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2017 DIGILAW 1021 (GAU)

Abdul Kayam Mazumder v. State of Assam

2017-08-01

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER : 1. Heard Mr. A.K. Dutta, learned counsel for the petitioner. Also heard Mr. Y.S. Mannan, learned counsel for the respondent Nos. 5, 7 and 8 and Mr. G. Pegu, learned counsel for the respondent Nos. 1 and 6 and Captain P. Kumar, learned counsel for the respondent No.4 and Mr. C.K. S. Barua, learned counsel for the respondent Nos. 2 and 3. 2. The 35 petitioners herein are all aggrieved by the inaction on the part of the respondent authorities in not paying zirat amount of the zirat items standing over their respective plots of land, which were acquired by the respondent authorities for the purpose of construction of Silchar By-pass Road. Prior to the acquisition proceedings being initiated, the concerned officials of the respondent authorities had visited the premises of the petitioners and upon making survey and taking into account the existing houses and other properties, had made an assessment of the zirat to be made. 3. The aforesaid exercise was undertaken during the year 2008. But it is the case of the petitioners that after completion of the aforesaid exercise, the officials under the respondent authorities had not proceeded any further and nor had issued any notification under Section 4(1) of the Land Acquisition Act 1894 (in short LA Act, 1894). It is specifically stated that after the said survey and enquiry, there has been no news from the respondent authorities and consequent thereto, the petitioners continued to develop their respective lands and in some cases also indulged in construction of residential houses thereon. After such development and improvements were made to the respective lands, a notification under Section 4(1) of the Land Acquisition Act, 1894 vide notification No.RLA.311/2010/4 was issued on 14.09.2010. As per the said notification, boundaries of the respective lands that were intended to be acquired were specifically provided. It is stated that the boundaries so provided in the Section 4(1) notification also includes the land of the petitioners. After issuance of Section 4(1) notification, possession of the lands in question were taken over by the respondent authorities after issuing Section 6(1) notification and certain compensation on the value of the land were assessed and were paid to the land owners. 4. It is stated by Mr. After issuance of Section 4(1) notification, possession of the lands in question were taken over by the respondent authorities after issuing Section 6(1) notification and certain compensation on the value of the land were assessed and were paid to the land owners. 4. It is stated by Mr. A.K. Dutta, learned counsel for the petitioners that the compensation so paid to the land owners also included zirat value of the land, but the same were assessed on the basis of the survey that was conducted in the year 2008. Accordingly, it is claimed of the petitioners are entitled to payment of the zirat value on the basis of zirat that stood and existed on the day the section 4(1) notification was issued. 5. Mr. Y. S. Mannan, learned standing counsel for the PWD on the other hand states that after the survey which was conducted in the year 2008, the petitioners had undertaken certain construction and developments, although they were instructed by the concerned Deputy Commissioner not to do so and therefore, it is the submission of the learned counsel that the petitioners are not entitled to any zirat assessment on the basis of zirat that existed on the day when Section 4(1) was issued. 6. Mr. Y.S. Mannan, learned standing counsel also makes a further submission that there has been 422% increase in respect of houses constructed, 0.5% increase in respect of trees and 63% increase in respect of wells and tanks. Learned counsel by referring to the aforesaid statistics makes a submission that upon came to know that the land is likely to be acquired, the petitioners had undertaken deliberate development of the same so as to extract a higher amount of compensation for the purpose. 7. Mr. Y. S. Mannan, also makes a submission that out of the 35 petitioners involved in this petition, the petitioners Nos. 1, 2, 10, 12, 22, 27, 29, 30, 31, 33 & 35 had also received the value of their land and therefore, the said claims are legitimate claims for the purpose of zirat compensation. It is stated that the petitioners Nos. 6, 9 and 17 are the successors-in-interest of the land owners, who had been paid the value of the land, but in respect of other writ petitioners, i.e. writ petitioner Nos. It is stated that the petitioners Nos. 6, 9 and 17 are the successors-in-interest of the land owners, who had been paid the value of the land, but in respect of other writ petitioners, i.e. writ petitioner Nos. 3, 4, 5, 7, 8, 11, 13, 14, 15, 16, 18, 19, 20, 21, 23, 24, 25, 26 and 28 they have not been paid their land value and it is not known as to how they can make a claim for the zirat standing over the land that has not been acquired. 8. In the aforesaid facts and circumstances, the issue for determination before this Court is as to whether the zirat as prepared pursuant to the survey held in the year 2008 can be the basis for payment of the zirat value or the authorities would have prepared a fresh zirat when Section 4(1) was issued. The other contention would be as to whether the petitioners Nos. 3, 4, 5, 7, 8, 11, 13, 14, 15, 16, 18, 19, 20, 21, 23, 24, 25, 26 and 28 are also entitled to the zirat value inasmuch as these set of petitioners were not paid land value meaning thereby, that they did not have their own land which have been acquired. 9. As regards the first issue, a land acquisition proceeding is initiated on the issuance of Section 4(1) notification and prior to the issuance of Section 4(1) notification, it is deemed that under the law, there is no such process initiated for the purpose of any acquisition. When there is no such process for the purpose of acquisition, there cannot be any question of determining zirat value at an earlier point of time before a acquisition process is started and the land owners are also not precluded in any manner to develop their land, especially if a land acquisition proceeding is not notified. 10. In such view of the matter, the act on the part of the respondent authorities in taking into consideration the zirat, which has been evaluated on the basis of survey made in the year 2008, at a time when there was no land acquisition proceeding being initiated, in the considered view of this Court, cannot be the basis for a zirat evaluation. In such view of the matter, it is incumbent upon the respondent authorities to make an appropriate survey and enquiry as to the existence of the zirat as on 14.09.2010 when section 4(1) was issued. From the fact that the respondent in the PWD has made a statement that there was 422% increase in respect of standing structure and 0.5% in respect of trees 63% in respect of wells and other structure, it is apparent that some kind of survey and enquiry was made as regards the structure that stood and existed as on 14.09.2010 when the section 4(1) was issued. 11. Accordingly, it is provided that the respondent authorities shall act on the subsequent zirat that was prepared at the time when Section 4(1) was issued in the year 2010 and to pay the zirat amount on the basis of the same. 12. But with regard to the other contention of Mr. Y.S. Mannan that out of the 35 petitioners, 14 were also included in the earlier zirat list of 2008 and were paid the land value and it is not known as to on what basis the other 21 petitioners are making a claim of the zirat value, this Court is of the view that interest of justice will be met, if the Deputy Commissioner, Cachar is directed to make a fresh enquiry as regards the claim of the aforesaid 21 writ petitioners and arrive at a conclusion as to whether the respective claims for the zirat is a legitimate claim or not. 13. It is viewed that in the event, a person legitimately enters into a land of another person and develops the same, such person may be entitled to a zirat compensation, in the event, the land is acquired, but at the same time, it cannot be said that a person, who does not legitimately enter into the land of another person and develops the same would also be entitled to receive zirat compensation. 14. In such view of the matter, it is felt necessary that the aforesaid examination is required to be made by the Deputy Commissioner, Cachar. 14. In such view of the matter, it is felt necessary that the aforesaid examination is required to be made by the Deputy Commissioner, Cachar. Accordingly, the Deputy Commissioner, Cachar shall issue notice upon the aforesaid 21 petitioners and give them an opportunity to present their case including any material that they may desire to produce that their entry into the land which has been acquired was a legitimate entry and therefore, they are entitled to zirat compensation on such land. However such person would also have to establish before the Deputy Commissioner that the development of the land was made by them and it is they who are entitled for such zirat compensation. 15. In the aforesaid process, the Deputy Commissioner shall also give them an opportunity of hearing to the concerned officials of the respondent PWD. Upon undertaking such exercise, the Deputy Commissioner shall pass a speaking order as regards the entitlement of the aforesaid 21 petitioners to the payment of zirat compensation for the acquisition of the land in question. The aforesaid exercise shall be carried out within a period of 6 (six) months from the date of receipt of a certified copy of this order. Writ petition is accordingly disposed of.