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2014 DIGILAW 60 (TRI)

Sahera Begum v. Union of India

2014-02-10

S.TALAPATRA

body2014
JUDGMENT Subhasis Talapatra, J.:- As a common thread of controversy wades through the writ petitions, being W.P.(C) No. 23/2007, W.P.(C) No. 24/2007 and W.P.(C) No. 25/2007, those are tied-up together for purpose of disposal by a common judgment and order. The lands of the petitioners have been sought to be acquired for erection of fencing within 150 yards of the International Border between India and Bangladesh, vide Notifications, being (i) No. F.9(34)-REV/ACQ/VIII/2004, dated 07.08.2004 (related to W.P.(C) No. 23/2007), (ii) No. F.9(37)-REV/ACQ/VIII/2004, dated 28.08.2004 (related to W.P.(C) No. 24/2007) and (iii) No. F.9(39)-REV/ACQ/VIII/2004, dated 11.10.2004 (related to W.P.(C) No. 25/2007), under Section 17(1) of the Land Acquisition Act, 1894. There is no dispute in this regard. 2. For purpose of providing the details of the land that has been sought to be acquired for the said public purpose, the tables provided hereunder have been formed, extracting the details provided by the petitioners and the respondents in this proceeding. 3. The National Rehabilitation and Resettlement Policy, 2007, formulated by the Govt. of India has been extended for welfare of the oustees and the affected people. The oustees and the affected people have been assured of providing rehabilitation and re-settlement in terms of the said National Rehabilitation and Re-settlement Policy, 2007, as published in the Gazette of India, dated 31.10.2007. But, the controversy raised in this batch of the writ petitions is confined to the assessment of the compensation. According to the writ petitioners, no compensation has been provided to them by the award made by the Collector under Section 11(1) of the Land Acquisition Act, 1894 in (i) L.A. Case No. 31/SNM/04 (related to W.P.(C) No. 23/2007), (ii) L.A. Case No. 41/SNM/04 (related to W.P.(C) No. 24/2007) and (iii) L.A. Case No. 37/SNM/04 (related to W.P.(C) No. 25/2007) for diminution of the left-over land of the writ petitioners. 4. Mr. A.K. Bhowmik, learned senior counsel appearing for the writ petitioners, has submitted that Section23 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the L.A. Act') has catalogued the various components to be considered for purpose of determining the compensation of land. But, one of the components being diminution of the value of the left-over lands was not taken care of by the Land Acquisition Collector (hereinafter referred to as 'the L.A. Collector') while determining the compensation. But, one of the components being diminution of the value of the left-over lands was not taken care of by the Land Acquisition Collector (hereinafter referred to as 'the L.A. Collector') while determining the compensation. The left-over land shall fall on the other side of the border fencing and as such the value of the land shall diminish substantially. Nobody would be interested to purchase the land situated in that location, access of which is restricted and regulated by the border management police. Mr. Bhowmik, learned senior counsel has further submitted that by not considering that aspect of the matter, the L.A. Collector has not only infringed the statutory provision as engrafted in Section 23 of the L.A. Act, but also has acted arbitrarily, taking advantage of the compulsory Land Acquisition Law. Mr. Bhowmik, learned senior counsel has informed this court that the writ petitioners are still in possession of the lands sought to be acquired for purpose of erection of border fencing. 5. By the order dated 02.12.2013, the respondents were directed to inform this court whether the L.A. Collector had taken into consideration of the factors including the diminution of the land for acquisition etc. No affidavit has been filed by the respondents. However, the learned counsel appearing for the L.A. Collector has placed before this court a communication dated 17.01.2014 from the L.A. Collector, Sepahijala, Bishramganj to the L.A. Collector, West Tripura, Agartala. The relevant part of the said communication is extracted hereunder: With reference to the subject cited above, I would like to inform you that all the main LA proposals for erection of border fencing along Indo-Bangla boundary were initiated and finalized thereof by LAC, West before reorganization of Revenue Administration (undivided West Tripura District). It is imperative that during determination of compensation all factors such as diminution of land, severance, changes of residence etc. are being considered following the provision of LA Act. In addition to that, the compensation for removal of huts and damage of trees are also being taken into account while assessing compensation for acquisition of land for the above purpose in respect of the land owners who sustained such loss for acquisition. As of now, there is no petition from any of the interested parties received so far demanding rehabilitation/resettlement in the event of acquisition of land for border fencing. 6. As of now, there is no petition from any of the interested parties received so far demanding rehabilitation/resettlement in the event of acquisition of land for border fencing. 6. What has been stated in the said communication dated 17.01.2014 (a photo-copy of which has been made part of the record) is that it is imperative for the L.A. Collector to take into consideration the diminution of land, severances, changes of residence etc. 7. The respondents No. 2 to 5, in their counter-affidavit, have denied that all the plots or part thereof as noted in the tables above have fallen outside the fencing alignment. The said respondents have further asserted that there is no scope for acquisition of the entire stretch of land falling in between the fence of the zero line and the fencing as per the existing guidelines/instructions. The acquisition has to be made to protect the national interest and sovereignty of the country. They have further asserted that the L.A. Collector, West Tripura has followed the existing guidelines/instructions issued by the Ministry of Home Affairs, Govt. of India in respect of the acquisition for the border fencing and maintained all procedural formalities before taking over possession of the land as per the existing guidelines/instructions. The fencing was erected, according to the respondent-L.A. Collector, at a distance of 150 yards from the zero line and the provision has been made for gates so that the local people can have access to their land, falling across the fencing for cultivation and other purposes. The respondents have further asserted that there is no scope for acquisition of the entire stretch of land falling in between the fence and the zero line as per the existing guidelines/instructions. The respondents, however, have admitted that the State Government in the Revenue Department, by their Notifications, being (i) No. F.9(34)-REV/ACQ/VIII/2004, dated 27.08.2004 (related to W.P.(C) No. 23/2007), (ii) No. F.9(37)-REV/ACQ/VIII/2004, dated 29.09.2004 (related to W.P.(C) No. 24/2007) and (iii) No. F.9(39)-REV/ACQ/VIII/2004, dated 10.11.2004 (related to W.P.(C) No. 25/2007) had dealt with the issue in conformity with Section 17 of the L.A. Act. In terms of the said urgency clause as embodied in Section 17(1) read with Section 17(4) of the L.A. Act, it has been also declared that there cannot be any application of Section 5A of the L.A. Act in the acquisitions under reference. In terms of the said urgency clause as embodied in Section 17(1) read with Section 17(4) of the L.A. Act, it has been also declared that there cannot be any application of Section 5A of the L.A. Act in the acquisitions under reference. As such, the declarations were made under Section 6 of the L.A. Act. 8. The respondent-L.A. Collector has admitted that the petitioners have refused to accept the said award made under Section 11(1) of the L.A. Act, as according to the petitioners, they have not been paid due compensation and have not been given proper rehabilitation etc. 9. Mr. D.C. Nath and Mr. B. Datta, learned counsel appearing for the respondent-L.A. Collector, have submitted that these writ petitions are not maintainable, inasmuch as, the writ petitioners have efficacious alternative remedy under Section 18 of the L.A. Act. 10. Admittedly, the writ petitioners have not taken any recourse under Section 18 of the L.A. Act, even though the award under Section 11(1) of the L.A. Act has been made by the L.A. Collector long back. The writ petitioners have resorted to circuity for questioning the said award by filing these writ petitions. That apart, learned counsel appearing for the L.A. Collector have categorically stated that majority of the affected persons have accepted the compensation. Even though the respondents have filed quite an elaborate counter-affidavit, but nowhere they have stated that the L.A. Collector has considered the damage in the form of diminution of the left-over land. The respondent-L.A. Collector has asserted in this regard that the local people can have access to their land falling across the fencing for cultivation and other purposes. 11. On appreciation of the contentions as advanced by the learned counsel for the parties, the controversy has further been confined to a short campus, viz. (i) whether the writ petitions for purpose of assessment of the diminution of the left-over land are tenable for existence of the statutory provision under Section 18 of the L.A. Act and (ii) whether the diminution of the left-over land has been at all considered while assessing the compensation under Section 11(1) of the L.A. Act? 12. (i) whether the writ petitions for purpose of assessment of the diminution of the left-over land are tenable for existence of the statutory provision under Section 18 of the L.A. Act and (ii) whether the diminution of the left-over land has been at all considered while assessing the compensation under Section 11(1) of the L.A. Act? 12. If any statutory authority fails to exercise such power which the statute binds him to exercise, any aggrieved person can maintain a petition under Article 226 of the Constitution of India, even if any other statutory remedy is available to him inasmuch as the speedy and efficacious remedy is considered very relevant for selecting a forum. It is settled law that when two forums are available, the option is left with the litigant to select the forum. As such, if it is found that diminution of the land has not at all been considered by the L.A. Collector, the writ petitioners being the aggrieved persons can maintain the writ petitions. 13. As stated earlier, the respondent-L.A. Collector has failed to assert whether he had discharged the duty, imperative on him, to take into consideration the diminution of the land etc. in terms of Section 23 of the L.A. Act. The relevant provision, as engrafted in Section 23 of the L.A. Act may be reproduced for purpose of reference. the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land Such damage, in usual parlance is known as diminution of the land by way of severance. 14. The learned counsel appearing for the respondent-L.A. Collector has produced the Assessment Note. From appreciation of which, it has surfaced that no compensation has been awarded for diminution of the left-over land. 15. There cannot be any amount of doubt that the land falling within the zero line of the international border between India and Bangladesh and 150 yards therefrom, where the barbed wire fencing is constructed or to be constructed, has definitely suffered diminution in respect of the value for the said severance. Even if some gates are erected for purpose of access to that land for cultivation and other purposes, the advantage earlier attached to the land would definitely get diminished to a substantial extent. 16. Even if some gates are erected for purpose of access to that land for cultivation and other purposes, the advantage earlier attached to the land would definitely get diminished to a substantial extent. 16. The L.A. Collector, West Tripura (now, the L.A. Collector, Sepahijala District) has failed to make the award in compliance of Section 23 of the L.A. Act. Thus, the L.A. Collector, West Tripura and if the records have been transmitted to the L.A. Collector, Sepahijala District the L.A. Collector, Sepahijala shall revise the said award within a period of 4(four) months from today after affording opportunity of fresh hearing to the writ petitioners. The writ petitioners are given liberty to raise their claim on diminution of their land for the acquisition as stated, within a period of a month from today without fail. If such claim is not raised by the writ petitioners, the L.A. Collector shall be at liberty to determine the damage or diminution of land for severance in respect of the left-over lands of the writ petitioners falling within the zero line of the International Border between India and Bangladesh and 150 yards therefrom where the barbed wire fencing is erected or to be erected. It is needless to say, the writ petitioners will have all the statutory rights after the revised award is published by the L.A. Collector. As the writ petitioners have not pressed any other issue or the issues relating to re-settlement and rehabilitation, this court would not direct its consideration into that aspect of the matter. With this observation and directions, these writ petitions stand allowed to the extent as indicated above. There shall be no order as to costs. The Assessment Note as produced be returned to the learned counsel for the respondent-L.A. Collector.