Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 221 (GAU)

Safique Ahmed Choudhury v. State of Assam

2008-03-17

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. The case of the petitioner in the present writ petition is that the Collector of the erstwhile Cachar District on 20.06.1964 requisitioned a plot of land measuring 21 Bighas 16 Kathas 2 Chataks which includes land measuring 5 Bighas 7 Kathas 16 Chataks belonging to the petitioner, under the provisions of Section 29(1) of the Defence of India Act, 1962 (hereinafter referred to as "the Act of 1962") and under Rule 8 of the Defence of India (Requisition and Acquisition) Rules, 1963 (hereinafter referred to as "the Rules of 1963") for maintaining supplies and services essential to the life of the community for construction of Advance Head Quarters of 1st B.S.F. Camp in Karimganj Sub-Division by registering case No. R.C. 4/1963-64. After lapse of 5 years of requisition under the provisions of the Act of 1962, the said land was again requisitioned by the Collector by issuing another Notification (Annexure-IT) in exercise of power conferred by Section 3(1) of the Assam Land (Requisition and Acquisition) Act, 1964 (hereinafter referred to as "the Act of 1964") by registering case No. R.C. 1/1968-69 for the said purpose for which, the land was originally requisitioned under the provision of the Act of 1962. 2. According to the petitioner the possession of the land was taken over on 20.06.1964 pursuant to the order of requisition issued on the said date under the provisions of the Act of 1962. Since the land was not used for the purpose for which it was originally requisitioned and no compensation for requisition as required under the Act of 1962 was paid to the predecessor-in-interest of the petitioner, he approached this Court in Civil Rule No. 519/1995 which was allowed vide judgment and order dated 10.05.1990 (Annexure-III) directing the authorities to handover the possession of the land measuring 5 Bighas 7 Kathas 16 Chataks to the writ petitioner therein, accordingly the said land was released from requisition by the Collector vide order dated 07.02.1992 (Annexure-IV) and the possession of the land measuring 5 Bighas 1 Katha 12 Chataks was handed over pursuant to the agreement dated 27.01.1992 whereby and whereunder the area of land requisitioned belonging to the petitioner was agreed to be 5 Bighas 1 Katha 12 Chataks. 3. 3. The further case of the petitioner is that though the Collector vide communication dated 18.10.2004 (Annexure-VII) requested the BSF authority, for whom proposed land was requisitioned, to deposit the sum of Rs.2,44,663.50 as rental compensation payable to the predecessor of interest of the petitioner for the period for which land was under requisition, initially under the provisions of the Act of 1962 and thereafter under the Act of 1964, the said amount has not been deposited by the BSF authority and hence rental compensation has not been paid to him. It is also the grievance of the petitioner that he for the first time on receipt of the said communication dated 18.10.2004 came to know about the estimate of Rs.2,44,663.50 submitted by the Collector before the BSF authority towards rental compensation and thereafter he on 21.12.2004 and again on 25.01.2005 filed two applications under Section 12 of the Act of 1964 for referring the matter to the Court for decision as he is not agreeable to the amount so estimated by the Collector, which applications though received by the Collector, the dispute has not been referred to the Court for giving decision. The petitioner, therefore, prays for directing the Collector to make reference as required under Section 12 of the Act of 1964 and to pay in the meantime the amount estimated by him with interest. 4. The case of the BSF authority as reflected in the affidavit-in-opposition filed is that though the Collector vide communication dated 18.10.2004 requested the Commandant, 45 Bn. BSF Karimganj to deposit the aforesaid amount, the same could not be deposited as the same was not approved by the higher authority of the BSF in view of the fact that there was no order from the Court to make payment of such amount. 5. The stand taken by the Collector in the affidavit is that though such estimate dated 18.10.2004 was sent to the BSF authority for deposit of the aforesaid amount payable as rental compensation, to the heirs of the original owner of the land, Pakhi Mia Choudhury, the same could not be paid due to non-deposit by the BSF authority, for whom the land was requisitioned under the provisions of the Act of 1962 and thereafter under the provisions of the Act of 1964. The affidavit filed by the BSF authority as well as the Collector do not, however, disclose about passing of the award as required under Section 11 of the Act of 1964 as well as the date of passing of such award. 6. I have heard Mr. N.N. Upadhaya, learned Counsel for the petitioner and Mr. H. Rahman, learned Asstt. Solicitor General of India, appearing on behalf of respondent Nos. 3, 4 and 5 and Mr. J. Handique, learned Counsel for the respondent Nos. 1 and 2. I have also perused the records produced by Mr. Handique, learned State Counsel appearing on behalf of respondent Nos. 1 and 2. 7. he petitioner's prayer in the writ petition is for issuance of direction to the Collector to refer the dispute relating to the amount of rental compensation fixed by the Collector, to the Civil Court under Section 12 of the Act of 1964, as according to the petitioner though he filed applications within the time allowed under the law, such dispute has not been referred to the Civil Court by the Collector. The further claim of the petitioner, as noticed above, is for directing the respondents to pay the amount already estimated by the Collector, which has been reflected in the communication dated 18.10.2004. For the purpose of ascertaining as to whether any award has been passed as required under Section 11(4) of the Act, in the absence of any statement to that effect in the affidavit filed by the respondents, the relevant record produced by the learned state counsel has been perused. Upon perusal of the said record this Court could not find any award passed under Section 11(4) of the Act relating to the rental compensation payable for the period of requisition of the land belonging to the petitioner measuring 5 Bighas 1 Katha 12 Chataks. 8. Sub-section (4) of Section 11 of the Act of 1964 requires the Collector to pass an award determining the rental compensation payable to every person interested in such compensation, either on the basis of the rate agreed in writing between the parties or, in the absence of such agreement, a reasonable compensation. 8. Sub-section (4) of Section 11 of the Act of 1964 requires the Collector to pass an award determining the rental compensation payable to every person interested in such compensation, either on the basis of the rate agreed in writing between the parties or, in the absence of such agreement, a reasonable compensation. Section 12(1)(b) provides that when there is any disagreement with regard to the compensation payable under Sub-section (4) of Section 11, on the application of the person entitled to compensation requiring the matter to refer to the Court, the Collector is duty bound to refer the matter to the Court. The Court has been defined in Section 2(b) as Principal Civil Court of original jurisdiction. Section 12(1) of the Act of 1964 is reproduced below: 12. Reference to Court: (1) The Collector shall in every case- (a) where any person aggrieved by an award made under Sub-section (3) of Section 11 makes an application requiring the matter to be referred to the Court; or (b) where there is any disagreement with regard to the compensation payable under Sub-section (4) of Section 11 on the application of the person entitled to compensation requiring the matter to the referred to Court, refer the matter to the decision of the Court. 9. Sub-section (2) of Section 12 of the Act of 1964 further provides that subject to the provisions of this Act, the provisions of the Land Acquisition Act of 1894 (Act. 1 of 1894), shall mutatis mutandis apply in respect of any reference made to the Court under Sub-section (1). Section 18(2) of Act 1 of 1894 provides period within which the application seeking reference has to be made before the Collector. 10. The grievance of the petitioner as noticed is relating to not making the reference in spite of request made by him to refer the dispute relating to the quantum of compensation estimated by him to the Court. The Collector can exercise the power under Section 12(1)(b) of the Act of 1964 provided an award is passed by it. In the instant case the record produced by the learned State counsel does not disclose passing of any award except a communication dated 18.10.2004 issued by the Collector to the BSF authority estimating Rs.2,44,663.50. The Collector can exercise the power under Section 12(1)(b) of the Act of 1964 provided an award is passed by it. In the instant case the record produced by the learned State counsel does not disclose passing of any award except a communication dated 18.10.2004 issued by the Collector to the BSF authority estimating Rs.2,44,663.50. The learned state counsel also could not bring to the notice of this Court any award passed by the Collector determining rental compensation payable to the petitioner in respect of the land, for the period of requisition. Section11(4) of the Act of 1964 requires the Collector to pass an award, which has not been done in the instant case. Hence, the prayer of the petitioner for directing the Collector to make a reference is premature. 11. It is evident from the communication dated 18.10.2004 issued by the Collector to the BSF authority that it has estimated a sum of Rs.2,44,663.50 as rental compensation payable to the owners in respect of the land requisitioned for the purpose of construction of Advance Head Quarters of 1st B.S.F. Camp in Karimganj Sub-Division. The Collector has also stated in his affidavit-in-opposition that no rental compensation was, however, paid to the petitioner, as the amount so estimated by it has not been deposited by the BSF authority. The BSF authority has also in the affidavit admitted that such amount has not been deposited, as the higher authority of the BSF has not approved the said amount, as there was no direction from the Court to pay such amount as in the earlier writ petition direction was to release the land from requisition. 12. That being the position. I dispose of the present writ petition with a direction to the Collector of the Karimganj District to pass an award as required under Section 11(4) of the Act of 1964 within four months from the date of receipt of the certified copy of this order. 12. That being the position. I dispose of the present writ petition with a direction to the Collector of the Karimganj District to pass an award as required under Section 11(4) of the Act of 1964 within four months from the date of receipt of the certified copy of this order. The BSF authority is directed to deposit the estimated amount as estimated by the Collector vide communication dated 18.10.2004 before the Collector, Karimganj District within a period of 4 months from the date of receipt of the certified copy of this order and on such deposit the amount shall be released to the legal heirs of Pakhi Mia Choudhury, the original land owner upon production of proof of heirship and on being properly identified and in accordance with law. In the event the heirs are not satisfied with the award to be passed by the Collector, they may take appropriate steps under the provisions of law for making reference to the Court. 13. The writ petition is accordingly disposed of. No costs.