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2019 DIGILAW 380 (GAU)

Saritasoni v. State of Assam

2019-03-26

UJJAL BHUYAN

body2019
ORDER : UJJAL BHUYAN, J. 1. Heard Mr. SK Kejriwal and Ms. S. Kejriwal, learned counsel for the petitioners and Mr. PS Deka, learned Standing Counsel, Revenue Department, Government of Assam. Also heard Ms. D Das Barman, learned Government Advocate, Assam. 2. Having regard to the nature of grievance expressed by the petitioners and the order that is proposed to be passed, Court is of the view that issuance of formal notice is not required as the case can be disposed of at the motion stage itself. Infact, when the writ petition was moved on 18.03.2019, such a view was taken and accordingly case is listed today. 3. Five petitioners have joined together and have instituted the present common proceeding under Article 226 of the Constitution of India seeking quashing of notice dated 31.05.2018 passed by the Collector, Kamrup in exercise of the powers conferred by Section 3(1) of the Assam Land (Requisition and Acquisition) Act, 1964 and all consequential orders passed thereafter in respect of land and industrial building of the petitioners measuring 1 bigha 1 katha 10 lechas covered by Dag No. 184 of KP Patta No. 268 situated at village- Abhaypur under Sila Sinduri Ghopa Mouza (North Guwahati Revenue Circle) in the district of Kamrup, and further seeks a direction to the respondents to take resort to the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 4. Case of the petitioners is that petitioner Nos. 1 to 4 are the owners and pattadars of the aforesaid plot of land which they had acquired through sale purchase. Petitioner Nos. 1 to 4 have leased out the said land to petitioner No. 5 for a period of 30 years whereafter, petitioner No. 5 has constructed a factory over the said land for manufacturing plastic moulded furniture and household articles. 5. Deputy Commissioner, Kamrup, acting as the Collector, Kamrup issued notice under Section 3 (1) of the Assam Land (Requisition and Acquisition) Act, 1964 (1964 Act) informing the recorded pattadars of the lands mentioned in the schedule thereto that it was proposed to requisition the land for providing the same to the Guwahati Metropolitan Development Authority (GMDA) for construction of bridge over the river Brahmaputra connecting Guwahati with North Guwahati. At Sl. At Sl. No. 7 of the said schedule was mentioned the land of the petitioners but interestingly instead of mentioning the names of petitioner Nos. 1 to 4 as recorded pattadars and petitioner No. 5 as lease holder, name of one Kameswari Basumatary and 11 others were shown though Kameswari Basumatary is no longer the pattadar of the said land, she having sold the said land which thereafter was acquired by petitioner Nos. 1 to 4 through sale transaction. As a result, petitioners were oblivious of the said notice. 6. This notice was followed by requisition order of the Collector dated 19.06.2018 under Section 3(1) of the 1964 Act. 7. Following the same, the Collector issued order dated 13.08.2018 calling upon the owners/tenants/persons in occupation of the land mentioned in the schedule to surrender or deliver possession of the requisitioned land to the Circle Officer, North Guwahati Revenue Circle. 8. A notification dated 13.09.2018, corresponding to Land Acquisition Case No. 17/2018, was published in the newspaper stating that in exercise of the powers conferred under Section 6 (1) of the 1964 Act, the Collector was pleased to decide that the land mentioned in the schedule should be acquisitioned from the date of publication of the requisition notice under Section 3(1) of the 1964 Act. 9. Thereafter by the notice dated 05.02.2019 in connection with Land Acquisition Case No. 17/2018, petitioner Nos. 1, 2 and 3 along with others were informed that an amount of Rs. 33,20,676.26 was assessed as the total compensation amount for their land acquired. Likewise, petitioner No. 5 was informed by the Collector by a separate notice dated 05.02.2019 in connection with the same land acquisition case that a total amount of compensation of Rs. 1,64,58,314.00 was assessed to be paid to him. 10. It is at this stage that the present writ petition has been filed. 11. Mr. Kejriwal, learned counsel for the petitioners submits that this is a case of land acquisition, pure and simple. Therefore, taking recourse to the 1964 Act was not at all justified. 1964 Act would come into play only if requisition of land is sought to be made. 11. Mr. Kejriwal, learned counsel for the petitioners submits that this is a case of land acquisition, pure and simple. Therefore, taking recourse to the 1964 Act was not at all justified. 1964 Act would come into play only if requisition of land is sought to be made. If such requisition acquires a permanent character then by invoking Section 6 thereof, the requisitioned land can be acquisitioned whereafter provisions of the earlier Land Acquisition Act, 1894 or the successor Act i.e., Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act) would come into play. In so far present case is concerned, the land is required for construction of bridge; therefore it cannot be a case of requisition. His further submission is that even under the 1964 Act, not only the land owners but tenants and any person interested in the land are required to be put on notice under Section 3 (1) regarding proposal for requisition of the land but in the present case, neither the pattadars of the land i.e. petitioner Nos. 1 to 4 nor the lessee i.e., petitioner No. 5 were put on notice. Therefore, they had no occasion to put forward their objection or their statement. That apart, Collector unilaterally has assessed the land compensation to be disbursed to the petitioners which is opposed to all principles of fair compensation and transparency in land acquisition. He, therefore, submits that requisition and subsequent acquisition of the land of the petitioners being ab initio void, the same should be set aside and quashed. 12. Mr. Deka, learned Standing Counsel, Revenue Department on the other hand submits that since petitioners have submitted representation before the State Government, the said representation may be considered and an appropriate decision may be taken by the Government. On a query by the Court, he submits that under Section 3 (3) of the 1964 Act, any person interested in the land may appeal to the State Government within 30 days from the date of service of order. However, Mr. Deka submits that since the objective of land acquisition has greater public interest, Court may not interfere with the requisition and acquisition proceedings. 13. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 14. At the outset, the notice dated 31.05.2018 issued by the Collector, Kamrup may be adverted to. However, Mr. Deka submits that since the objective of land acquisition has greater public interest, Court may not interfere with the requisition and acquisition proceedings. 13. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 14. At the outset, the notice dated 31.05.2018 issued by the Collector, Kamrup may be adverted to. 15. A perusal of this notice would go to show that it was issued in terms of Rule 3 of the Assam Land (Requisition and Acquisition) Rules, 1964 (1964 Rules) and "second proviso to" Section 3 (1) of the 1964 Act. It was mentioned in the notice that the land described in the schedule was necessary to be requisitioned and it was proposed that the said land should be requisitioned for providing land to the GMDA for construction of bridge over the river Brahmaputra connecting Guwahati with North Guwahati. Therefore, in exercise of the powers conferred by "second proviso to" Section 3 (1) of the 1964 Act, Collector called upon the persons interested in the said land to make representation in writing within 15 days of the date of service of the said notice as to why the said land should not be requisitioned. As already pointed out, at Sl. No. 7 of the schedule is mentioned the land of the petitioners but instead of recording their names, names of the previous pattadar Kameswari Basumatary was mentioned. 16. 1964 Act is an act to amend and consolidate the law relating to requisition and speedy acquisition of premises and land for certain public purposes. Section 3 thereof deals with power to requisition. The power to requisition is conferred to the State Government or to any person authorized in this behalf by the State Government The purpose for such requisition is mentioned in sub-section (1) of Section 3 itself. This includes maintaining supplies and services essential to the life of the community or for providing proper facilities for accommodation, transport, communication, irrigation, flood control and anti-erosion measures, including embankment and drainage or for providing the land individually or in groups of landless, flood affected or displaced persons or to cooperative societies or companies formed for benefit and rehabilitation of landless, flood affected or displaced person or to provide land for the purpose of construction of border fencing and allied works, including border roads and check posts connected therewith along the Bangladesh border. There is no proviso to sub-section (1), not to speak of any second proviso. 17. As per sub-section (2), an order under sub-section (1) shall be served in the prescribed manner on the owner of the land and where the order relates to land in occupation of a tenant, also on such tenant. 18. Under sub-section (3), when an order for requisition is made by any authority other than the State Government, any person interested in the land may appeal to the State Government within 30 days from the date of service of order and the decision of the State Government in such an appeal shall be final. 19. Since Section 3 of the 1964 Act is crucial to the litigation, the same is extracted hereunder in its entirety:- "3. Power to requisition- (1) If in the opinion of the State Government or any person authorized in this behalf by the State Government it is necessary so to do, for maintaining supplies and services essential to the life of the community or for providing proper facilities for accommodation, transport, communication, irrigation, flood control and anti-erosion measures including embankment and drainage or for providing land individually or in groups to landless, flood affected or displaced persons, or to a society registered under Assam Co-operative Societies Act, 1949 (Assam Act I of 1950), or a company incorporated under the Companies Act, 1956 (Act I of 1956), formed for benefit and rehabilitation of landless, flood affected or displaced persons [or to provide land for the purpose of construction of border fencing and allied works, including border roads and check posts connected therewith, along Bangladesh Border] the State Government or the person so authorized, as the case may, may by order in writing, requisition any land and may make such further order as appear to it or to him to be necessary or expedient in connection with the requisitioning. (2) An order under sub-section (1) shall be served in the prescribed manner on the owner of the land and where the order relates to land in occupation of a tenant, also on such tenant. (2) An order under sub-section (1) shall be served in the prescribed manner on the owner of the land and where the order relates to land in occupation of a tenant, also on such tenant. (3) Where the order for requisition is made by any authority other than the State Government, any person interested in the land, within 30 days from the date of service of order, may appeal to the State Government and the decision of the Government in such appeal shall be final." 20. While at Section 3 it would also be useful to refer to Rule 3 of the 1964 Rules. Rule 3 deals with manner of submission of representation by interested person when land is necessary to be requisitioned for landless or displaced persons. It says that where it is necessary to requisition any land for landless or displaced person, the person interested in the land shall be informed of the intention of requisitioning his land and such person may make written representation, if any, against such requisition within 15 days from the date of receipt of such information which shall be in Form "A". Such representation when received shall be disposed of by the State Government or the person authorized to requisition the land as the case may be, after due consideration. 21. It is interesting to read Form "A". It is supposed to be a notice and order under Rule 3 and "second proviso to" Section 3(1). But as noticed above, there is no second proviso to Section 3(1) of the 1964 Act but the form mentions it to be a notice and order thereunder. It is quite surprising that such an error in the statutory form has remained unnoticed all this while. 22. Be that as it may, reverting back to the 1964 Act, Section 4 thereof empowers the requisitioning authority to take possession of the requisitioned land. 23. Where it becomes necessary and the State Government has decided to acquire the requisitioned land, Section 6 of the 1964 Act comes into play. A notice has to be issued in the official gazette to the effect that State Government has decided to acquire the requisitioned land. 23. Where it becomes necessary and the State Government has decided to acquire the requisitioned land, Section 6 of the 1964 Act comes into play. A notice has to be issued in the official gazette to the effect that State Government has decided to acquire the requisitioned land. It is only from the date of such notice published in the official gazette that the requisitioned land would vest absolutely in the State Government free from all encumbrances and the period of requisition of such land shall end whereafter provisions of the Land Acquisition Act, 1894 with the Rules framed thereunder would apply to such land. As already noticed, the Land Acquisition Act, 1894 has been replaced by the 2013 Act. 24. For the purpose of the present litigation, it may not be necessary to examine the other provisions of the 1964 Act but from an overall understanding of the scheme of the 1964 Act as expressed through Sections 3 to 6 thereof, it is evident that this Act visualizes two situations, viz., at the first stage requisition of the land for the reasons mentioned in Section 3(1). During the period of requisition, the land owners or the tenants or the persons interested in the land are entitled to requisition compensation. However, if the requisition of land acquires a permanent character then it would be open to the State Government to acquire such land by invoking power under Section 6 of the 1964 Act which decision must be published in the official gazette. On and from publication of such notice in the official gazette, requisition of the land would come to an end and the provisions of land acquisition will come into play. 25. Having noticed the above, the impugned notice dated 31.05.2018 may now be adverted to again. 26. As noticed above, this notice has been issued in statutory Form "A" i.e., under Rule 3 and "second proviso to" sub-section (1) of Section 3 of the 1964 Act. Rule 3 deals with requisition of land for landless or displaced persons. In so far "second proviso to" Section 3 (1) of the 1964 Act is concerned, there is no second proviso. Prima facie the very foundation of this notice appears to be shaky, to put it mildly. Land is being requisitioned for construction of bridge. Rule 3 deals with requisition of land for landless or displaced persons. In so far "second proviso to" Section 3 (1) of the 1964 Act is concerned, there is no second proviso. Prima facie the very foundation of this notice appears to be shaky, to put it mildly. Land is being requisitioned for construction of bridge. Admittedly, there is no possibility of returning back the requisitioned land to either the land owners or the tenants or the persons interested in the land. Therefore, it is not understood as to why provisions of the 1964 Act was invoked when admittedly it is a case of land acquisition in which case provisions of the 2013 Act will apply. 27. Having said so, Court is also conscious of the objective of such requisition and acquisition of land. Moreover, it is only the petitioners who have expressed their grievance and not all the persons mentioned in the schedule. As Mr. Deka, learned Standing Counsel has rightly pointed out that there is a provision for appeal to the State Government by any person interested in the land who may feel aggrieved by the order of requisition. Though subsection (3) of Section 3 says that such appeal should be filed within 30 days from the date of service of order issued under Section 3 (1), it is the pleaded case of the petitioners on oath that no order under Section 3 (1) was served upon them. 28. That being the position and taking an overall view of the matter, it is hereby directed that petitioners may prefer appeal before the Government of Assam in the Revenue and Disaster Management Department within a period of 30 days from today against the notice and order dated 30.05.2018 in respect of the land in which they are interested and on such appeal being filed, State Government in the Revenue and Disaster Management Department shall consider the same, if necessary after giving an opportunity of hearing to the petitioners, and thereafter pass appropriate order in accordance with law with due intimation to the petitioners. Till such order is passed and communicated by the appellate authority to the petitioners, status quo as regards the land in which the petitioners are interested i.e., at Sl. No. 7 of the notice and order dated 31.05.2018 shall be maintained. 29. This disposes of the writ petition. No costs.