Page No.# 1/17 vs The State Of Assam And 27 Ors
2025 Latest Caselaw 1725 Gua

Gauhati High Court

Page No.# 1/17 vs The State Of Assam And 27 Ors on 6 January, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                               Page No.# 1/17

GAHC010026682018




                                                          2025:GAU-AS:130

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

                        Case No. : WP(C)/921/2018

         BHABENDRA DAS @ TAPAN KR. DAS AND 6 ORS
         S/O- LATE GUNARAM DAS, LACHITPUR, AMINGAON, P.O- AMINGAON, P.S-
         NORTH GUWAHATI, DIST- KAMRUP, ASSAM, PIN- 781031

         2: RABINDRA KUMAR DAS
          S/O- LATE GUNARAM DAS
          LACHITPUR
         AMINGAON
          P.O- AMINGAON
          P.S- NORTH GUWAHATI
          DIST- KAMRUP
         ASSAM
          PIN- 781031

         3: NIPEN KUMAR DAS
          S/O- LATE GUNARAM DAS
          LACHITPUR
         AMINGAON
          P.O- AMINGAON
          P.S- NORTH GUWAHATI
          DIST- KAMRUP
         ASSAM
          PIN- 781031

         4: HAREN DAS
          S/O- LATE GUNARAM DAS
          LACHITPUR
         AMINGAON
          P.O- AMINGAON
          P.S- NORTH GUWAHATI
          DIST- KAMRUP
         ASSAM
          PIN- 781031
                                                     Page No.# 2/17

5: NAREN DAS
 S/O- LATE GUNARAM DAS
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

6: KAMINI DAS
W/O- LATE NIRANJAN DAS
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

7: MADHABI DAS
W/O- LATE SRIKANTA DAS
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 78103

VERSUS

THE STATE OF ASSAM AND 27 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
LAND AND REVENUE DEPTT., DISPUR, GHY- 06

2:THE DEPUTY COMMISSIONER
 DIST- KAMRUP(M)
 GUWAHATI
ASSAM
 PIN- 781001

3:THE DEPUTY COMMISSIONER
 DIST- KAMRUP
AMINGAON
ASSAM
 PIN- 781031
                                  Page No.# 3/17

4:THE SUB-DIVISIONAL OFFICER
 NORTH GUWAHATI REVENUE CIRCLE
AMINGAON
 DIST- KAMRUP
ASSAM
 PIN- 781031

5:THE CIRCLE OFFICER
 NORTH GUWAHATI REVENUE CIRCLE
AMINGAON
 DIST- KAMRUP
ASSAM
 PIN- 781031

6:THE OFFICER-IN-CHARGE
AMINGAON P.S
AMINGAON
 DIST- KAMRUP
ASSAM
 PIN- 781031

7:DHARMESWAR KAKOTI
 LAT MANDAL
 NORTH GUWAHATI REVENUE CIRCLE
AMINGAON
 DIST- KAMRUP
ASSAM
 PIN- 781031

8:KESHAB KALITA
 S/O- SRI CHANDAKANTA KALITA
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

9:NAYAN KALITA
 S/O- SRI KRISHNARAM KALITA
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031
                               Page No.# 4/17


10:BHAROTI KALITA
W/O- LATE KRISHNARAM KALITA
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

11:SUROVI KALITA
W/O- KESHAB KALITA
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

12:SURENDRA DAS
 S/O- RUPA
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

13:DHIREN DAS
 S/O- MANURAM DAS
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

14:BHULARAM DAS
 S/O- NABIN SUT
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
                              Page No.# 5/17

ASSAM
PIN- 781031

15:BIPIN DAS
 S/O-NABIN SUT
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

16:PANIRAM DAS
 S/O- NABIN SUT
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

17:MADHAB THAKURIA
 S/O- SRI HARIRAM THAKURIA
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

18:DILIP THAKURIA
 S/O- HARIRAM THAKURIA
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

19:RATUL THAKURIA
 S/O- LATE UMESH THAKURIA
 LACHITPUR
AMINGAON
 P.O- AMINGAON
                                 Page No.# 6/17

P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031

20:BANAMALI THAKURIA
 S/O- LATE UMESH THAKURIA
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

21:PRASSANA KALITA
 S/O- LATE BAPURAM KALITA
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

22:RAMESH KALITA
 S/O- LATE BAPURAM KALITA
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

23:MONOMOTI BARUAH
W/O- LATE KAMALAKANTA BARUAH
 LACHITPUR
AMINGAON
 P.O- AMINGAON
 P.S- NORTH GUWAHATI
 DIST- KAMRUP
ASSAM
 PIN- 781031

24:GEETALI BARUAH
 D/O- LATE KAMALAKANTA BARUAH
 LACHITPUR
                                                                          Page No.# 7/17

             AMINGAON
             P.O- AMINGAON
             P.S- NORTH GUWAHATI
             DIST- KAMRUP
             ASSAM
             PIN- 781031

            25:GEETIKA BARUAH
             D/O- LATE KAMALAKANTA BARUAH
             LACHITPUR
            AMINGAON
             P.O- AMINGAON
             P.S- NORTH GUWAHATI
             DIST- KAMRUP
            ASSAM
             PIN- 781031

            26:CHANDAKANTA KALITA
             S/O- LATE HARAMOHAN KALITA
             LACHITPUR
            AMINGAON
             P.O- AMINGAON
             P.S- NORTH GUWAHATI
             DIST- KAMRUP
            ASSAM
             PIN- 781031

            27:DINESH KALITA
             S/O- LATE HARAMOHAN KALITA
             LACHITPUR
            AMINGAON
             P.O- AMINGAON
             P.S- NORTH GUWAHATI
             DIST- KAMRUP
            ASSAM
             PIN- 78103



For the Petitioner(s)   : Mr. M. Bhagabati, Advocate


For the Respondent(s) : Mr. H. Sarma, Addl. Sr. Govt. Advocate
                        Ms. N. Bordoloi, SC, Revenue
                        Mr. M. Mahanta, Advocate for respondent Nos. 8 to 19, 26 & 27
                                                                      Page No.# 8/17



                 Date of Hearing                    : 06.01.2025
                 Date of Judgment                   : 06.01.2025



                                BEFORE
                 HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                         JUDGMENT AND ORDER (ORAL)

Heard Mr. M. Bhagabati, the learned counsel appearing on behalf of the petitioners. Mr. H. Sarma, the learned Additional Senior Government Advocate appears on behalf of the District Administration, Ms. N. Bordoloi, the learned Standing Counsel appears on behalf of the Revenue Department and Mr. M. Mahanta appears on behalf of the private respondents.

2. The issue involved in the instant writ petition is relating to apportionment of the compensation pertaining to a plot of land admeasuring 4 Bighas 1 Katha 7 Lechas covered by Dag No. 21 of Patta No. 97 of village Lachitpur, Amingaon within the Mouza Silasindurighupa in the district of Kamrup (R), Assam.

3. From the materials on record, it transpires that in connection with L.A. Case No. 5/2011, a plot of land admeasuring 77 Bighas 2 Kathas 5 Lechas were acquired. In the said plot of land some lands pertaining to Dag No. 21 of Patta No. 97 were also acquired. The petitioners herein claim that they are entitled to compensation in respect of 4 Bighas 1 Katha 7 Lechas covered by Dag No. 21 of KP Patta No 97. However, the petitioners have only been paid compensations in respect to 1 Bigha 4 Kathas 1.5 Lechas. It is under such circumstances the petitioners had submitted an objection before the Deputy Commissioner, Kamrup (R) objecting to the apportionment of the compensation. The Deputy Commissioner, Kamrup (R) on such objection instead of making a reference to Page No.# 9/17

the Court decided the same vide the impugned order dated 03.10.2017 which is a subject matter of challenge in the instant proceedings.

4. The question therefore arises in the instant proceedings as regards the legality and validity of the impugned order dated 03.10.2017, as well as, as to whether this Court should issue a writ in the nature of mandamus directing the concerned Respondent Authorities to disburse the remaining part of the compensation to the petitioners. It is noticed from the records that this Court vide an order dated 28.02.2018 issued notice and further directed that no payments shall be released in favour of the private respondents in connection with the acquisition of the disputed land. The interim order thereafter continues till date.

5. To adjudicate the dispute so involved as to whether this Court or even the District Commissioner who is the Collector would be the proper forum for deciding on the question of apportionment of the compensation, this Court duly takes note of the fact that the proceedings for acquisition i.e. L.A. Case No. 5/2011 was initiated in terms with the provisions of the Land Acquisition Act of 1894 (for short 'the Act of 1894'). However, the awards were passed post 01.01.2014 and consequently the compensation which was payable in terms with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short 'the Act of 2013') in view of the mandate of Section 24 of the said Act of 2013.

6. The question of the adequacy of the compensation is not an issue before this Court. However, the issue involved is as to who should be entitled to the compensation i.e. whether it is the petitioners or the private respondents who would be entitled to the compensation in respect to the plot of land Page No.# 10/17

admeasuring 4 Bighas 1 Katha 7 Lechas covered by Dag No. 21 of Patta No. 97.

7. It is relevant to take note at this stage some of the provisions of the Act of 1894 to decide on the legality of the impugned order. Section 11(1), 12, 30 and Sub-Section (1) and (2) of Section 31 of the Act of 1894 being relevant are reproduced herein below:

"11. Enquiry and award by Collector.- [(1)] On the day so fixed, or any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8, and into the value of the land [ at the date of the publication of the notification under Section 4, sub-section (1)], and into the respective interests of the persons claiming the compensation and shall make an award under his hand of-

                      (i)            the true area of the land;

                      (ii)            the compensation which in his opinion should be
                      allowed for the land; and

                      (iii)         the apportionment of the said compensation among all

the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him:

[Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf:

Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf.] Page No.# 11/17

12. Award of Collector when to be final.-(1) Such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and apportionment of the compensation among the persons interested.

(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or be their representatives when the award is made.

30. Dispute as to apportionment.- When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court.

31. Payment of compensation or deposit of same in Court.- (1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.

(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted:

Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount:

Provided also that no person who has received the amount otherwise than Page No.# 12/17

under protest shall be entitled to make any application under Section18:

Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto."

8. A perusal of Section 11(1) of the Act of 1894 as above quoted would show that the award would be filed by the Collector upon getting the approval from the appropriate Government. The award shall include, amongst others, the true area of the land; the compensation which in the opinion of the Collector should be allowed for land and the apportionment of the said compensation amongst all persons known or believed to be interested in the land, or of whose claims the Collector has information, whether or not they have respectively appeared before him. Section 12 is of relevance taking into account that once an award is being filed pursuant to the approval received from the appropriate Government, the award is final and a conclusive piece of evidence as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, as regards the true area of the land, the value of the land and the apportionment of the compensation amongst the persons interested. Be that as it may, Section 30 of the Act of 1894 obligates the Collector to refer disputes to the decision of the Court when disputes arises as to the apportionment of the compensation or any part thereof or as to the persons to whom the compensation or part thereof is payable when amount of compensation is settled in terms with Section 11 of the Act of 1894.

9. Section 31 and more particularly Sub-Section (1) of Section 31 of the Act of 1894 obligates the Collector to make payment of the compensation to the persons interested, save and accept the contingencies as referred to in Sub-

Section (2) of Section 31. The contingencies, amongst others include a Page No.# 13/17

contingency pertaining to a dispute as to the title to receive the compensation or as to the apportionment of it. In such circumstances, Section 31(2) of the Act of 1894 mandates that a Collector shall deposit the amount of compensation in the Court to which a reference under Section 18 should be submitted.

10. The interplay amongst the above quoted provisions of the Act of 1894 came up for consideration before the Supreme Court in the case of Sharda Devi Vs. State of Bihar & Another reported in (2003) 3 SCC 128. The Supreme Court observed that the award made by the Collector is final and conclusive as between the Collector and the persons interested whether they have appeared before the Collector or not on the following issues i.e. as to the true area of the land i.e. the measurement of the land acquired; as to the value of the land that is the amount of compensation as well as to the apportionment of the compensation amongst the persons interested. It was further observed that the finality attached is between the persons interested and the Collector and not persons interested inter se. It is the Court who can decide. In this regard this Court finds it relevant to refer to paragraphs 26, 33 and 34 of the said judgment which is reproduced herein under:

"26. The scheme of the Act reveals that the remedy of reference under Section 18 is intended to be available only to a "person interested". A person present either personally or through a representative or on whom a notice is served under Section 12(2) is obliged, subject to his specifying the test as to locus, to apply to the Collector within the time prescribed under Section 18(2) to make a reference to the court. The basis of title on which the reference would be sought for under Section 18 would obviously be a pre-existing title by reference to the date of the award. So is Section 29, which speaks of "persons interested". Finality to the award spoken of by Section 12(1) of the Act is Page No.# 14/17

between the Collector on one hand and the "persons interested" on the other hand and attaches to the issues relating to (i) the true area i.e. measurement of the land, (ii) the value of the land i.e. the quantum of compensation, and (iii) apportionment of the compensation among the "persons interested". The "persons interested" would be bound by the award without regard to the fact whether they have respectively appeared before the Collector or not. The finality to the award spoken of by Section 29 is as between the "persons interested" inter se and is confined to the issue as to the correctness of the apportionment. Section 30 is not confined in its operation only to "persons interested". It would, therefore, be available for being invoked by the "persons interested" if they were neither present nor represented in the proceedings before the Collector, nor were served with notice under Section 12(2) of the Act or when they claim on the basis of a title coming into existence post-award. The definition of "persons interested" speaks of "an interest in compensation to be made". An interest coming into existence post-award gives rise to a claim in compensation which has already been determined. Such a person can also have recourse to Section 30. In any case, the dispute for which Section 30 can be invoked shall remain confined only (i) as to the apportionment of the amount of compensation or any part thereof, or (ii) as to the persons to whom the amount of compensation (already determined) or any part thereof is payable. The State claiming on the basis of a pre-existing right would not be a "person interested", as already pointed out hereinabove and on account of its right being pre- existing, the State, in such a case, would not be entitled to invoke either Section 18 or Section 30 seeking determination of its alleged pre-existing right. A right accrued or devolved post-award may be determined in a reference under Section 30 depending on the Collector's discretion to show indulgence, without any bar as to limitation. Alternatively, such a right may be left open by the Collector to be adjudicated upon in any independent legal proceedings. This view is just, sound and logical as a title post-award could not have been canvassed up to the date of the award and should also not be left without remedy by denying access to Section 30. Viewed from this angle, Sections 18 Page No.# 15/17

and 30 would not overlap and would have fields to operate independent of each other.

33. The Collector acts as a representative of the State whilst holding proceedings under the Land Acquisition Act. In fact, he conducts the proceedings on behalf of the State. The award of the Collector is not the source of the right to compensation; it is the pre-existing right which is recognized by the Collector and guided by the findings arrived at in determining the objections, if any, the Collector quantifies the amount of compensation to be placed as an offer of the appropriate Government to the owner recognized by the State. The offeree may accept or decline the offer. If he accepts the offer and the Government takes possession over the land, the title of the offeree is extinguished and vests absolutely in the Government free from all encumbrances. The power to make an award under Section 11 and to make a reference under Section 18 or 30 of the Act is a statutory power. The sweep of jurisdiction of the court to determine the disputes is also statutory and is controlled by the bounds created by Section 17 or 30 whereunder the reference has been made to the court. The power has to be exercised to the extent to which it has been conferred by the statute and on availability of pre-existing conditions on the availability of which and which alone the power can be exercised.

34. The award made by the Collector is final and conclusive as between the Collector and the "persons interested", whether they have appeared before the Collector or not, on two issues : (i) as to true area i.e. measurement of land acquired, (ii) as to value of the land i.e. the amount of compensation, and (iii) as to the apportionment of the compensation among the "persons interested"

-- again, between the Collector and the "persons interested" and not as amongst the "persons interested" inter se. In the event of a reference having been sought for under Section 18, the Collector's award on these issues, if varied by the civil court, shall stand superseded to that extent. The scheme of Page No.# 16/17

the Act does not attach a similar finality to the award of the Collector on the issue as to the person to whom compensation is payable; in spite of the award by the Collector and even on failure to seek reference, such issue has been left available to be adjudicated upon by any competent forum."

11. From the above quoted paragraphs it would therefore be clear that when the objection was filed by the petitioners as regards the apportionment of the compensation, a duty was cast upon the Collector to make a reference to the Court insofar as the apportionment of the compensation inter se between the persons interested. However, it is noticed that the Collector on his own decided the said issue which the Collector could not have after the passing of the award. Under such circumstances, the impugned order dated 03.10.2017 is without jurisdiction and authority and accordingly liable to be interfered with. This Court further is of the opinion that the Collector on the basis of the objections so filed by the petitioners ought to have made a reference in terms with Section 18 or even under Section 30 of the Act of 1894 which the Collector failed to do although being statutorily obligated.

12. Consequently, this Court therefore disposes of the instant writ petition with the following observations and directions:

(i) The impugned order dated 03.10.2017 passed by the Collector is set aside and quashed. It is however observed that the quashing and setting aside of the said order dated 03.10.2017 shall not prejudice either of the parties in respect to the compensation receivable pertaining to the land in question.

Page No.# 17/17

(ii) The Collector is directed to forthwith, and not later than 15 (fifteen) days from the date a certified copy of this judgment is served upon him to make a reference to the Court of the District Judge, Kamrup (R), to decide on the sole question as regards apportionment of the compensation pertaining to the land admeasuring 4 Bighas 1 Katha 7 Lechas covered by Dag No. 21 of Patta No. 97 between the petitioners and the private respondents.

(iii) The Collector is further directed to deposit the compensation amount which was stayed by this Court by way of an interim order before the Court of the District Judge, Kamrup (R) which is the reference Court. The release of the said amount to parties shall be dependent upon the decision in the reference proceedings.

(iv) The observations so made herein above, however, shall not affect any of the parties in the said reference proceedings.

13. The records which were produced by Mr. H. Sarma, the learned Additional Senior Government Advocate is returned.

JUDGE

Comparing Assistant