Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 499 (GAU)

H. Chalkhuma v. Union Of India

2019-04-23

NELSON SAILO

body2019
JUDGMENT : 1. Heard Mr. B. Lalramenga, the learned counsel for the petitioners and Ms. Zairemsangpuii, the learned CGC who appears for the respondent Nos. 1 to 6. 2. Ms. Zairemsangpuii, the learned CGC however submits that since the matter pertains to the Ministry of Home Affairs, the Ministry of Defence has no say in the matter. Accordingly, only the respondent Nos. 1, 2, 5 & 6 had filed their affidavit-in-opposition against the writ petition. Mr. C. Zoramchhana, the learned Addl. Advocate General appears for the respondent Nos. 7 to 9. It is seen that the State respondents have not filed affidavit-in-opposition. The learned Addl. Advocate General submits that he has not yet received any instructions in the matter. However, having regard to the nature of the grievance projected by the petitioners, I am of the opinion that the writ petition can be disposed of at this stage and without the affidavit of the State respondents. 3. Altogether 19 writ petitioners who claim to have a common cause of action have joined hands in filing the present writ petition. It is their case that their respective lands were acquired for public purpose for the establishment of key location point of Assam Rifles by drawing land acquisition proceedings through the District Collector of Lawngtlai District, Lawngtlai. The land acquisition proceeding was drawn and completed in terms of the Land Acquisition Act, 1894 (L.A. Act) with the publication of Draft Award No. 1/2014 on 29.08.2016. As per the Draft Award, the petitioners were awarded compensation to the tune of Rs. 3,38,26,260/-. The Draft Award was then approved by the State Government in the Land Revenue & Settlement Department and communicated to the Deputy Commissioner-cum District Collector, Lawngtlai District, Lawngtlai vide Communication dated 09.09.2016. 4. The admitted position thereafter, is that the principal amount awarded has been deposited before the District Collector concerned and thereafter, disbursed to the land owners. Not being satisfied with the amount of compensation in respect of the market value of the land, the petitioners filed Reference Application No. 1/2018 claiming for enhancement of the compensation. However, it is their specific case that no reference application has been filed claiming interest and solatium as may be admissible under the L.A. Act. Thus being aggrieved for non-payment of interest and solatium, the petitioners have filed the present writ petition. 5. The respondent Nos. However, it is their specific case that no reference application has been filed claiming interest and solatium as may be admissible under the L.A. Act. Thus being aggrieved for non-payment of interest and solatium, the petitioners have filed the present writ petition. 5. The respondent Nos. 1, 2, 5 & 6 by filing affidavit-in-opposition on 19.02.2019 have taken the stand that it is too late in a day for claiming interest and solatium. The petitioners in fact should have raised the issue when the land acquisition proceedings were being drawn and proposal for fixation of rates were being made. 6. Supporting the affidavit, Ms. Zairemsangpuii, the learned CGC submits that the claim for interest and solatium is only belated and an after thought of the petitioners. The award was pronounced as early as on 29.08.2016, whereafter, approval was granted by the State Government on the award on 09.09.2016. Therefore, the writ petition claiming interest and solatium having being filed only on 26.09.2018 after a lapse of more than two years, the same should be dismissed. 7. Mr. B. Lalramenga, the learned counsel for the petitioners however submits that there is no restriction of claiming interest and solatium even at this stage since the same is mandated as per Section 23(1-A) and (2) of the L.A. Act. He further submits that a Division Bench of this Court in Reference Case No. 1/2017 vide Judgment & Order dated 24.04.2017 has held that the claim of interest and solatium is a statutory right of person interested and non-payment of such interest and solatium would be a failure on the part of the Collector to discharge statutory duty vested upon them. The learned counsel also submits that in view of the non-payment of interest and solatium, the petitioners would be further entitled to interest on the excess compensation as provided under Section 28 of the L.A. Act. 8. I have considered the rival submissions and I have perused the materials available on record. 9. There cannot be any dispute to the fact that the Collector while considering or while determining compensation has to consider various relevant matters as provided under Section 23 of the L.A. Act. 8. I have considered the rival submissions and I have perused the materials available on record. 9. There cannot be any dispute to the fact that the Collector while considering or while determining compensation has to consider various relevant matters as provided under Section 23 of the L.A. Act. In addition to such consideration, Sub-Section (1-A) of Section 23 provides that in addition to the market value of the land, as provided, the Court shall in every case award amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under Section 4, Sub-Section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Further, Sub-Section (2) of Section 23 provides that in addition to the market value of the land as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in consideration of compulsory nature of the acquisition. 10. It may further be noticed that Section 28 of the L.A. Act also provides that if the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court. 11. It may further be noticed that a Division Bench of this Court in Reference Case No. 1/2017 as pointed out by the learned counsel for the petitioners held that the claim for interest and solatium being a statutory right can very well be claimed by the person interest by filing a writ petition. Relevant portion of the said Judgment & Order dated 24.04.2017 passed by the Division Bench may be reproduced below for ready perusal: “19. Relevant portion of the said Judgment & Order dated 24.04.2017 passed by the Division Bench may be reproduced below for ready perusal: “19. Now coming to the next question as to whether such a claim can also be maintained in a writ petition, as already discussed above, claim of interest and solatium is a statutory right of the person interested and non-payment of such interest and solatium would be a failure on the part of the Collector to discharge statutory duty vested on him. If there is such failure on the part of the public authority in the discharge of statutory duty, certainly a writ Court would be well within its jurisdiction to issue a writ of mandamus to compel the public authority to discharge his statutory duty. The fact that alternative remedy is available under Sections 13(A) and 18 of the LA Act, 1894 would not debar the writ Court from exercising such jurisdiction in an appropriate case. 20. In the light of the above discussions, we answer the question referred to us in the affirmative by holding that a writ petition claiming interest and solatium under Sections 23 (1A) and (2) of the LA Act, 1894 even in the absence of any reference under Section 18 of the said Act would be maintainable.” 12. In view of the relevant provisions noticed under the L.A. Act and also the decision of a Division Bench of this Court, the writ petition is disposed of with a direction to the Deputy Commissioner, Lawngtlai District, Lawngtlai (respondent No. 9) to make an assessment of the entitlements of the petitioners as provided under Section 23 (1-A) and (2) as well as under Section 28 of the L.A. Act. The said calculation should be done within a period of 3 (three) weeks from the date of receipt of the certified copy of this Order, whereafter, the same should be forwarded to the respondent Nos. 5 & 6 within 2 (two) weeks of making the said calculation. The respondent Nos. 5 & 6 shall thereafter, on receipt of the said calculation without any further delay make necessary arrangement for sanction of the fund required and for onward disbursal to the land owners (petitioners). To complete such exercise, the respondent Nos. 5 & 6 are given 3 (three) months time including the deposit of the compensation amount before the respondent No. 9. To complete such exercise, the respondent Nos. 5 & 6 are given 3 (three) months time including the deposit of the compensation amount before the respondent No. 9. The respondent No. 9 on receipt of the fund without delay shall disburse the same to the petitioners. 13. The writ petition accordingly stands disposed of. No cost.