Page No.# 1/12 vs The State Of Assam And 6 Ors
2022 Latest Caselaw 91 Gua

                                                                 Page No.# 1/12

GAHC010274072019




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

                        Case No. : WP(C)/8329/2019

         QUAZI ATIQUR RAHMAN AND 4 ORS.
         S/O- LT. QUAZI MUJAFFAR ALI, VILL.- MALUGRAM, P.O. KANDIBAZAR,
         P.S. PATHARKANDI, DIST- KARIMGANJ (ASSAM).

         2: AYUB ALI
          S/O- LT. ABDUR RAHMAN
         VILL. HATKHALA
          P.O. KANDIBAZAR
          P.S. PATHARKANDI
          DIST- KARIMGANJ (ASSAM).

         3: NIMAR ALI
          S/O- LT. NASIR ALI
         VILL.- HATHKHALA
          P.O. KANDIBAZAR
          P.S. PATHARKANDI
          DIST- KARIMGANJ (ASSAM).

         4: SHOHEED UDDIN AHMED
          S/O- LT. HAJI NAJIB ALI
         VILL. KUNAPARA
          PS- KARIMGANJ
          DIST- KARIMGANJ (ASSAM).

         5: BADRUN NESSA
         W/O LT. ABDUL SUKKUR
         VILL. MULLAGRAM (HATKHOLA)
          P.O. KANAIBAZAR
          DIST- KARIMGANJ (ASSAM)

         VERSUS

         THE STATE OF ASSAM AND 6 ORS.
         REP. BY ITS COMM. AND SECY. TO THE GOVT. OF ASSAM, LAND AND
                                                          Page No.# 2/12

            REVENUE DEPTT., DISPUR, GHY.-06.

            2:THE DY. COMMISSIONER
             KARIMGANJ
             PIN- 788710

            3:THE CIRCLE OFFICER
             PATHARKANDI REVENUE CIRCLE
             P.O. PATHARKANDI
             DIST- KARIMGANJ (ASSAM)
             PIN- 788724.

            4:THE ASSTT. SETTLEMENT OFFICER
             PATHARKANDI REVENUE CIRCLE
             P.O. PATHARKANDI
             DIST- KARIMGANJ (ASSAM)
             PIN- 788724.

            5:THE UNION OF INDIA
             REP. BY ITS SECY
             MINISTRY OF DEFENCE (BORDER ROADS)
             4TH FLOOR
             B-WING
             SENA BHAWAN
             NEW DELHI- 110001.

            6:THE DIRECTOR GENERAL BORDER ROADS
             SEEMA SADAK BHAWAN
             RING ROAD
             DELHI CANTT.
             NEW DELHI
             110011.

            7:ADDITIONAL DIRECTOR GENERAL BORDER ROADS
             (EAST) LANKESWAR
             KAMRUP
             PIN- 930885
             C/O 99 A.P.O

Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : ASSTT.S.G.I.
                                                     Page No.# 3/12

Linked Case : WP(C)/4050/2018

ABU SUFIAN AND ANR.
S/O- LT CHERAG ALI
VILL- HAITORKA
PO AND PS PATHARKANDI
DIST- KARIMGANJ (ASSAM)

2: MISBAH UDDIN
S/O- LT KUTUB UDDIN
VILL- UJAN DHOLCHERA
 PO ASHOLKANDI
 PS PATHARKANDI
 DIST- KARIMGANJ (ASSAM)
VERSUS

THE STATE OF ASSAM AND 5 ORS.
REP. BY ITS COMM. AND SECY. TO THE GOVT. OF ASSAM
LAND AND REVENUE DEPTT.
DISPUR
GHY-6

2:THE DY. COMMISSIONER
KARIMGANJ
 PO AND DIST- KARIMGANJ (ASSAM)
 PIN-788710
 3:THE CIRCLE OFFICER
PATHARKANDI REVENUE CIRCLE
 PO PATHARKANDI
 DIST- KARIMGANJ (ASSAM)
 PIN-788724
 4:THE UNION OF INDIA
REP. BY THE SECY.
 MINISTRY OF DEFENCE
 (BORDER ROADS)
 4TH FLOOR
 B-WING
 SENA BHAWAN
 NEW DELHI- 110011
 5:THE DIRECTOR GENERAL BORDER ROADS
SEEMA SADAK BHAWAN
 RING ROAD
 DELHI CANTT
 NEW DELHI- 110011
 6:ADDL. DIRECTOR GENERAL BORDER ROADS
(EAST) LANKESWAR
 KAMRUP
 PIN-930885
                                                     Page No.# 4/12

C/O 99 APO
------------

Advocate for : MS. R CHOUDHURY Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 5 ORS.

Linked Case : WP(C)/8517/2019

ASAB UDDIN TAPADAR AND 4 ORS.

S/O. LT. ANSAR ALI TAPADAR VILL. TAPADARPARA P.O. PATARKANDI DIST. KARIMGANJ ASSAM.

2: FAIAZ ALI S/O. LT. ARJID ALI VILL. HATHALA P.O. KANAIBAZAR P.S. PATARKANDI DIST. KARIMGANJ ASSAM.

3: ABDUL HALIM S/O. LT. MAHMOD ALI VILL. SAJJA NAGAR P.O. KANAIBAZAR P.S. PATARKANDI DIST. KARIMGANJ ASSAM.

4: ROSMAN ALI S/O. LT. KUNU MIA VILL. HATKHALA P.O. KANAIBAZAR P.S. PATARKANDI DIST. KARIMGANJ ASSAM.

5: ABDUS SATTAR S/O. LT. WAJID ALI VILL. MULLAGRAM P.S. KANAIBAZAR DIST. KARIMGANJ ASSAM.

VERSUS Page No.# 5/12

THE STATE OF ASSAM AND 6 ORS.

REP. BY ITS COMM. AND SECY. TO THE GOVT. OF ASSAM LAND AND REVENUE DEPTT.

DISPUR GUWAHATI-06.

2:THE DY. COMMISSIONER

KARIMGANJ PIN-788710.

3:THE CIRCLE OFFICER

PATHARKANDI REVENUE CIRCLE P.O. PATHARKANDI DIST. KARIMGANJ ASSAM PIN-788724.

4:THE ASSTT. SETTLEMENT OFFICER

PATHARKANDI REVENUE CIRCLE P.O. PATHARKHANDI DIST. KARIMGANJ ASSAM PIN-788724.

5:THE UNION OF INDIA REP. BY THE SECRETARY MINISTRY OF DEFENCE (BORDER ROADS) 4TH FLOOR B-WING SENA BHAWAN NEW DELHI-110011.

6:THE DIRECTOR GENERAL BORDER ROADS

SEEMA SADAK BHAWAN RING ROAD DELHI CANTT.

NEW DELHI 110011.

7:ADDL. DIRECTOR GENERAL BORDER ROADS

(EAST) LANKESWAR KAMRUP PIN-930885 C/O. 99 APO.

------------

Advocate for : MR H R A CHOUDHURY Advocate for : GA Page No.# 6/12

ASSAM appearing for THE STATE OF ASSAM AND 6 ORS.

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER(CAV) Date : 10-01-2022

Heard Ms. R. Choudhury, the learned counsel appearing for the petitioners. I have also heard Mr. P.S. Deka, the learned Addl. Sr. Government Advocate, Assam and its functionaries and Ms. A. Gayan, the learned CGC appearing for the Union of India and its functionaries.

2. All the three writ petitions being connected are taken up for disposal as they involve common question of facts and law. The issue involved in all the three writ petitions is whether after the acquisition proceedings under the provisions of the Land Acquisition Act, 1894(in short, the Act of 1894) having been completed pursuant to passing of the Award and the rights in respect to the land vesting upon the Government, the said land could be returned back to the petitioners from whom the land was acquired.

3. The brief facts of the three cases are that the petitioners are the owners of various plots of land as specifically mentioned in the respective writ petitions. On 14/1/2000, the Officer Commanding of the 97 Road Construction Coy (GREF) issued a Communication to the Deputy Commissioner, Karimganj District intimating that the Ministry of Surface Transport, Government of India had already accorded approval during November 1999 for construction of parking lay byes at 11 places along NH 44 from Jowai to Churaibari. In that view of the matter, vide the said communication a request was made that land for a width ranging from 10 to 30 metres parallel to the existing NH 44 at 11 places as per Appendix A to the said communication was required to commence the work in the right spirit and at the right time in the interest of road users and public. It was also requested that the Surveyor from the department should carry out a joint survey for the purpose of the proposed alignment of the lay byes and to prepare the land/ building acquisition estimate so that the estimated amount could be deposited before commencement of the physical execution work. On the basis of the said requisition made by the 97 Road Construction Coy (GREF) a notification under Section 4 Page No.# 7/12

of the Act of 1894 was issued on 27/8/2003. The said land acquisition case was registered and numbered as LA Case No. 2/2002-2003.

4. Pursuant to the enquiry under Section 5 (A) of the Act of 1894, the declaration under Section 6(1) was issued declaring that the land measuring 8 bighas 9 kathas 2 chataks as specified in the said declaration was required for a public purpose i.e. for construction of parking lay-byes at Patharkandi 255.90 to 256.40 kms. in Mouza Dullabpur Part-2, Pargana Pratapghar in the district of Karimganj. This declaration under Section 6 was made on various dates and the last of such date was on 5/4/2007. Thereafter the award was passed in L.A. Case No. 2/2002-2003 on 7/5/2007 and possession of the land was taken and handed over on 10/2/2008. It is the case of the petitioners that the petitioners were paid 80% of the total compensation, however, no possession of the said land so acquired was taken. It was further contended that in the meantime, in the year 2013 the Government of Assam vide notification in LA Case No. 10/2012-13 acquired a plot of land measuring 31 bighas 10 chataks in Mouza Moina, Part-1 Pargana, Jafarganj in the district of Karimganj for the purpose of construction of Patharkandi bypass on National Highway 44 and the said construction of the bypass was at a distance of around 3 /4 kms away from the parking lay byes for which the land was acquired in LA Case No. 2002-2003. Consequently as the said land had become useless in view of the construction of the bypass at a distance, the petitioners filed representations before the Deputy Commissioner, Karimganj for return of the land so acquired in LA Case No. 2/2002-2003 and the petitioners were willing to refund the payment of compensation so received. It is also the case of the petitioners that by virtue of Section 101 of the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Re-Settlement Act, 2013( in short the Act of 2013) as the lands which have been acquired in LA Case No. 2/2002

-2003 on the basis of the Award dated 7/5/2007 had not been utilized by the authority, the same is required to be returned to the original owner or the owners or their legal heirs and as such, the petitioners requested the authorities concerned for return of the said land acquired from them. The authorities did not take into consideration the petitioners' request and on the other hand, on 18/9/2019, the Circle Officer with the local police equipped with bull dozers, JCB etc without issuing prior notice to the petitioners or any other similarly situated land owners entered into the acquired land and demolished the houses, the standing crops etc and thereby causing huge loss to the petitioners. It is under such circumstances that the Page No.# 8/12

petitioners have approached this Court under Article 226 of the Constitution of India seeking a writ in the nature of certiorari for quashing and setting aside the order passed in LA Case No. 2/2002-2003 whereby the land of the petitioners were acquired and made Government khas land; for a writ in the nature of mandamus thereby directing the respondent authorities to return back the aforesaid acquired land to the petitioners by correcting the revenue records in their names and in the interim not to carry out any eviction drive over the acquired land in the possession of the petitioners.

5. In W.P. (C) No. 4050/2018 and W.P. (C) 8329/2019 the respondent authorities have filed their affidavit-in-opposition. In W.P.(C) No. 4050 of 2018 the respondent No. 2 filed the affidavit- in-opposition stating inter lia that at the request of the Executive Engineer (Civil) Officer Commanding, of the 97 Road Construction Coy (GREF) a plot of land measuring 8 bighas 9 kathas 2 chataks was acquired vide LA Case No. 2/2002/2003 for construction of parking laybyes at Patharkandi and after the Award had been passed; on 10/12/2008, formal possession of the land was handed over to the Executive Engineer (Civil) Officer Commanding, 97 Road Construction Coy (GREF). The certificate of land handing over to the requiring department on whose behalf it was acquired has been enclosed as Annexure-E to the affidavit-in-opposition showing inter alia that on 10/12/2008 the possession was handed over to the requiring authority and the same was countersigned by the Additional Deputy Commissioner Karimganj. It is also mentioned that the Office of the Deputy Commissioner Karimganj had issued a communication dated 26/06/2007 to the requiring department to furnish views as to whether the LA proceedings was required to be dropped with the approval of the Government and it was replied by the Executive Engineer (Civil) Officer Commanding, 97 Road Construction Coy (GREF) that the land acquisition proceedings should be finalized. It has been mentioned that most of the pattadars have received the final payment of compensation without any protest.

6. The Respondent Nos. 4, 5 & 6 in W.P.(C) No. 4050/2018 have filed their affidavit-in- opposition wherein denying the possession of the petitioners it has been mentioned that the entire land/road sector has been handed over to the State PWD (NH Division), Silchar, Assam for further work during July/ August -2009 as per Govt. of India, DoRT & H (P&M Section)

Letter No. NH-14013/8/(2006)-P&M dated 30th October 2008 and the Gazette Notification No. Page No.# 9/12

SO 2298(E) and SO 229 (E) dated 26 th September, 2008. It has also been mentioned in the said affidavit-in-opposition that pursuant to the handing over of the land to the State of Assam the Respondent Nos. 4, 5 & 6 having nothing to do in respect to the said land and it is the State of Assam who has to take a stand as regards what is to be done in respect to the acquired land. In W.P.(C) No. 8329/2019 a similar affidavit-in-opposition was also filed by the Respondent No. 5, wherein it has been categorically mentioned that from the revenue records, it would be seen that the acquired land was acquisitioned for the O/C, 97 RCC (GREF) and the said land had been mutated in the name of the Central Government. It has also been mentioned in paragraph 6 of the said affidavit in tabular form the amount of compensation paid and the amount of compensation which was required to be paid. Affidavit- in-reply has been filed to the affidavit-in-opposition filed by the Respondent authorities denying the facts that the petitioners are not in possession of the acquired land amongst others.

7. From the above facts, the question therefore arises as to whether the land having been acquired after payment of compensation and the possession having been taken over and by virtue of Section 16 of the Act of 1894, whereby the land absolutely vest in the Government free from all encumbrances, can the land so acquired be returned back to the petitioners from whom the land had been acquired. Another issue which arises in the instant proceedings as to whether the provisions of Section 101 of the Act of 2013 would apply in respect to the acquisition of land under the Act of 1894.

8. As regards the first question it would be relevant to take note of some of the provisions of the Act of 1894. A reading of Section 4, 6 11 and 16 of the Act of 1894 would go to show that whenever it appears to the appropriate Government that the land in any locality is needed or it is likely to be needed for any public purpose or for any company, a notification to that effect shall be published in the mode and manner as stipulated in Section 4 calling for any objection from the persons interested. If any objection is being filed, such objection would be heard in the manner as stipulated in Section 5(A) of the said Act of 1894 and upon hearing the said objection the Collector shall make a report in respect to the land which have been notified under Section 4(1) or make different reports in respect of different plots of such land, to the appropriate Government containing his recommendation to the Page No.# 10/12

objections, together with the record of the proceedings held by him for the decision of the appropriate Government. The appropriate Government then shall take a decision in the matter on those objections which shall be final and binding. Once such objections are decided and appropriate Government is of the opinion that the land is needed for a public purpose or for a company the appropriate Government shall make a declaration under the signature of the Secretary or of some officers duly authorized to certify declaring that the said land is required for public purpose and these declarations shall be conclusive evidence that the land is needed for public purpose or for a company as the case may be and after making such declaration the appropriate Government may acquire the land in the manner as provided in the Act of 1894.

9. After making the declarations, the appropriate Government or some officers authorized by the appropriate Government in that behalf shall direct the Collector to take order for acquisition of the land. Thereupon enquiries will be made; notices will be issued to persons interested and after making necessary enquires the Collector shall make an award under his hand. It is required that the Collector before making the said award gets the previous approval of the appropriate Government or of such officers as the appropriate Government may authorize in that behalf unless the appropriate Government authorizes the Collector to make such award without such approval. The award in terms with Section 12 of the said Act shall be final and conclusive evidence in so far as the matters between the Collector and the persons interested. Once the said award is passed the Collector gets the power to take possession of the land and when such possession is taken, the land absolutely vest upon the Government free from all encumbrances. It s a different matter that in case of urgency the provisions of Section 17 could be invoked to take possession even prior to passing of the award. However for the purpose of the instant case, the moment the award is passed and the possession is taken, the land absolutely vest upon the Government free from all encumbrances. The facts of the instant case would show that on 7/5/2017 the Award was passed and on 10/12/2008 the possession was taken and handed over to the requiring authority and on the basis thereof the land absolutely vest upon the Central Government for whom the said land was acquired. The mutation has also been done in the name of the Central Government.

10. Now therefore, the question which arises as to whether that once the land stands Page No.# 11/12

vested upon the Central Government can the land thereupon be de-requisitioned and handed over to the persons from whom the land was acquired. The fact that the land has now been handed over to the State Government on the basis of the aforementioned notifications dated 13/10/2008 and 26/9/2008 for further work has no relevance as the land still vest upon the Central Government and continues to do so. The Act of 1894 does not provide a provision similar to the provisions of Section 101 of the Act of 2013 for return of the unutilized land.

11. Ms. Choudhury during the course of her argument submits that by virtue of Section 48(2) of the Act of 1894 the land can be returned to the original land owner. The said submission is totally mis-conceived in as much as the power under Section 48 can be invoked during the acquisition proceedings but not after completion of the acquisition proceedings in as much as pursuant to the acquisition proceedings being completed, the land vest absolutely upon the Government or such authority for whom the Government acquires the land. In that view of the matter, the first question so raised as to whether the land can be returned by the State Government to the petitioners in the opinion of this Court cannot be done so under the provisions of the Act of 1894.

12. The next question therefore which arises as to whether the provisions of Section 101 of the Act of 2013 can be invoked for returning the unutilized land. Section 101 of the said Act is quoted herein below : -

"101. Return of unutilized land.-- When any land, acquired under this Act remains unutilized for a period of five years from the date of taking over the possession, the same shall be returned to the original owner or owners or their legal heirs, as the case may be, or to the Land Bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government.

Explanation.-- For the purpose of this section, "Land Bank" means a governmental entity that focuses on the conversion of Government-owned vacant, abandoned, unutilized acquired lands and tax-delinquent properties into productive use."

13. A perusal of the said section provides that in case the land is not utilized for 5 years from the date of taking over possession, the same shall be returned to the original owner or owners or their legal heirs as the case may be or to the land bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government. However, in view of the specific stand being taken by the authorities in their affidavit-in-opposition to the effect that the said land has been handed over to the said State PWD(NH Division) for further work as per notifications dated 13/10/2008 and 26/9/2008 as Page No.# 12/12

aforementioned, it cannot be said that the said land has not been utilized. Be that as it may, in the judgment of the Constitution Bench of the Supreme Court rendered in the case of Indore Development Authority Vs. Manhorlal and Ors. reported in (2020) 8 SCC 129 and more particularly at paragraph 364 it had been categorically held that Section 101 cannot be made applicable to the acquisition made under the 1894 Act. Paragraph 364 of the said judgment is quoted herein below :-

"364. Section 24 deals with lapse of acquisition. Section 101 deals with the return of unutilized land. Section 101 cannot be said to be applicable to an acquisition made under the Act of 1894. The provision of lapse has to be considered on its own strength and not by virtue of Section 101 though the spirit is to give back the land to the original owner or owners or the legal heirs or to the Land Bank. Return of lands is with respect to all lands acquired under the Act of 2013 as the expression used in the opening part is "When any land, acquired under this Act remains unutilized". Lapse, on the other hand, occurs when the State does not take steps in terms of Section 24(2). The provisions of Section 101 cannot be applied to the acquisitions made under the Act of 1894. Thus, no such sustenance can be drawn from the provisions contained in Section 101 of the Act of 2013. Five years' logic has been carried into effect for the purpose of lapse and not for the purpose of returning the land remaining unutilized under Section 24(2)."

14. In view of the above, the writ petitions are devoid of any merits and are accordingly dismissed.

15. Before parting with the record, this Court is of the opinion that if the petitioners have not been paid or deposited their compensation in the entirety then the petitioners shall be entitled to the remaining amount of compensation along with interest in terms with Section 34 of the Act of 1894 and the said payment shall be made within a period of 6 (six) weeks from the date of passing of the instant judgment.

14. All the three writ petitions stand disposed of. The status quo order passed earlier stands vacated.

JUDGE

Comparing Assistant