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2016 DIGILAW 82 (GAU)

Pabitra Deka v. Union of India

2016-02-04

HRISHIKESH ROY

body2016
JUDGMENT : Heard Mr. S. Deka, the learned Counsel appearing for the petitioners. Also heard Mr. B.J. Ghosh, the learned Government Advocate representing the respondent Nos. 2, 3 & 4. The Union of India is represented by Mr. S.C. Keyal the learned Asstt. Solicitor General of India. However no one is appearing on behalf of the substituted legal heirs of the contesting party Achyut Ch. Saikia who was arrayed as the fifth respondent in the case. 2. The dispute pertains to the entitlement to compensation for the lands acquired under the National Highways Act, 1956 (hereinafter referred to as “the Highway Act”). The concerned land measures 3 Kathas 8 Lechas and is comprised within Dag No.551, K.P. Patta No.106 of Village Niz Madartola (now Baihata), Mouza-Madartola of the Kamalpur Revenue Circle in the Kamrup District. In the Khiraj Patta No.106 (Annexure-1), the owner of the land is shown to be Maniram Mali and the writ petitioners claim their right of inheritance over the said land through Dharanidhar Mali (Son of the Pattadar Maniram Mali). It may be noted that first petitioner Smti. Pabitra Deka is the wife of Dharanidhar Mali but recently she died during the pendency of the case. However her two sons Sudam Deka and Samin Deka are appearing as the petitioner No.3 & 4 respectively. The legal heirs of first son Kushal Ch. Deka (originally the 2nd petitioner) were substituted through the order dated 5.10.2012 in the Misc. Case No.2831/2012. Thus all the legal heirs of the original Pattadar are represented and they are the writ petitioners in the present proceeding. 3. A portion of the Patta land, (2 Kathas 13 Lechas) were acquired in the year 2005-2006 under the Highways Act and as the recorded Pattadars, the petitioners put forward a claim for acquisition compensation. However even before the money could be disbursed to the claimants, the 2nd acquisition notification was issued under Section 3A of the Highways Act on 1.1.2009 (Annexure-6), whereby, another 15 Lechas of land were proposed to be acquired. Although objection from interested persons were invited by the Acquiring Authority, none had objected to the acquisition proposed through the Notification dated 1.1.2009. 4. Although objection from interested persons were invited by the Acquiring Authority, none had objected to the acquisition proposed through the Notification dated 1.1.2009. 4. At that stage, while the registered land owners were expecting to receive compensation, the petitioners were served with a notice under Section 52 of the Assam Land and Revenue Regulation from the office of the Circle Officer, Kamalpur Revenue Cirlce. This notice dated 27.5.2009 was issued on account of the application filed by the respondent No.5 Achyut Ch. Saikia, who applied for mutation over the land covered by K.P. Patta No.106 of Village-Baihata standing in the name of the predecessor of the writ petitioners, Maniram Mali and the applicant asserted his right to mutation on the basis of alleged purchase and perpetual possession. 5. From the counter affidavit filed on 20.1.2012 by the legal heirs of the respondent No.5, it can be noticed that the applicant (respondent No.5) applied for mutation by claiming that his father Dulal Ch. Saikia purchased the land from Late Dharanidhar Mali (son of Pattadar Maniram Mali) in the year 1955, and the respondent claimed to be in possession of the land since the date of purchase. 6.1 On the other hand the petitioners contend that the mutation application filed by the respondent No.5 is not maintainable as it is the pattadars who are in undisturbed possession of their family land and no portion of the said land was ever sold to Achyut Saikia by the petitioners’ predecessor Dharanidhar Mali. 6.2. Since the land acquired under the Highways Act vests absolutely in the Central Government under Section 3D(2), the petitioners submit that mutation application in respect of such vested land, can’t be entertained by the Circle Officer. 6.3 Mr. S. Deka, the learned Counsel submits that the respondents have raised a false plea. He argues that if the concerned land was actually purchased in 1952 by Late Dulal Saikia from Late Dharanidhar Mali, the respondents should have produced the Sale Deed and applied for mutation much earlier and well before the land was acquired under the Highways Act. The petitioners contend that it is an opportunistic claim made by a party. He argues that if the concerned land was actually purchased in 1952 by Late Dulal Saikia from Late Dharanidhar Mali, the respondents should have produced the Sale Deed and applied for mutation much earlier and well before the land was acquired under the Highways Act. The petitioners contend that it is an opportunistic claim made by a party. 6.4 The lack of bona fide in the respondents claim is sought to be established by referring to the fact that when objections were invited through the acquisition notice, the respondent failed to assert their interest over the acquired land and therefore their subsequent application for mutation, well after the land has vested in the Central Government, can’t be entertained by the Circle Officer. 7. In the counter affidavit filed by the respondents 5(i) to 5(vi), the purchase of land by Dulal Ch. Saikia from Dharanidhar Mali is claimed but the respondents have not enclosed any Sale Deed to establish any such sale transaction. Moreover the purported purchaser or their successor never applied for mutation for nearly 55 years, although they claim to have purchased the land in the year 1955. These are not trifling factors and they do suggest a non-bonafide claim by the respondent without legal support. 8. Mr. B.J. Ghosh, the learned Government Advocate submits that where several persons claim to be interested in the acquisition compensation deposited under Section 3H(1) of the Highways Act, the competent authority should determine the respective right of claimants and also the apportionment of the amount. 9. In the present case, the amount payable as compensation is already determined and the same is deposited by the Central Government with the District Collector. Normally, the compensation amount should be paid to the recorded Pattadar. But if continued enjoyment of any right by any person over the land is affected through acquisition, 10% of the acquisition amount is payable to the affected party under Sub-Section (2) of Section 3G of the Highways Act. Therefore compensation is envisaged not only for the recorded Pattadar but also for those who are in enjoyment of the acquired land. 10. In the above circumstances, without commenting finally on the right claim by the private respondents, the application for mutation filed by the predecessor of the private respondents, Achyut Ch. Therefore compensation is envisaged not only for the recorded Pattadar but also for those who are in enjoyment of the acquired land. 10. In the above circumstances, without commenting finally on the right claim by the private respondents, the application for mutation filed by the predecessor of the private respondents, Achyut Ch. Saikia, is directed to be decided by the Circle Officer in accordance with the procedure prescribed by the Land Revenue Regulation. While deciding the mutation application of the successors of Dulal Ch. Saikia, the genuineness of the sale transaction claimed by the applicants should be considered by the Circle Officer. The payment of acquisition compensation under the Highways Act in respect of Patta land in the name of the petitioners’ predecessor, will abide by the decision of the Circle Officer, Kamalpur. As the claimants are awaiting disbursal of compensation since 2009, the Circle Officer should complete the adjudicatory process within 3 months of receipt of intimation of this Court’s order. But it is made clear that opportunities must be afforded to the writ petitioners who have objected against the mutation application filed by Achyut Ch. Saikia and only thereafter, the application should be decided on merit by the Circle Officer. It is ordered accordingly. 11. With the above order, the case stands allowed in the manner indicated without any order on cost.