Tripura High Court
Fortuna Agro Plantation Limited vs The Union Of India on 21 August, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 8
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
WA No. 26 of 2023
1. Fortuna Agro Plantation Limited, a company registered under the Companies
Act, 1956 having its registered office at P.O. Sadhanashram, District:
Unakoti, Kailashahar, Tripura-799277 represented by Ajoy Malakar, Son of
late Sarbaram Malakar, authorized representative of the company.
.....Appellant
-V E R S U S-
1. The Union of India, represented by the Secretary, Ministry of Home Affairs
(Border Management Division) Room No.209, Griha Mantralaya, North
Block, New Delhi-110001.
1(a). The Border Road Organization (Land Acquired by GREF wing of BRO)
Director General Border Roads, Seema Sadak Bhawan, Ring Road, Delhi
Cantt, New Delhi-110010.
2. The State of Tripura, represented by the Secretary to the Govt. of Tripura,
Revenue Department, New Secretariat Building , Capital Complex, Agartala-
799006.
3. The District Magistrate & Collector, North Tripura (Now Unakoti)
Gournagar, Kailashahar, 799277.
4. Land Acquisition Collector, North Tripura (Now Unakoti) Gournagar,
Kailashahar, 799277.
5. Sub-Divisional Manager, Gournagar, Kailashahar, 799277.
6. Dilkhusa Tea Company Ltd. a company incorporated under the Companies
Act, 1956 having its registered office at 3, Wood Street, Kolkata-700016.
***As per direction of the Hon'ble Court's order dated 31.01.2024 passed in I.A.
No. 02 of 2024 in W.A.No.26 of 2023 respondent No.7 has been added in the
memo of appeal.
7. The DIG, BSF, Sector Head Quarter, Panishagar, North Tripura.
..... Respondents
B_E_F_O_R_E
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
For Appellant(s) : Mr. S. M. Chakraborty,Sr. Advocate.
Mrs. P. Chakraborty, Advocate.
For Respondent(s) : Mr. S. S. Dey, Advocate General.
Mr. B. Majumder, Deputy SGI
Mrs. S. Deb (Gupta), Advocate.
Ms. A. Chakraborty, Advocate.
Date of hearing : 14.08.2024
Date of delivery of
judgment and order : 21.08.2024
Whether fit for reporting : YES.
JUDGMENT & ORDER
[T. Amarnath, Goud, J]
Heard Mr. S. M. Chakraborty, learned senior counsel assisted by
Mrs. P. Chakraborty, learned counsel appearing for the appellant also heard Mr.
S. S. Dey, learned Advocate General assisted by Ms. A. Chakraborty, learned
counsel, Mr. B. Majumder, learned Deputy SGI and Mrs. S. Deb (Gupta),
learned counsel appearing for the respondents.
[2] This is an appeal filed under Chapter-V of Rule-2(III) of the
Tripura High Court Rules against the judgment and order dated 05.01.2021
passed by the learned Single Judge in WP(C) No.1363 of 2016.
[3] The case of the petitioner is that the Petitioner Company i.e. the
appellant herein, is planter and owner of the Murticherra Tea Estate in Unakoti.
In 1995 the Union of India took over stretch of land with 66 ft. width along the
Indo-Bangladesh Border measuring 26 acres from the Jote area of Murticherra
Tea Estate for construction of the Indo Bangladesh Border Road (IBB Road)
without initiating any process of acquisition. Road was constructed, thereafter
in 1976 the revenue department of the Government issued notification for
acquisition for the land. But the said notification for acquisition of the land was
different from the land already used for construction of the IBB Road. After the
notification observing all formalities land has been taken over and mutated and
the Khatian opened by the name of the Government. Now the land actually
used for the construction of the IBB Road prior to the acquisition, which
measures about 26.00 acres no attempt was made for paying compensation of
the land which went to the possession of the Union of India without
acquisition.
[4] The Petitioner filed Writ Petition (C) No.228/2010 which was
disposed of with a direction dated 17.01.2011 that the Collector shall make a
joint survey of the actual area of the land which went in possession of the
Union of India without acquisition. The said order was never challenged by the
respondents and become final. Thereafter, since no survey was conducted in
terms of order dated 17-01-2011, a Contempt Petition No.9 of 2011 was filed
thereafter, a survey was conducted which is merely an eye wash and was done
behind the Petitioner and others, a re-survey was ordered vide order dated 06-
04-2013 but yet the directions of the court were not truthfully complied with.
[5] Thereafter, Joint survey was conducted and report dated
30.07.2013 alongwith sketch map were filed by the respondents which were far
from truth but Contempt Petition was disposed of by this Court with a finding
that since respondents have filed Joint survey, contempt is not tenable.
Ultimately, the matter went to the Hon'ble Apex Court which allowed the
petitioner to file a writ petition for the purpose of getting compensation for the
un-acquired land in possession of the Union of India by construction of the IBB
Road. The Petitioner filed writ petition No.1363 of 2016 which was disposed of
by learned Single Judge by judgment and order dated 05.01.2021. Since the
finding of learned Single Judge in judgment and order dated 05.01.2021 while
adjudicating the petition in favour of the petitioner were not correct and the
required documents were available on record of this Court, which the learned
Single Judge failed to notice and recorded a perverse finding as in point No.12
of the judgment and order dated 05.01.2021 resulting in miscarriage of justice.
[6] Hence, the present appeal has been preferred by the appellant.
[7] Mr. S. M. Chakraborty, learned senior counsel assisted by Mrs. P.
Chakraborty, learned counsel has submitted that the learned Single Judge did
not took into consideration that the respondents No. 1 to 5 illegally took the
private land of an extent of 25.42/26.66 acre, admittedly belonging to the
petitioner, for purposes of laying IBB Road in the year 1995 without any due
process of law, and without any joint survey and compensation thereof is
unconstitutional. The land for which the notification has been issued in 1997
has not been utilized for construction of IBB Road, except overlapping portions
and the land records shows the land in the name of the government as already
ROR has been changed after acquisition.
[8] The State authorities failed to redress the grievances of the
petitioner with regard to different alignment of the IBB Road and the said road
was constructed on area other than the acquired area and for which no
compensation has been paid to the petitioner company. The petitioner company
has legal right under the Land Acquisition Act, 1894 to demand compensation
for the assets on the land acquired by the State authorities under the provisions
of the Land Acquisition Act, 1894. Admittedly, the State Government did not
pay any compensation to the petitioner for the additional land on which the
Road was laid and the same is required to be paid under The Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013.
[9] The respondent authorities have acted arbitrarily, unreasonably
and with mala-fide intention by refusing to acquire the land of the petitioner
under the Land Acquisition, 1894 after joint survey so that the value of the
assets consisting of trees and bamboos situated on the land could be arrived at
and the petitioner company be compensated in accordance with law.
[10] The land was acquired under Notification No.
F.9(6)Rev/ACQ/II/97 dated 29.08.1997 under Sections-4,6 read with Section-
17 of L.A. Act 1894 dispensing hearing under Section-5A has already vested in
the Government but remain unused save and except, where the alignment
crosses the un-acquired land on which the actual road constructed is shown in
the sketch in colour green. 80% assessed compensation as envisaged under
Section-17 (3A) of the Act were neither assessed nor paid violating the
provisions of the Act. Section 7 of the Act was not followed at all. No
permission, whatsoever were taken prior to acquisition as envisaged under the
Act. For the said land Government Authorities has already made khatian
No.230 evidencing transfer of ownership from the Petitioner to the
Government.
[11] It has been further contended that the land on which the road was
actually constructed and was handed over by the Srirampur Tehsil to M/S Gref
and M/S Gref handed over the same to M/S CPWD was admitted by learned
District Magistrate & Collector, Kailashahar in its affidavit dated 04.01.2014 at
point 7g and letter of CPWD confirmed that, the possession of the un-acquired
land taken in 1995 and or constructed for the purpose of maintenance.
[12] The National Building Construction Corporation (NBCC) acquired
land of the petitioner Company for Indo Bangladesh Border (IBB) fencing. The
35 ft. wide land parallel to IBB Road which was separately acquired by a
separate agency i.e. NBCC for IBB fencing in the year 2005 was taken in 2004
was separately handed over and taken over between Srirampur TK and M/S
NBCC in the year 2006.
[13] It will not be out of place to mention that this Court in its order
dated 06.02.2014 in Contempt Petition No. 9 of 2011 has accepted the fact that
IBB Road which was acquired was not used and said IBB Road was
constructed in separate alignment in separate land and hence direction was
necessary on terms of order dated 11.01.2011 of this Court which has already
attained finality for legal acquisition of the land on which the IBB Road already
constructed by taking illegal possession measuring 25.42/26.64 acres and to
pay compensation thereof.
[14] Reports/sketches prepared by the officials of the Government
dated 08.01.2008, 4/5.04.2008 and 23.05.2008 clearly establish that the
petitioner is striving for its valuable right for the land admittedly belonging to it
which was admittedly taken away by the official respondents for the purpose of
the said IBB road which is in physical enjoyment and occupation of the
respondents without acquisition.
[15] Reports/sketches which were prepared by the officials of the
Government were never challenged or controverted by the respondents in the
Contempt Petition No.9 of 2011 and hence the reports and sketch maps can be
said to be tested and final. The map and report submitted on 30.07.2013 did not
consider the earlier maps as stated in the order dated 06.04.2013. Also, the
report dated 30.07.2013 contradicts the map dated 30.07.2013 itself but
matches with the map dated 23.05.2008 relied by the petitioner.
[16] The report dated 30.07.2013 states that it is found on the ground
that the IBB fencing and IBB road are adjacent to each other and running
parallel in the entire land in question and that the land measuring 18.31 acres
acquired for IBB fencing has 35 feet width from the beginning to the end. On
ground, it is in existence and found correct. This alignment is shown in map by
green colour. Therefore, as per the above report, if 35 ft. width land will require
acquisition of 18.31 acres of land, then if 66 ft. width of land for IBB road, is
parallel required to be acquired in the same land will need 34.53 acres of land,
but since out of the said 34.53 acres of land, in few places road
crosses/overlaps the acquired portion of land, further acquisition will need
lesser quantity of land.
[17] The joint survey was conducted with a predetermined mind and
the conclusion was derived much prior to the conduct of the survey. The Land
Acquisition Collector, Kailashahar accepted and admitted that on which the
IBB Road was constructed has not been acquired and thus change of alignment
in the year 1998 and has reported the same to the requiring agency.
[18] In a reply dated 01.07.2013 against a RTI application of the
petitioner dated 20.11.2012, the office of District Magistrate & Collector,
Kailashahar has stated that the quantum of un-acquired and illegal possessed
land on which IBB Road exists is 26.64 acres of land which is un-acquired
instead of 25.42 acres as mentioned in reply dated 23.05.2008 and hence it is
necessary to quantify the exact quantum of un-acquired and illegally possessed
land after verifying the record.
[19] The only stand taken by the respondent in their report is that since
two differently aligned road area are passing through the same plot number, of
which one alignment alone has been acquired, the other aligned road/land may
be exchanged which is on the face of it illegal and bad in law and unknown to
any legal principle and logical interpretation. All the materials as required for
adjudicating the petition in favour of the petitioner were available on record,
which the learned Single Judge failed to notice and recorded a perverse
findings as in point No. 12 of the judgment and order dated 05.01.2021
resulting in miscarriage of justice.
[20] Mr. S. S. Deb, learned Advocate General assisted by Ms. A.
Chakraborty, learned counsel appearing for the respondents has submitted that
the in compliance of the order dated 17.01.2011 passed in WP(C) No.228 of
2010, the joint survey had taken place and that from the final report of the joint
survey it has been transpired that the entire existing IBB Road is running
through the notified plots of land acquired for IBB fencing and IBB Roads and
that no piece of land has been utilized for existing IBB Road outside the
acquired land. The joint survey was carried out in presence of a contingent of
highly qualified surveyors having experience of several decades and in
presence of the representatives of the interested parties.
[21] There is no dispute that in terms of the order 17.01.2011 a joint
survey was carried out. It is also pertinent to note that the report of the said
joint survey dated 30.07.2013 has been challenged in this writ petition. The
report of the joint survey has clearly observed that there is no piece of land
utilized for existing IBB road outside the acquired land. No materials have been
produced by the petitioner to dislodge this said finding.
[22] In view of the above, this Court is of the opinion that that the basic
issue and root of the matter is something else which falls for consideration before this
Court. It is the prima facie duty of a person to placed relevant documents/title deed if
claimed for ownership. The petitioner has claimed to be the owner but there are no
basic documents or any title deed filed in support of his contention to say that the
petitioner is the owner.
[23] The petitioner has not filed any relevant document nor made any
specific pleading as to how he became owner and who is their vendor and under what
document, he is claiming the ownership. More particularly, the petitioner is a
company and being a company has he should keep all necessary documents to
establish his ownership over the property to justify his grievance. A registered
company obviously if is an owner under the deed, they would submit in the
registration of companies before the Tea Board and also retain originals with him.
But no such averment or document is placed on record before this Court. In view of
the same, this Court draws an adverse inference against the petitioner.
[24] This Court in an identical matter i.e. in WP(C) No.31 of 2023 [titled as
The Silkote Tea Company Ltd v. The State of Tripura & Others] has observed that
they have not placed any material documents or information on record to show that
they were the owners of the property except banking upon the ceiling limit and some
sections of TLR&LR Act and subsequently, the same was dismissed.
[25] In another matter i.e. in WA. No.268 of 2023 this Court held that it is
reasonably construed that all land in a State is the property of a State unless it is
claimed under lawful alienable title. The series of proceedings which relate to
exemption, withdrawal of exemptions, are noticed by this Court that they have not
dealt with the issue of ownership and there is no reference as to how the petitioners
claimed ownership on the said properties. Unless the petitioners establish that he is
the owner of the said land, it is not open for him to claim equities and thus, the same
is also dismissed by this Court.
[26] In the light of the above, the present appeal stands dismissed. As
sequel, miscellaneous application, pending if any, shall stand closed.
B. PALIT, J T. AMARNATH GOUD, J
A.Ghosh
ANJAN Digitally signed by
ANJAN GHOSH
GHOSH Date: 2024.08.28
13:00:01 +05'30'
