Gauhati High Court
WA/378/2023 on 27 February, 2025
Page No.# 1/11
GAHC010189822023
2025:GAU-AS:2042-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/378/2023
1.CHAIRMAN AND MANAGING DIRECTOR GAIL (INDIA) LTD.,
FORMELY KNOWN AS GAS AUTHORITY OF INDIA LTD.,
HEAD OFFICE, GAIL BHAWAN, 16 BHIKAJI CAMA PLACE,
R. K PURAM, NEW DELHI- 110066.
2: GENERAL MANAGER, GAIL (INDIA) LTD.
(GUWAHATI BRANCH OFFICE UNDER KOLKATA ZONAL OFFICE)
MAHARATNA COMPANY, BARAUNI- GUWAHATI GAS PIPELINE (BGPL),
PROJECT CONSTRUCTION, HOTEL VIVANTA BY TAJ,
G. S ROAD, KHANAPARA, GUWAHATI- 781022.
.....Appellants
-VERSUS-
1.MD. MASTOPHA AHMED,
S/O LATE MOKTAR AHMED @ MOKTAR ALI,
RESIDENT OF VILLAGE NO. 1, DOBAK, P.S.- RANGIA,
PIN- 781380, DIST.- KAMRUP (R), ASSAM.
2:THE UNION OF INDIA,
REP. BY THE SECRETARY TO THE GOVT. OF INDIA,
MINISTRY OF PETROLEUM AND NATURAL GAS, NEW DELHI- 1.
3:DEPUTY SECRETARY TO THE GOVERNMENT OF ASSAM,
INDUSTRIES AND COMMERCE DEPARTMENT AND COMPETENT
AUTHORITY, GOVT. OF INDIA, GAIL (INDIA) LTD.
5TH FLOOR, MEGHA PLAZA, BASISTHA CHARIALI, GUWAHATI- 781029.
4:GULBANU BEGUM,
W/O FAYEZ ALI (SINCE DECEASED),
RESIDENT OF VILLAGE NO. 1, DOBAK,
P.O.- DOBAK, P.S.- RANGIA, DIST.- KAMRUP (RURAL), ASSAM.
.....Respondents
Page No.# 2/11
- BEFORE -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
For the Appellant(s) : Mr. S. Mitra, Advocate.
For the Respondent(s) : Mr. M.K. Choudhury, Senior Advocate assisted by Mr. R. Gohain,
Advocate for respondent No.1.
: Mr. A. Kalita, Standing Counsel, Industries and Commerce
Department for respondent No.3.
: Mr. I.H. Saikia, Advocate for respondent No.4.
Date of Hearing : 27.02.2025.
Date of judgment : 27.02.2025.
JUDGMENT & ORDER (ORAL)
(Vijay Bishnoi, CJ)
Heard Mr. S. Mitra, learned counsel appearing for the appellants. Also
heard Mr. M.K. Choudhury, learned Senior Counsel assisted by Mr. R. Gohain,
learned counsel for respondent No.1; Mr. A. Kalita, learned Standing Counsel,
Industries and Commerce appearing for respondent No.3 and Mr. I.H. Saikia,
learned counsel for respondent No.4.
2. This writ appeal is filed by the appellants being aggrieved with the
judgment and order dated 25.05.2023 passed by the learned Single Judge in
WP(C) No.6038/2021 filed by the writ petitioner/respondent No.1 herein.
3. The brief facts of the case are that vide Notification dated 10.10.2018,
issued on 16.10.2018, the Ministry of Petroleum and Natural Gas, Government
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of India, had shown interest in acquiring the land of village No.1 Dobak, failing
under Rangia Revenue Circle in the District of Kamrup, covered by Dag No.663,
measuring 1 Bigha 1 Katha 17 Lechas and pursuant to that, a notice under
Section 3(1) of the Petroleum & Minerals Pipelines (Acquisition of Right of User
in Land) Act, 1962 (hereinafter referred to as "Act of 1962") was issued to the
land holders in whose name the land was recorded in the revenue record as well
as individual notices were issued to the various pattadars. The individual notice
was also issued to the respondent No.1/writ petitioner, Mastopha Ahmed
(hereinafter referred as "respondent/writ petitioner").
4. After hearing the persons to whom the notices had been issued, the
amount of compensation in lieu of acquisition of the land under Dag No.663 was
determined by the "competent authority", as defined under Section 2(a) of the
Act of 1962, as per the provisions of Section 10 of the Act of 1962.
5. The Central Government deposited the compensation determined with the
competent authority as per Section 11(1) of the Act of 1962 and the competent
authority issued notices to the persons interested including the respondent/writ
petitioner under Section 11(4) of the Act of 1962 to determine their entitlement
to receive the compensation and the amount payable to each of them.
6. It is not in dispute that all the interested persons had appeared before
the competent authority and agreed to the apportionment of the compensation
to each person as determined by the competent authority on 20.03.2021.
Thereafter, the said compensation amount was disbursed to the person entitled
in accordance with the apportionment determined by the competent authority in
the month of June, 2021.
7. The case of the respondent/writ petitioner as presented before the Writ
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Court was that the land falling under Dag No.663 of Village No.1 Dobak under
Rangia Revenue Circle of Kamrup (Rural) district, measuring about 1 Bigha 1
Katha 17 Lechas, was recorded in the name of one Bahar Ali (since deceased)
who was the original pattadar. After his death, the above referred plot of land
was mutated in the name of his 4(four) sons, namely, (i) Moktar Ahmed (father
of respondent/writ petitioner), (ii) Firoz Ali, (iii) Fayez Ali and (iv) Fokhruddin Ali
Ahmed.
8. It was contended by the writ petitioner before the Writ Court that on
24.02.2021, one Fayez Ali (husband of respondent No.5 in the writ petition)
along with his sons had obtained certain signatures by threatening him and
relying on the same, presented their claim before the competent authority for
receiving compensation of the acquired land and the competent authority made
order for disbursement of the compensation in the name of the wife of Fayez Ali
on 20.03.2021.
9. The respondent/writ petitioner claimed before the learned Single Judge
that he had raised objections before the competent authority on 20.03.2021 and
thereafter, on 05.08.2021, however, the competent authority did not take into
consideration the said objections raised by the writ petitioner and had not
referred the matter to the District Judge as provided under Section 11(5) of the
Act of 1962. It was also contended on behalf of the respondent/writ petitioner
before the Writ court that in the meantime, on 04.07.2021, a legal notice was
issued under Section 80 of the Code of Civil Procedure. However, the competent
authority, through its lawyer, replied to the same rejecting the contentions made
in the legal notice.
10. It was also claimed by the respondent/writ petitioner that he lodged an
FIR at Dobak Police Station regarding the incident dated 24.02.2021, wherein
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one Fayez Ali along with his sons had obtained certain signatures of him by
threatening him.
11. The appellants opposed the writ petition while claiming that, as a matter
of fact, on 20.03.2021, the respondent/writ petitioner was present before the
competent authority along with the sons of Fayez Ali and various other persons
and in his presence, the competent authority had passed the order dated
20.03.2021 after verifying the personal details of the respondent/writ petitioner.
The appellants took a specific stand that no such applications dated 20.03.2021
or 05.08.2021 had ever been filed by the respondent/writ petitioner before the
competent authority.
12. The learned Single Judge, after taking into consideration the provisions
of Section 11(4) and Section 11(5) of the Act of 1962, has recorded a finding
that in view of the disputed questions of fact involved, the same cannot be
decided in a proceeding under Article 226 of the Constitution of India and it can
only be decided in a forum where the disputed questions of fact can be dealt
with on the basis of law of evidence. At the same time, the learned Single Judge
has observed that though the competent authority in terms of Section 11(4) of
the Act of 1962 had made a determination as regards the persons entitled to
receive the compensation and amount payable to each of them, it has to take
into consideration any dispute raised by any person regarding apportionment of
the compensation and is required to refer the same to the District Judge
concerned even after disbursement of it.
13. The above referred findings recorded by the learned Single Judge are
reproduced hereunder:-
"14. The issue involved in the instant writ petition as could be discerned from
the pleadings as well as from the materials on record is as to whether the
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respondent competent authority i.e. respondent no.4 was justified in not making
the reference in terms with Section 11(5) of the Act of 1962. It is on account of
the specific issue involved that this Court is also of the opinion that the presence
of the respondent no.5 is not required for the purpose of deciding the instant
dispute.
15. Section 11(4) and 11(5) of the Act of 1962 being pertinent is reproduced
hereinunder :
"11(4) Where several persons claim to be interested in the amount of compensation
deposited under sub-section (1), the competent authority shall determine the persons who
in its opinion are entitled to receive the compensation and the amount payable to each of
them.
11(5) If any dispute arises as to the appointment of the compensation or any part
thereof or as to the persons to whom the same or any part thereof is payable, the competent
authority shall refer the dispute to the decision of the District Judge within the limits of
whose jurisdiction the land or any part thereof is situated and the decision of the District
Judge thereon shall be final."
16. A conjoint reading of the above two provisions would clearly show that
when several persons claim to be interested in the amount of compensation
deposited under sub-section (1) of Section 11 of the Act of 1962, the competent
authority is empowered to determine the person or persons who in its opinion
are entitled to receive the compensation and the amount payable to each of
them. However, Section 11(5) comes into play when there is a dispute amongst
the several persons in respect to the apportionment of the compensation. In that
circumstance, it is outside the jurisdiction of the competent authority to decide
the said dispute and the only authority left to the competent authority is to
make a reference to the District Judge within the limits of whose jurisdiction the
land or any part thereof is situated. The facts as have been detailed out in the
previous segments of the instant judgment clearly show serious disputed
questions of facts, inasmuch as, it is the specific stand of the petitioner that on
20.03.2021 and 05.08.2021 he has submitted representation to the competent
authority stating, inter alia, that no objection so given was taken by the
respondent no.5 and her sons forcefully on 24.02.2021. On the other hand, it is
the specific stand of the respondent nos.2, 3 & 4 that the competent authority
never received any of the communications dated 20.03.2021 and 05.08.2021. It
is the further stand of the respondent nos.2, 3 & 4 that the petitioner was very
much present on 20.03.2021 before the competent authority who had duly
consented in payment of compensation to the respondent no.5. These disputed
questions of facts however cannot be decided in a proceeding under Article 226
of the Constitution and it can only be decided in a forum where disputed
questions of facts can be dealt with on the basis of the law of evidence.
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17. A perusal of Section 14 of the Act of 1962 clearly shows that there is a
bar of jurisdiction of the Civil Court in respect to various aspects including in
respect of any action taken or proposed to be taken in pursuance of any power
conferred under the Act of 1962. Therefore, the Civil Court cannot decide the
inter-se dispute between the petitioner and the respondent nos.2, 3, 4 & 5. It is
also well settled that a person cannot be made remediless, inasmuch as, any
statute which renders any action to be without remedy would be affecting the
rights under Article 14 of the Constitution. On the other hand, if this Court takes
into consideration Section 11(5) of the Act of 1962, it empowers the competent
authority to make a reference to the District Judge any dispute arising as
regards the apportionment of the compensation or any part thereof or as to the
persons to whom the same or any part is payable. The said provision does not
limit the powers of the competent authority if the compensation have already
been disbursed and the same can duly be done even after the compensation is
disbursed. It further appears from a perusal of the order dated 20.03.2021 that
while disbursing the amount of compensation, the respondent no.5 was
required to furnish an Indemnity Bond. During the course of the hearing, this
Court further enquired with Mr. S. Mitra, learned counsel appearing on behalf of
the respondent nos.2, 3 & 4 as regards the contents of the Indemnity Bond and
it was submitted that the Indemnity Bond is given for a purpose that if at any
later point of time a dispute arises, the person receiving the amount shall
indemnify the competent authority.
18. Under such circumstances, this Court therefore is of the opinion that in
view of the dispute which had arisen, this Court is not in a position to decide
the said dispute and it would involve intricate details of evidence It would be in
the interest of justice that the competent authority makes a reference to the
District Judge in so far as the entitlement of the petitioner vis-a-vis the
respondent no.5. The District Judge can very well decide as regards the
veracity of the claims and counterclaims so made by the petitioner as well the
respondent nos.2, 3 & 4 and also take into consideration the stand of the
respondent no.5. Accordingly, this Court therefore disposes off the instant writ
petition with a direction to the respondent no.4 to make a reference to the
District Judge, Kamrup, Amingaon within 15 (fifteen) days from the date of
receipt of a certified copy of the instant order and the learned District Judge,
Kamrup, Amingaon thereupon shall decide the dispute in accordance with law."
14. Assailing the above referred findings, the learned counsel for the
appellants have argued that in view of the serious disputed questions of fact,
the learned Single Judge ought not to have entertained the writ petition and
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should have dismissed the same without issuing any direction to the competent
authority to make reference to the District Judge concerned to decide regarding
the entitlement of the respondent/writ petitioner vis-à-vis respondent No.5 in
the writ petition (respondent No.4 herein) as per Section 11(5) of the Act of
1962.
15. It is further argued that the competent authority is the quasi-judicial
authority and the order dated 20.03.2021 passed by it regarding apportionment
of the compensation amount is a quasi-judicial order and when the same was
not put to challenge in the writ petition, the learned Single Judge ought not to
have entertained the writ petition and should have dismissed the same.
16. Learned counsel for the appellants have further argued that once the
competent authority has determined the entitlement of the persons to receive
the compensation and the amount payable to each of them, it has become
functus officio and the competent authority cannot review or recall its order
which was passed as per the agreement arrived at between the persons
entitled.
17. It is contended that once the competent authority has passed the order
in exercise of powers under Section 11(4) of the Act of 1962 as per the
agreement between the persons entitled, it was not open for him to entertain
any objection from any person and to refer the same to the District Judge
concerned in terms of Section 11(5) of the Act of 1962.
18. It is contended that the finding recorded by the learned Single Judge to
the effect that Section 11(5) of the Act of 1962 does not limit the power of
competent authority even if the compensation have already been disbursed, is
erroneous and is contrary to the spirit of the Act of 1962 and its provisions and
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therefore, the same cannot be sustained.
19. Therefore, it is prayed that the impugned judgment dated 25.05.2023
passed by the learned Single Judge is not sustainable in the eyes of law and
therefore, the same is liable to be dismissed.
20. Per contra, learned counsel appearing for the respondent/writ petitioner
has opposed the writ appeal and has supported the impugned judgment and
order and has contended that the learned Single Judge has rightly directed the
competent authority to make a reference to the District Judge concerned in so
far as the entitlement of the writ petitioner vis-à-vis respondent No.5 in the writ
petition (respondent No.4 herein).
21. Heard the learned counsel appearing for the parties and also perused the
material available on record.
22. We are of the view that the learned Single Judge has rightly concluded
that the disputed questions of fact involved in the case cannot be decided in a
proceeding under Article 226 of the Constitution of India. However, what is
troubling us is the finding recorded by the learned Single Judge to the effect
that even after determination of the entitlement of the persons interested for
receiving the compensation and the amount payable to each of them under
Section 11(4) of the Act of 1962 as per the agreement arrived at between the
parties, the competent authority is required to make a reference to the District
Judge concerned in terms of Section 11(5) of the Act of 1962 if any dispute is
raised by any person amongst the persons entitled at a later stage.
23. We are of the view that once the competent authority has completed the
exercise of apportionment of the compensation amongst the persons interested
on the basis of the agreement arrived at between the parties, it would become
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functus officio and cannot entertain any claim or any dispute raised by any
person amongst the persons interested at later stage. If that is allowed then it
would lead to a situation where any person amongst the persons interested can
raise a dispute as to the apportionment of the compensation even after decades
and in that case also, the competent authority is required to refer the same
before the District Judge. In our view, this would be in complete contravention
of the spirit as well as the provisions of the Act of 1962.
24. In the case in hand, the appellants took a categorical stand that before
sending a legal notice on 16.07.2021, the respondent/writ petitioner has never
raised any objection regarding the apportionment of the compensation amongst
the persons entitled. It is also contended by them that they have replied to the
legal notice and after that also, no objection was raised by the respondent/writ
petitioner and has specifically denied that on 05.08.2021 again he has raised
objection to the apportionment of the compensation. The respondent/writ
petitioner has not countered the said claim by filing any rejoinder. He has also
not countered the claim of the appellants that at the time of passing of the
order dated 20.03.2021, the respondent/writ petitioner has not raised any
objection and was very much present in terms of Section 11(4) of the Act of
1962, and rather, agreed to the determination made by the competent authority
regarding the entitlement of the amount payable to the persons entitled
including the respondent No.5 in the writ petition (respondent No.4 herein).
25. Taking into consideration the above facts and circumstances of the case,
we are of the view that the findings arrived at by the learned Single Judge to
the effect that even after determination of the entitlement of the persons
interested to receive the compensation and the amount payable to them in
terms of Section 11(4) of the Act of 1962 as per the agreement arrived at
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between the parties, the competent authority is required to refer the matter to
the District Judge concerned if any dispute is raised by any person amongst the
persons interested at a later stage including after disbursement of
compensation, is erroneous and cannot be sustained.
Simultaneously, the direction issued by the learned Single Judge to the
competent authority to make a reference to the District Judge in so far as the
entitlement of the respondent/writ petitioner vis-a-vis the respondent No.5 in
the writ petition (respondent No.4 herein) and the further direction to the
District Judge to decide the said reference, also cannot be sustained.
26. Resultantly, the impugned judgment and order dated 25.05.2023 passed
by the learned Single Judge is set aside.
The writ petition filed by the respondent/writ petitioner is ordered to be
dismissed.
27. The instant writ appeal is disposed of accordingly.
No order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
