given or not to the appellant, has to be looked into on the basis of material available on the record.

14. On the other hand, Mr. R. Saikia, learned counsel for the respondent No. 2 submits that the appeal is barred by the law of limitation and no application for condonation of delay has been filed along with the application and no decree has been annexed with the appeal memo, and that the decree has also not been challenged and the respondent No. 1 has made enquiry and passed award by invoking urgency clause and the reference under Section 64 of the Act is not maintainable as ITBP is not ‘interested person’, but a ‘requiring body’ only and that the impugned judgment and order suffers from no irregularity requiring any interference by this Court. Therefore, it is contended to dismiss the appeal. Page No.# 10/16

15. On the other hand, Mr. K. Kato, the learned counsel for the appellant, in his reply, submits that the rule stated by the learned counsel for the respondent No. 2 is not applicable and the appeal has been filed within the limitation of 60 days and without conclusive proof, the learned court below has determined the issued and the opportunity to adduce evidence has not been given to the appellant. Therefore, it is contended to set aside the impugned judgment and order and to remand the matter back to the leaned District Judge to decide the matter afresh.

16. Having heard the submission of learned advocates of both sides, the memo of appeal and the impugned judgment and order passed by the learned District Judge in Reference Case No.01/DV/2021 and also documents enclosed with the memo of appeal and the affidavit-in-opposition and the affidavit-in-reply.

17. It appears that land acquisition award for a plot of land measuring 2081.25 square meter in the village of Etalin in Dibang Valley district, for establishment of ITBP outpost, has been made by the Deputy Commissioner, Dibang Valley, Anini on 1st June, 2020 vide Memo No. DV/LM-184/2018-19, under Section 20 of the Act 30 of 2013 in Form-IX). In the said award the Deputy Commissioner, Dibang Valley, Anini has taken into account the value of the land, the value of the building standing thereupon, cuffs and space etc. etc. and thereafter quantified the same at Rs. 83,08,331/-(Rupees eighty three lacs eight thousand three hundred and thirty one) only.

18. It also appears that this Court, vide order dated 13.03.2017, in WP(C) Page No.# 11/16 80(AP)/2017, has directed that Deputy Commissioner, Dibang Valley, Anini to cause an enquiry and ascertain as to whether the land in question involved in the writ petition is a community land of the said writ petitioner or it is a government land. It is further directed that while causing the enquiry the Deputy Commissioner would consult the Land Revenue Record pertaining to the land from prior to 1955. But, from the materials available on record it cannot be said that while making the award dated 1st June, 2020 and determining the quantum of compensation at Rs. 83,08,331/- the Deputy Commissioner has complied with the order of this Court passed in the afore-mentioned writ petition. It is also to be mentioned here that in the afore-mentioned writ petition the compensation was claimed by one Shri Empi Meya, but, subsequently Shri Empi Meya has relinquished his claim in favour of the respondent no. 2 vide his letter dated 18.10.2017, Annexure-8, who is like a younger brother to him.

19. It also appears that respondent no. 2 has claimed himself as the owner of the land at Etalin and claimed the compensation on the basis of some undated certificates issued by the Gaonbura, and based upon which the Deputy Commissioner, Anini has issued land possession certificate in favour of the respondent no. 2. Section 100 of the RFCT and LARRA Act, 2013 provides that no change of ownership, without specific permission from the appropriate government shall be allowed. But, no such permission appears to be granted to the respondent no. 2 by the appropriate Government and this contention has not been disputed by either of the respondent nos. 1 and 2. It is also averted that the land in question in Etalin was in possession of the Assam Rifles since 1959 and the appellant has acquired the possession thereof in the year 2005. The respondent no. 2 came into picture only in the year 2017 and as such the question of construction of the two buildings, situated in the land of Etalin appears to be unbelievable and it is vehemently contended that the buildings Page No.# 12/16 were constructed by Assam Rifles which were later handed over to ITBP in

2005. The averment so made by the appellant is not disputed by the respondents and on the given facts and circumstances on the record, it is difficult to say that the said building was constructed by the respondent no.2.

20. It also appears that the learned Court below, while deciding the reference has framed two issues, namely:- (i) Whether the said buildings were constructed by the Assam Rifles from whom the applicant has acquired the land and the said building or not? (ii) Whether the rate/value of the properties are excessive in nature or not?

21. It is the contention of the appellant that while deciding the issues the learned Court below has not afforded an opportunity to adduce evidence. Section 95(2) of the Act of 2013 provides for ‘local authority’ or ‘requiring body’ concerned may appear and adduce evidence for the purpose of determining the amount of compensation in the proceeding before the Collector or ‘Authority’ concerned.

22. The learned District Judge, in the paragraph 8 of the judgment has dealt with the issue No.(i). Perusal of the same reveals that the appellant was given an opportunity to produce relevant documents to prove as to whether the said buildings were constructed by the Assam Rifles or not, but the appellant has failed to convince the Court that the said building on the said land at Etalin were constructed by Assam Rifles. It is further held that the appellant was present during the verification of the land and the properties attached with the said Page No.# 13/16 land, was in the name of respondent no. 2, and thereafter, the learned Court below presumed that the land and the building, as defined in Section 3 of the Act, belongs to the respondent no. 2, and thereby opined that it was constructed by respondent no. 2.

23. Our system of dispute resolution is adversarial in which the laws of procedure are grounded on the principle of natural justice, which requires that a party should not be condemned unheard, that decisions should not be reached behind their back, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. The adversarial process directs the court to give equal opportunity to both parties while conducting the proceedings. This is called, audi alteram partem (hear the other side) rule. It leads to ‘fair trial’ which the courts ought to follow. The human rights concept also strengthens it. There is no opposition in admitting the fact that the adversarial system gives a ‘fair trial’.

24. In the instant case, the way the learned Court below has dealt with the issue, appears to be far from satisfactory and it goes to show that opportunity to adduce evidence has not been given to the appellant as provided under section 95(2) of the Act, the factum of which categorically averred in the appeal petition and in the affidavit-in-reply. Mr. M. Kato, the learned counsel for the appellant has rightly pointed this out during his argument and the same is not seriously disputed by the respondent sides. In the given facts and circumstances this court left unconvinced that the learned court below has, while dealing with this issue, has complied with the rule, i.e. hear the other side. This lapse, on the part of the learned court below has caused prejudice to the appellant. Page No.# 14/16 25. It also appears that the learned court below has dealt with the issue No. (ii), in paragraph No. 13 of the judgment and arrived at a finding that the appellant has failed to produce any documents relating to the rate of properties so as to convince the court that respondent No.1 has not based his calculation of value of the properties as per the Govt. approved rate and therefore the learned court below has not admitted the claim of the appellant. But, it appears from the objection petition filed before the Deputy Commissioner on 26.08.2020 that the land at Etalin is a Township land in view of letter No.-DV/LM-40/07- 08/0119, dated 4/1/08, and as such acquisition is not required as it does not fall under the purview of RFCT LAAR Act. But, the land is shown to be as private land in the notification that has been issued by invoking the urgency clause under section 40(1) of the Act, absence of any such request on the part of the appellant notwithstanding. It also appears that earlier the appellant was asked by the Deputy Commissioner, to deposit the land tax against the said plot of land @ Rs. 10/ per square meter, and accordingly the higher authority of appellant has sanctioned a sum of Rs. 1,21,380/, vide letter No. II- 11014/08/2015 -PNR-119, dated 05.02.2016. But, all these facts and circumstances eschewed consideration of the learned court below in deciding the issue in question.

26. Further, it appears that the learned Court below has failed to address the other issues that have been raised by the appellant in its objection letter under Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013. It is to be mentioned here that in the petition under Section 64 of the said Act the appellant has raised following issues before the respondent No.1. :- (i) The rate of land is fixed at Govt. rate as provided. Page No.# 15/16 (ii) Cost of building, structures etc. be exempted being the property of Assam Rifles and now belongs to ITBP. (iii) Land required by the ITBP at Etalin should not be less 3 acre. (iv) Formal allotment of land may be accorded in favour of the ITBT. (v) National Security should be paramount consideration and land in question be stated as government land instead of community land and be allotted to ITBP.

27. It also appears that the learned District Judge has failed to frame appropriate issues for decision. The point of limitation was also raised before the respondent No.1, but no such issue has been framed and dealt with by the learned Court below. Order 14 Rule 1 of CPC provides for framing of issues. Issues are the back bone of a suit. Framing of issues, therefore, has a very important bearing on the trial and decision of a case. Firstly, it is the issues framed and not pleadings that guide the parties in the matter of leading of evidence. Secondly, the court cannot refuse to decide the points on which an issue has been framed and evidence lead by the parties, even if the point involved is not mentioned in the pleading. Thirdly, the court should not frame an issue which does not arise in the pleadings. Fourthly, the issue must be confined to the material questions of facts or law are proved or disproved. Fifthly, one issue cover only one fact or law in dispute between the parties. Finally, if the case goes in appeal, it must be dealt with by the appellate court on issues settled for trial. It is therefore, essential to the right decision of a case that appropriate issues should be framed.

28. I have considered the submissions of the learned counsel for the respondent No.1 and 2 and in view of the facts and circumstances on the record and discussed herein above, this court left unimpressed by the same. Page No.# 16/16

29. Under the above facts and circumstances, this Court is of the view that the learned Court below while dealing with the reference has failed to address the issues/grievances raised by the appellant in its petition under Section 64 of the Act and also it has failed to take into consideration whether the Collector has followed the parameters set out under Section 26 to 30 of the provision, under Chapter 5 of the Act or not. Therefore, the impugned judgment and order, to the considered opinion of this Court, suffers from manifest illegality and if allowed to stand it will perpetuate the injustice that has been caused to the appellant.

30. Accordingly, the impugned judgment and order, dated 07.05.2021, passed by the learned District Judge, Tezu stands set aside. The matter is remanded back to the learned District Judge, Tezu to frame appropriate issues, on the points that has been raised by the appellant in its petition under Section 64 of the said Act and then to decide the same a fresh after affording opportunity of being heard and to adduce evidence to the concerned parties.

31. In the result, the appeal is allowed to the extent indicated above. As the matter is concerned with National Security, the learned Court below shall proceed to hear the matter on urgent basis and dispose of the matter within a period of 3 (three) months from the date of receipt of this judgment and order and the case record from this Court. The parties have to bear their own cost. JUDGE Comparing Assistant