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2006 DIGILAW 185 (GAU)

Min Gayang v. State of Meghalaya

2006-02-24

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. The issue raised in this writ petition is the manner and method in which the land of the Petitioner has been acquired by the Respondents invoking the provisions of the Land Acquisition Act, 1894. It is the case of the Petitioner that her land has been acquired without following the due procedure as envisaged under the Act. Be it stated here that the land of the Petitioner alongwith some other land has been acquired by the Respondents for the purpose of construction of the Border Township. 2. As per the facts narrated in the writ petition, the Petitioner is the owner of and possessor of a plot of land known as "Khlaw Bamon" at Dawki in the Jaintia Hills Districts. Although the Petitioner has indicated the boundary of the land in paragraph-3 of the writ petition, the boundary of the land in the northern site has been described incompletely. 3. The Govt. of Meghalaya by its notification dated 23.5.01 decided to acquire the land measuring 27,353 sq. meter situated at Dawki (Tamabil) in the Elaka Nongtalang, Amlarem Sub-Division, Jaintia Hills District, Meghalaya for construction of Border Township. According to the Petitioner although notices were issued to the land owners regarding acquisition proceeding and for payment of compensation etc., the Petitioner was not served with any notice and she had no knowledge about such proceeding. In paragraph-6 of the writ petition, the Petitioner has stated that when she came to know about the acquisition proceeding she tried to contact the Govt. and other local authorities. However, nothing has been specified as to when she had come to know about the acquisition proceeding. 4. In paragraph-7 of the writ petition, the Petitioner has stated that she filed a representation on 7.12.02 before the Sub-Divisional Officer, Amlarem Sub-Division, Jaintia Hills District with the copies to the different authorities expressing her inability to part with the land proposed to be acquired on the ground that the land is her ancestral property and is the only source of income to support her family. In the representation, she further contended that since the land in question is being utilized for religious purpose as per the family customs and tradition, the Respondents ought not have targeted the land for acquisition and that since there are other suitable land readily available for the purpose and more suitable than the land of the Petitioner, the Respondents could have easily avoided acquiring the land of the Petitioner. 5. According to the Petitioner, the Extra Assistant Commissioner, Amlarem Sub-Division visited the land of the Petitioner on 16.4.03 with the purpose of evicting the Petitioner forcefully and the same was sought to be done in a hush hush manner without following the due procedure. 6. The Petitioner has annexed the correspondences made with her by the Respondents in respect of the payment of compensation. By the said communications, the Petitioner was requested to attend the office of the Respondents for receiving the payment of compensation. Various dates for the purpose were fixed. On perusal of the correspondences, it appears that the land acquisition proceeding was finalized and the Petitioner was intimated about the same with the request to receive the amount of compensation by attending the office of the Respondents, which she refused to do. 7. The Respondents have filed two counter affidavits, one by the Respondent No. 2 and the other by the Respondents No. 1, 3, 4 and 5. In both the affidavits, the Respondents have denied the contentions raised by the Petitioner. According to them, the Govt. of Meghalaya in the Revenue Department vide notification dated 23.5.01 had notified to acquire the land measuring 27,353 sq. meter situated at Dawki (Tamabil) in the Elaka Nongtalang, Amlarem Sub-Division, Jaintia Hills District as per the provision of Section 4 of the Land Acquisition Act, 1894 to be needed for public purpose for Border Township under the Prime Minister's Package and accordingly objections to the acquisition were invited to be filed as per Section 5A of the Act by any person interested within the meaning of the said Section within 30 days from the date of publication of the notification in the Meghalaya Gazette. The Respondents have also stated that notification was published in the local news papers, i.e. Meghalaya Guardian on 19.8.01 and U. Mauphor on 12.9.01. Public notice was also issued on 13.9.01. The Respondents have also stated that notification was published in the local news papers, i.e. Meghalaya Guardian on 19.8.01 and U. Mauphor on 12.9.01. Public notice was also issued on 13.9.01. The declaration Under Section 6 of the Land Acquisition Act vide No. RTA 16.99.53 dated 30.11.01 was also published in the Meghalaya Gazette on 13.12.01, Meghalaya Guardian on 4.2.02 and U. Mauphor on 6.2.02. The Respondents have annexed the copies of the notifications as Annexes-1 to 6. 8. It is the further case of the Respondents that notice Under Section 9 of the Land Acquisition Act was issued by the Collector copies of which were also endorsed to the concerned interested parties. The award was approved by the Govt. by letter No. RDA. 16/99/133 dated 1.10.02. The concerned department, i.e. the Border Area Development Department deposited the requisite funds with the Collector towards payment of compensation as per the award. Thereafter, the land in question was handed over to the Department by the Collector on 4.2.03. 9. It is the specific case of the Respondents that the Petitioner had full knowledge about the acquisition proceeding and in fact, her son namely Shri Blu Gayang was personally present when the plot of land was identified and surveyed. They have further contended that the land is neither residential nor being used for religious purpose inasmuch as the Petitioner had leased out the plot of land to different lessees for a period of 30 years. Emphasizing the need for acquiring the land for public purpose, the Respondents have contended that the plea raised by the Petitioner in the writ petition is an after thought and that no interference is called for to the acquisition proceeding since finalized by the Respondents. It is the specific case of the Respondents that the land was handed over by the collector to the Border Area Development Department on 4.2.03 and physical possession of the land free from all encumbrances was delivered on 6.5.03. In return the Border Area Development Department handed over the possession of the plot of land to the Central Warehouse Corporation on 9.1.04 for taking up construction works of the Border Township after removing unauthorized structures that were erected again after 6.5.03 by some unknown persons taking advantage of absence of departmental officers at the site. 10. In return the Border Area Development Department handed over the possession of the plot of land to the Central Warehouse Corporation on 9.1.04 for taking up construction works of the Border Township after removing unauthorized structures that were erected again after 6.5.03 by some unknown persons taking advantage of absence of departmental officers at the site. 10. In the affidavit filed by the Respondents No. 1, 2, 4 and 5 the material facts have been indicated more elaborately. According to the said Respondents, pursuant to the notification dated 23.5.01, the Govt. of Meghalaya vide notification dated 23.5.01 acquired the land measuring 27,353 sq. meter for public purpose and objections to the acquisition were invited. They have indicated the persons who responded to the notice and in their objections they had stated that the land was leased out to them by the Petitioner and her son. At the time of spot enquiry to determine the boundaries, the son of the Petitioner Shri Blu Gayang was very much present. Thereafter the draft declaration Under Section 6of the Act was forwarded to the Govt. vide letter dated 31.10.01 as there was no objection to acquire the proposed plot of land as per Section 5A. The objection was only in respect of correction of boundaries and inclusion of the names of the interested parties. The declaration Under Section 6 of the Act was published vide notification dated 30.11.01 as well as in the aforesaid news papers. 11. Contrary to the statements made by the Petitioner that she had no knowledge about the acquisition proceeding and that after having come to know about the proceeding she filed her representation dated 7.12.02, the Respondents in their counter affidavit have stated that pursuant to the notice issued Under Section 9 of the Act and served on the interested parties vide letter dated 29.3.02 fixing the date as 11.4.02 at 11.00 a.m., the Petitioner came to the spot and objected to the proposal verbally and submitted the petition on 15.4.02. To clarify the matter to her a meeting was scheduled at PWD I.B., Dawki on 7.5.02 along with all those persons interested in the land. In the meeting the process followed for acquiring the land was explained to all the persons and thereafter another meeting was convened on 30.7.02 to apprise the local elders and the land owners on the importance of the construction of the Border Township. In the meeting the process followed for acquiring the land was explained to all the persons and thereafter another meeting was convened on 30.7.02 to apprise the local elders and the land owners on the importance of the construction of the Border Township. The Respondents have further contended that the procedure laid down in the Act was dully followed and on receipt of the approval of the award vide Govt. letter dated 1.10.02, notices were served on the land owners and the lessees to collect the same from the office of the Collector on 10.12.02. The Petitioner refused to receive any official correspondences addressed to her. Thereafter another date was fixed on 18.1.03 with due intimation to the Petitioner to collect the award, but she did not turn up. 12. The Respondents have further contended that the land acquisition proceeding was processed as per the provisions of the Land Acquisition Act and the land was taken over on 4.2.03 by the Collector and handed over to the Director of Border Area, Meghalaya on the same date. The land measuring 17,207.28 sq. meter belonging to the Petitioner was also taken possession and the Petitioner declined to received the payment of compensation. They have categorically denied the contentions of the Petitioner that she had no knowledge about the proceeding. Referring to the objection filed by her on 14.4.02, they have further contended that since the matter has already been finalized, there is no question of reopening the same exercising the power of judicial review under Article 226 of the Constitution of India. 13. The Petitioner has filed a rejoinder affidavit against the counter affidavit filed by the Respondents No. 1, 3, 4 and 5. In the affidavit she has more or less reiterated the contentions raised in the writ petition. According to her the procedure prescribed in the Act was not followed towards acquisition of her land. According to her the issuance of notice in different news papers was of no consequence since she is illiterate. 14. Mr. K.S. Kynjing, learned Sr. Counsel assisted by Mr. K. Sunnar, learned Advocate for the Petitioner strenuously argued that since the procedure prescribed in the Land Acquisition Act, 1894 was not followed, the entire acquisition proceeding so far as the same relates to the land of the Petitioner, is liable to be set aside and quashed. Mr. 14. Mr. K.S. Kynjing, learned Sr. Counsel assisted by Mr. K. Sunnar, learned Advocate for the Petitioner strenuously argued that since the procedure prescribed in the Land Acquisition Act, 1894 was not followed, the entire acquisition proceeding so far as the same relates to the land of the Petitioner, is liable to be set aside and quashed. Mr. N.D. Chullai, learned State counsel representing the Respondents referring to the stand in the counter affidavit, submitted that there is no merit in the writ petition and the same is liable to be dismissed. He placed reliance on the decision of the Apex Court as reported in AIR 1997 SC 482 (Municipal Corporation of Greater Bombay v. The Industrial Development Investment Co. Pvt. Ltd. and Ors.) He has also produced the records relating to the acquisition proceeding. 15. I have considered the submissions made by the learned Counsel for the parties and have gone to through the materials on record including the records produced by Mr. Chullai, learned State counsel. On perusal of the records, it appears that the Respondents followed the due procedure towards acquiring the land including the land of the Petitioner. The notifications were duly published in the local news papers. The records have also revealed that the Petitioner had leased out a part of the land to some other persons and lease deeds are available on record. Thus, the contentions of the Petitioner that the land is being utilized for religious purpose cannot be accepted. The records also contain the objection filed by her on 14.4.02. In the writ petition, the Petitioner has not mentioned anything about the objection so filed on 11.4.02. Thus, there is suppression of material fact in filing the writ petition in which only statement made is that the Petitioner having come to know about the acquisition proceeding raised her objection and submitted representation on 7.12.02 suppressing the fact that, she in fact, submitted her objection on 14.4.02. 16. From the above, it cannot be said that the Petitioner was unaware about the acquisition proceeding. In fact, as has been stated by the Respondents in their counter affidavit, her son was very much present at the time of making the spot verification of the land. However, the Petitioner has denied the authority of her son to do so. 16. From the above, it cannot be said that the Petitioner was unaware about the acquisition proceeding. In fact, as has been stated by the Respondents in their counter affidavit, her son was very much present at the time of making the spot verification of the land. However, the Petitioner has denied the authority of her son to do so. Going by the circumstances it cannot be said that the Petitioner was totally unaware about the land acquisition proceeding. The Respondents in their counter affidavits have categorically stated about the knowledge of the Petitioner of the land acquisition proceeding and the records produced by the learned State counsel bear the testimony of the same. 17. The land in question has been acquired for public purpose, namely to build the Border Township. The public purpose and the importance thereof need not be emphasized. At the time of filing the writ petition, the proceeding relating to land acquisition was already over and finalized. The land was handed over to the appropriate authority. The interested persons including the Petitioner were invited to accept the compensation. As per the records the amount of compensation on account of acquisition of land of the Petitioner has also been fixed and in fact, the Petitioner was invited to attend the office of the Respondents to receive the amount which she refused to do. 18. The writ petition was filed at the time when the entire proceeding was over and the matter attained its finality. It is in this context, Mr. Chullai, learned State counsel has placed reliance on the decision of the Apex Court in Industrial Development Investment Co. Pvt. Ltd. and Ors. (supra). That was also a case relating to acquisition of land for public purpose. It was observed that it would be necessary for interested person to be vigilant and watchful to impugn such notification relating to the acquisition under Article 226, before the acquisition became final and conclusive. In the instant case, the Petitioner as per her own admission came to know about the proceeding in December, 2002 although as per the records she filed her objection to the acquisition proceeding in April, 2002. She approached this Court by filing the writ petition on 19.5.03 when the acquisition proceeding attained its finality by acquiring the land and handing over possession of the same to the appropriate authority. She approached this Court by filing the writ petition on 19.5.03 when the acquisition proceeding attained its finality by acquiring the land and handing over possession of the same to the appropriate authority. At the time of filing of the writ petition, a stage had reached in which the Petitioner was invited to receive the amount of compensation on account of acquiring the land. 19. In the aforesaid judgment, the Apex Court observed thus: 29. It is thus well settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loathe to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But is should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference. The Division Bench of High Court was not right in interfering with the discretion exercised by the learned single Judge dismissing the writ petition on the ground of laches. 31. I have gone through the judgment prepared by my esteemed learned Brother K. Ramaswamy, J. I respectfully agree with the conclusion to the effect that Respondents No. 1 and 2 had missed the bus by adopting an indolent attitude in not challenging the acquisition proceedings promptly. Therefore, the result is inevitable that the writ petition is liable to be dismissed on the ground of gross delay and laches. 33....Such a belated writ petition, therefore, was rightly rejected by the learned single Judge on the ground of gross delay and laches. The Respondents-writ Petitioners can be said to have waived their objections to the acquisition on the ground of extinction of public purpose by their own inaction, lethargy and indolent, conduct. The division bench of the High Court had taken view that because of their inaction no vested rights of third parties are created. The Respondents-writ Petitioners can be said to have waived their objections to the acquisition on the ground of extinction of public purpose by their own inaction, lethargy and indolent, conduct. The division bench of the High Court had taken view that because of their inaction no vested rights of third parties are created. That finding is obviously incorrect for the simple reason that because of the indolent conduct of the writ Petitioners land got acquired, over to various claimants including the landlord. Reference applications came to be filed for larger compensation by claimants including writ Petitioners themselves. The acquired land got vested in the State Govt. and the Municipal Corporation free from all encumbrances as enjoined by Section 16 of the Land Acquisition Act. Thus right to get more compensation got vested in diverse claimants by passing of the award, as well as vested right was created in favour of the Bombay Municipal Corporation by virtue of the vesting of the land if the State Government for being handed over to the Corporation. All these events could not be whished away by observing that no third party rights were created by them. The writ petition came to be filed after all these events had taken place. Such a writ petition was clearly still born due to gross delay and laches. I, therefore, respectfully agree with the conclusion to which my learned brother Ramaswamy, J. has reached that on the ground of delay and laches the writ petition is required to be dismissed and the appeal has to be allowed on that ground. 20. The aforesaid decision dully supports the case of the Respondents that the writ Petitioner is not entitled any relief solely on the ground of being not prompt in making a challenge to the land acquisition proceeding. It will not be in the interest of justice to interfere with the action of the Respondents towards acquiring the land of the Petitioner, which has since attained its finality by giving indulgence to the belated pleas raised by the Petitioner which are also not tenable as has been discussed above. 21. For the foregoing reasons and discussions, I do not find any merit in the writ petition and accordingly it is dismissed. It will be open for the Petitioner to receive the compensation which needless to say, the Respondents shall provide to her upon her approach to them. 21. For the foregoing reasons and discussions, I do not find any merit in the writ petition and accordingly it is dismissed. It will be open for the Petitioner to receive the compensation which needless to say, the Respondents shall provide to her upon her approach to them. The Petitioner shall also be entitled to other remedies available to her, if she is aggrieved by the amount of compensation fixed by the Respondents. 22. The writ petition stands dismissed. However, there shall be no order as to costs. Petition dismissed