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2018 DIGILAW 912 (GAU)

DEPUTY COMMISSIONER v. SURAJ CHETIA

2018-06-07

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

body2018
JUDGMENT/ORDER : Achintya Malla Bujor Barua, J. Heard Mr. S.K. Medhi, learned Addl. Advocate General, Assam assisted by Ms. M. Barman, learned counsel, for the appellants. Also heard Mr. B.D. Das, learned senior counsel, assisted by Ms. R. Deka, learned counsel, for the respondent. 2. A plot of land of the respondent, measuring 2 bighas 1 katha 15 lechas of Dag No.904, K P Patta No.160 of Village Binoigutia under Mouza Larua in the Dibrugarh district was acquired as per the notification dated 01.11.2014 for the purpose of construction of the four lane national highway. According to the respondent, the said land is classified as commercial land. Upon completing the acquisition process, the Addl. Deputy Commissioner, L.A. Dibrugarh served a notice dated 05.01.2016 upon the respondent and some other land owners requiring them to remain present on 10.01.2015 (sic) at 11.00 a.m. to receive the compensation. On 30.01.2016, the respondents made an application to the Deputy Commissioner, Dibrugarh that necessary action be taken for giving them the compensation and in response thereof, the Addl. Deputy Commissioner, L.A. Dibrugarh by a notice dated 30.01.2016 addressed to the Circle Officer, Dibrugarh West Revenue Circle had instructed him that an amount of Rs. 1,26,33,600/- be paid to the respondent. 3. It is not very clear as to when the respondent had received the said amount, but on 07.01.2017 an application was submitted before the Deputy Commissioner, Dibrugarh that the compensation paid to the petitioner be reassessed inasmuch as, the land in question is classified as commercial land. The Addl. Deputy Commissioner by letter dated 19.01.2017 informed the respondent that the compensation of the land was determined under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short LA Act of 2013) and the rate was fixed at Rs. 12,00,000/- per bigha and accordingly, the compensation was fixed at Rs. 53,76,000/- per bigha. By the letter it was informed that it would be difficult on the part of the Land Acquisition Officer to reconsider and re-fix the rate at that stage. 4. Being aggrieved by the refusal of the Land Acquisition Authorities by their letter dated 19.01.2017 to reconsider and re-fix the compensation payable, the respondent preferred WP(C) 2183/2017 for a direction to refer the claim of the respondent to the District Judge, Dibrugarh for an enhanced compensation and proper assessment. 4. Being aggrieved by the refusal of the Land Acquisition Authorities by their letter dated 19.01.2017 to reconsider and re-fix the compensation payable, the respondent preferred WP(C) 2183/2017 for a direction to refer the claim of the respondent to the District Judge, Dibrugarh for an enhanced compensation and proper assessment. The said writ petition was given a final consideration by the learned Single Judge as per the judgment and order dated 15.12.2017, by which, a direction was issued to the Deputy Commissioner, Dibrugarh to re-assess the value of compensation on the basis of the classification of the land of the respondent being commercial land. 5. The said judgment and order of 15.12.2017 of the learned Single Judge has been assailed by the Deputy Commissioner, Dibrugarh in the present appeal primarily on the ground that in view of the provisions of Section 64 of the LA Act of 2013, such direction of the learned Single Judge is not sustainable. 6. Mr. S.K. Medhi, learned Addl. Advocate General, Assam raises a contention that Section 64(1) of the LA Act of 2013 having provided that a person interested who had not accepted the award may by written application to the Collector require that the matter be referred by the Collector to the 'Land Acquisition, Rehabilitation and Resettlement Authority' for determination of the amount of compensation payable and Section 64(2) having provided for a specific time period within which such applications are to be made, the only authority who can look into the claim for an enhanced compensation is the aforesaid authority. It is the further contention that the Collector can refer such application to the Land Acquisition, Rehabilitation and Resettlement Authority, provided the applicant satisfies the condition that he had not accepted the award and that the application was made within the specific period prescribed under the provisos to Section 64(2). 7. Accordingly, it is the contention of Mr. S.K. Medhi that in the present case the respondent had accepted the award made by the Deputy Commissioner/Collector and therefore, he does not satisfy the first pre-condition of having not accepted the award. 7. Accordingly, it is the contention of Mr. S.K. Medhi that in the present case the respondent had accepted the award made by the Deputy Commissioner/Collector and therefore, he does not satisfy the first pre-condition of having not accepted the award. It is the further contention that the application made by the respondent claiming enhanced compensation was rightly rejected inasmuch as, it being an acquisition of land for the purpose of construction of the four lane national highway, the Collector had made an assessment of the compensation payable at an uniform rate applicable to all such land owners so that there may not be a discrimination within themselves. It had also been contended that the application of the respondent was made beyond the prescribed time period as provided under the provisos to Section 64(2) of the LA Act of 2013 and hence, the same is not maintainable. 8. Mr. B.D. Das, learned senior counsel for the respondent on the other hand contends that the respondent by making the application dated 07.01.2017 had expressed his intention that he had not accepted the award and secondly, as the payment of compensation was offered to the respondent by the letter dated 05.01.2016, therefore, the claim for enhanced compensation by the respondent made on 07.01.2017 was within the prescribed time period. 9. Mr. S.K. Medhi, learned Addl. Advocate General in order to substantiate his contention has relied upon the pronouncement of the Supreme Court rendered in Ashwani Kumar Dhingra Vs. State of Punjab, (1992) 2 SCC 592 , wherein in paragraph-10 it has been held as under:- "The acceptance of compensation under protest was not done by the appellant with a view to safeguard his right to challenge the acquisition itself but to safeguard his right to require the matter being referred by the Collector for determination of the Court in relation to the matters mentioned in Section 18 of the Land Acquisition Act. It is clear from the provisions of Section 18 of the Land Acquisition Act that the person interested, in order to enable him to seek the remedy of reference can do so only if he does not accept the Award. It is clear from the provisions of Section 18 of the Land Acquisition Act that the person interested, in order to enable him to seek the remedy of reference can do so only if he does not accept the Award. In order to show that the person concerned had not accepted the Award the claimants accept the compensation only under protest because once the compensation awarded in pursuance of the Award is accepted without protest the person concerned may lose his right of a reference for various matters mentioned in Section 18 of the Land Acquisition Act." 10. Further reliance has been made to pronouncement of the Supreme Court rendered in Land Acquisition Officer Vs. Shivabai and Ors., (1997) 9 SCC 710 wherein, in paragraph 7 and 9 it has been held as under:- "7. ..If the amount is received without protest, by operation of second proviso to subsection (2) of Section 31, such person who has received the amount without protest is not entitled to seek a reference under Section 18." "9 .. It is now settled position in law that the claimants who receive compensation under protest and who make application under Section 18(1), alone are entitled to seek a reference; third parties, who have been impleaded, have no right to claim higher compensation by circumventing the process of reference under Section 18 " 11. Mr. B.D. Das, learned senior counsel for the respondent on the other hand relies upon the pronouncement of the Supreme Court in Ajit Singh and Others Vs. State of Punjab and Others, (1994) 4 SCC 67 , wherein, in paragraph 5 it has been held as under:- "5. ..Inasmuch as the appellants have filed an application for reference under Section 18 of the Act that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation. The District Judge and the High Court, therefore, fell into patent error in denying the enhanced compensation to the appellants." 12. From the aforesaid propositions of law as laid down by the Supreme Court, it is discernible that a right to make a reference flows only upon the condition precedent being satisfied that the award was accepted with protest and further that the intention for such protest manifests itself upon an application being filed for a reference. From the aforesaid propositions of law as laid down by the Supreme Court, it is discernible that a right to make a reference flows only upon the condition precedent being satisfied that the award was accepted with protest and further that the intention for such protest manifests itself upon an application being filed for a reference. The protest against the award of the Collector is implied notwithstanding the acceptance of the compensation, in the event an appropriate application for reference is made by the claimant and only such claimants who makes an application are alone entitled to seek a reference. Although the aforesaid judgments pertain to Section 18 of the Land Acquisition Act of 1894 (in short LA Act of 1894), but the provision of Section 18 of the LA Act of 1894 and Section 64 of the LA Act of 2013, as regards the requirements of being a person who has not accepted the award of the Collector, being pari materia, the pronouncement of the Supreme Court as regards Section 18 of the LA Act of 1894 would also be applicable to Section 64 of the LA Act of 2013. 13. In the instant case, it is noticed that the respondent had made an application dated 07.01.2017 seeking for an enhanced compensation. Accordingly, this Court is of the view that the said application if otherwise, made within the prescribed time period under the provisos to Section 64(2) of the LA Act of 2013, it was incumbent upon the Deputy Commissioner/Collector to pass appropriate orders as regards the entitlement of the respondent for a reference. 14. In view of the above, the direction of the learned Single Judge in the judgment and order dated 15.12.2017 in WP(C) 2183/2017 is modified to the extent that the Deputy Commissioner/Collector Dibrugarh shall pass a reasoned order on the said application of the respondent as regards its entitlement for a reference before the 'Land Acquisition, Rehabilitation and Resettlement Authority' and in doing so reasons shall also be provided as to whether the application of the respondent was made within the prescribed period as provided in the provisos to Section 64(2) of the LA Act of 2013. Subject to the aforesaid modification to the judgment and order dated 15.12.2017 in WP(C) No. 2183/2017, the writ appeal stands disposed of. Interim order passed earlier stands vacated.