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2018 DIGILAW 1753 (GAU)

Sarbeswar Tamuli v. Union of India

2018-12-18

KALYAN RAI SURANA

body2018
JUDGMENT & ORDER : Heard Mr. P. Mahanta, learned counsel for the petitioners. Also heard Mr. R.K. Talukdar, learned counsel for the respondents No. 2 and 3 and Mr. S.R. Baruah, learned Govt. Advocate appearing for the State respondents No. 4 and 5 as well as Mr. A. Khaund, learned counsel appearing on behalf of Mrs. V.L. Singh, learned standing counsel for the respondent No.6. 2. By filing this writ petition under Article 226 of the Constitution of India, the grievance of the petitioners is regarding non-payment of land acquisition compensation to them, which was acquired for the purpose of constructing the 4(four) Lane NH-37 vide notification under S.O. 1429(E) dated 13.04.2016, published in the newspapers on 05.05.2016. 3. The learned counsel for the petitioners has submitted that the competent authority, namely, the Addl. Deputy Commissioner (Land Acquisition) appointed under Sub-section (1) of Section 3A of the National Highways Act. 1956 had assessed the compensation due to the petitioners and at that stage, while several other beneficiaries had been granted land acquisition compensation, the amount due to the petitioners were withheld without any valid reason. It is further submitted that the Central Govt. has deposited the entire compensation amount for the said land with the competent authority. It is also submitted that upon enquiry about the reasons for non-payment of compensation, the petitioners were informed that based on allegations made in the local newspapers about corruption and over valuation of land and structures in course of acquisition of land for 4-laning of NH-37, the Deputy Commissioner, Sivasagar had ordered for re-assessment of the land and structures which were acquired. The learned counsel for the petitioners submit that upon determination of the land acquisition compensation under Section 3G of the National Highways Act, the only remedy available to a “affected party” is to take recourse to Sub-section (1) of Section 3G of the said Act for referring the matter to arbitration. Hence, it is submitted that the Deputy Commissioner, Sivasagar had no power or authority to order for reassessment of compensation. Hence, it is submitted that the Deputy Commissioner, Sivasagar had no power or authority to order for reassessment of compensation. The learned counsel for the petitioner by referring to the affidavit-in-opposition filed by the respondent No.6 has submitted that the NHIDCL has taken a stand that after receiving the estimate from CALA and based on demand placed by CALA, the full estimate amount had already been deposited and therefore, the respondent No.6 i.e. NHIDCL had no role either in the assessment or in the matter of distribution of the land acquisition compensation. 4. It is further submitted that this Court by order dated 14.11.2018 had directed the Deputy Commissioner, Sivasagar (respondent No.4) to file an affidavit to disclose the following: i. As to who had initiated the arbitration proceeding. ii. Whether the arbitration proceeding was initiated by any of the affected parties. iii. The date and manner by which the reference to arbitration was made. iv. Whether the Deputy Commissioner, Sivasagar had role to play in the initiation of the said arbitration proceeding. v. Under which provision of law he had derived an authority to direct a joint verification and for ordering reassessment as reflected in paragraph 6 of affidavit-in-opposition filed on his behalf by Smt. Gauri Priya Devi, working as Assistant Commissioner, Sivasagar. vi. A report on joint verification, which is mentioned in paragraph 6 of the affidavit-in-opposition filed by the Deputy Commissioner, Sivasagar. 5. It is further provided in the said order that in the absence of filing of an affidavit, the Deputy Commissioner, Sivasagar shall positively submit the records pertaining to the land acquisition proceedings of LA Case No. SVR/4 LANE/1/2016 relating to initiation of the joint verification and re-assessment of proceedings. Hence, it is submitted that withholding of the land acquisition compensation of the petitioners was illegal and without any authority of law and the petitioners had also prayed for declaring that the re-assessment of land acquisition compensation was illegal and bad in law. 6. The learned Govt. Advocate has produced the copy of letter dated 14.12.2018 submitted by the Deputy Commissioner, Sivasagar, wherein in response to the query made by this Court on 14.11.2018, the following instructions was furnished: 1. The arbitration proceeding was initiated by the Deputy Commissioner, Sivasagar. 2. There is no record found regarding the arbitration proceeding to be initiated by any of the affected pattadar directly. 3. The arbitration proceeding was initiated by the Deputy Commissioner, Sivasagar. 2. There is no record found regarding the arbitration proceeding to be initiated by any of the affected pattadar directly. 3. With reference to the petition/memorandum submitted by the President/Secretary, Sivasagar District 37 No.(4 lane). Affected People Samity demanding for release of compensation at Sivasagar district, Special officer to the Commissioner, Upper Assam Division, Jorhat, instructed this office to submit a detail report on the matter. Accordingly, on 17.03.2018 detail report was sent to the Commissioner, Upper Assam division and subsequently on 07.07.2018 the case was referred under provisions of Sec 3G of the National Highways Act, 1956, to the Upper Assam Commissioner, Jorhat Division, who is also the Arbitrator vide notification no. NHAI/LA/RR/97.5.11/Part-B, dated 31.12.2001, so that the case get resolved soon and the disbursal to the affected pattadars be expedited. 4. Yes, the Deputy Commissioner, Sivasagar had played a role in initiating the said arbitration proceeding in public interest and earliest resolution of pending payment. 5. The instruction for joint verification and re-assessment was directed by the then Deputy Commissioner pertaining to the news published in certain Assamese dailies about some anomalies as to the quantum of compensation award for structures and with the intention that the public money does not get misappropriated. But there is no any exact provision of law found mentioned in the order given by the then Deputy Commissioner, Sivasagar with regard to the direction of the said joint verification and ordering consequently for reassessment of the structures. 6. The joint verification report has been enclosed herewith in original. 7. The learned standing counsel for respondents No. 2 and 3 has submitted that as per the existing scheme, in respect of 4-laning of NH-37, the respondent No.6 is the competent authority and, as such, the NHAI has no role to play in the matter. 8. 6. The joint verification report has been enclosed herewith in original. 7. The learned standing counsel for respondents No. 2 and 3 has submitted that as per the existing scheme, in respect of 4-laning of NH-37, the respondent No.6 is the competent authority and, as such, the NHAI has no role to play in the matter. 8. In the present case in hand, it is seen from the notification under S.O.1429(E) dated New Delhi, the 13th April, 2016, the Additional Deputy Commissioner (Land Acquisition), Sivasagar, Assam has been designated as the competent authority by permitting objections to be raised before the said authority in the matter of land to be acquired within the stretch of land from km 487.000 to km 538.000 on the National Highway No. 37 in the State of Assam, providing therein that any order made by the competent authority under Sub-Section (2) of Section 3C of the National Highways Act, 1956 shall be final. Therefore, from the said notification there appears to be no scope for interference by the Deputy Commissioner, Sivasagar. Coming to the powers conferred under Section 3G of the National Highways Act, 1956, it is seen that the same does not provide for any powers of interference by the Deputy Commissioner, Sivasagar. Under Sub-Section (5) of Section 3G, it is provided that if the amount determined by the Competent Authority under Sub-Section (1) or Sub-Section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government. Therefore, in the opinion of this Court, use of words “either of the parties” would only mean and include the acquiring authority and the land owner. As stated above, by the said notification bearing S.O.1429 (E) dated 13.04.2016, the Ministry of Road Transport and Highways had exercised the power and authority in terms of the National Highways Act, 1956 and the Additional Deputy Commissioner (Land Acquisition), Sivasagar was declared to be the Competent Authority, therefore, the order made by him under Sub-Section (2) of Section 3C is notified to be final, as such, this Court is unable to accept that the Deputy Commissioner, Sivasagar would fall within the scope and ambit of “either of the parties” appearing under Sub-Section 5 of Section 3G of the National Highways Act 1956. 9. 9. Visiting the same issue with another view-point, the scope of interference by a superior authority can only be by way of either an appeal or revision. However, when the same authority which had passed the order facilitating the power exercised to revise the order, the same can be said to be an act of review. Therefore, under the scheme of various laws a superior authority than the Additional Deputy Commissioner (Land Acquisition), Sivasagar, whether it be the Deputy Commissioner, Sivasagar or any other superior authority cannot exercise power of review because the National Highways Act 1956 does not give even the Additional Deputy Commissioner (Land Acquisition) the power of review. This cannot be confused with a power to correct the order if any error has crept in the order. The learned Standing Counsel for the Revenue (L.R.) Department as well as the learned Government Advocate have not be able to show any provisions in the National Highways Act, 1956 empowering the Deputy Commissioner, Sivasagar to exercise power of appeal or revision against the assessment of compensation done by the Competent Authority i.e. the Additional Deputy Commissioner (Land Acquisition), Sivasagar. 10. On a reading of the provisions of Section 20 and Section 21 of the General Clauses Act, this Court does not find any authorization to the Superior Officer to modify the orders passed by the competent authority. Therefore, in the opinion of this Court if the power to issue any order is given to a particular authority by invoking Section 21 of the General Clauses Act, the Deputy Commissioner, Sivasagar had no power to negate the order by the competent authority. This court is of the opinion that the power to determine compensation as given to the competent authority appears to this Court to be a quasi judicial function because if any party is aggrieved from the said order, such parties may approach the arbitrator to be appointed by the Central Government. The Hon’ble Supreme Court in the Case of Indian National Congress (I) Vs. Institute of Social Welfare (2002) 5 SCC 685 has held that Section 21 of the General Clauses Act has no application where statutory authority is required to act quasi judicially. 11. The Hon’ble Supreme Court in the Case of Indian National Congress (I) Vs. Institute of Social Welfare (2002) 5 SCC 685 has held that Section 21 of the General Clauses Act has no application where statutory authority is required to act quasi judicially. 11. In view of the discussions above, this Court is unable to accept the submissions made by the learned Standing Counsel for the Finance Department that the Deputy Commissioner, Sivasagar had the competence to order revaluation in the light of allegations of over valuation of the structures. Hence, the direction of the Deputy Commissioner, Sivasagar for revaluation of the structures is found to be not sustainable in the eyes of law and the said order cannot create any impediment in the release of the land acquisition compensation to the petitioner herein. In the opinion of this Court, as by the notification issued under the National Highways Act, 1956, no power or authority was given to the Deputy Commissioner, Sivasagar, he is not competent to pass any orders for re-valuation of the properties as the said power is vested only on “the parties” and that the affected parties can opt for arbitration as provided under Sub-Section (5) of Section 3G of the National Highways Act, 1956. 12. Following the ratio laid down by the Hon’ble Apex Court in the case of Purtabpore Co. Ltd (supra), this Court is inclined to hold that the Deputy Commissioner, Sivasagar was not authorized to order any re-valuation of compensation and therefore, such order is non-est in the eyes of law. Hence, such order shall not be an impediment to the Additional Deputy Commissioner (Land Acquisition), Sivasagar to release payment of the land acquisition compensation determined in favour of the petitioner as the said authority is vested with the responsibility for making such payment as determined by him. 13. In view of the discussions above this writ petition stands allowed. The competent authority i.e. Additional Deputy Commissioner (Land Acquisition), Sivasagar shall now release the compensation due to the petitioner in respect of his share of the hereinbefore referred acquired land in accordance with law within a period of 8 (eight) weeks from the date of receipt of a certified copy of this order, uninfluenced by any order that may have been passed by the Deputy Commissioner, Sivasagar for re-valuation or re-assessment of structures, etc in respect of the acquired land. 14. 14. It is clarified that this order shall not be a bar for “the parties” as provided under Section 5 of Sub-Section 3G of National Highways Act, 1956 or order any other law in force to take recourse to law. 15. Before parting with the record, in terms of interim order dated 05.03.2018, this Court is inclined to provide that until the land acquisition compensation is not paid to the petitioners, they shall not be dispossessed from the land under their possession. 16. A copy of this order be provided to the learned Standing Counsel, Revenue Department as well as to the learned Govt. Advocate, Assam.