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Gauhati High Court · body

2019 DIGILAW 24 (GAU)

Bharat Chutia v. Alok Kumar

2019-01-09

UJJAL BHUYAN

body2019
ORDER : UJJAL BHUYAN, J. 1. Heard Mr. T. Chutia, learned counsel for the petitioners and Mr. R. Borpujari, learned counsel for both the respondents. 2. This petition has been filed alleging willful and deliberate violation of the order of the writ court dated 17.11.2017, passed in WP (C) No. 5088/2015 by the respondents. 3. Case of the petitioner is that land measuring 4 kathas 10 lechas belonging to him was acquired by the Deputy Commissioner, Dhemaji in terms of notification dated 8.12.2011 for construction of fly-over relating to the Bogibeel Railway Project. Grievance of the petitioner was that no compensation was paid to him for such land acquisition. Representation made on that behalf did not evoke any fruitful response. This compelled the petitioner to approach the writ court by filing WP(C) No. 5088/2015. Deputy Commissioner, Dhemaji in his affidavit before the writ court stated that proposal for payment of compensation to the petitioner for acquisition of his land measuring 4 kathas 10 lechas covered by KP patta No. 234 and Dag No. 436 (kha) of village Sesuwani Pamar under Sissiborgaon Revenue Circle was forwarded to the Government on 04.08.2014. In the light of the above, writ court disposed of the writ petition vide order dated 17.11.2017 by directing the respondent State to disburse the land acquisition compensation to the petitioner in terms of the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act) within 3 months. 4. Alleging willful and deliberate non-compliance of such direction, the present contempt petition came to be filed. Notice in this case was issued on 24.09.2018. 5. Today when the matter is called upon, Mr. Borpujari, learned counsel appearing for the respondents submits on instruction that an amount of Rs. 5,18,200.00 has been paid to the petitioner on 02.01.2019 as compensation for the land acquisition. 6. Mr. Chutia, learned counsel for the petitioner, however, submits that the said amount is totally inadequate and as per assessment of the Circle Officer, Sissiborgaon Revenue Circle, petitioner is entitled to compensation of Rs. 12,83,064.00. That apart, petitioner is also entitled to interest under Section 80 of the 2013 Act at the statutory rate of 9% per annum for delay in payment of compensation. 7. Mr. Borpujari however submits that since compensation has been paid, the contempt petition may be closed. 12,83,064.00. That apart, petitioner is also entitled to interest under Section 80 of the 2013 Act at the statutory rate of 9% per annum for delay in payment of compensation. 7. Mr. Borpujari however submits that since compensation has been paid, the contempt petition may be closed. Petitioner may seek his remedy under the 2013 Act if he is not satisfied with the quantum of compensation. 8. Submissions made by learned counsel for the parties have been considered. 9. As compensation of Rs. 5,18,200.00 has been paid to the petitioner, it cannot be said that order of the writ court continues to remain unimplemented. Therefore, the contempt petition may be closed. However, before such closure, a brief dilation on the relevant provisions of the 2013 Act and the remedy of the petitioner is considered necessary. 10. The 2013 Act has been enacted by the Parliament to ensure that a humane, participative, informed and transparent process for land acquisition for the purposes mentioned therein with least disturbance to the owners of the land and other affected families is evolved. It has been enacted to provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provision for rehabilitation and resettlement of such affected persons. The objective of the Act is to ensure that the cumulative outcome of such land acquisition which is compulsory in nature, should be that the affected persons become partners in development leading to an improvement in their post acquisition social and economic status. Therefore, when land is acquired or proposed to be acquired under the 2013 Act, the concerned authorities should keep in mind the above underlying objective of the 2013 Act. Objective of the aforesaid Act, as discussed above, is to ensure that development is a participatory process and not at the cost of the land owners whose land is compulsorily acquired. 11. In the instant case, the land of the petitioner was acquired way back in the year 2011 without paying any compensation. It was only after this Court intervened that some compensation has been paid to the petitioner on 02.01.2019, which learned counsel for the petitioner has contended is neither just nor fair. 12. 11. In the instant case, the land of the petitioner was acquired way back in the year 2011 without paying any compensation. It was only after this Court intervened that some compensation has been paid to the petitioner on 02.01.2019, which learned counsel for the petitioner has contended is neither just nor fair. 12. Section 80 of the 2013 Act provides that when such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine percent per annum from the time of so taking possession until it shall have been so paid or deposited. As per the proviso thereto, if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen percent per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry. 13. The use of the expression shall both in the main provision of the section as well as in the proviso thereto is indicative of the mandatory nature of the provisions contained in Section 80 of the 2013 Act. 14. Though right to property is no longer a fundamental right, it is still a valuable constitutional right. Infact, it is a precious right of an individual. In the recent decision of the Supreme Court in Lalaram Vs. Jaipur Development Authority, reported in (2016) 11 SCC 31 , it has been held that the right to property though no longer a fundamental right is otherwise a zealous possession of which one cannot be divested save by the authority of law as is enjoined by Article 300A of the Constitution of India. In the context of payment of compensation for compulsory acquisition of land, it has been held that any callous inaction or apathy of the State and its instrumentalities in securing just compensation would amount to dereliction of a constitutional duty justifying issuance of a writ of mandamus for appropriate remedial directions. Referring to the earlier decision in the case of Indore Vikas Pradhikaran Vs. Referring to the earlier decision in the case of Indore Vikas Pradhikaran Vs. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705 , Supreme Court observed that human rights have gained a multifaceted approach so much so that property rights have become integrated within the definition of human rights. Supreme Court referred to its earlier decision in Dev Sharan Vs. State of UP, reported in (2011) 4 SCC 769 and held that while power of the State to acquire the land of its citizens is well recognized, it has to be accepted that without the right to property, other rights become illusory. Supreme Court also referred to State of Haryana Vs. Mukesh Kumar, reported in (2011) 10 SCC 404 where this prize privilege was equated with human rights. In the said case, it was held thus:- "33. The right to property is now considered to be not only a constitutional or statutory right but also a human right. Human rights have already been considered in the realm of individual rights such as the right to health, right to livelihood, right to shelter and employment, etc. But now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even the claim of adverse possession has to be read in that context." Finally, Supreme Court summed up the position in the following terms:- "129. In summa, the right to property having been elevated to the status of human rights, it is inherent in every individual, and thus has to be venerably acknowledged and can, by no means, be belittled or trivialized by adopting an unconcerned and nonchalant disposition by anyone, far less the State, after compulsorily acquiring his land by invoking an expropriatory legislative mechanism. The judicial mandate of human rights dimension, thus, makes it incumbent on the State to solemnly respond to its constitutional obligation to guarantee that a land loser is adequately compensated. The proposition does not admit of any compromise or laxity." 15. Thus divesting an individual of his property without adequate compensation would amount to infringement of human rights of such an individual. It is this rationale which is behind Section 80 of the 2013 Act. It is in the above context that the respondents have been found wanting while dealing with the right of the petitioner to receive fair compensation. 16. Thus divesting an individual of his property without adequate compensation would amount to infringement of human rights of such an individual. It is this rationale which is behind Section 80 of the 2013 Act. It is in the above context that the respondents have been found wanting while dealing with the right of the petitioner to receive fair compensation. 16. Section 64 of the 2013 Act provides that any person interested who has not accepted the award may by written application to the Collector, require that the matter be referred by the Collector for the determination of the Authority, whether his objection be to the measurement of the land or to the amount of compensation. As per first proviso, on such application being made, the Collector is to make the reference within a period of 30 days. Section 3(f) defines "Authority" to mean the Land Acquisition and Rehabilitation and Resettlement Authority established under Section 51. As per Section 51, the appropriate government which in this case will mean the State Government shall, for the purpose of providing speedy disposal of disputes relating to land acquisition, compensation etc., constitute Land Acquisition, Rehabilitation and Resettlement Authority to exercise jurisdiction, powers and authority conferred on it by or under the 2013 Act. As per Section 52, such Authority shall consist of one person only referred to as the Presiding Officer and under Section 53, the Presiding Officer shall be one who is or has been a District Judge or a qualified legal practitioner for not less than 7 years. The Presiding Officer is to be appointed by the appropriate government i.e., State Government in consultation with the Chief Justice of the jurisdictional High Court. 17. Mr. Borpujari submits that in the State of Assam, District Judges have been notified as the Presiding Officers. 18. That being the position and considering the relevant provisions of the 2013 Act, it is hereby directed that petitioner shall submit application before the Deputy Commissioner, Dhemaji under Section 64 of the 2013 Act for making a reference to the Authority for enhancement of compensation. Such application may be filed within 30 days from today. If such application is filed within 30 days, Deputy Commissioner, Dhemaji shall make the reference to the Authority in terms of Section 64 within 30 days thereafter. Such application may be filed within 30 days from today. If such application is filed within 30 days, Deputy Commissioner, Dhemaji shall make the reference to the Authority in terms of Section 64 within 30 days thereafter. On such reference being made, the Authority shall consider the claim of the petitioner, including statutory payment of interest under Section 80 of the 2013 Act. 19. Rights of the petitioner being sufficiently protected and remedy adequately provided under the statute, proceeding further within the contempt petition may not be necessary. 20. Contempt petition is accordingly closed.