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2010 DIGILAW 267 (GAU)

Kamala Tea Company Ltd. v. Union of India

2010-04-20

C.R.SARMA, I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. We have heard S. Deb, learned senior counsel, appearing on behalf of the appellant. We have also heard Mr. A. Lodh, learned Asstt. SG. for the respondents No. 1, 2, 3 and 4, and Mr. N.C. Paul, learned Government advocate, appearing on behalf of the remaining respondents. 2. The Government of Tripura, in exercise of its powers under the Land Acquisition Act, 1894, acquired land, measuring 123.24 acres, within Fatikcherra mouja, under Kamolghat Tehsil, Kachari, and Sadar Sub-Division, West Tripura District, including the land measuring 119.01 acres, under Khatian No. 1100, jer 114/2, 1138, which stood recorded in the name of Managing Director, Fearless Tea & Industry Ltd. of Fatikcherra, as jotedar, for a public purpose, namely, construction of Battalion Headquarters of 98 Bn. Border Security Force ('the BSF'). 3. With the grievance that the Border Security Force has taken over possession of 44.49 acres of land, appertaining to Fatikcherra Tea Estate, in excess of the land, which was acquired depriving thereby illegally the appellant herein from making use of its said land measuring 44.49 acres (without any authority of law) and seeking compensation for the land, which, according to the appellant herein, had been allegedly taken possession of by the Border Security Force, the appellant submitted a representation, dated 28.7.1997, to the Department of Revenue, Government of Tripura. On receipt of the said representation, a letter, dated 29.8.1997, was issued by the Department of Revenue, Government of Tripura, addressed to the Addl. District Collector, West Tripura, to inquire into the grievances of the appellant and submit a detail report in this regard. 4. As the Addl. District Collector, West Tripura, did not take any action on the letter, dated 29.8.1997, aforementioned, the appellant filed a writ petition under Article 226, which gave rise to WP(C) No. 256 of 1999, seeking therein, inter alia, a direction to be issued to the respondents to start a proceeding under the Land Acquisition Act, 1894, for acquisition of the said excess land and to make payment of adequate compensation. 5. 5. By judgment and order, dated 1.8.2009, a learned Single Judge of this Court has dismissed the writ petition on, broadly speaking, three grounds, namely, (i) that it is a disputed question of fact as to whether possession of the land of the petitioner (appellant herein) had been taken over by the Border Security Force in excess of the land acquired; (ii) that there is no legal duty cast on the District Collector towards the writ petitioner (i.e., the appellant) as far as the compliance with the direction issued under the letter, dated 29.8.1997, aforementioned, is concerned; and, (iii) for non-compliance of the direction so issued to the Addl. District Collector by the Government, the Government may take action against the District Collector, but no enforceable right can be said to have accrued to the petitioner-appellant from the letter, dated 29.8.1997, aforementioned, in order to enable the petitioner-appellant seek enforcement of the directions contained in the letter, dated 29.8.1997. Aggrieved by the dismissal of the writ petition, the writ petitioner has preferred this appeal. 6. There is no dispute that in the writ proceeding, the Union of India has denied that they have taken possession of the petitioner-appellant's land in excess of the land, which was acquired. As for as the State Government is concerned, it filed no counter-affidavit and it neither denied the allegation of the writ petitioner nor did it support the case of the Union of India. The learned Single Judge was, however, not incorrect in taking the view that it is a disputed question of fact as to whether land, in excess of the acquired land has been, taken possession of by the Border Security Force or not. But what is necessary to note is that if possession of any land has been taken over by the BSF beyond the land, which was acquired, or if the BSF has taken over possession of any land without the land having been acquired, such an action, in either case, is illegal and arbitrary. In such circumstances, when the State Government decided to hold an inquiry into the question as to whether the Border Security Force has or has not, taken possession of land in excess of what had been acquired, this decision of the State Government cannot be found fault with. In such circumstances, when the State Government decided to hold an inquiry into the question as to whether the Border Security Force has or has not, taken possession of land in excess of what had been acquired, this decision of the State Government cannot be found fault with. In terms of the decision so taken by the State Government, when a direction was issued by the Government to the Addl. District Collector, West Tripura, to hold inquiry, it became the duty of the Addl. District Collector to hold requisite inquiry and it was also the duty of the Union of India to help in determination of the question as to whether any land in excess of the acquired land had been taken possession of by the Union of India or not. It is not the case of the Union of India that they have made an independent enquiry or any enquiry whatsoever to determine if land, in excess of the acquired land, had been taken possession of by the BSF. They have, admittedly, taken possession of the land, which was handed over by the State Government. When the State Government was itself unsure as to whether it had or it had not handed over to the Union of India some land, in excess of the acquired land or any land, which was not acquired, no resistance could have been offered by the Union of India to the determination of the question as to whether any land, in excess of the acquired land or any land, without having been acquired has or has not been taken possession of by the Union of India. To the extent, therefore, that a direction had been issued to the District Collector by the State Government to hold an inquiry, such a direction was binding on the Addl. District Collector and ought to have been carried out. 7. The State, as a welfare State, cannot be allowed to act arbitrarily and completely oblivious of the law governing its actions and omissions. District Collector and ought to have been carried out. 7. The State, as a welfare State, cannot be allowed to act arbitrarily and completely oblivious of the law governing its actions and omissions. When the appellant, as a citizen, had made a representation to the State Government with grievances as mentioned above and the State Government had decided to hold an inquiry in this regard, it was the duty of the District Collector to hold an inquiry and when the District Collector had failed to discharge his duty and when such failure had adversely affected the interest of the petitioner-appellant, it cannot be said that the appellant could not have approached this Court for issuance of appropriate direction(s) to the respondents to ensure that in terms of the order, issued by the State Government, its functionaries, including the District Collector, hold an inquiry. Though right to property has no longer remained as a fundamental right, Article 300A does not permit any State to take possession of any land unless the same is legally and lawfully acquired. Hence, when the State Government wanted an inquiry to be held in this regard and when its functionary was not carrying out the decision of the Government and thereby adversely affecting the interest of the petitioner-appellant, we are of the view that the writ court ought to have stepped in and remedied the wrong, if wrong has been done, by invoking its powers under Article 226. 8. To put it a little differently, every State has the duty not to deprive, except in accordance with law, any of its citizens from enjoyment of his property. In the discharge of its said duty, when the State had directed the District Collector to hold enquiry, what it implied was that the State was trying to undo the wrong if it had inadvertently done to the appellant. 9. Thus, the direction, issued by the State Government to the District Collector, was nothing, but a step towards discharge of its duties, which it owed to the appellant, as the aggrieved party, if the possession of the land had been handed over by the State Government to the BSF without having acquired the same. In discharge of this duty of the State Government, the District Collector had, as a result of his omission to carry out the State's direction, created obstruction. In discharge of this duty of the State Government, the District Collector had, as a result of his omission to carry out the State's direction, created obstruction. This obstruction was required to be removed in order to enable the State discharge its duty towards the appellant. As the State had failed in taking action against the District Collector for his omission to carry out the State Government's direction, the appellant was within its right to come to the High Court and seek, by invoking the High Court's jurisdiction under Article 226, to force the State to discharge its duty. Viewed from this angle, it becomes clear that if the dismissal of the writ petition is not, now, interfered with, it would permit the State not to discharge its duty, which it had towards the appellant's grievances. The direction, given to the District Collector to hold enquiry, was really a direction by the State to its one of the functionaries. By directing the District Collector to hold enquiry, as the writ petitioner had sought for and the State Government wanted, the court would have ensured that all the State's functionaries conduct themselves in accordance with law and the law required that State functionaries, such as, District Collector, carry out the direction of the State Government so that the State can discharge its duties, if it had any, towards the appellant. 10. Situated, thus, we are of the view that the dismissal of the writ petition, in the case at hand, was not proper and not in consonance with the principles governing exercise of powers under Article 226. We, therefore, set aside the order, dated 1.8.2009, whereby the writ petition stood dismissed and direct respondent No. 6, namely, the Land Acquisition Collector, West Tripura, to hold an inquiry in terms of the letter, dated 29.8.1997, aforementioned. We further direct the remaining respondents shall co-operate with the inquiry, which would be held by the respondent No. 6. The whole exercise, so directed, shall be completed within a period of six months from today. 11. With the above observations and directions, this appeal shall stand disposed of. 12. No order as to costs. Petition dismissed