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2008 DIGILAW 205 (GAU)

State of Meghalaya v. Winkle Star Kharumlong

2008-03-11

ANIMA HAZARIKA, MAIBAM B.K.SINGH

body2008
JUDGMENT A. Hazarika, J. 1. The judgment and order dated 24.11.2005 passed by the learned Single Judge of this Court in WP(C) No. 391 (SH) 2002 is the Subject matter under challenge in this writ appeal. 2. Shorn of all the details, the precise fact which would suffice for deciding the present appeal is that, an area known as Lum Sohpetbneng of Ri-Bhoi District of Meghalaya, was proposed to be acquired by the Forest Department of the Government of Meghalaya for the public purpose for establishing the State Botanical Garden which is admittedly owned by eight land owners. Out of the said eight land owners, two owners had expired namely (L) SM Syiemlieh and (L) SM Marwein who had been represented by the legal heirs namely Smti Clotilda Nongsiej of Jaiaw, Shillong and Smti Seris Majaw of Jaiaw Laitdom, Shillong respectively. After the land was proposed to be acquired by the respondent Nos. 1 and 2 (appellant No. 1 and 2 herein), the respondent No. 5 (appellant No. 5 herein) was entrusted with the process of acquisition and accordingly the respondent No. 5, after assessing the land fixed the rate at Rs. 25 per sq.m. and asked the petitioners to give their consent to the above rate after verbal discussions were held with the respondent No. 5 on several occasions. Against the rate as fixed by the respondent No. 5, by letter dated 26.07.2000, the petitioners expressed their willingness to accept the rate so fixed. However, despite the letter of acceptance of the rate fixed after due assessment by the respondent No. 5, without prior consultation with the petitioner and without assigning any reason, the respondent No. 5 on the very next day after the letter of acceptance was submitted i.e. on 27.07.2000 issued another letter informing that the rate has been proposed to be fixed at Rs. 2 for Plots at Block (i) and Rs. 2.50 for Block (ii). On receipt of the aforesaid letter, the petitioners on 07.08.2000 filed an objection against the said rate in view of the fact that the land is a planned land and during the past 15 years, heavy expenditures having been incurred by the petitioners in the management, supervision and improvement of the land proposed to be acquired. Thereafter, in the first meeting of inter departmental negotiating committee held on 21.09.2000 the rate of the land was considered at Rs. Thereafter, in the first meeting of inter departmental negotiating committee held on 21.09.2000 the rate of the land was considered at Rs. 25 per sq.m. and was assessed by the respondent No. 5 at the initial stage. When the matter was rested at thus, the petitioners found that the map of the said plots of land as prepared by the Director of Land Records regarding pieces of land to be acquired from the petitioners, the figures appear to be erroneous and on detecting the same, the petitioners filed another letter of objection dated 19.10.2000 with a request that the plots of land be re-surveyed. However, that has evoked no response from the respondents. Thereafter, the respondents held another meeting of Inter Departmental Negotiation Committee on 26.09.2000 with the land owners/writ petitioners. In the said meeting all the land owners were present but the respondents Nos. 2 and 5 who are the main parties in the acquisition process were absent. In the said meeting, the land owners were made to sign in an agreement in a coercive manner and the agreement was made hurriedly in the absence of the Land Acquisition Officer. By the said agreement, the petitioners were made to accept the compensation amount at a lump sum rate of Rs. 18.50 sq.m. and in the said agreement even the schedule of property has not been mentioned. Subsequently on 10.10.2000, the respondents prepared a draft agreement and the petitioners were made to sign in the said agreement despite their refusal to consent to the rate of Rs. 18.50 sq.m. The copy of the agreement also has not been served upon the petitioners. The petitioners thereafter again filed an objection on 08.03.2002 before the respondent No. 5 expressing among other things that the rate decided at Rs. 18.50 sq.m. is not adequate and sufficient. Against the aforementioned objection, the respondent No. 5 had given a reply vide communication dated 01.05.2002 to the effect that since the petitioners had signed the agreement dated 10.10.2000 and also agreed to a lump sum rate of Rs. 18.50 per sq.m. as cost of land, trees etc. as well as they have received the final payment without protest as such no petition can be entertained anymore. 18.50 per sq.m. as cost of land, trees etc. as well as they have received the final payment without protest as such no petition can be entertained anymore. Hence, being aggrieved, filed the writ petition before this Court being WP(C) No. 391 (SH) 2002 praying therein for a direction to the respondents to pay the compensation at the rate assessed by the respondent No. 5 i.e. at the rate of Rs. 25/- only per sq.m. alongwith interest and solatium as well as for a direction to the respondents to start fresh negotiation on the enhancement of the rate of compensation or to refer the matter to a Civil Court of competent jurisdiction. 3. In the said writ petition, an affidavit-in-opposition was filed by the State-respondents contending therein that the award was made on the basis of the agreement entered into between the parties and there was no objection whatsoever from the petitioners while receiving the compensation awarded, inasmuch as, contents of the agreement makes it abundantly clear that the landowners signed the agreement after being made to understand the contents contained therein. Thus, the "implied'' unacceptability is not legally tenable as the petitioners are the parties to the agreement. More so, in the process for acquisition of the land in accordance with the Land Acquisition Act (hereinafter referred to Act), a notice under Section 4 of the Act was issued on 13.12.2000 which was published in the Meghalaya Gazette on 04.01.2001, followed by a declaration under Section 6 of the act issued on 23.02.2001. 4. The question thus arose to be answered before the learned single Judge was as to whether the petitioners could be deprived of the right under the Act and make them accept the amount of compensation as per the terms of agreement which was not executed in accordance with the provisions of Sub-section 2 and 4 of Section 11 of the Act. 5. The learned Single Judge, upon hearing the learned Counsel for the parties, passed the judgment and order dated 24.11.2005 allowing the writ petition by holding that since the award was not made in accordance with the provisions of the Act, the land of the writ petitioners need to be re-assessed in accordance with the provisions of the Act and the petitioners be granted all the rights accrued to them under the Act. The learned single Judge further directed the Collector, Ri-Bhoi District to reassess the land of the petitioners in accordance with the provisions of the Act by granting them solatium, interest etc as may be applicable under the Act, stipulating the period of three months for completion of the reassessment from the date of receipt of the order, making it clear that after the award is made, the amount already paid to the petitioners shall be deducted by the Collector. Challenging the legality and validity of the said judgment and order, the instant writ appeal has been filed by the State-respondents. 6. We have heard Mr. N.D. Chullai, learned senior Government Advocate, Meghalaya appearing for the appellants and Mr. S. Sen, learned Counsel appearing for the respondents. 7. Mr. N.D. Chullai, learned senior Government Advocate has submitted that the learned Single Judge has failed to note that the compensation mutually assessed was duly paid to the writ petitioners/respondents, who also duly accepted the same on the basis of the agreement executed by them with the respondents/appellants on 10.10.2000, without any protest whatsoever, more so, the respondents/writ petitioners having once accepted the agreed amount of the respective compensation ought not to have been allowed to adjudicate the matter once again before this Court without having first availed of the remedy provided for under Section 18 of the Act. Mr. N.D. Chullai, challenging the finding of the learned single Judge has submitted that, the learned single Judge has failed to take into consideration the legal aspect of the matter that award made by the Collector under Section 12 of the Act is final and in that view of the matter, the direction of the learned single Judge to the Collector to re-assess the amounts due to the writ petitioners/respondents was without any jurisdiction, inasmuch as, the Act does not provide for reassessment for the fact that due assessment of the land in question having been made by the concerned authorities which was duly accepted by the writ petitioners/respondents and the payment of which was also duly accepted by the said writ petitioners/respondents, the question of reviewing or reassessing the value of the land so acquired by the Collector of Ri-Bhoi District does not arise. Further submission of Mr. Further submission of Mr. N.D. Chullai is that, writ petitioners/respondents having admittedly been aggrieved by executing an agreement dated 10.10.2000 to accept the award made by the concerned Collector, the question of enhancing the compensation under the Act does not arise. More so, the agreement was not required to be registered under the Regulation Act in view of the special provision provided in Sub-section (2) and (4) of Section 11 of the Act as amended. 8. Mr. S. Sen, learned Counsel for the respondents, supporting the judgment passed by the learned single Judge has submitted that the learned single Judge has rightly passed the judgment and order directing the respondents/appellants to re-assess the land of the writ petitioners/respondents in accordance with the provision of the Act by granting them solatium, interest etc as may be applicable under the Act and to complete the reassessment within a period of 3 months from the date of receipt of the order. Mr. Sen further submitted that the learned single Judge has rightly passed the order considering the fact that the agreement was made taking advantage of the petitioners' ignorance of law. The land owners were made to sign the agreement in a coercive manner and the said agreement was made hurriedly in the absence of the Land Acquisition Officer. By the said agreement, the petitioners were made to accept the compensation amount at a lumpsum rate of Rs. 18.50 per sq.m. and in the said agreement even the schedule of property has not been mentioned. The writ petitioners were made to sign in the agreement despite their refusal to the rate mentioned in the agreement. More so, a copy of the said agreement has also not been served upon the writ petitioners/respondents. Mr. Sen, also submitted that, in the instant case, market value of the land has not been determined as per provision under the Act. He further submitted that after execution of the agreement on 10.10.2000, a Notification was issued only on 04.01.2001 and thereafter, a declaration under Section 6 of the Act was issued on 23.02.2001 which shows that the whole land acquisition process was flouted. Inspite of the protest petition submitted by the petitioners before the respondent No. 5 (appellant No. 5) requesting him to call for fresh negotiation on the enhancement rate, the respondent No. 5 has not given any response to the petitioners. Inspite of the protest petition submitted by the petitioners before the respondent No. 5 (appellant No. 5) requesting him to call for fresh negotiation on the enhancement rate, the respondent No. 5 has not given any response to the petitioners. The respondent No. 5 has neither started fresh negotiation nor referred the same to a Civil Court and, therefore, the learned single Judge has rightly passed the judgment and order which, Mr. Sen submitted may not be interfered with in the facts and circumstances of the case. 9. We have considered the submission of the learned Counsel for the parties and also perused the pleadings and various provisions of the Act referred to by the learned Counsel for the parties. 10. A bare reading of nature and object shows that the Act is of an exceptional character. It aims at promoting public interest, salus populiuprema lex. The object and intention of the Act is to provide speedy method of determining the compensation to be paid for land required for certain defined purposes and the Act points out the mode in which the same is to be acquired and the formalities necessary to be followed for acquiring the same. The object of the Act is also to comprise in one General Act sundry and elaborate provisions relating to the acquisition of land for public purpose and for determining or assessing the amount of compensation. The Act contains abundant evidence of the intention of the legislature that all proceedings in regard to land acquisition and compensation should be conducted under the Act and not otherwise. It is an Act authorize the local Government to make compulsory acquisition of land for public purposes and for companies and for determining the amount of compensation to be made on account of such acquisition. Sections 4 to 16 of the Act provides for various subjects of acquisition of land such as notification, declaration, compensation, award, enquiry and power to take possession etc. There is first a notification published in the Official Gazette and at places in the locality announcing that the land in the locality is needed for a public purpose, specifying the purpose and particularizing the land intended to be acquired. There is first a notification published in the Official Gazette and at places in the locality announcing that the land in the locality is needed for a public purpose, specifying the purpose and particularizing the land intended to be acquired. After this notification, it is lawful for an authorized Officer to enter any land in the locality to investigate the adaptability of the land for the public purpose and to survey and set out the boundaries of the notified land. Standing crops and fences may be removed but all damages caused must be paid for promptly. Any person interested in the land or any person interested in any land in the locality may object to the said acquisition of the land notified under Section 4 and such objections must be considered by the Collector and decided by the local government. There must be one notification but there can be several reports on parcels of land and there may be severa declarations in respect of parcels of land covered by one notification. After the reports, if the Government decides to proceed with acquisition after being satisfied as to the purpose being a public purpose, it issues a declaration under Section 6announcing that particular land is required for public purpose. The Collector is then directed to take order for acquisition and after causing the land to be marked out, the Collector issues public notice under Section 9 inviting claims to compensation from persons interested. Thereafter, an inquiry is made into the objections as to measurement and valuation of the land at the date of the notification under Section 4 and then an award is made declaring true area of the land, the compensation which should be allowed and the persons entitled to resume it. Following the award under Section 11, the Collector may take possession of the notified land under Section 16 and thereupon the title of the land vests in the Government free from all encumbrances. 11. Sections 18 to 34, (Parts III, IV and V) speak about reference, apportionment, compensation and payment of interests. After the award is made by the Collector, any person may refuse to accept the award and apply to the Collector, who is bound to refer the dispute for determination of the Court. Dispute may be as to amount or measurement or persons entitled etc. After the award is made by the Collector, any person may refuse to accept the award and apply to the Collector, who is bound to refer the dispute for determination of the Court. Dispute may be as to amount or measurement or persons entitled etc. It is a special Court and after all evidence are taken, an award is made by the Land-Acquisition Judge which amounts to a decree. Against the decree an appeal lies to the High Court. 12. Award is given by the Collector consideration of (1) market value of land at the date of notification under Section 4(2) damages sustained in process of taking possession;(3) bonafide loss etc, but damages likely to be caused after publication of declaration under Section 6 or in consequence of the use to which it would be put or any outlay or improvements on, or disposal of the land acquired, made without sanction of the Collector after date of publication of notification under Section 4 shall not be taken into consideration. 13. Regarding the execution of agreement during the acquisition process, it has been laid down in Section 11(2) of the Act: That 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 inquiry, make an award according to the terms of such agreement. Sub-section (3) of Section 11 provides that, "the determination of compensation from any land under Sub-section (2) shall not in any way 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." Sub-section (4) of Section 11 provides that, "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." 14. In the present case at hand, it is seen that the first meeting of the Inter-Departmental Negotiating Committee was held on 21.09.2000. Thereafter, appellants/respondents held another meeting with the landowners/writ petitioners on 26.09.2000, where as alleged, the landowners were made to sign in an agreement in a coercive manner. In the present case at hand, it is seen that the first meeting of the Inter-Departmental Negotiating Committee was held on 21.09.2000. Thereafter, appellants/respondents held another meeting with the landowners/writ petitioners on 26.09.2000, where as alleged, the landowners were made to sign in an agreement in a coercive manner. By the said agreement petitioners were made to accept the compensation amount at a lumpsum rate of Rs. 18.50 sqm. Subsequently, another draft agreement was prepared and executed on 10.10.2000, where landowners were again made to sign despite their refusal to consent to the said rate. Even copy of the agreement has not been served upon the writ petitioners/land owners. The acquisition proceedings were initiated by issuing notification under Section 4 of the Act on 4th January, 2001 and thereafter declaration under Section6 of the Act was issued only on 23.02.2001 which clearly shows that process for acquisition under the Act was initiated after the execution of the aforesaid agreement. As mentioned. hereinabove, as per Sub-section (2) and (4) of Section 11 of the Act, it has been clearly laid down that agreement, if any made, is to be made at any stage of the "proceeding", that too, if the Collector is satisfied that all the persons interested in the land have agreed in writing and in the forms prescribed by rules. 15. In view of the various provisions/stages laid down in the Act, now the question which arises for determination before this Court is whether the alleged agreement has been made as per provision of the Act. From the facts as well as provisions laid down in the Act, it reveals that the alleged agreement has been made by dispensing all required formalities, that too, after lodging protest by the petitioners. Obviously, the approach of the appellants/respondents in dealing with the matter has been wrong and the exercise taken by the appellants/respondents in determining the compensation payable on the basis of a document, i.e. the agreement herein which is not as per the procedure required under the provision of the Act is bound to flop. The writ petitioners/respondents cannot be deprived of the right under the Act and make them accept the amount of compensation as per the terms of the agreement which was not executed in accordance with the provisions of Sub-section 2 and 4 of Section 11 of the Act. 16. The writ petitioners/respondents cannot be deprived of the right under the Act and make them accept the amount of compensation as per the terms of the agreement which was not executed in accordance with the provisions of Sub-section 2 and 4 of Section 11 of the Act. 16. For the reasons and discussions made above, in our firm opinion, the appellants could not make out a case justifying interference of the impugned judgment and order dated 24.11.2005 passed by the learned Single Judge in WP(C) No. 391 (SH) of 2002. 17. The appeal being devoid of merit stands dismissed. Stay order passed earlier stands vacated. However, in the facts and circumstances of the case, there shall be no order as to cost. Appeal dismissed