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Gauhati High Court · body

2016 DIGILAW 233 (GAU)

Joymoti Das v. Union of India

2016-03-29

HRISHIKESH ROY

body2016
JUDGMENT : Heard Mr. K.R. Patgiri, the learned counsel appearing for the petitioner. Also heard Ms. P. Baruah, the learned Central Govt. counsel representing the respondent No.1. The learned standing counsel for the National Highway Authority of India (in short ‘the NHAI’) Mr. R.K. Talukdar appears for the respondent Nos.2 & 6. The Govt. Advocate Mr. P.S. Deka appears for the respondent Nos.3, 4, 5 & 7. The private respondent No.8 & 9 are represented by the learned counsel Mr. N. Dutta. None is present today for the respondent Nos.10 & 11. 2. The matter pertains to acquisition of land under the National Highways Act, 1956 (hereinafter referred to as the ‘the Highways Act’), for expansion of the Nalbari-Bijni segment of the NH-31, in the Barpeta District. The concerned land measuring 1 Bigha is located in Bhulukadoba village in Barnagar Revenue Circle of Barpeta District and is covered by Dag No.758, Patta No.271 (New) and is owned by late Nareswar Das, who after his death on 16.8.2013, was substituted in this proceeding, by his wife Smti Joymoti Das, through the Misc. Case No.3010/2014. 3. In a portion of the acquired land, a mobile phone tower was constructed by M/s. Dishnet Wireless Ltd. (respondent No.8) and under the lease agreement dated 10.6.2005 (Annexure-1), the land owner was paid monthly rent by the company for the leased land. In this case, the land owner prays for enhanced compensation for loss of rental earning and/or to exclude the 1 katha land where the phone tower is installed so that, disruption is not caused to the receipt of the rental income by the land owner from the private respondents. 4. For the proposed expansion of the national highway, the notification under Section 3A(1) of the Highways Act was issued on 23.10.2009, whereby the Central Govt. declared its intention to acquire, inter alia, the petitioner’s land at village Bhulukadoba in Barpeta District. Objections were invited within 21 days against the intended acquisition and it was specified that such objection should be filed before the Addl. Deputy Commissioner, Barpeta. Thereafter the acquisition notification was issued on 27.4.2010, under Section 3D(1) of the Highways Act, wherein it was declared that none filed objection to the 1st notification and accordingly on receipt of the report of the competent authority, the Central Govt. Deputy Commissioner, Barpeta. Thereafter the acquisition notification was issued on 27.4.2010, under Section 3D(1) of the Highways Act, wherein it was declared that none filed objection to the 1st notification and accordingly on receipt of the report of the competent authority, the Central Govt. issued the acquisition notification and declared that the acquired land vests absolutely in the Central Govt., under Sub-Section (2) of Section 3D(1) of the Highways Act. 5. The son of the land owner Nikunja Das on his father’s instruction addressed a representation on 10.12.2009 (Annexure-6) to the Addl. Deputy Commissioner, Barpeta where it was pointed out that the respondent companies have constructed a mobile phone tower, covering 1 katha of acquired land and since the land owner’s family is earning rental income from the Company under the lease agreement dated 10.6.2005, prayer was made to exclude this portion of the land from acquisition process, so that the family can continue to earn the rental income from the mobile phone operator. 6. In the present case, the land owner has challenged the acquisition notification and alternately prays for enhancement of computed compensation to take into account the loss of rental earning and also additional amount, for the forced change of residence of the family, since no amount was paid under these heads. The learned counsel for the petitioner refers to the pro-forma (Annexure-8), prepared by the competent authority under the Highways Act, where total compensation under 3 heads namely, Rs.8 lakhs for 1 Bigha land; Rs.6,96,900/- for the residential house and Rs.90,000/- for the standing zirat was finalized at Rs.15,86,900/-. This amount was received by the land owner without prejudice to his rights under this Court’s order passed on 27.4.2011. 7. According to the petitioner’s, the intended expansion of the NH-31 could be accomplished without disturbing the 1 katha land, where the phone tower is standing and therefore Mr. K.R. Patgiri, the learned counsel submits that since the competent authority have not determined any amount towards loss of rental income, such additional amount towards loss of earning should be assesses, under Section 3G(7) or 3G(2) of the Highways Act. A counter submission is also made by the petitioner’s lawyer to allow retention of 1 katha land by refunding the proportionate compensation, as computed at Rs.8 lakh for the 1 Bigha land acquired by the NHAI. 8. The learned counsel Mr. A counter submission is also made by the petitioner’s lawyer to allow retention of 1 katha land by refunding the proportionate compensation, as computed at Rs.8 lakh for the 1 Bigha land acquired by the NHAI. 8. The learned counsel Mr. N. Dutta representing the phone company submits that all rights on the installed phone tower have since been transferred by M/s. Dishnet Wireless Ltd. (respondent No.8) to M/s. Chennai Network Infra-Structure Ltd. (respondent No.10) and therefore the monthly rent for the leased land is being tendered now, by the respondent Nos. 10 & 11. 9. While the learned counsel for the respondent Nos.10 & 11 is absent from Court, an affidavit was filed on their behalf on 18.2.2013, where it is averred that the infrastructure and business of the M/s. Dishnet Wireless Ltd. (respondent No.8) was sold to the M/s. Chennai Network Infra-Structure Ltd. (respondent No.10) and therefore the concerned phone tower is now being operated by the 10th respondent and they are also paying the lease rent to the land owner, on the basis of the lease agreement dated 10.6.2005 and the extension of the lease agreed upon on 14.5.2014. 10. The current position at the location reflects that the expansion of the NH-31 could be carried out without disturbing the phone tower, standing on a portion of the acquired land. Moreover notwithstanding the receipt of the quantified compensation for the entire 1 bigha land, the land owner is still receiving the monthly rental from the phone Company, for the standing phone tower on the acquired land. 11. When compensation for acquisition under the Highways Act is determined, the loss of the enjoyment of the land and earning of the land owner is also required to be accounted for, under Sub-Section (2) and Sub-Section (7)(c) of Section 3G of the Highways Act. Moreover compensation is also to be assessed for forced relocation of residence, under Sub-Section (7)(d) of Section 3G of the Highways Act. 12. Here when the competent authority determined the payable compensation under three different heads, as is reflected in the Pro-forma (Annexure-8), amount was not earmarked under Sub-Section (2), (7)(c) or (7)(d) of Section 3G of the Highways Act. Therefore the claim for additional compensation under these three heads, is required to be considered. 13. On behalf of the NHAI, Mr. 12. Here when the competent authority determined the payable compensation under three different heads, as is reflected in the Pro-forma (Annexure-8), amount was not earmarked under Sub-Section (2), (7)(c) or (7)(d) of Section 3G of the Highways Act. Therefore the claim for additional compensation under these three heads, is required to be considered. 13. On behalf of the NHAI, Mr. R.K. Talukdar, the learned counsel submits that Rs.15,86,900/- which was determined by the competent authority was received without protest by the land owner on 1.6.2011 and therefore further claim under additional heads should not be entertained. But when we examine the order passed by this Court on 27.4.2011, it is apparent that the assessed amount was received by the land owner without prejudice to his right to claim additional compensation and therefore the Court feels that the claim for additional compensation can’t be closed for the affected land owner. 14. When the amount determined by the competent authority is not acceptable, the protesting party can apply for additional compensation under Sub-Section (5) of Section 3G of the Highways Act and it is submitted at the Bar that the Lower Assam Commissioner of the State as the arbitrator, is competent to re-determine the compensation, under the Highways Act. 15. The Court can’t be oblivious here that the assessed amount (Rs.15,86,900/-) as was determined by the competent authority was received by the land owner without prejudice to his rights to claim additional amount and therefore the right to apply under Section 3G(5) of the Highways Act is still available to the aggrieved party. Additionally the litigant is also ready to refund the proportionate compensation received for 1 katha land, if this portion, where the phone tower is still standing, is excluded from the acquisition proceeding. The further plea of the land owner is to sanction additional compensation under Sub-Section (2) and Sub-Section (7)(c) of Section 3G of the Highways Act, for loss of rental income. Since the competent authority had not assessed any amount for compulsory relocation of residence, additional compensation is also claimed under Sub-Section (7)(d) of Section 3G of the Highways Act. 16. The above discussion makes it clear that the compensation under all permissible heads was not assessed by the competent authority. Since the competent authority had not assessed any amount for compulsory relocation of residence, additional compensation is also claimed under Sub-Section (7)(d) of Section 3G of the Highways Act. 16. The above discussion makes it clear that the compensation under all permissible heads was not assessed by the competent authority. Therefore I find this to be a fit case to allow the writ petitioner to apply before the Arbitrator for determination of her claim for higher compensation/retention of 1 katha land, as the same was left untouched by the NH-31 expansion work. Such application if advised, should be filed within four weeks from today and thereafter the competent authority appointed by the Central Govt. should decide the application on merit in accordance with law, after affording hearing to all parties. It is made clear that the receipt of the earlier amount as per this Court’s order of 27.4.2011, should not inhibit the Arbitrator from determining a fair compensation for the land owner, under the applicable heads of the Highways Act. It is ordered accordingly. 14. With the above order, the petition stands allowed in the manner indicated, without any order on cost.