Hoineng Thadou vs The State Of Assam And 7 Ors
2022 Latest Caselaw 4370 Gua

                                                                Page No.# 1/11

GAHC010266482019




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

                        Case No. : WP(C)/8025/2019

         HOINENG THADOU
         W/O. LT. JAMKHOLAT THADOU, VILL. SONGBUNG, P.O. MAHUR, DIST.
         DIMA HASAO, ASSAM.

         VERSUS

         THE STATE OF ASSAM AND 7 ORS.
         THROUGH THE SECRETARY TO THE GOVT. OF ASSAM, REVENUE AND
         DISASTER MANAGEMENT DEPTT., DISPUR, GUWAHATI-06.

         2:THE NORTH CACHAR HILLS AUTONOMOUS COUNCIL
          REP. BY ITS CHIEF EXECUTIVE OFFICER
          HAFLONG
          DIST. DIMA HASAO
         ASSAM
          PIN-788819. POLITICAL (B)
          GUWAHATI-781006.

         3:THE DY. COMMISSIONER
          DIMA HASAO
          HAFLONG
         ASSAM
          PIN-788819.

         4:THE EXECUTIVE MEMBER
          SETTLEMENT AND REVENUE DEPARTMENT
          NORTH CACHAR HILLS AUTONOMOUS COUNCIL
          HAFLONG
          DIST. DIMA HASAO
         ASSAM
          PIN-788819.

         5:THE SETTLEMENT OFFICER
          HAFLONG
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    DIST. DIMA HASAO
    ASSAM
    PIN-788819.

    6:THE CIRCLE OFFICER
     MAIBANG REVENUE CIRCLE
     MAIBANG
     DIST. DIMA HASAO
    ASSAM
     PIN-788831.

    7:THE EXECUTIVE MEMBER
     PWD
    THE NORTH CACHAR HILLS AUTONOMOUS COUNCIL
     HAFLONG
     DIST. DIMA HASAO
    ASSAM
     PIN-788819.

    8:THE EXECUTIVE ENGINEER
     MAIBANG PWD BUILDING SUB-DIVISION
     MAIBANG
     DIST. DIMA HASAO
    ASSAM PIN-788831


    Advocate for the Petitioner      : Mr. I. H. Saikia, Advocate.
    Advocate for the Respondents     : Mr. R. Borpujari, Advocate.

Mr. N. Goswami, Govt. Advocate.

Mr. A. Khanikar, Advocate.

                             BEFORE
        HONOURABLE MR. JUSTICE DEVASHIS BARUAH
                  Date of Hearing        : 10.11.2022

                  Date of Judgment       : 10.11.2022

                   JUDGMENT AND ORDER (ORAL)

Heard Mr. I. H. Saikia, the learned counsel for the petitioner. Also heard Mr. R. Borpujari, the learned counsel appearing on behalf of the respondent No.1 and Mr. A. Khanikar, the learned counsel appearing on Page No.# 3/11

behalf of the respondent Nos.2, 3, 4, 5, 7 & 8 as well as Mr. N. Goswami, the learned counsel appearing on behalf of the respondent No.3.

2. It has been submitted by Mr. A. Khanikar, the learned counsel appearing on behalf of the respondent Nos.2, 3, 4, 5, 7 & 8 that there is no post of the Circle Officer, Maibang Revenue Circle and as such the name of the said respondent No.6 may be deleted.

3. This is an application under Article 226 of the Constitution of India challenging the forceful taking over the possession of the land belonging to the petitioner without following the due process of law.

4. The case of the petitioner in brief is that her late husband Jamkholet Thadou and his ancestors were in continuous possession of a plot of land measuring 1 bigha 1 katha 19 lechas of paddy land; 1 bigha 6 lechas of homestead land, in total 2 bighas 2 kathas 5 lechas of land at village Sungbung/Semdikhor, Pargana Haflong in the district of Dima Hasao since last six decades. Thereupon the said land was brought within the ambit of Annual Khiraj Patta No.6 which was issued in favour of the husband of the petitioner for the year 2018-2019. Pursuant to the issuance of the said Annual Khiraj Patta No.6, the petitioner has been duly paying the land revenue in that regard. It is the case of the petitioner that the concerned respondent authorities, without following the due process of law, had taken over 1 bigha 1 katha 19 lechas of the paddy land of the petitioner and handed possession of the same to Maibang PWD Building Sub- Division for construction of a Community Hall in pursuance of an order

No.Rev/S/4/-MoS/2019-20 dated Haflong the 7 th June, 2019. Thereupon, the petitioner lodged an FIR on 12.10.2019 against the ongoing Page No.# 4/11

construction over her plot of land with standing crops before the Office-in- Charge of Mahur Police Station which was received vide GDE No.231/2019 dated 12.10.2019.

5. It has been further mentioned in the writ petition that the petitioner had to run from pillar to post to get back the land from the authorities. It has been also alleged that the authorities concerned did neither return the land nor pay any compensation in respect to the land of the petitioner. Having no alternative, the instant writ petition has been filed by the petitioner challenging the forceful dispossession and taking over the land belonging to the petitioner by the concerned respondent authorities and construction of the Community Hall upon the said land.

6. This Court vide the order dated 04.11.2019 issued notice to the respondents. It appears from the records that only the respondent No.5 has filed an affidavit-in-opposition. In the said affidavit-in-opposition it has been stated that the land measuring 3 bighas has been donated by the Gaonbura of Semdikhor Village as he is the custodian of the village land for the purpose of construction of Community Hall under the special package of Clause 9.3 of the Memorandum of Settlement dated 08.10.2012 between the Government of India, Ministry of Development of North Eastern Region (DoNER), Government of Assam and Dima Halam Daogah. It has been mentioned that the Ministry of DoNER had sanctioned the project for construction of Community Hall at Mahur, Dima Hasao with an estimated amount of Rs.3,00,00,000/- which would serve the larger public interest. Further to that, it has been mentioned that the Executive Engineer, PWD, Haflong Building Division vide letter No.376 dated 03.06.2019 requested the Secretary Revenue, H.C. Hills Page No.# 5/11

Autonomous for allotment of land for the said project proposed under the MoS Clause No.9.3. Thereafter the Lot Patowari, i/c Mahur was deputed for enquiry prior to the allotment of land for construction of the Community Hall at Semdikhor. The Lot Patowari on 04.06.2019, submitted the enquiry report in regard to allotment of land for the said proposed project. The report revealed that on spot verification there was no objection received against the allotment of the land. The Gaonbura of Semdikhor Village also certified that with the consent of the residents of Semdikhor in the interest of public service was pleased to donate 3 bighas of land that belonged to Semdikhor Village for the construction of Auditorium Hall and hence the residents of the village Semdikhor shall have no right to claim over the said plot of land thereof. Thereafter, the formal handing over and taking over of the possession between the Lot Patowary, i/c Mahur, Autonomous Council, Dima Hasao and the Executive Engineer, PWD, Haflong Building Division was done on 12.09.2019. In paragraph No.12 of the said affidavit-in-opposition, it has been categorically admitted that no land of the petitioner has been acquired by the Council authorities for the purpose of construction of National Highways. Further, the National Highway Authority of India is the authority concerned for payment of compensation in regard to the acquisition of any land for the construction of National Highways. It has also been mentioned that as regards the construction of Community Hall, no paddy land of the petitioner has been affected.

7. An affidavit-in-reply was filed by the petitioner against the affidavit- in-opposition filed by the respondent No.5. It has been mentioned in the said affidavit-in-reply that the Gaonbura is neither the appropriate Page No.# 6/11

authority at all to donate the land of the petitioner without taking consent or discussing the matter with her nor is the custodian of the land belonging to the petitioner. It has been mentioned that the petitioner and her family have been residing in the said plot of land since more than last six decades and the respondent authorities cannot just take away the land and home without issuing any notice or making any alternative arrangement for the petitioner and her family. Moreover, it has also been mentioned that there are other vacant land wherein the said construction could have been undertaken. But the respondent authorities have illegally occupied and started construction upon the land of the petitioner. It has also been mentioned that the purported enquiry report was prepared by the Lot Patowary without following the due procedure laid down under the law in as much as the said Lot Patowary never visited the plot of land for making the enquiry report. It has been mentioned that if the Lot Patowary had visited the land he would have taken the consent of the petitioner as they were still in possession of the land and as such the purported report regarding "no one having any objection" is a totally false. On the question of the involvement of the National Highway Authority of India, it was mentioned that it is not the case of the petitioner that the National Highway Authority was involved in the forceful dispossession of the petitioner. But it was mentioned only to adjudge the proportionate payment of compensation.

8. I have heard the learned counsel for the parties and have also perused the materials on record. Upon perusal of the materials on record it clearly transpires that there is no denial to the fact that the Annual Khiraj Patta No.6 was issued to the petitioner by the respondent No.5. It is Page No.# 7/11

also an admitted fact that there was no consent whatsoever have been taken from the petitioner and it is the case of the respondents that the Village Headman, i.e. the Gaonbura, being the custodian of the land of the village, had given no objection.

9. The respondent authorities have not shown under what provision of law they had taken over the land of the petitioner or even the procedures recognized by law which have been followed. Under such circumstances, the taking over of the land by the respondent authorities of the petitioner is in the teeth of Article 300A of the Constitution of India which mandates that no person shall be deprived of his property save by the authority of law.

10. At this stage, this Court would take note of the position of law as discussed by the Supreme Court in the case of Vidya Devi vs. State of Himachal Pradesh, reported in (2020) 2 SCC 569 wherein in paragraph

No.12.1 to paragraph Nos.12.9, the Supreme Court dealt with the right to property. The said paragraphs, being relevant for the purpose of the instant case, are reproduced herein below:-

"12.1. The appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution. Article 31 guaranteed the right to private property, which could not be deprived without due process of law and upon just and fair compensation.

12.2. The right to property ceased to be a fundamental right by the Constitution (Forty-Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300-A of the Constitution. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State Page No.# 8/11

cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article.

12.3. To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300-A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, wherein this Court held that:

"6. ... Having regard to the provisions contained in Article 300- A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid."

(emphasis supplied) 12.4. In N. Padmamma v. S. Ramakrishna Reddy, this Court held that:

"21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300-A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300-A of the Constitution of India, must be strictly construed."

(emphasis supplied) 12.5. In Delhi Airtech Services (P) Ltd. v. State of U.P., this Court recognised the right to property as a basic human right in the following words:

"30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic Page No.# 9/11

oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property. "Property must be secured, else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed-bed which must be conserved if other constitutional values are to flourish, is the consensus among political thinkers and jurists."

(emphasis supplied) 12.6. In Jilubhai Nanbhai Khachar v. State of Gujarat, this Court held as follows:

"48. ... In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation."

(emphasis supplied) 12.7. In this case, the appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.

12.8. The contention of the State that the appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the appellant of her property by the State.

12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. MIDC wherein it was held that the State must comply with the procedure Page No.# 10/11

for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution."

11. Subsequently, in another judgment following the judgment of the Supreme Court in the case of Vidya Devi (supra), the Supreme Court in the case of D. B. Basnett (Dead), through Legal Representatives vs. the Collector, East District, Gangtok, Sikkim and Another , reported in (2020) 4 SCC 572

observed that as the respondents in the said case had failed to establish that they had acquired land in accordance with law and paid the due compensation, the appellants therein would be entitled to the possession of the land as also damages for illegal use and occupation of the same by the respondents at least for a period of 3 years prior to the notice having been served upon them. It was further observed that the owner would be entitled to damages for wrongful use and possession of the land in respect of which no notification issued under Section 4 of the Land Acquisition Act from the date of possession till the date such notification is finally published. Under such circumstances, the Supreme Court in paragraph No.20 of the said judgment granted the State Government 3 month's time from the date of the judgment for the State to make up their mind as to what they want to do as to whether they would like to retain the land by issuing a proper notification or would they like to surrender possession of the land. It has further been observed that in either eventuality the question of payment for use and occupation would still arise which would have to be determined in accordance with law.

12. In the backdrop of the above proposition of law as laid down by the Supreme Court in both the judgments and taking note of the fact involved in Page No.# 11/11

the instant case to the effect that the respondent authorities have failed to establish that they have acquired the petitioner's land in accordance with law and paid due compensation, this Court following the direction which was issued in the case of Vidya Devi (supra) and also taking into consideration the submission made by the counsel for the respondent No.2 to the effect that they want to retain the land directs the Principal Secretary (N) of the respondent No.2 to acquire the land by initiating appropriate procedure as envisaged under law and to pay compensation including rehabilitation envisaged to the petitioner in accordance with the provision of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

13. The entire exercise shall be completed by the respondent No.2 and its authorities under it within a period of 3 (three) months from the date a certified copy of the instant judgment is served upon the Principal Secretary (N) of the respondent No.2.

14. With the above observations and directions, the instant petition stands disposed of.

JUDGE

Comparing Assistant