Gauhati High Court
Page No.# 1/8 vs Sri Cholingso Kora And 4 Ors on 4 January, 2022
Page No.# 1/8
GAHC010318592019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/15/2021
UNION OF INDIA AND 4 ORS
(THE SECRETARY, MINISTRY OF DEFENSE, GOVT. OF INDIA, SOUTH
BLOCK, CENTRAL SECRETARIAT, NEW DELHI-110011)
2: THE SECRETARY
MINISTRY OF DEFENSE
GOVT. OF INDIA
SOUTH BLOCK
CENTRAL SECRETARIAL
NEW DELHI- 110011.
3: THE DIRECTORATE GENERAL DEFENSE ESTATES
MINISTRY OF DEFENSE
GOVT. OF INDIA
SOUTH BLOCK
CENTRAL SECRETARIAT
NEW DELHI- 110011.
4: THE DEFENSE ESTATE OFFICER
(DEO)
JORHAT CIRCLE
NOWCHAILIAH GAO
JORHAT
ASSAM- 785006.
5: THE COMMANDANT
82- MOUNTAIN BRIGADE
LOHITPUR
TEZU
LOHIT DISTRICT
ARUNACHAL PRADESH
VERSUS
SRI CHOLINGSO KORA AND 4 ORS
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S/O- LATE TORELUM KORA, R/O- VILL.- KHORALIANG, P.O. AND P.S.
TEZU, LOHIT DISTRICT, ARUNACHAL PRADESH.
2:THE SECRETARY (LAND MANAGEMENT)
GOVT. OF ARUNACHAL PRADESH
CIVIL SECRETARY
ITANAGAR
ARUNACHAL PRADESH.
3:THE DIRECTOR
LAND MANAGEMENT
GOVT. OF ARUNACHAL PRADESH
ITANAGAR.
4:THE ADDITIONAL DEPUTY COMMISSIONER
HAYULIANG
ANJAW
GOVT. OF ARUNACHAL PRADESH.
5:THE DISTRICT LAND REVENUE AND SETTLEMENT OFFICER
ANJAW
DISTRICT
ARUNACHAL PRADESH
Advocate for the Petitioner : ASSTT.S.G.I.
Advocate for the Respondent : GA, ARUNACHAL
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
For the Appellants : Mr. B. Chakravarty, Central
Government Advocate.
For the Respondents : Mr. D. Mozumder, Sr. Adv.
: Mr. S. Rabha, Adv.
(Respondent No. 1)
: Mr. B. D. Goswami, Addl. AG,
Arunachal Pradesh
: Mr. A. Chandran, Addl. Sr. Adv.
Respondent Nos. 2 to 5.
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Date of Hearing : 09.12.2021
Date of Judgment : 04.01.2022
JUDGMENT & ORDER (CAV)
(Soumitra Saikia, J)
Heard Mr. B. Chakravarty, learned Central Government counsel for
the appellants. Also heard Mr. D. Mozumder, learned senior counsel
assisted by Mr. S. Rabha, learned counsel for the respondent No. 1 as
well as Mr. B. D. Goswami, learned Additional Advocate General,
Arunachal Pradesh assisted by Mr. A. Chandran, learned Additional
senior Government Advocate appearing for the State of Arunachal
Pradesh, respondents No. 2 to 5.
2. This writ appeal is preferred by the Union of India being aggrieved
by the order dated 26.09.2019 passed in WP(C) No. 480(AP)/2018 by
the learned Single Judge.
3. The appellant i.e. the Army Authority at a relevant point in time
had sought for acquisition of land belonging to some of the residents in
the Village of Khoraliang, P.O & P.S.- Tezu, Lohit district in the State of
Arunachal Pradesh. Portions of the land, which were sought to be
acquired were already under the Army Authorities under lease. The
Defence Estate Officer, (DEO) Jorhat in furtherance of requirement of
land for establishing Army bases in Arunachal Pradesh approached the
State authorities seeking details of available, empty and unused land
along the border areas. A thorough survey was conducted by the State
Authorities and detailed report to that effect was given to the DEO.
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Pursuant to the report being received, it is the case of the appellant that
the Defence Estate Officer cautioned the State Authorities not to
proceed for acquisition of land unless the proposal is sanctioned by the
appropriate authority in the Ministry of Defence, Government of India.
However, according to the appellant, despite the requests made by the
DEO to the State Authorities not to proceed with the acquisition of land,
the State Authorities went ahead with the acquisition proceedings and
suo motu issued notifications under Section 40(1) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013. The land was accordingly acquired by the State
Authorities and all persons were asked to stop their activities on the said
land. Since, the Ministry of Defence, Government of India did not
approve the proposal for acquisition of land, no compensation was
sanctioned and/or deposited by the Defence Authorities. The land
owners who claimed to be affected by the acquisition process filed a
writ petition before this Court through their power of attorney holder.
The said writ petition was numbered as WP(C) No. 480(AP)/2018.
During the course of hearing, the learned Single Judge examined the
records and upon being satisfied, disposed of the writ petition without
entering into merits of the disputes. The respondent Nos. 1 to 5 in the
writ petition, namely, the appellants herein were directed to deposit the
payable amount before the Additional District Judge though whom the
acquisition proceedings were conducted. The assessed amount was
directed to be deposited within 3(three) weeks from the date of
impugned order and whereafter the distribution will be done by the
authority strictly in accordance with law and proper identification.
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4. The appellants before this Court assail the order of the learned
Single Judge on the ground that as per the provisions of the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act 2013, acquisition proceedings in cases of urgency
under Section 40 of the Act is to be initiated by the appropriate
Government. The appropriate Government as defined under Section
3(e)(v) of the Act in relation to acquisition of land for the purpose of the
Union will be the Central Government.
5. The learned counsel for the appellant submits that since no
proposal was issued by "Appropriate Government" i.e. Central
Government, there can be no acquisition proceedings under Section 40
of the Act and, therefore, the direction of the learned Single Judge to
the Army Authorities as respondents No. 1, 2, 3, 4 & 5 to deposit the
amount payable, before the Additional Deputy Commissioner through
whom the acquisition proceedings were stated to have been conducted,
is a finding not based on records and, therefore, the same needs to be
interfered with and set aside.
6. Mr. D. Mozumder, learned senior counsel assisted by Mr. S.
Rabha, learned counsel for the respondent No. 1 (power of attorney
holder of the land owners) vehemently opposed the contentions of the
learned counsel for the appellants and submits by referring to pleadings
that there were several correspondences between the Army Authorities
and the Government of Arunachal Pradesh regarding the said acquisition
proceedings and, therefore, it is too late in a day to contend that there
was no sanction from the Central Government received for the
acquisition proceedings. The learned counsel for the land holders
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submits that the learned Single Judge had duly examined the records
and thereupon had passed the order which is impugned in the present
appeal, and therefore, the same needs no interference at all.
7. Mr. B. D. Goswami, learned Additional Advocate General,
Arunachal Pradesh assisted by Mr. A. Chandran, learned Additional
senior Government Advocate for the respondent Nos. 2 to 5 submits
that insofar as the State Government is concerned, notification was
indeed issued for acquisition of land and which could not have been
issued unilaterally unless the Army Authorities have sought for such
acquisition. He refers to the Notification under Section 40 of the Act of
2013 which is enclosed as Annexure- B to the affidavit-in-opposition
filed by the State of Arunachal Pradesh.
8. We have heard the learned counsel for the parties and we have
also perused the pleadings on record. We have also carefully perused
the provisions of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013. Under
Section 3(e)(v), insofar where the Central Government is concerned
"appropriate Government" would mean the Central Government. Section
11 of the Act prescribes for publication of preliminary notification. There
is no dispute at the Bar that the acquisition proceedings were initiated
under Section 40 of the Act which empowers the "Appropriate
Government" to acquire land in cases of urgency. Although, it has been
submitted that the Notification under Section 40 of the Act of 2013 was
issued by the Secretary (Land Management), Government of Arunachal
Pradesh, however, the State counsels have not been able to furnish
from the record any such requisition received from the Central
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Government under Section 40 for urgent acquisition of land. The 2013
Act is a complete code in itself. There are provisions for return of
unutilized land pursuant to proceedings as well as provisions for
references to be made by the Collector to the Authority "established"
under Section 51 of the Act. Against an award determined by the
Authority under Section 69, an appeal lies to the High Court under
Section 74 of the Act.
9. Since, there are several disputed questions of facts which arise as
regards the acquisition proceedings and the compensation required to
be deposited by the acquiring authority as well as with regard to the
compensation amount thereafter required to be released to the affected
land owners, ordinarily a Writ Court would not entertain any such
proceedings involving disputed questions of fact, especially, in view of
statutory remedies being available to such aggrieved parties under the
Act of 2013. However, upon perusal of the impugned order passed by
the learned Single Judge, we find that the learned Single Judge had
perused the records of the case and had thereupon being satisfied, had
disposed of the writ petition directing the assessed amount to be
deposited within a period of 3(three) months from the date of the order.
Although records of the case were duly perused, the learned Single
Judge however declined to enter into the merits of the disputes and
thereupon disposed of the writ petition with a direction to deposit the
compensation amount within the period specified.
10. Although in the impugned order, it is reflected that the records
have been duly perused by the learned Single Judge, however, no
reference in respect of any sanction for acquisition proceeding issued by
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the Ministry of Defence/Central Government as may be available in the
records, has been referred to by the learned Single Judge. Under such
circumstances, since the learned Single Judge after perusal of the
records of the case had passed the impugned order and had issued
such directions to the respondent Nos. 1 to 5, namely, the appellants
herein, we deem it appropriate to remand the matter back to the
learned Single Judge for a fresh decision on the disputes between the
parties. The question of whether a power of attorney holder can
maintain a writ petition on behalf of the actual land owners may also be
an issue that the learned Single Judge may decide to deal with while re-
hearing the matter.
11. In view of the above, we hereby set aside the impugned order
dated 26.09.2019 and remand the matter to the learned Single Judge
for a fresh decision in respect of the disputes between the parties.
12. The Writ Appeal is accordingly disposed of in terms of above.
JUDGE CHIEF JUSTICE
Comparing Assistant
