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2007 DIGILAW 340 (GAU)

Gwendoline Lyngdoh v. State of Meghalaya

2007-05-11

TINLIANTHANG VAIPHEI

body2007
JUDGMENT T. Vaiphei, J. 1. The petitioner in this writ petition is praying for issuing a writ of mandamus or a writ of that nature directing the BSF-respondents to acquire 84 acres of her land on payment of compensation. 2. The facts of the case as pleaded by the petitioner, in a nutshell, are that the BSF-authorities by the letter at Annexure-I requested the respondent No. 2 to acquire some 85 acres of the land situate at Mukhla near Jowai, belonging to the petitioner to establish one BSF battalion for increasing surveillance on and containing militant and other trans-border crimes. The respondent No. 2 by hi s letter dated 13.3.2002 (Annexure-II) intimated the respondent-BSF that the market value of the land in question was Rs. 28.50p per square feet. The respondent No. 2 also by the letter dated 3.6.2003 requested the Under Secretary, Govt. of Meghalaya, Revenue Department to constitute a Committee for making suitable recommendation as the land was urgently required by the BSF. This apparently resulted in the constitution of Land Acquisition Advisory Committee with the Minister of Revenue as its Chairman, which, in the meeting held on 27.6.2003, proposed to acquire the land of the petitioner alongwith another land at Rajap Rajpara, West Khasi Hills, with which we are not concerned in this case. By the letter dated 3.1.2005, the respondent No. 3 informed the respondent No. 2 that the petitioner had agreed to waive additional compensation under Section 23(ii)(iii) 2(b) at the rate of 30% and 12% (presumably interest @ 12% per annum from the date of publication of notice under Section 4 of the Land Acquisition Act, 1894 and solatium @ 30% on the market value) and requested him to intimate the actual cost of the land and the exact implication including Government revenue and processing charge for the same. 3. It is also the case of the petitioner that by his letter dated 13.1.2005, the respondent No. 2 informed the respondent No. 3 that the probable cost of the land of the petitioner would come to Rs. 11,60,84,333.70p (Rupees eleven crores sixty lakhs eighty four thousand three hundred thirty three and paise seventy) only and that the waiver of interest and other charges would have to be in the form of agreement between the requiring Department and the landowner, which should be furnished to him for necessary action at their end. 11,60,84,333.70p (Rupees eleven crores sixty lakhs eighty four thousand three hundred thirty three and paise seventy) only and that the waiver of interest and other charges would have to be in the form of agreement between the requiring Department and the landowner, which should be furnished to him for necessary action at their end. Following this communication, according to the petitioner, the respondent No. 2 convened a meeting in his office chamber on 26.7.2005, which was attended by the representatives of the landowner, the requisitioning Department and other members, in which it was agreed that the cost of the land to be acquired would be Rupees Nine crores only while 10% of the sum would be revenue fee vide Annexure-X. However, the respondent No. 3 subsequently by his letter dated 24.8.2005 requested the respondent No. 2 to urgently inform him the current market value of the said land through local sources after verifying relevant records maintained in the office of the respondent No. 2. In response to this letter, the respondent No. 2 is alleged to have arbitrarily fixed the rate at Rs. 157.62 per square metre and asked further advice from the Government of Meghalaya. Thereafter, the Deputy Secretary, Government of Meghalaya. Revenue Department apprised the respondent No. 2 on the advice of the Government of Meghalaya vide his letter dated 17.11.2005 and stated therein, inter alia, that the rates already fixed by the previous Collector had been fixed on the basis of materials available with him and on the basis of specified and accepted principles laid down and legally valid for the purpose. Thereafter, the BSF-authorities by the letter dated 23.11.2005 requested the respondent No. 2 to intimate the latest rate of the land sought to be acquired "so that the acquisition process could be accelerated and the troops could also be accompanied at a right place suiting to their operational as well as logistic requirements". Interestingly, the respondent No. 3 by his letter dated 23.12.2005 informed both the petitioner and the respondent No. 2 that the BSF required additional 40 to 50 acres of the same holding. 4. Interestingly, the respondent No. 3 by his letter dated 23.12.2005 informed both the petitioner and the respondent No. 2 that the BSF required additional 40 to 50 acres of the same holding. 4. In pursuance of the said letter dated 23.12.2005, the respondent No. 2 again sought the advice of the Government, which by the letter dated 20.1.2006 advised him that the Government had informed him that the Government stood by its earlier advice to go by the rate given by the previous Collector of Jowai. It is alleged by the petitioner that instead of complying with the advice of the Government, the respondent No. 2 arbitrarily convened a meeting for assessment of the rates and requested him, the acquiring Department and some local people from Mukhla who were the same persons who had earlier objected to the proposed acquisition for fear of alleged molestation of their women and girls by the BSF personnel, and the participation of these people in the meeting was invited by the respondent No. 2 with a mala fide intention of frustrating the entire land acquisition proposal, and so the meeting ended without any of the participants signing the minutes. The petitioner alleged that the respondent No. 2 prepared his own minutes wherein many facts were mis-recorded and that the petitioner subsequently requested him to make correction. According to the petitioner, the respondent No. 2 thereafter by his letter dated 16.2.2006 fixed the rate at Rs. 300/- per square metre and intimated the same to the respondent No. 3, which again prompted the respondent No. 3 vide his letter dated 20.2.2006 (Annexure-XXIII) to request the respondent No. 2 to clarify which of the three rates already given by him was the correct valuation and also impressed upon him the urgency of the matter. This was followed by another letter of the respondent No. 2 addressed to the respondent No. 3 intimating him that the rate of Rs. 300/- per square metre was only the "highest and prevailing market rate and not a final rate to be fixed by the Collector". Then, there was site inspection made by the respondent No. 2 on 23.3.2006, the purpose whereof was not clearly stated. Apparently frustrated by the conduct of the respondent No. 2, this writ petition has been filed by the petitioner for appropriate relief. 5. Then, there was site inspection made by the respondent No. 2 on 23.3.2006, the purpose whereof was not clearly stated. Apparently frustrated by the conduct of the respondent No. 2, this writ petition has been filed by the petitioner for appropriate relief. 5. The writ petition is contested by the respondent No. 2 and the respondent-BSF by filing their respective affidavits-in-opposition. However, no affidavit is filed by the State respondents. The petitioner filed her rejoinder-affidavit in answer to the affidavit-in-opposition of the respondent No. 2. The stand taken by the BSF authorities may first be looked into. While asserting that the writ petition is premature and thus not maintainable, the respondent-BSF nevertheless admitted that in addition to the 85 acres of land belonging to the petitioner, it was also negotiating with the petitioner for acquiring additional land measuring 40-50 acres lying adjacent to the said land which also belonged to her to establish another battalion headquarters, for which the KLP has already been approved by the Ministry of Home Affairs. Since the said 85 acres of land was urgently required, the matter was processed on top priority basis, for which the respondent No. 2 was requested to process the case under the relevant provisions of the Land Acquisition Act, 1894 on priority basis. It is also averred that on receipt of divergent rates of the land from the Office of the D.C. Jowai, vide the letter dated 20.2.2006, he was requested to intimate the latest valuation of the land in question. From this affidavit, it is evident that the BSF authorities are keen to acquire the land of the petitioner and are also in a hurry for location of one Battalion Unit of the BSF but their problem appears to be in respect of the market value of the land in question in view of different rates projected by the respondent No. 2 from time to time. The case of the respondent No. 2 is that the fixation of the market value at the rate of Rs. 157.60p per square metre is not arbitrary, which was arrived at after taking into account the lump sum amount of Rupees Nine crores as agreed to by both the parties, which was accordingly conveyed to the respondent No. 3. The case of the respondent No. 2 is that the fixation of the market value at the rate of Rs. 157.60p per square metre is not arbitrary, which was arrived at after taking into account the lump sum amount of Rupees Nine crores as agreed to by both the parties, which was accordingly conveyed to the respondent No. 3. According to the respondent No. 2, while the Government can advice him in such matter, it is, however, he who, as the Collector, in terms of the Land Acquisition Act, 1894, is the ultimate authority to fix such rates with reference to relevant materials. It is the contention of the respondent of the respondent No. 2 that the meeting held in the presence of the local people from Mukhla was fully justified as the purpose of the meeting was to ascertain the prevailing rate of the land generally in and around Mukhla village. It is the case of the respondent No. 2 that the rate of Rs. 300/- per square metre as intimated to the respondent No. 3 is the highest prevailing market rate based on information received from Raij Mukhla vide his letter dated 9.2.2006 while the rate fixed at Rs. 306.66 per square metre by the former Collector is not acceptable to the requiring Department as too high. It is also stated by the answering respondent that the rate of Rs. 157.62 per square metre is worked out on the basis of the lump sum amount of Rupees Nine crores agreed upon between the petitioner and the requiring department in the meeting held on 26.7.2005. However, according to this respondent, the rate fixed at Rs. 300/- per square metre is the highest and the latest prevailing rate, but the same is not yet the final rate under the provisions of the Land Acquisition Act. The respondent No. 2 denies that any error was committed by him or that he wrote secretly to the respondent No. 3 conveying to the latter that the rate of Rs. 300/- per square metre was the highest and the latest prevailing market rate. It is clarified by him that there is a detailed mechanism provided by the Land Acquisition Act for determination of the final rate and when the proceeding is yet to be initiated, the contentions of the petitioner in the writ petition are without any basis. 300/- per square metre was the highest and the latest prevailing market rate. It is clarified by him that there is a detailed mechanism provided by the Land Acquisition Act for determination of the final rate and when the proceeding is yet to be initiated, the contentions of the petitioner in the writ petition are without any basis. It is denied by him that there is lack of transparency or mala fide in the exercise undertaken by him. It is denied by him that he is casting aspersion on the integrity of his predecessor-in-office and other senior officials of the Revenue Department or that he is not competent and has no experience in handling land acquisition matter. According to him, the delay in the land acquisition proceeding has been occasioned by the refusal on the part of the requiring department to accept the rates fixed or estimated by him and his predecessor-in-office. These are the sum and substance of the various contentions raised by the respondent No. 2 in his affidavit-in-opposition. 6. On going through the pleadings of the parties, all that I can say at the outset is that the entire exercise undertaken by the BSF-authorities and the respondents betrays complete non-application of mind, deliberate or otherwise. Here is a strange case in which the petitioner has agreed to part with his land on payment of compensation or consideration by the BSF authorities and the State-respondents have no objection to the parting of such land by the petitioner in favour of the BSF authorities, who continue to express their desire to purchase the land. Yet they are nowhere near completion of the acquisition process. It appears that both the State-respondents and the BSF authorities have completely overlooked or deliberately ignored the procedures to be followed when any land is proposed to be acquired for public purpose. Such procedures are prescribed in the Land Acquisition Act, 1894 ("the Act" for short). Under Section 4, it causes the publication of a preliminary notification notifying the land required for a public purpose. This is followed by an entry, survey and investigation by an authorized government servant of the land in question. He shall pay for any damage caused by such entry and if the amount of damage is disputed by the party, a reference is called for under Section 5 to the Collector, whose decision shall be final. This is followed by an entry, survey and investigation by an authorized government servant of the land in question. He shall pay for any damage caused by such entry and if the amount of damage is disputed by the party, a reference is called for under Section 5 to the Collector, whose decision shall be final. Objection to such acquisition may be made by any person interested in the land, within thirty days from the date of publication of the notification. The objection, if any, is heard by the Collector under Section 5A, and after making necessary enquiry, the Collector shall submit his report to the Government, whose decision shall be final. Section 6 requires the Government or some other officer duly authorized to certify that the land is required for a public purpose. This declaration shall be published in the Official Gazette, which shall be conclusive evidence that the land is required for a public purpose. After this declaration, under Section 7, the Collector has to obtain the order for acquisition from the appropriate Government or some other authorized officer. The Collector shall then under Section 8 have to cause the land to be marked, out, measured and planned. Section 9 then mandates the Collector to give notice to all persons interested of Government's intention to take possession of the land and claims of compensation for all interests in such land may be made to him at a time and place specifically mentioned. Such notices are served upon the persons, and public notices are also affixed at convenient places or near the land to be acquired. Then, Section 10 empowers the Collector to require and enforce the making of statement as to the names of the parties interested in the land. Section 11, which is crucial for our purpose, enables the Collector to make inquiry into measurements, market value and claim and issue final award with the previous approval of the appropriate Government or of such officer as the appropriate Government may authorize in this behalf. Section 12 makes the award as conclusive evidence as between the Collector and the person interested, particularly in respect of the true areas and value of the land and the appointment of compensation among the interested persons. The award should then be filed in the office of the Collector and notice of the same should be given to the interested persons. 7. The award should then be filed in the office of the Collector and notice of the same should be given to the interested persons. 7. It may be noted that Section 13 of the Act enables the Collector to adjourn the inquiry to a proper date. For the purpose of such enquiry, Section 14 empowers the Collector to summon and enforce attendance of witnesses and production of documents. The procedures for assessing the amount of compensation payable to persons interested is provided for in Section 15, which says that the Collector shall be guided by Section 23 and 24. It may be noted again that a mechanism is introduced for the first time in the amendment of the Act in 1984 for enabling the parties to agree in writing on the matters to be included in the Award of the Collector and upon which the Collector, without making further inquiry, makes an award in accordance therewith. Such provisions are incorporated in Sub-sections (2), (3) and (4) of Section 11, which are as follows: 11 (2). Notwithstanding anything contained in Sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make in award according to the terms of such agreement. (3) The determination of compensation for any land under Sub-section (2) shall not, in anyway affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act. (4) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), no agreement made under Sub-section (2) shall be liable to registration under that Act. After issuance of the award, the Collector can under Section 16 take possession of land whereupon the land stands vested absolutely in the Government free from all encumbrances. 8. In the instant case, as emerged from the pleadings of the parties, it is obvious that the proposed acquisition proceeding has not moved an inch even though the offer of the BSF-authorities to acquire the land of the petitioner still stands as evident from the statement made by Mr. 8. In the instant case, as emerged from the pleadings of the parties, it is obvious that the proposed acquisition proceeding has not moved an inch even though the offer of the BSF-authorities to acquire the land of the petitioner still stands as evident from the statement made by Mr. S.C. Shyam, the learned CGC before this Court on 26.4.2007. The delay in completing the acquisition appears to have been occasioned by the series of correspondences made between the BSF-authorities and the collector on the market value of the land proposed to be acquired. In my opinion, the entire exercise undertaken by them in this regard amounts to putting the cart before the horse. The provisions of the Act summarized in the foregoing amply make it clear that the assessment of the market value of the land shall have to be made by the Collector only at the stage of the enquiry contemplated by Section 11, which, needless to say, is to be preceded by issuing notifications under Section 4, 5A, 6and 9. The proceedings of the meeting of the Land Acquisition Advisory Committee held on 27.6.2003 (Annexure-VIII) will show that the State-respondents had already cleared the proposed acquisition and informed the Collector to initiate the acquisition proceeding by requesting the BSF-authorities to deposit the required fund. In this view of the matter, there is absolutely no legal impediment in commencing and completing the land acquisition proceeding. It may, however, be noted that placement of the required fund by the BSF-authorities may not be possible till the final determination of the market value of the land by the Collector under Section 11 of the Act. But this does not prevent the Collector from requiring the BSF-authorities to deposit some percentage of the compensation for such land as estimated by him for tendering payment to the petitioner. Alternatively, the BSF-authorities and the petitioner may proceed under Section 11(2), (3) and (4) of the Act once the State-respondents direct the Collector to take order for acquisition of the land in terms of Section 7 of the Act. As noted earlier, in terms of Section 11(2) of the Act, both the BSF-authorities and the petitioner can also reach an agreement on the compensation amount payable without being guided by Section 23 of the Act. 9. In other words, the petitioner can waive his right to claim interest and solatium, etc. As noted earlier, in terms of Section 11(2) of the Act, both the BSF-authorities and the petitioner can also reach an agreement on the compensation amount payable without being guided by Section 23 of the Act. 9. In other words, the petitioner can waive his right to claim interest and solatium, etc. Once such an agreement is arrived at by them, the agreement in writing may be presented by them before the Collector, who, thereafter, without making further enquiry, can pass an award in accordance therewith. 10. The result of the foregoing discussion is that this writ petition is disposed of with the following directions: (a) The State-respondents shall initiate the acquisition proceeding of the land of the petitioner by issuing notification under Section 4 of the Act within thirty days of the receipt of this judgment and thereafter proceed with the land acquisition proceeding in accordance with the provisions of the Act. (b) It shall be open to the Collector to require the BSF-authorities to deposit some percentage of the compensation or Rupees Nine crores which is the price of the land initially agreed upon by the petitioner and the BSF-authorities before he proceeds to make enquiry under Section 11 of the Act. (c) Once the notification under Sections 4 and 6 have been issued by the State-respondents, it shall, however, be open to the BSF-authorities and the petitioner to negotiate a mutually acceptable price for the land and thereafter approach the Collector to invoke Section 11(2) of the Act, who shall thereafter pass the final award in accordance therewith. (d) If the State-respondents clear the proposal of the BSF-authorities to acquire additional land of the petitioner measuring 40 to 50 acres, land acquisition proceeding in respect thereof shall also be initiated by them in the same manner as indicated above.