THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND
ARUNACHAL PRADESH)
Writ Petition (C) No. 946 OF 2009
1. SRI PRAMOD KUMAR KEDIA,
S/O. LATE BISWANATH KEDIA.
2. SRI SMTI. NIMAWATI KEDIA,
S/O. LATE BISWANATH KEDIA.
3. SRI SANTOSH KUMAR JALAN,
S/O. LATE MOHANLAL JALAN.
ALL ARE RESIDENTS OF RAHA
C/O. M/S. MAA KALI RICE MILL
P.O. RAHA DIST : NAGAON, ASSAM.
4. M/S. MAA KALI RICE MILL,
RAHA, DISTRICT NAGAON, ASSAM.
A PARTNERSHIP FIRM, REPRESENTED BY ITS
PARTNER SRI SANTOSH KUMAR JALAN, HAVING
ITS OFFICE AT RAHA, DIST : NAGAON, ASSAM.
………… Petitioners
-Versus1. UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF ROAD TRANSPORT ETC.,
NEW DELHI.
2. THE NATIONAL HIGHWAY AUTHORITY OF INDIA,
NEW DELHI THROUGH ITS PROJECT DIRECTOR, AMALAPATTY,
NAGAON, ASSAM.
3. THE PROJECT DIRECTOR,
THE NATIONAL HIGHWAY AUTHORITY OF INDIA,
AMALAPATTY, NAGAON, ASSAM.
4. THE STATE OF ASSAM,
REPRESENTED BY THE DEPUTY COMMISSIONER,
NAGAON, ASSAM.
5. THE SUB-DIVISIONAL OFFICER CUM COMPETENT AUTHORITY,
LAND ACQUISITION OFFICE OF THE DEPUTY COMMISSIONER,
NAGAON, ASSAM.
6. SRI PRAMOD CHANDRA KUNDU,
S/O. LATE JOGESWAR KUNDU,
MORIGAON, DIST – MORIGAON, ASSAM.
….…… Respondents
Writ Petition (C) No. 260 OF 2007
1. SRI PRAMOD KUMAR KEDIA,
S/O. LATE BISWANATH KEDIA.
2. SMTI. NIMAWATI KEDIA,
S/O. LATE BISWANATH KEDIA.
3. SRI SANTOSH KUMAR JALAN,
S/O. LATE MOHANLAL JALAN.
ALL ARE RESIDENTS OF RAHA
C/O. M/S. MAA KALI RICE MILL
P.O. RAHA DIST : NAGAON, ASSAM.
4. M/S. MAA KALI RICE MILL,
RAHA, DISTRICT NAGAON, ASSAM.
A PARTNERSHIP FIRM, REPRESENTED BY ITS
PARTNER SRI SANTOSH KUMAR JALAN, HAVING
ITS OFFICE AT RAHA, DIST : NAGAON, ASSAM.
………… Petitioners
-Versus1. UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF ROAD TRANSPORT ETC.,
NEW DELHI.
2. THE NATIONAL HIGHWAY AUTHORITY OF INDIA,
NEW DELHI THROUGH ITS PROJECT DIRECTOR, AMALAPATTY,
NAGAON, ASSAM.
3. THE PROJECT DIRECTOR,
THE NATIONAL HIGHWAY AUTHORITY OF INDIA,
AMALAPATTY, NAGAON, ASSAM.
4. THE STATE OF ASSAM,
REPRESENTED BY THE DEPUTY COMMISSIONER,
NAGAON, ASSAM.
5. THE SUB-DIVISIONAL OFFICER CUM COMPETENT AUTHORITY,
LAND ACQUISITION OFFICE OF THE DEPUTY COMMISSIONER,
NAGAON, ASSAM.
(a) SMTI. JAMUNA RANI KUNDU
(WIFE)
(b) SRI MRIDULA KUNDU
(SON)
(c) SRI RAJKUMAR KUNDU
(SON)
(d) SRI GANESH KUNDU
(SON)
(e) SRI PUTUL KUNDU
(DAUGHTER)
(f) SRI KARUNA KUNDU
(DAUGHTER)
(g) SMTI. ANIMA KUNDU
(DAUGHTER)
(h) SMTI. ANITA KUNDU
(DAUGHTER)
ALL ARE RESIDENTS OF C/O. JIWAN KUNDU, P.O. MORIGAON(ASSAM)
7. SRI PRAMOD CHANDRA KUNDU.
8.(a) SMTI. KHUKHU KUNDU
WPC No. 946 Of 2009
(WIFE)
Page 2 of 14
(b) SMTI. MILI KUNDU
(DAUGHTER)
(c)SMTI. MINAKHI PAUL
(DAUGHTER)
(d) SMTI. MITHU PAUL
(DAUGHTER)
NO. (a) TO (c) ARE RESIDENTS OF C/O. SAILENDRA KUNDU, MORIGAON, DIST :
MORIGAON, ASSAM. (d) RESIDENT OF GAROWAN PATTI, P.O. TEZPUR, DIST :
SONITPUR (ASSAM).
….…… Respondents
BEFORE
THE HON’BLE MR. JUSTICE UJJAL BHUYAN
For the Petitioner
:
Mr. RL Yadav, Advocate.
Mrs. K Yadav, Advocate.
Ms. A Barua, Advocate.
Mr. A. Kabra, Advocate.
For the Respondents
:
Mr. C Baruah, Advocate.
Mr. Nur Mohammad, Advocate.
Mr. Z Mukit, Advocate.
Date of Hearing
:
03.12.2013.
Date of Judgment
:
16.12.2013.
Judgment & Order (Oral)
Since the subject matter of both the writ petitions is interrelated, those were heard together and are being disposed of by this
common judgment and order.
02.
For the sake of convenience, facts of WP(C) No.946/2009
are briefly narrated hereunder.
03.
Petitioner Nos. 1, 2 & 3 are the partners of petitioner No.4,
which is a partnership firm carrying on the business of rice mill under
the name and style of Maa Kali Rice Mill at Raha in the district of
Nagaon. According to the petitioners, in the year 1954, father of
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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 meanwhile, predecessor-in-interest of petitioner Nos. 1 &
2 made constructions over the land on which the godown and the rice
mill stood. The said constructions were 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 Mouza in the district of Nagaon.
05.
The construction carried out by the predecessor-in-interest
of petitioner Nos. 1 & 2 included one RCC building, which presently
houses the Punjab 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, Nagaon for declaration of right, title
and interest over the suit land and for confirmation of their
possession. The said suit was registered as TS No. 42/2004. In the
connected injunction petition filed by the petitioners, learned Civil
Judge passed an order directing maintenance of status quo in respect
of the suit land and building.
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06.
In the meanwhile, notification was issued by the Sub-
Divisional Officer(S)-cum-Competent Authority, Nagaon on 04.06.2005
stating that the Central Government had declared that the land
specified in the schedule annexed thereto would be acquired for the
purpose of building, maintenance, management and operation of
National Highway 37. The above land in question was included in the
said notification. Petitioners lodged claim before the competent
authority claiming compensation. When there was no response to the
claim of the petitioners, pleader’s notice was issued to the
respondents. On the other hand, on inquiry, petitioners 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 the entire amount would be released in favour of respondent
No.6, petitioners filed 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 order dated
19.02.2007 issued notice and directed that 50% of the compensation
amount only should be released to the respondent No. 6 and his other
relations.
07.
National Highway Authority started demolishing houses
and clearing the acquired lands, which are situated nearby by the land
in question. Apprehending that the godown, rice mill, RCC building and
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other structures built by the petitioners over the land in question
would be demolished without payment of compensation, the present
writ petition has been filed. Prayer made in the present writ petition is
for a direction to the State respondents restraining them from
demolishing structures of the petitioners standing on the acquired land
without payment of due compensation and without prior notice.
08.
This Court vide order dated 25.03.2009, while issuing
notice, directed that the RCC building and the structures of the
petitioners standing on the land in question should not be demolished.
09.
Respondent Nos. 1, 2 & 3 (National Highway Authority of
India) have 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 relations 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
compensation. It is further stated that following publication of
notification under section 3-D of the National Highways Act, 1956,
since the acquired land vested with the Central Government, the
district administration had carried out demolition drive over the
acquired land to hand over the land to the National High Authority of
India free from all encumbrances for completion of the project relating
to 4 laning of National Highway 37. It is further stated that
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assessment of compensation 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, learned Govt. Advocate, Assam and Mr. Z Mukit,
learned counsel for the private respondents.
11.
Mr. Yadav, learned counsel for the petitioners has referred
to various provisions of the National Highways Act, 1956 (Act), more
particularly provisions from sections 3-A to 3-H, to contend that
petitioners are persons interested in the land and, therefore, they
would also be entitled to compensation under the provisions of the Act
along with the owner i.e., respondent No. 6. The competent authority
has to first make a proper determination of the quantum of
compensation, then apportionment between the two claimants and
without paying compensation, no demolition or eviction drive can be
carried out as per provisions of the Act. He submits that petitioners
have no grievance as to acquisition of the land and their only claim is
that they should be suitably compensated for demolition 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
the Central Government. Learned counsel submits that duty is cast
upon the competent authority, which, in the present case, is the SubDivisional Officer(S) to determine the quantum of compensation of the
WPC No. 946 Of 2009
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rival claimants and if the parties are aggrieved by such determination,
the parties can taken recourse to the provisions as provided under the
Act for enhancement of compensation.
12.
Mr. C Baruah, learned Central Government Counsel
appearing for the National Highway Authority of India submits that
because of the pendency of the 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 immediate resolution of
the dispute in the larger public interest as completion of the project is
being held up because of the stay order.
13.
Mr. Z Mukit, learned counsel appearing for the private
respondents 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 building and
other structures on the land. He submits that TS No. 42/2004
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instituted by the petitioners seeking declaration of right, title and
interest over the suit land has been dismissed by the civil court.
14.
Replying to the above, Mr. Yadav, learned counsel for the
petitioners submits that petitioners have filed appeal against dismissal
of their civil 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 petitioners for compensation as persons interested.
15.
Submissions made have been considered.
16.
Before proceeding further, the relevant provisions of the
Act may be briefly referred to.
17.
The Act has been enacted by the Indian Parliament to
provide for declaration of certain highways to be National Highways
and for matters connected therewith. Section 3(a) defines ‘competent
authority’ to mean any person or authority authorized by the Central
Government, by notification in the Official Gazette, 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 Officer(S),
Nagaon is the competent authority in so far the land in question is
concerned. ‘Land’ is defined in section 3(b) to include benefits arising
out of land and things attached to the earth or permanently fastened
to anything attached to the earth. Thus, building or any structure
attached or fastened to anything attached to the earth would also
WPC No. 946 Of 2009
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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 purpose of
building, maintenance, management or operation of national highway
or part thereof and for determination of compensation for such
acquisition of land and issues connected therewith or related thereto.
It is also provided that provisions of the Land Acquisition Act, 1894,
would not apply to an acquisition under this Act.
18.
While section 3-A empowers the Central Government to
acquire land 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 provides for declaration of
acquisition. Once such a declaration is made after taking a decision on
the objections filed, the land shall vest absolutely in the Central
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 once any land is vested in the Central Government
and the amount determined by the 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 in
possession of such land to surrender or deliver possession thereof to
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the competent authority within 60 days from service of notice. Thus,
section 3-E mandates the following things: i) the land is vested in the Central Government following
issuance of declaration under section 3-D, ii) the amount
determined by the Central Government is deposited with
the competent authority, iii) the competent authority has
to issue notice to the owner or any other person in
possession of such land to handover possession thereof to
the competent authority within 60 days.
As such, without such a notice, the owner or
possessor of land acquired cannot be dispossessed of the
land.
19.
Section 3-G deals with determination of the amount
payable as compensation. Such determination shall be made by the
competent authority. As per sub-section (2), a person having even
easementory right would be entitled to compensation. 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
either of the parties, the amount shall, on an application by either of
the parties, be determined by the Arbitrator to be appointed by the
Central Government and in such arbitration, the provisions of the
Arbitration and Conciliation Act, 1996 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 taking possession of the land. As soon as such
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amount is deposited, the competent authority shall, on behalf of
Central Government, pay the amount to the person or persons entitled
thereto. In case, there are several persons claiming to be interested in
the amount deposited, the competent authority shall determine the
persons 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 referred to the principal civil court of the
concerned district i.e., within the limits of whose jurisdiction the land
is situated by the competent authority.
21.
Having noticed the broad contours of the Act as above, let
us now 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 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
rejection of the claim of the petitioner for title of the suit land, claim of
the petitioners 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
WPC No. 946 Of 2009
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same
between
rival
claimants.
The
competent
authority
i.e.,
respondent No. 5 is thus duty bound to take a decision in this regard.
He cannot shirk his responsibility or shy away from taking a decision
on the plea that 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 necessary application under subsection(5) of section 3-G of the Act for determination 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
dispute may be referred to the principal civil court of the district for
resolution. It is also clear from a reading of the relevant provisions of
the Act that without notice in writing to the owner as well as to any
other person in possession of the land, they cannot be dispossessed.
23.
Thus in view of the discussions made above, respondent
No. 5 i.e., the competent authority is directed to determine the
compensation amount due to be paid for acquisition of the land in
question and thereafter the apportionment of the same between the
petitioners and respondent No. 6 and his other relatives 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
the parties, notice to deliver possession of the land under section 3-E
shall be issued and possession taken over accordingly. If either of the
parties
are
aggrieved
WPC No. 946 Of 2009
by
the
quantum
of
compensation
Page 13 of 14
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 sub-section
(4) of section 3-H of the Act. This disposes of the writ petitions. No
costs.
Judge
Beep
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