Brahmaputra Cracker And Polymer ... vs Barborooah Tea Estate And Anr
2021 Latest Caselaw 155 Gua

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GAHC010123342017




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : LA.App./1/2017

            BRAHMAPUTRA CRACKER AND POLYMER LIMITED
            LEPETKATTA, P.O. BARBARUAH, DIST. DIBRUGARH, ASSAM, PIN 786001,
            REPRESENTED BY ITS DEPUTY GENERAL MANAGER ASHIT DAS



            VERSUS

            BARBOROOAH TEA ESTATE and ANR
            REPRESENTED BY ITS SR. MANAGER SRI MANJIT BOROOAH, P.O.
            BARBOROOAH, DIST. DIBRUGARH, ASSAM, PIN 786001

            2:THE COLLECTOR

             DIBRUGARH AT DIBRUGARH
             PIN 78600

Advocate for the Petitioner   : MR.M NATH

Advocate for the Respondent :




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 20.01.2021

Heard Mr. M. Nath, learned counsel for the appellant. Also heard Ms. M. Bhattacharjee, learned additional senior Govt. Advocate appearing for the respondent no.2.

2. The appellant is aggrieved by communication No.DRA.34/2014/Pt/ dated 28.11.2016 issued by the Additional Deputy Commissioner, Dibrugarh to the Deputy General Page No.# 2/4

Manager of the appellant directing him to deposit a sum of Rs.12,95,63,000/- (Rupees twelve crores ninety five lakhs sixty three thousand only). The learned counsel for the appellant submits that as per the cause title of Misc.(LA) Case No.28/2009, certified copy of which is annexed as Annexure-1, the appellant is not shown to be arrayed as respondent and although in paragraph 5 of the said judgment and award, it has been mentioned that none appears for opposite party no.3, but the said order does not indicate if notice was duly served on the present appellant. It is submitted that only on receipt of the said communication dated 28.11.2016, the appellant became aware of the judgment and award impugned in the connected appeal. Upon such submission, the LCR has been perused. The application under section 18 of the Land Acquisition Act is available at page 21 to 24 of file-A of LCR, and the forwarding letter No. DRA.11/2007/133 dated 03.02.2009 upon which the reference case was registered is available at page 25 to 27 of file-A of the LCR. The reference petition does not indicate that he appellant was made a party in the said proceedings. Although there is an order dated 19.09.2009 on petition no.1359/2009 to issue notice to the appellant. On perusal of provisions of section 20 of the Land Acquisition Act, 1894, it appears that the Court is required to cause a notice to be served on the following persons- (a) the applicant, (b) all persons interested in the objection, except such (if any) or them as have consented without protest to receive payment of the compensation awarded; and (c) in the objection is in regard to the areas of the land or to the amount of compensation, the Collector. Therefore, even if the notice if found to be served under section 20 of the Land Acquisition Act, the said notice by itself would not result in impleading of the appellant herein as a party respondent in the proceedings of Misc.(LA) Case No.28/2009.

3. In connection with above, the learned counsel for the appellant has produced a certified copy of the letter No.MI.119/2003/48 dated 16.01.2006 by the Additional Chief Secretary to the Govt. of Assam, Industries and Commerce Department wherein in paragraph 3, it has been mentioned that the Govt. of Assam has also approved to contribute the land as its equity contribution for the Assam Gas Cracker Project. The learned counsel for the appellant has also produced a photocopy of the joint venture agreement between GAIL India Ltd., Numuligarh Refinery Ltd. and Govt. of Assam for setting up of Assam Gas Cracker Project at Lepetkata in the district of Dibrugarh, Assam and clause 4.4(e) of the same contains that the Govt. of Assam shall contribute to the joint venture, amongs others, land for Page No.# 3/4

the project, joint venture consortium as part of equity from the Govt. of Assam. Therefore, the learned counsel for the appellant has prima facie been able to satisfy the Court on the point that the enhanced land acquisition award as awarded in Misc.(LA) Case No.28/2009 is to be satisfied by the Collector of Dibrugarh District. Therefore, as the appellant is not required to pay any land acquisition compensation, the appellant is not deemed to be a person interested in objection as envisaged under section 20 of the Land Acquisition Act, 1894.

4. Therefore, having found that the appellant herein was not arrayed as a party respondent in the proceedings of Misc.(LA) Case No.28/2009, the Court would like to refer to the case of NTPC Ltd. vs. State of Bihar, (2004) 12 SCC 96, wherein the Supreme Court of India has held that a body on whose behalf land is acquired is a necessary and proper party and required to be impleaded in reference case. Similar view was expressed by the Supreme Court of India in the case of NTPC Ltd. vs. Surendra Prasad Jha & Ors., (2005) 12 SCC 190 .

5. Having regard to the joint venture agreement dated 18.10.2006, as produced by the learned counsel for the appellant and on consideration of the finding recorded hereinbefore to the effect that notice issued on the appellant under section 20 of the Land Acquisition Act, 1894 does not make the appellant herein as a party in the proceedings of Misc.(LA) Case No.28/2009, this Court would be inclined to hold that this appeal itself would not be maintainable for not making party in the proceedings of Misc.(LA) Case No.28/2009.

6. Therefore, it would be open to the appellant to take a call whether to apply for leave to maintain this appeal or to assail the communication No.DRA.34/2014/Pt dated 28.11.2016 in an appropriate proceedings or to represent before the Deputy Commissioner, Dibrugarh for exonerating it from satisfying the award passed in Misc.(LA) Case No.28/2009.

7. At this juncture, the learned counsel for the appellant has produced a copy of order dated 31.01.2018 passed by a Coordinate Bench of this Court in L.A. Appeal No.12/2017. The operative part of the said order is quoted hereinbelow:

"Mr Choudhury, fairly submits that as the land was acquired by the State of Assam and there is a formal award in the form of decree passed by the learned District Judge, Dibrugarh a duty is cast upon the State to satisfy the said awarded amount. Admittedly Page No.# 4/4

the appellant is beneficiary company for whom the State of Assam has acquired the land for the project to be undertaken by the appellant.

Mr. Choudhury submits that while preferring the Execution Proceeding by the respondent Nos. 1 & 2 the appellant was not made a party but on receipt of the notice from the Court, the Collector, Dibrugarh informed the appellant for satisfaction of the decretal amount.

Mr. Medhi learned Addl. Advocate General fairly submits that as per the prevailing law it is the State of Assam to satisfy the decretal amount through the Collector, Dibrugarh. Considering the fair submission of the learned Addl. Advocate General, Mr. Dey learned Senior Counsel for the appellant accepted the view of the learned Addl. Advocate General and fairly submits that considering the said submission he has no further cause of action to prefer or to continue this appeal.

Accordingly considering the submission of learned counsel this appeal is disposed of as per the observation made hereinabove."

8. In view of the said observation, this appeal stands disposed of in terms of observations made hereinbefore.

9. A copy of the letter dated 16.01.2006 along with letter dated 19.09.2017, copy of joint venture agreement dated 18.10.2006 and copy of order dated 31.01.2018 passed by this Court in L.A. Appeal No.12/2017 are retained on record.

10. Let the LCR be returned.

JUDGE

Comparing Assistant