Research › Search › Judgment

Gauhati High Court · body

2007 DIGILAW 146 (GAU)

Union of India v. State of Assam

2007-02-21

AMITAVA ROY

body2007
JUDGMENT Amitava Roy, J. 1. This unusual confrontation pitches the union of India represented by the NF Railway, Maligaon against the State of Assam, over a challenge to the notifications dated 16.12.2006 of the Deputy Commissioner & Collector Kamrup (Metro), District-Guwahati, under Section 3(1) of the Assam Land (Requisition & Acquisition) Act 1964 (hereafter referred to as the 'Assam Act), seeking to requisition the land and building described in the schedules thereto. The Union of India as the writ petitioner, questions the legality and the validity of the said notifications. 2. I heard Mr. G.N. Sahewalla, Senior Advocate assisted by Mr. J. Singh, Advocate for the petitioner and Mr. K.N. Choudhury, Addl. Advocate General, Assam assisted by Ms. R. Chakraborty and Mr. Patwari Advocates for the State respondents. 3. The prefatory facts, constituting the foundation of the rival stands, are provided in the pleadings. The petitioner has maintained that the land involved, was acquired by the State of Assam for the N.F. Railways (hereafter for short as 'Railways'), for which the latter have schemes and projects for the development and commercial exploitation thereof, in public interest. The land is in possession and control of the Railways since 1917 initially with the Assam Bengal Railways and thereafter in succession under the BDAR, Assam Railways, North Eastern Railways and finally NF Railways. Acknowledging the ownership of the Railways, the State of Assam initiated a process for taking over the land and buildings on lease for a period of 35 years. Though, the proposal having been entertained by the petitioner, had made sufficient progress, there was an inexplicable turnaround following which the notifications were issued. Insisting that the land was a property vested in the Central Government, it has been asserted that consequently no tax or revenue had been paid to the State Government. The notifications have been questioned as incompetent and lacking in jurisdiction, being beyond the purview of the Assam Act, as the land belongs to the Central Government and/or the Railways under its use. The relevance and bona fide of the purpose of requisition as referred to therein, has also been impeached. According to the petitioner, in any view of the matter, the object of the purported requisition is not in any way emergent in nature and, therefore, the Assam Act, is not attracted in the facts of the instant case. The relevance and bona fide of the purpose of requisition as referred to therein, has also been impeached. According to the petitioner, in any view of the matter, the object of the purported requisition is not in any way emergent in nature and, therefore, the Assam Act, is not attracted in the facts of the instant case. The direction to handover the land and buildings immediately, according to the petitioner, is in contravention of the letter and spirit of Section 3, more particularly for the right of appeal provided therein. Moreover, as no notice as contemplated under Section 4 of the Act, had been issued to the owner, tenant or the occupier of the land, the process stands vitiated by the infraction thereof. The professed purposes, for which the land is sought to be requisitioned, have been assessed to be less significant and essential compared to those for which the Railways contemplate to utilize the same. In reply, the State respondents have asserted that the land belongs to the Government of Assam as per the revenue records, but under the use of the Railways, since long. However, at present, the purpose for which the land had been used by the Railways, having ceased to exist, the same had been abandoned by it. The answering respondents categorically denied that the land had been acquired by the State Government for the Railways. According to them, the land is sought to be requisitioned for important public purposes, namely, to facilitate the construction of i) Multi storied car parking; ii) a link road as well as; iii) creation of a traffic Rotary on the G.N.B. Road on an emergent basis. This they have proclaimed is urgently warranted in view of the alarming rise in traffic congestion in the area and the lack of parking facilities leading to mounting chaos. The respondents have contended that in any view of the matter, disputed questions of fact having emerged, this Court would not indulge in a fact finding inquiry in the exercise of its extraordinary jurisdiction and that having regard to the totality of the facts the challenge deserves to be dismissed. 4. Mr. Sahewalla, has persuasively urged that the land being vested in the Central Government and/or the Railways, the notifications under Section 3(1) of the Assam Act, are misconceived, the statute being not applicable to Government lands. 4. Mr. Sahewalla, has persuasively urged that the land being vested in the Central Government and/or the Railways, the notifications under Section 3(1) of the Assam Act, are misconceived, the statute being not applicable to Government lands. Further, no notice to the occupants of the railway quarters located thereon, having been issued, as mandated in Section 3(2) and 4 of the Assam Act, the impugned process is liable to be adjudged, non est in law. The direction for immediate delivery of possession of the land and the buildings, according to the learned Senior counsel, is repugnant to the right of appeal under Section 3(4) of the Assam Act, thus invalidating the process. While, contending that the purposes referred to in the notifications, are not as comprehended in Section 3(1) of the Act, Mr. Sahewalla, has argued that the approach of the State Government in the matter, lacks bona fide, inasmuch as, though, agreeable at some earlier point of time to take the land on lease acknowledging the title of the Railways thereon, it retraced its path on extraneous considerations and issued the notifications in an arbitrary display of executive power. According to him, the pleadings with regard to the dialogue between the parties pertaining to the lease, having remained uncontroverted, the title of the Railways in the land and the buildings, amongst others, is established therefrom. The learned Senior counsel to buttress his arguments has placed reliance on the following decisions in (Hari Chand Bishna Ram and Anr. v. State of Punjab and Ors.) and 1986 DLT 246 (Nanak Chand Sharma v. Union of India and Ors.) 5. Mr. Choudhury, as against this, has questioned the maintainability of the petition, contending that an appeal under Section 3(3) of the Assam Act, challenging the notifications being pending, the instant petition is liable to be rejected on that count alone. Moreover, as from the conflicting claims of the parties over the ownership of the land, disputed questions of facts arise, invocation of the extraordinary jurisdiction of this Court in this premise, is uncalled for. The assailment of the notifications being structured on the petitioner's claim of ownership of the land, in support whereof, no material is forthcoming, no relief as prayed for, is awardable in law, he urged. Mr. The assailment of the notifications being structured on the petitioner's claim of ownership of the land, in support whereof, no material is forthcoming, no relief as prayed for, is awardable in law, he urged. Mr. Choudhury affirmed that the land had not been acquired by the State Government for the Railways, but was allowed to be used by the latter for railway tracks and otherwise and that the same per se, did not endow it with absolute ownership thereof. The incomplete deliberations between the parties over the lease of the land cannot act as an estoppel for the State Government to exercise its power under the Assam Act, he urged. Referring to Section 13 of the Railways Act 1989, Mr. Choudhury, argued that the land being vested in the State Government, as is evidenced by the revenue records, the notifications having regard to the public purpose referred to therein, were not only competent, but also manifestly in public interest. According to him, mere omission to issue notice to the occupants of the buildings on land, ipso facto, would not impair the process. No other contention has been raised by any of the parties. 6. Both sides produced maps and the extracts of the relevant records in support of their assertions. 7. I have extended my anxious consideration to the competing versions. Admittedly, an appeal under Section 3(3) of the Assam Act, had been preferred by the petitioner before the appropriate authority of the Government of Assam on 29.12.2006, challenging the very same notifications. Stricto sensu, in view of the pendency of the appeal, the instant impugnment under Article 226 of the Constitution of India on this count alone, can be held to be not entertainable. This is more so, in view of irreconcilable contentions founded on facts. However, in view of the extreme urgency expressed on behalf of the parties, having regard to the project involved, I am not inclined to non-suit the petitioner on this ground. 8. The foundational claim on which the petition rests, being the ownership of the land by the Railways, the same deserves the primary attention to resolve the controversy. The incompatible stances of the parties outlined in their pleadings have been noticed hereinabove. 8. The foundational claim on which the petition rests, being the ownership of the land by the Railways, the same deserves the primary attention to resolve the controversy. The incompatible stances of the parties outlined in their pleadings have been noticed hereinabove. Whereas, the petitioner declares that the land had been acquired by the State for its requirements and thus it has vested in it and, therefore, it is the best judge to decide the manner of utilization thereof, the respondent State though, has admitted the use of the same by the Railways, denied and acquisition thereof by it for them. In this perspective, the petitioner's claim of being the successor in possession of the land tracing back to that of the Assam Bengal Railways in 1917, appears to be somewhat inconsistent. If the Railways have been in occupation of the land since 1917, the same having vested in the Assam Bengal Railways in 1917, its claim of possession following the acquisition thereof, by the State of Assam is incongruent and does not fall in place. 9. The documents annexed to the additional affidavit of the Railways, demonstrate, inter alia, the norms formulated by it, for leasing out its land, as well as the exchanges between the parties over the proposal of lease of the land referred to in the related correspondences. By the letter No. KRS. 1190/2005/11, dated 22.6.2006 of the Deputy Commissioner, Kamrup (Metropolitan) District, Guwahati, the General Manager N.F. Railway, Maligaon, was requested to relinquish/release the railway land mentioned therein, for the purpose of constructing multi storied car parking facility in the said city. It was, inter alia stated that the land had remained unutilized by the Railways and lying vacant and would be convenient for the purpose for which the same had been identified. In reply, the Deputy Chief Engineer (LM) N.F. Railway, apprised the Deputy Commissioner Kamrup (M) that the railway land could be leased out to the State Government for a period of 35 years with an upfront payment of onetime capitalized fee equivalent to 99% of the current market value of the land + Rs. 1000/- per annum as licence fee. The response was forwarded to the Guwahati Development Department, Government of Assam by the Deputy Commissioner, Kamrup, by his communication dated 6.7.2006. 1000/- per annum as licence fee. The response was forwarded to the Guwahati Development Department, Government of Assam by the Deputy Commissioner, Kamrup, by his communication dated 6.7.2006. By his letter No. GDD 75/98/85, dated 24.7.2006, the Secretary to the Government Of Assam, Guwahati Development Department, conveyed to the General Manager, N.F. Railway, Maligaon, the decision of the Government in principle to take over the land measuring 141.37 Are (10B-2K-17 Ls) of Dag No. 355 (kha) -356 (kha), 991 (kha), 992 (kha), 993 (kha) and 1043 of Sahar Guwahati revenue village part-V and VI on lease for 35 years with an upfront payment of one time capitalized fee equivalent to 99% of the present market value of Rs. 5 (five) lakhs per katha in addition to Rs. 1000/- (Rupees One Thousand) only as annual licence fee. The Railways were requested to handover the land to the Chief Executive Officer, GMDA to be demarcated by the Deputy Commissioner Kamrup (Metropolitan) at the earliest and to submit the total estimate of the amount to be paid by the Government of Assam. The request was reiterated by the said authority on 23.8.2006. 10. Eventually, the N.F. Railways replied through the Senior Division Engineer, N.F. Railway, Maligaon, who by his letter No. W/214/GHY/G/1670, dated 28.8.2006, informed the Deputy Commissioner (Metropolitan) Kamrup that the vacant land had been divided into three plots i.e., A, B & C and that therefrom, plot A and C were available for lease to GMDA, at the rate of 57.93 lakh per bigha. The estimated amount for upfront payment was quoted to be Rs. 4.49 Crores. The impugned notifications followed thereafter. Though, the correspondences alluded hereinabove, would evince that the parties had at one point of time consciously mulled over the feasibility of lease of the land involved by the N.F. Railways to the State Government on stipulations deliberated upon, the prospective transaction did not materialize. This ipso facto, in my considered view, is not determinatively demonstrative of the N.F. Railways absolute and unqualified title in the land. 11. Being the petitioner, it was incumbent on it to furnish convincing, cogent and weighty materials proving the same. This ipso facto, in my considered view, is not determinatively demonstrative of the N.F. Railways absolute and unqualified title in the land. 11. Being the petitioner, it was incumbent on it to furnish convincing, cogent and weighty materials proving the same. The map of 1917, depicting a railway track of the Assam Bengal Railways with the endorsement amongst others of Deputy Commissioner, Kamrup on 14.9.1917 and the cadastral map of Guwahati town signed by the Settlement Officer, Guwahati Town on 26.12.1953, reflecting, inter alia, the land involved with the railway track by themselves, in absence of any other proof of the ownership of the N.F. Railways, does not clinch the issue in its favour. The certified copy of the Jamabandi of the land under Dag No. 4035/1049,4035/1048 and 4035/991, produced on behalf of the petitioner, unmistakably proclaim the pattadar to be "Sarkar" (Government) with the remark that the same is reserved for the Railways. The certified copy of the chitha of the land involved, offered by the Respondents, disclose that Dag No. 355,356,991,992,993 and 1043, stand in the name of "Sarkar" (Government) with the remark that it is reserved for railway line/quarters. 12. A cumulative reading of the documents referred to hereinabove, as produced by the parties leads to the irresistible conclusion that the State of Assam is the recorded pattadar of the land sought to be requisitioned but inoccupation of the Railways for the purpose of its track and quarters. The plea that the word "Sarkar" (Government) possibly signified Central Government, does not appeal to this Court, the revenue records referred to, being of the State Government maintained in course of its official business and the land requisitioned shown thereon as reserved for the Railways. Had the land been of the Central Government or the Railways, the same would not have been depicted to be reserved for its use. Non payment of revenue to the State Government is not of definitive significance. The unmistakable emerging factual scenario thus proclaims that the Government of Assam is the recorded pattadar of the land involved and the Railways are in occupation thereof, for their purposes. No other document or record, has been produced by the petitioner in support of its claim of ownership or title, over the land. The unmistakable emerging factual scenario thus proclaims that the Government of Assam is the recorded pattadar of the land involved and the Railways are in occupation thereof, for their purposes. No other document or record, has been produced by the petitioner in support of its claim of ownership or title, over the land. The revenue records as above, substantially relied upon by the N.F. Railways as well, thus outweigh the petitioner's claim of ownership of the land on the basis of the correspondences pertaining to the proposed lease. However, in view of the railway track and the buildings of the Railways on the land, they have a claim thereon in law and, therefore, the request on behalf of the State Government to the Railways for releasing the land for facilitating the execution of its (State Government) public projects is intelligible. Noticeably, most of the pleadings of the petitioner, relating to ownership and title over the land have been, sworn to be true to the records. In absence thereof, such a plea cannot be upheld. As it is a writ proceeding, is not contemplated to be one for establishing the right of the petitioner, but for the enforcement thereof. Presently, the N.F. Railways have failed to discharge the burden required of them in law. 13. "Railway land" as defined in Section 2(32A) of the Railways Act, 1989, means any land in which the Government railway has any right, title or interest. "Land" under Section 3(a) of the Land Acquisition Act 1894 includes benefits to arise out of land, and things attached to the earth or permanently fastened to any thing attached to the earth. 14. Having regard to the N.F. Railway's possession of the land involved, the tracks laid and the buildings thereon, they have a limited right or interest in it to be nomenclatured as railway land. This, however, is not inhibitive of the invocation of the Assam Act, in the present case, the purposes therefor, being as comprehended therein. The preamble of this legislation discloses its objective to be amendment and consolidation of the law for requisition and speedy acquisition of premises and land for certain public purposes. This, however, is not inhibitive of the invocation of the Assam Act, in the present case, the purposes therefor, being as comprehended therein. The preamble of this legislation discloses its objective to be amendment and consolidation of the law for requisition and speedy acquisition of premises and land for certain public purposes. The power to requisition, is located in Section 3, which empowers the State Government or any person authorized in its behalf to requisition any land by an order in writing, if in its opinion, it is necessary so to do, amongst others for maintaining supplies and services essential to the life of the community or providing proper facilities for accommodation, transportation, communication etc. Such an order is required to be served in the prescribed manner on the owner of the land and where the order relates to land inoccupation of a tenant, also on him. Section 3 provides for an appeal to the State Government by any person interested in the land, if the order of requisition is made by any authority other than the State Government. Section 4 mandates that where any land has been requisitioned under Section 3, the State Government or the person authorized in its behalf, may by order in writing, direct the owner, tenant or any other person, who may be in possession of the land whether at the time of requisition or at any time thereafter to surrenderor deliver possession thereof to the Collector or any other person duly authorized by him within such days of service of the order as may be specified therein. Following the requisition of the land under Section 3, the State Government may use or deal with it in such manner as may appear to it to be expedient and may under Section 6 acquire such land by publishing in the official Gazette, a notice to the said effect. On the publication of the said notice, the land would vest absolutely in the State Government free from all encumbrances and the requisition thereupon would end. The provisions of the Land Acquisition Act, 1984 with the Rules framed thereunder, following such investiture would apply to the said land. 15. The scheme of the provisions noticed hereinabove, though, suggests that requisition may precede the acquisition of the land involved, the same do not predicate that the purposes for requisition have to be invariably temporary in nature. The provisions of the Land Acquisition Act, 1984 with the Rules framed thereunder, following such investiture would apply to the said land. 15. The scheme of the provisions noticed hereinabove, though, suggests that requisition may precede the acquisition of the land involved, the same do not predicate that the purposes for requisition have to be invariably temporary in nature. While, it is logical that the requisition or acquisition by the State Government of its own land is not comprehended in the said statute, the Assam Act envisages requisition and acquisition of such land in which any or interest absolute or limited is held by another. The plea of inapplicability of Section 3 of the said legislation, the N.F. Railways being the absolute owner of the land, cannot thus be sustained. Being the occupier thereof and having laid the railway tracks and raised its buildings, the Railway have some semblance of claim thereon and therefore, the action of the State Government, though the recorded pattadar, under Section 3 of the Assam Act, is permissible. 16. The facts as obtained in Hari Chand Bishna Ram and Anr. (supra) and Nanak Chand Sharma (supra), are distinguishable and, therefore, the proposition therein that any property vested absolutely in the Central Government free from all encumbrances, cannot be acquired by it under the Land Acquisition Act, 1894, is of no relevance. 17. A plain reading of the notifications demonstrate that the land identified to be requisitioned, is comprised of abandoned railway track and quarters. The purposes for such requisition as noticed hereinabove, have been clearly set out therein. The particulars of the land and the buildings have been clearly outlined and the General Manager N.F. Railway, Maligaon, have been requested to handover the requisitioned land including the abandoned railway quarters to the Circle Officer, Guwahati Revenue Circle immediately. The purposes referred to in the notifications, prima facie appertain to services essential to the life of the community bearing on transport and communication and thus are well envisioned in Section 3 of the Assam Act. As a Writ Court, it is neither expedient nor called for, to embark on an exercise of making comparative appreciation of the possible utilization thereof by the parties. No adjudicative pursuit to measure the executive wisdom of envisaging the proposed project on an assessment of the ground realities is warranted. As a Writ Court, it is neither expedient nor called for, to embark on an exercise of making comparative appreciation of the possible utilization thereof by the parties. No adjudicative pursuit to measure the executive wisdom of envisaging the proposed project on an assessment of the ground realities is warranted. The fruitless endeavour of the State Government in obtaining the lease of the land do not ipso facto divest it in the above conspectus of facts of its option to revert to the Assam Act, there being no estoppel against law. 18. In the wake of the above, the petition being devoid of merit fails and is dismissed. The above notwithstanding, the State respondents are hereby directed to scrupulously comply with the statutory requirements of Section 3 and 4 before acting on the notifications. The interim order stands vacated. No costs. Petition dismissed.