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2018 DIGILAW 1627 (GAU)

Frontier Associates (P. ) Ltd. v. State of Assam

2018-11-19

UJJAL BHUYAN

body2018
ORDER : 1. Heard Mr. S.K. Barkataki, learned counsel for the petitioner and Mr. P.S. Deka, learned standing counsel, Revenue Department, Government of Assam. Also heard Mr. R. Dhar, learned Government advocate, Assam. 2. By filing this petition under article 226 of the Constitution of India, petitioner seeks a direction to the respondents, particularly, respondent No. 3, i.e., Deputy Commissioner, Kamrup (Metro) to pay requisition compensation for requisition of 75 bighas of land and to handover possession of the said land back to the petitioner upon derequisition, free from encroachment. 3. Case of the petitioner is that it is a company incorporated under the Companies Act, 1956 vide certificate of incorporation bearing No. 2740/1987-88 issued by the Registrar of Companies, Assam, Meghalaya, etc., at Shillong. Late H. Dombrain was the owner of two tea estates, namely, Tepasia and Choonsali Tea Estates. CWR Dombrain being the son and sole surviving legal heir of late H. Dombrain had sold Choonsali Tea Estate to the petitioner vide registered sale deed dated 1.6.1991 along with all the movable and immovable properties of the tea estate, i.e., Choonsali Tea Estate. Thus, by virtue of the said sale, petitioner became the absolute owner of Choonsali Tea Estate measuring total area of 3992 bighas, 2 kathas, 19 lessas and took physical possession thereof. 4. Prior to execution of the sale deed as above, Collector-cum-Deputy Commissioner, Kamrup requisitioned a plot of land of the said tea estate measuring 75 bighas vide requisition order dated 13.12.1977. Consequently, possession was taken over from the previous owner and handed over to respondent No. 6 after destroying 75,692 numbers of fully grown up tea bushes and other valuable trees. 5. However, aforesaid requisition order was withdrawn by the Collector-cum-Deputy Commissioner vide order dated 3.7.1980. Thereafter, an order dated 31.7.1980 was passed again requisitioning 75 bighas of the aforesaid land. Out of the 75 bighas, 55 bighas were under Dag No. 9 and remaining 20 bighas under Dag No. 8, both of FS Grant Patta No. 1. 6. Land Acquisition Officer had written letter dated 22.4.1983 to respondent No. 7 and submitted statement of requisition compensation amounting to Rs. 4,21,875 asking her to deposit the said amount with the Collector-cum-Deputy Commissioner, Kamrup. 7. 6. Land Acquisition Officer had written letter dated 22.4.1983 to respondent No. 7 and submitted statement of requisition compensation amounting to Rs. 4,21,875 asking her to deposit the said amount with the Collector-cum-Deputy Commissioner, Kamrup. 7. In the meanwhile, Revenue Minister expressed the view that since no compensation was paid for over 10 years on account of requisition, Government should enquire whether the land could be derequisitioned. 8. There was a land ceiling proceeding under Case No. 195/1974 which was initiated against the said tea estate. In the said proceeding, an order was passed on 13.12.1990 to the effect that the land measuring 75 bighas under occupation of respondent No. 6 should be retained by the tea estate. After determining the requisition compensation, respondent No. 6 was directed to pay the same to the tea estate but nothing was done. 9. Till 1994, Government had neither paid requisition compensation nor paid any compensation for uprooting the tea bushes to the petitioner. 10. Faced with such a situation, previous owner CWR Dombrain and petitioner jointly filed a writ petition before this court being Civil Rule No. 2818/1994 which was disposed of by judgment and order dated 5.12.1995 by directing the authority to do the needful to acquire the land within a period of 3 months from the date of receipt of the said order. Authority was also given liberty to take a decision to derequisition some part of the land if it was considered necessary. However, authority was directed to pay requisition compensation to the petitioner within three months. 11. It is alleged that the said order of this court has not been complied with for which petitioners of Civil Rule No. 2818/1994 filed a petition for initiation of contempt proceeding against the then Deputy Commissioner, Kamrup and other officers which was registered as Contempt Case (C) No. 180/1996. This proceeding continued for a long time. Ultimately, on 31.3.2008 order was passed that if the land was requisitioned by the Collector, petitioners were bound to be paid compensation for the period during which land was under occupation of the respondents. Respondents could not disown their responsibility by referring to inaction on the part of the Indian Red Cross Society (respondent No. 6) on whose behalf land was requisitioned. Respondents could not disown their responsibility by referring to inaction on the part of the Indian Red Cross Society (respondent No. 6) on whose behalf land was requisitioned. Further Secretary to the Government of Assam in the Revenue Department and Deputy Commissioner, Kamrup (Metro) were directed to apprise the court as to what action they proposed to take towards payment of compensation to the petitioner further observing that if no positive steps were taken in the matter, law would take its own course. 12. It submitted that in the meanwhile present writ petition was filed. Therefore, contempt petition was not pressed and ultimately was closed vide the order dated 5.4.2012. 13. Against the land ceiling proceeding No. 195/1974, petitioner had filed a suit being Title Suit No. 294/1992 for declaring the land ceiling proceeding as nullity. By judgment and decree dated 22.7.1993, suit was decreed in favour of the plaintiff, i.e., petitioner. Appeal filed by the State, i.e., Title Appeal No. 48/1993 was dismissed by judgment and decree dated 12.8.2005. It is stated that Regular Second Appeals being RSA Nos. 234 and 235/2005 were allowed by this court vide order dated 20.5.2014 on the ground that civil court was barred from entertaining the suit relating to land ceiling proceeding; therefore, suit was not maintainable. 14. Deputy Commissioner, Kamrup vide letter dated 29.6.2000 had informed the petitioner that aforesaid 75 bighas of land was requisitioned for the Indian Red Cross Society, Assam Branch (respondent No. 6) and the said plot was derequisitioned on 6.9.1997 except the hospital complex constructed by respondent No. 6 and that the derequisitioned land would be handed over to the petitioner on 5.7.2000. Petitioner had brought it to the notice of the authority that there were encroachments over 60 bighas of land and unless encroachments were removed, petitioner could not be compelled or forced to take back possession of such derequisitioned land. 15. Construction activities of respondent Nos. 6 and 7 was the proximate reason for the petitioner to approach this court by filing the present writ petition, seeking the reliefs as indicated above. 16. This court by order dated 9.6.2010 had issued notice. By order dated 18.12.2015 the case was admitted for hearing. 17. Respondent Nos. 6 and 7 in their joint affidavit have taken the stand that CWR Dombrain was an insane and lunatic person. Therefore, he could not have executed any sale deed. 16. This court by order dated 9.6.2010 had issued notice. By order dated 18.12.2015 the case was admitted for hearing. 17. Respondent Nos. 6 and 7 in their joint affidavit have taken the stand that CWR Dombrain was an insane and lunatic person. Therefore, he could not have executed any sale deed. Possession of either CWR Dombrain or that of the petitioner over the land has been disputed. It is further stated that there are about 2 lakh people residing on the land measuring 3992 bighas as mentioned by the petitioner for the last so many years. Existence of the petitioner-company has also been disputed. While disputing that Government had requisitioned the land allotted to respondent Nos. 6 and 7 which it is contended to be Government land, it is stated that 55 bighas of land and not 75 bighas were handed over to respondent Nos. 6 and 7 by the Sub-Deputy Collector, Kamrup, Guwahati on 14.12.1977. It is the case of respondent Nos. 6 and 7 that Government had allotted 55 bighas of land to them. 18. Respondent Nos. 6 and 7 have filed a supplementary affidavit. It is contended that Government of Assam had allotted Government land measuring 75 bighas, 3 kathas, 3 lessas to respondent Nos. 6 and 7 as per recommendation of the Deputy Commissioner, Kamrup, Guwahati out of which possession of 55 bighas was taken over by the said respondents as physical possession of 20 bighas could not be taken. Respondent Nos. 6 and 7 had constructed permanent boundary wall surrounding the entire 55 bighas of land whereunder they had established warehouses, staff-quarters, office, garage, parking sheds, etc. 19. On 17.9.2015, respondent No. 3, i.e., Collector-cum-Deputy Commissioner, Kamrup (Metro) filed affidavit through Shri Esthar Kathar serving as Sub-Divisional Officer (Sadar), Kamrup (Metro). Stand taken in this affidavit is that land measuring 75 bighas was requisitioned by Deputy Commissioner-cum-Collector, Kamrup, Guwahati vide order dated 15.12.1977 for Indian Red Cross Society, Assam State Branch. Thereafter, possession of the land was handed over to the requiring department. In this regard, recurring compensation statement amounting to Rs. 4,21,875 was submitted to the requiring department on 24.11.1983 but the compensation amount has not been deposited by the requiring department at the disposal of Deputy Commissioner. Bakijai Proceeding being Case No. 1/1996 was instituted against the requiring department. Again recurring compensation statement for the period 13.12.1982 to 1.9.1997 amounting to Rs. 4,21,875 was submitted to the requiring department on 24.11.1983 but the compensation amount has not been deposited by the requiring department at the disposal of Deputy Commissioner. Bakijai Proceeding being Case No. 1/1996 was instituted against the requiring department. Again recurring compensation statement for the period 13.12.1982 to 1.9.1997 amounting to Rs. 18,19,950 was sent to the requiring department for placement of fund at the disposal of respondent No. 3 vide letter dated 7.3.1997. 19.1 Respondent No. 3 has stated that land was included in land railing case No. 195/1974 but Government vide letter dated 5.7.1985 had made the said 75 bighas of land retainable by the pattadar. In subsequent statements and forms, said 75 bighas of land were communicated by Collector, Kamrup as requisitioned land. Reference has been made to the judgment and order of this court dated 5.12.1995. Though this order was communicated to Indian Red Cross Society, compensation for the requisitioned land was not forthcoming. In fact, it is stated that Indian Red Cross Society, Assam State Branch had written to the Government stating that it would be a question of national prestige if the Government asks for compensation of the land and also claimed that Government had initially agreed to allot the land to them free of cost. 20. Finally, land was derequisitioned by the Collector-cum-Deputy Commissioner, Kamrup vide order dated 6.9.1997 in terms of this court's order dated 5.12.1995. 21. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 22. Following the judgment and order of this court dated 5.12.1995 passed in Civil Rule No. 2818/1995, the subject-matter of the dispute has crystallized and now lies within a very narrow compass. It would, therefore, be apposite to advert to the order dated 5.12.1995 passed by this court in Civil Rule No. 2818/1995. 22.1 In the said order dated 5.12.1995, this court had held that it was the admitted position that 75 bighas of land was requisitioned for public purpose and the requisition was permanent in nature. The requisition being permanent in nature, authority was duty-bound to acquire the land either under the Assam Land (Requisition and Acquisition) Act, 1964 or under the Land Acquisition Act, 1894. Authority could not be allowed to continue requisition proceeding at its own sweet will to the detriment of the petitioner. The requisition being permanent in nature, authority was duty-bound to acquire the land either under the Assam Land (Requisition and Acquisition) Act, 1964 or under the Land Acquisition Act, 1894. Authority could not be allowed to continue requisition proceeding at its own sweet will to the detriment of the petitioner. It was for the authority to take a decision as under which Act they would like to initiate land acquisition proceeding but they could not keep the land under requisition for more than 18 years without paying any compensation. Consequently, authority was directed to do the needful to acquire the land within a period of three months. Liberty was given to the authority to derequisition some part of the land if such derequisition was considered necessary. Writ petition was closed by finally directing the authority to pay requisition compensation to the petitioner within three months. 23. On a query by the court, learned counsel for the parties have submitted that no appeal was filed against the aforesaid order of the learned Single Judge dated 5.12.1995. As such, the said order has attained finality. 24. As per the order of the writ court dated 5.12.1995, the area of land measuring 75 bighas belonged to the petitioner. It was requisitioned by the State for a public purpose, i.e., for construction of building by Indian Red Cross Society, Assam State Branch. It was held that such requisition was permanent in nature and that being so, the State was duty bound to acquire the land and could not have kept the land under requisition for so many years without paying any compensation. Therefore, direction was issued to the State to acquire the land within three months after derequisitioning any such portion of the land which was considered necessary and also to pay compensation for the period under which the land was under requisition. This position was reiterated in the contempt proceeding though the proceeding was pending for more than 12 years. In the order dated 31.3.2008 passed in the contempt case, i.e., Contempt Case (C) No. 180/1996, reference was made to a letter dated 27.3.2008 issued by the Deputy Commissioner, Kamrup (Metro) as per which land was derequisitioned in 1997; petitioner was entitled to Rs. 4,21,875 and Rs. 18,80,950 as requisition compensation. In the order dated 31.3.2008 passed in the contempt case, i.e., Contempt Case (C) No. 180/1996, reference was made to a letter dated 27.3.2008 issued by the Deputy Commissioner, Kamrup (Metro) as per which land was derequisitioned in 1997; petitioner was entitled to Rs. 4,21,875 and Rs. 18,80,950 as requisition compensation. Though estimate was submitted to the Indian Red Cross Society, Assam State Branch on whose behalf land was requisitioned, there was no response from the Society for which two Bakijai cases were initiated. Observing that petitioner was bound to be paid compensation for the period for which the land remained under occupation and that the respondents could not disown their responsibility by referring to inaction on the part of the Indian Red Cross Society, Assam State Branch, Court sought for the stand of the Secretary of the Revenue Department and Collector-cum-Deputy Commissioner, Kamrup (Metro) as to what steps they had proposed for payment of compensation to the petitioner. 25. Unfortunately, the contempt proceeding was not carried forward as the petitioner had withdrawn the same on the ground of filing the present writ petition notwithstanding the fact that order of this court remained unimplemented. Be that as it may, affidavit of respondent No. 3 has clarified the whole position. As per the said affidavit, the aforesaid 75 bighas of land though was initially included in the land ceiling case No. 195/1974, Government took a decision vide letter dated 5.7.1985 to the effect that this 75 bighas of land was retainable by the pattadar, i.e., the petitioner. In fact, it is pointed out that in the Government record, land is shown as requisitioned land. This 75 bighas of land was requisitioned on 15.12.1977. 26. On 24.11.1983, requisition compensation was assessed at Rs. 4,21,875 and submitted to the requiring department but the said amount was not deposited by the requiring department with the Deputy Commissioner, Kamrup (Metro). Further requisition compensation statement for the period 13.12.1982 to 1.9.1997 was prepared for an amount of Rs. 18,19,950. This amount has also not been deposited by the requiring department with the Deputy Commissioner, Kamrup (Metro). 27. In view of this court's order dated 5.12.1995 as adverted to above and the clear-cut stand of respondent No. 3 in his affidavit, stand taken by respondent Nos. 18,19,950. This amount has also not been deposited by the requiring department with the Deputy Commissioner, Kamrup (Metro). 27. In view of this court's order dated 5.12.1995 as adverted to above and the clear-cut stand of respondent No. 3 in his affidavit, stand taken by respondent Nos. 6 and 7 that this plot of land was Government land which was allotted to them by the Government has got no substance. However, having said that, decision of respondent No. 3 to derequisition the entire 75 bighas of land is contrary to the order of this court dated 5.12.1995. This court had clearly stated and held that requisition being permanent in nature, State was duty-bound to acquire the land whether under the Assam Land (Requisition and Acquisition) Act, 1964 or under the Land Acquisition Act, 1894. Direction in the nature of mandamus was issued to the State to do the needful to acquire the land with liberty to the authority to derequisition some portion of the land if such derequisition was considered necessary. In that view of the matter, authority could not have derequisitioned the entire 75 bighas of land. 28. Assam Land (Requisition and Acquisition) Act, 1964 (Assam Act, 1964) is an Act to amend and consolidate the law relating to requisition and speedy acquisition of premises and land for certain public purposes. Power to requisition is vested with the State Government under section 3 of the Assam Act, 1964. However, any person authorized by the State Government may also requisition land for public purpose. Section 4 deals with power to take possession of requisitioned land. Under section 6(1), in case of requisition under section 3, State Government may acquire such land by publishing a notice in the Official Gazette that the State Government has decided to acquire such land. Under sub-section (2), where a notice as aforesaid is published in the Official Gazette, the requisitioned land and premises shall on and from the beginning of the day on which the notice is published, shall vest absolutely in the State Government free from all encumbrances and the period of requisition of such land shall end. Under sub-section (3), upon such vesting, provisions of the Land Acquisition Act, 1894 (‘1894 Act’) shall apply to such land. 29. Section 8 deals with release of land from requisition. Under sub-section (3), upon such vesting, provisions of the Land Acquisition Act, 1894 (‘1894 Act’) shall apply to such land. 29. Section 8 deals with release of land from requisition. As per sub-section (1), where any land is requisitioned under section 3, which is not acquired and has to be released from requisition, it will revert to the owner or person interested “in as good a condition as the land was when possession thereof was taken subject only to the change caused by reasonable wear and tear and irresistible force.” Payment of compensation for requisition of land is dealt with in section 11. As per section 13, when there is delay in payment of compensation, it shall carry interest at the rate of 6 per cent per annum from the date of the award until paid or deposited. 30. Assam Land (Requisition and Acquisition) Rules, 1964 (Assam Rules, 1964) has been enacted to give effect to the provisions of the Assam Act, 1964. As per rule 13, individual or groups who are allotted land upon requisition shall pay compensation as assessed by the Government for use and occupation of the land during the period of requisition as well as for any damages willfully caused to such land during the period of requisition and subsequently for acquisition of land if it is acquired at any time later. There is provision for felling of trees and standing crops under rule 17. 31. Affidavit of respondent Nos. 6 and 7 discloses that there is large-scale encroachment over the requisitioned land. Two things emerge from the above. Firstly, State could not have derequisitioned the entire land of 75 bighas as it was in violation of the High Court's order. Secondly, State could not have derequisitioned the land and compelled the petitioner to accept the same because as per section 8(1), at the time of release from requisition, land must be handed over to the owner in as good a condition as the land was when the possession thereof was taken. After requisitioning the land if the State had allowed respondent Nos. After requisitioning the land if the State had allowed respondent Nos. 6 and 7 to construct structures thereon on the one hand and allowed encroachers to encroach upon the property on the other hand, derequisitioning the entire land and calling upon the petitioner to take back said land when the petitioner is not in a position to take back the said land is highly unfair, unjust and injudicious. State cannot act in such an unreasonable manner. Though property right is no longer a fundamental right, it is still a precious constitutional right under article 300A of the Constitution of India. Petitioner, a company, i.e., a juristic person, cannot be deprived of its property save by authority of law. While State was entirely within its jurisdiction to requisition the land, the fact that requisition compensation has not been paid till date on the specious ground that the beneficiary has not paid the requisition compensation; has not acquired the land despite clear orders by this court holding that requisition is of permanent nature, would render the State action arbitrary, thus, violative of article 14 of the Constitution of India. In the facts and circumstances of the case, State is duty-bound to acquire the land; derequisitioning land in violation of such direction of the court as well as in violation of section 8(1) of the Assam Act, 1964 would be totally untenable. Certainly, petitioner would be entitled to requisition compensation for the period under which the entire land was under requisition, i.e., for the period from 15.12.1977 to 6.9.1997 which has been assessed by respondent No. 3 as under: Rs. 4,21,875 Rs. 18.19.950 Total Rs. 22,41,825 32. This court in the order dated 5.12.1995 had directed that requisition compensation be paid within three months. Since aforesaid requisition compensation has not been paid within three months as directed by this court, it will now carry interest @ 6% per annum with effect from three months after 5.12.1995. 33. In view of change in the nature and character of the land by way of permanent construction by respondent Nos. 6 and 7 as well as due to encroachment over other plots of land and in view of the clear direction of this court dated 5.12.1995, derequisitioning order cannot be sustained. Respondent Nos. 33. In view of change in the nature and character of the land by way of permanent construction by respondent Nos. 6 and 7 as well as due to encroachment over other plots of land and in view of the clear direction of this court dated 5.12.1995, derequisitioning order cannot be sustained. Respondent Nos. 1, 2, 3, 4 and 5 are directed to acquire the said 75 bighas of land in accordance with law and pay land acquisition compensation with all its components like solatium, interest, etc., to the petitioner. Whether respondent Nos. 6 and 7 has failed to pay or deposit requisition compensation is a matter between the State and respondent Nos. 6 and 7 for which petitioner cannot be prejudiced. It is for the State to take action against respondent Nos. 6 and 7. Respondent Nos. 6 and 7 cannot take the plea that if it is asked to pay requisition compensation, it will be a question of national prestige. It is entirely for the Government to take a decision; if it wants to donate that land to the Indian Red Cross Society, Assam State Branch it can do so but since the land belonged to the petitioner, it has to be compensated. 34. Accordingly and in the light of the above, following directions are issued: (1) Respondent Nos. 1 to 5 shall pay requisition compensation of Rs. 22,41,825 with interest @ 6% effective after three months of order dated 5.12.1995 passed by this court in Civil Rule No. 2818/1995. This shall be paid within four months from today. (2) Respondent Nos. 1 to 5 shall acquire the land in question, i.e., 75 bighas in accordance with law and pay land acquisition compensation with all its components to the petitioner within a period of 6 months from today. If the same is not paid within the period as aforesaid, it will carry interest @ 6% effective from the date after this period of 6 months is over. 35. Writ petition is accordingly allowed but without any order as to cost.