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2020 DIGILAW 80 (GAU)

Rohit Mele v. State of Arunachal Pradesh

2020-01-24

KALYAN RAI SURANA

body2020
JUDGMENT Kalyan Rai Surana, J. - Heard Mr. P.J. Saikia, learned counsel for the petitioner. Also heard Mr. D. Kamduk, learned standing counsel for the Land Management Department and Mr. D. Soki, learned Addl. Senior Govt. advocate appearing for respondent No.2 and Ms. R. Borah along with Mr. T.T. Tara, learned standing counsel for the NHIDCL. 2. In terms of liberty granted by the Court by order dated 21.01.2020, the learned counsel for the petitioners as well as the learned counsel for the respondent No.3 have both filed their respective list of dates, which is kept in record. 3. The six petitioners herein claimed to be a part of 97 beneficiaries who are residents of various villages of Dibang Valley District, namely, Etalin, Arzoo, Punil, New Endolin, Eron and Amboli. 4. It is claimed that the properties of the petitioners such as horticulture crops, trees, structures, etc. falling within the stretch of improvement and double laning of TransArunachal Highway road from Hunli to Anini (KM 23.820 to KM 138.00) was initially not assessed and left out despite the land being acquired and possession taken by the respondents No. 2 and 3. It is claimed that the assessed compensation amounting to Rs.14,03,31,469/- was directed to be deposited by the respondent No.3 before the Deputy Commissioner, Anini for onward disbursement to the affected villagers with interest @ 12% per annum from January, 2016 till such payment is made. In the writ petition, it has been projected that the present writ petition was filed by the petitioners wherein all the other affected villagers/ beneficiaries were being represented in a representative capacity. 5. The learned counsel for the petitioners has submitted that the Commissioner Land Management, Itanagar, Govt. of Arunachal Pradesh by a notification No. LM-72/2014 dated 02.02.2015 under Section 10 of the Balipara/ Tirap/ Sadiya Frontier Tract Jhum Land Regulation, 1947 (hereinafter referred to as "1947 Regulation") for acquiring land at Dibang Valley District for the improvement and double laning of Hunli-Anini Road to be executed by National Highways and Infrastructure Development Corporation Ltd. (respondent No.3). The Deputy Commissioner, Dibang Valley District, Anini, Arunachal Pradesh was required to take possession of the notified land. Accordingly, assessment and survey was conducted by the Deputy Commissioner, Anini to determine the compensation award payment to the beneficiaries under the said 1947 Regulation. The Deputy Commissioner, Dibang Valley District, Anini, Arunachal Pradesh was required to take possession of the notified land. Accordingly, assessment and survey was conducted by the Deputy Commissioner, Anini to determine the compensation award payment to the beneficiaries under the said 1947 Regulation. It is claimed that the award was disbursed in two phases, firstly, land compensation amounting to Rs.24.17 crore was paid in the year 2016, and secondly, the second phase of land compensation amounting to Rs.19.77 crore was paid in the year 2017. It is projected that in the process, the authorities had missed out and left out and did not assess the properties such as horticulture crops, trees, structures, etc. of 97 villagers. Accordingly, a representation was submitted before the Deputy Commissioner, Anini for payment of compensation. Accordingly, by an order dated 24.08.2018, a board was constituted, amongst others, containing representatives of the respondent No. 3 for reverification and assessment of the left out properties. By a letter dated 09.09.2018 bearing signature of the Deputy Commissioner, Anini dated 10.09.2018, valuation of left out cases of horticulture crops, forest produce and structures affected by the construction of TransArunachal Highway was forwarded in form of Annexure- A to K thereto. 6. The learned counsel for the petitioners submits that instead of releasing compensation, over a period of time, the respondent No. 3 raised four objections. The first objection was on 01.10.2018 requiring the Deputy Commissioner, Anini to resubmit the estimate duly vetted by the State Government against which the Secretary (Land Management) by his letter dated 07.01.2019 had clarified that after completion of requisite formalities, further vetting by the authorities did not arise. However, the approval of the Government to the compensation estimates of left out cases was conveyed as sought for to the Deputy Commissioner, Anini. In this connection, it is submitted that under the 1947 Regulation, the Deputy Commissioner is the ultimate authority in the matter of assessment of compensation and the said 1947 Regulation does not envisage further vetting by the Government. The second objection was raised on 12.04.2019, when the respondent No. 3 requested the Deputy Commissioner, Anini to issue certificate of non-duplicacy. The said objection was met by issuance of no duplicacy certificate dated 22.04.2019. The second objection was raised on 12.04.2019, when the respondent No. 3 requested the Deputy Commissioner, Anini to issue certificate of non-duplicacy. The said objection was met by issuance of no duplicacy certificate dated 22.04.2019. Thereafter, third objection was raised for re-verification of claims to be done from 25.05.2019 to 10.06.2019 by standing Board as constituted by the Deputy Commissioner, Anini vide letter dated 24.08.2018. Accordingly, the Board was constituted by the Deputy Commissioner, Anini on 22.05.2019 wherein a representative of the respondent No. 3 was also one of the members. By referring to the minutes of the meeting held on 04.06.2019 regarding verification of left out cases, it is submitted that Board had recommended final amount of Rs.13,89,83,210/- by deducting 2% from the original estimate of Rs.14,03,31,469/- and, as such, it is submitted that the third objection was also met. By referring to the letter dated 08.06.2019 of the respondent No.3, it is submitted that by the said letter, General Manager (Projects) of respondent No.3 had written to the General Manager (LA) of respondent No.3 that the Board members had verified the site chainage from KM 23.820 to KM 131.900 and the finding of the Board members were attached together with photographs of all the affected persons who are likely to get compensation. 7. It is submitted that on 03.07.2019, fourth objection was raised by the respondent No. 3, inter-alia, (i) by asking the Deputy Commissioner to provide justification as to how additional cases were left out earlier and to bifurcate the earlier proposal, (ii) enquire whether the claimants had been paid the compensation for the land and what measures were taken for not claiming any further amount at a later date, (iii) objection was raised that the committee was not headed by Senior officers. Accordingly, it is submitted that as the respondent No. 3 was delaying the payment of compensation of left out cases, the present writ petition was filed on 20.07.2019. It is submitted that thereafter on 16.08.2019, the Deputy Commissioner, Anini give a reply to the letter dated 03.07.2019 by the respondent No. 3, as such, the fourth objection raised by the respondent No. 3 was also met. 8. It is submitted that thereafter on 16.08.2019, the Deputy Commissioner, Anini give a reply to the letter dated 03.07.2019 by the respondent No. 3, as such, the fourth objection raised by the respondent No. 3 was also met. 8. It is submitted that this writ petition was initially allowed by order dated 04.09.2019 against which the respondent No.3 preferred an appeal being WA 256/2019 and in connection with the said appeal, this Court had set aside the judgment dated 04.09.2019 and the matter was remanded for a fresh consideration by considering the stand taken in the affidavit. It is submitted that the affidavit that was required to be considered in terms of judgment dated 25.09.2019 in WA 256/2019 is the affidavit-in-opposition filed by the respondent No.3. 9. The learned Govt. advocate has made his submissions which indicates that the State respondents No. 1 and 2 supporting the cause and claim of the petitioners and submissions have been made to justify the compensation of Rs.1403,31,469/- but reduced by 2% to Rs.13,89,83,210/- to be paid as compensation of the left out cases on account of horticulture crops, trees, structures, etc. falling within the stretch of road project, namely, improvement and double laning of Trans-Arunachal Highway road from Hunli to Anini. It is submitted that in course of road development works, the periphery land of many affected persons were damaged, which was not the part of the original/ initial claim. It is further submitted that at no point of time, any objection had been made by the respondent No.3 as to the correctness of the quantification of compensation. 10. Per-Contra, the learned counsel for the respondent No.3 by extensively referring to the affidavit-in-opposition, additional affidavit filed on 18.10.2019 and reply affidavit filed by respondent No.3 to the additional affidavit filed by the petitioners, has submitted that compensation against land, properties, agriculture and horticulture, etc. in respect of the project was first paid to the extent of Rs.25,17,69,295/- on 03.01.2016. After such payment, once again a claim for compensation was received from the Deputy Commissioner, Anini for left out cases and payment was again done to the extent of Rs.19,77,69,665/- on 18.09.2017. Thereafter, a fresh set of claim was made for Rs.14.77 crore even after payment made on two previous occasions. Hence, the present claim is under intense scrutiny of the respondent No.3. Thereafter, a fresh set of claim was made for Rs.14.77 crore even after payment made on two previous occasions. Hence, the present claim is under intense scrutiny of the respondent No.3. By referring to the minutes of meeting dated 22.05.2019 and recommendation for payment of Rs.13.89 crore, it is submitted that when the proposal was forwarded to the headquarter of respondent No.3 on 08.06.2019, certain enquiries were made and, as such, the query/ objection raised to check duplicity in demand was justified, requiring non-duplicacy certificate from the authorities. It is submitted that in the meanwhile, the Managing Director of respondent No.3 by letter dated 24.07.2019 had requested the Chief Secretary, Govt. of Arunachal Pradesh to constitute a committee consisting of Secretaries (Land Management), Executive Director (Project), NHIDCL, Regional Office, and Deputy Commissioner, Anini or any other senior officer nominated by the Chief Secretary for resolving the issue of additional demand of compensation. It is submitted that the Government has not formed any committee of Senior Officers and that the present verification and valuation was done by junior ranked officers whose names were nominated by the Deputy Commissioner, Anini. It is submitted that the raising of fresh claims for the third time indicated serious lapses in making the assessment and it is submitted that such claims would be never ending as the claimants would find new and/ or additional heads for demanding additional compensation. 11. Accordingly, it is submitted that the respondent No. 3 was justified in issuing letter dated 30.08.2019 to the Deputy Commissioner, Anini, seeking clear bifurcation of earlier proposal and new proposal for payment of compensation with justification along with the requisite data. It is submitted that as the respondent No. 3 was dealing with public money which was funded by the Central Government, propriety prudence demanded that the respondent No.3 should take appropriate measures so as to prevent duplicity and multiplicity of claim. Accordingly, the learned counsel for the respondent No.3 has made an earnest prayer to the Court for a direction to the Chief Secretary, Govt. of Arunachal Pradesh for constituting high level committee consisting of senior level officers for re-verification to avoid multiplicity as well as duplicity of the claims which has now will made for the third time. Accordingly, the learned counsel for the respondent No.3 has made an earnest prayer to the Court for a direction to the Chief Secretary, Govt. of Arunachal Pradesh for constituting high level committee consisting of senior level officers for re-verification to avoid multiplicity as well as duplicity of the claims which has now will made for the third time. It is lastly submitted that there are 97 beneficiaries in respect of third claim but the present writ petition is filed by only six petitioners, as such, it is submitted that the petitioners have no locus standi to agitate the cause of the non-parties. 12. Considered the materials available on record contained in the writ petition, affidavit-inopposition filed by respondent No.2 and respondent No.3, reply affidavit filed by the petitioner against the affidavit-in-opposition of respondent No.3, additional affidavit by the petitioners filed on 03.10.2019, additional affidavit filed on 18.10.2019 by the respondent No.3, reply affidavit by respondent No.3 to the additional affidavit filed by the petitioners. 13. The objection as regards the presentation of the present writ petition by six petitioners claiming to be filing the present writ petition in a representative capacity for remaining amongst 97 beneficiaries is taken up first. In this connection, it would be relevant to quote the provisions contained in sub-Rule (1), (2) and (3) of Rule 8 of Order I CPC. wxyz "(1) Where there are numerous persons having the same interest in one suit,-- zyxw wxyz (a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; zyxw wxyz (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. zyxw wxyz (2) The Court shall, in every case where a permission or direction is given under subrule (1), at the plaintiff''s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. zyxw wxyz (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit." zyxw 14. Upon a bare reading of the above statutory provisions, the Court is of the considered opinion that Clause-(a) of sub-Rule (1) of Rule 8 envisages that if a person sues or is sued in a representative capacity, it must be done with the prior permission of the Court. The provisions of sub-Rule (2) of Rule 8 envisages that in every case where a permission is granted under sub-Rule (1), at the plaintiff''s (petitioners herein) expense, give notice of the institution of the suit (writ petition in this case) to all persons so instituted in the manner as morefuly mentioned therein. Thus it appears that only after publication of notice, a person interested in the proceeding can file an application seeking impleadment with requisite material, clearly stating as to how he can assist the Court or how he is affected by the issues involved and reliefs claimed in this suit. In the present case in hand, it is seen that no application for leave has been filed by the petitioners to institute this writ petition in a representative capacity and accordingly, no material is brought to the notice of the Court that this Court had granted leave to the petitioners to institute the present writ petition in a representative capacity for the benefit of all the 97 beneficiaries. Accordingly, the unhesitant opinion of this Court is that the present writ petition cannot be treated to be one instituted in a representative capacity and therefore, the adjudication of the reliefs claimed in the present writ petition would be confined to the claim of the six petitioners only. 15. The limited issue which is to be decided in the present writ petition is whether a direction is required to be issued in favour of the petitioners and against the respondent No.3 for releasing the compensation arising out of the allegedly third set of claim. In this regard, it would be relevant to quote Section 10 of the 1947 Regulation. wxyz "10. The Government may acquire any Jhum land required for a public purpose. In this regard, it would be relevant to quote Section 10 of the 1947 Regulation. wxyz "10. The Government may acquire any Jhum land required for a public purpose. No formal acquisition proceedings shall be necessary but an opportunity shall be given to those having rights in the land to show cause against such acquisition and reasonable compensation shall be paid for all land required under this section. zyxw wxyz Land so acquired shall, if relinquished by the Government at any time, be returned to the village, community or individual from whom it was acquired or refund, if any, of such compensation to the Government as the latter may decide." zyxw 16. In light of Section 10 of 1947 Regulation, the Court had asked a pointed query to all four set of counsel appearing for the petitioners, respondent No.1, 2 and 3 as to whether there was any public information to all concerned and interested in respect of claim/ demand of compensation against such acquisition of land for the Trans-Arunachal Highway project. None of the counsel were equipped with such information and they could not produce before the Court any such public notice by which the affected persons were informed of their right to receive reasonable compensation. It may be pertinent to mention herein that as per Regulation 10, no formal acquisition proceeding is necessary. Therefore, in the absence of any material particulars, the Court is not in a position to make any comment as to whether any of the three sets of claim was a duplicacy of claim, or whether the claimants in the payment of compensation in first phase, second phase and in respect of the present third claim are same set of claimants, claiming under different heads or all the three sets of claim are by separate individuals. It would not be out of context to mention herein that although he respondent No.3 has asserted that they had paid first phase of compensation amounting to Rs.25,17,69,295/- on 03.01.2016 and left out cases were settled by releasing payment of Rs.19,77,69,665/- on 18.09.2017 and the respondent No.3 had received a third set of claim for 97 beneficiaries, the respondent No.3 has not annexed a list of persons to whom payment were released or against whom award was made by the Deputy Commissioner, Anini. The respondent No.3 has not even produced any quantifiable data that the first set of payment made on 03.01.2016 was under which particular head from amongst claim for compensation against (i) land, (ii) structures, (iii) agriculture and horticulture, or (iv) claim against damages to property outside the "right of way" of the said highway. 17. Upon a plain reading of letter dated 09.09.2018 by the Deputy Commissioner, Dibang Valley District, Anini, it is seen that the present claim was re-assessed by the Board constituted for assessment of properties. It is not in dispute that under the 1947 Regulation, it was only the statutory prerogative of the Deputy Commissioner, Anini to constitute a Board to made physical assessment of land acquired and to work out calculation of compensation. It is also not in dispute that a representative from the respondent No. 3 was a member of such Board. Upon the assessment being made, vide said letter dated 09.09.2018, five sets of valuation was forwarded to the respondent No.3, viz., (i) Annexure- A, B and C regarding valuation of Horticulture Crops, (ii) Annexure- D, E and F regarding valuation of Structures, (iii) Annexure- G, H and I towards valuation of Forest Trees and Produces, (iv) Annexure-J is towards estimate of 2X50 KW THA Power Project at Angolin village and (v) Annexure-K relating to estimate of Mini Micro Hydel Power Project at Endolin village. Hence, it is apparent that the present set of claim does not contain claim against valuation of land. As already indicated above, the respondent No. 3 has not demonstrated that any of these valuations had been paid in the first and second round of payment released by the respondent No.3 on 03.01.2016 and 18.09.2017 respectively. 18. As per the provisions of Section 17 of 1947 Regulation, provisions of appeal and revision has been provided for. The available records clearly demonstrates that not only the Deputy Commissioner, Anini (respondent No.2) had the power and authority to assess compensation, but he has communicated assessed compensation amounting to Rs.14,03,31,469/-, scaled down by 2% to Rs.13,89,83,210/- which is the subject matter of the present writ petition. The available records clearly demonstrates that not only the Deputy Commissioner, Anini (respondent No.2) had the power and authority to assess compensation, but he has communicated assessed compensation amounting to Rs.14,03,31,469/-, scaled down by 2% to Rs.13,89,83,210/- which is the subject matter of the present writ petition. However, it appears from the internal letter dated 08.06.2019 of the respondent No. 3 which is annexed as part of Annexure- v series to the affidavit-in-opposition filed by respondent No.2 that the Officers of respondent No.3 had admitted at paragraph 2 thereof that the Board members had verified the site chainage from KM 23.820 to KM 131.900 and the findings of the Board members was attached to the said communication and moreover the photograph of all the affected persons who are likely to get compensation had been taken by the Board and was attached as Annexure-A. As a part of Annexure-v series, the respondent No. 2 has also provided a list of beneficiaries containing 76 names against horticulture, 33 names against forest produce, 10 beneficiaries against structures together with location and the amount assessed. There is nothing on record to show that the respondent No. 3 has questioned the assessment of receipt claims made by the respondent No.2. None of the documents annexed to the affidavit-in-opposition, additional affidavit and reply affidavit against additional affidavit by the petitioners to show that the quantum of assessment and/ or award was challenged or questioned. From the said three set of affidavit by respondent No. 3 no material could be shown before the Court that the respondent No.3 had any right to suggest or recommend as to which class of officers should become Members of the Board constituted by the Deputy Commissioner to conduct site verification or to quantify the award. 19. Despite receipt of the assessment of compensation, the respondent No.3 has not released the claim for compensation against the present six petitioners. The respondent No. 3 has been seeking clarification from the Deputy Commissioner, Anini (respondent No.2), but as there is no challenge to the assessment of compensation which is passed under Section 10 of 1947 Regulation, the entitlement of compensation under the said 1947 Regulation cannot be denied to the petitioners herein. 20. Moreover, the representative of respondent No.3 was a member of the Board constituted by the respondent No.2 for assessment of compensation. 20. Moreover, the representative of respondent No.3 was a member of the Board constituted by the respondent No.2 for assessment of compensation. As indicted above, the internal letter dated 08.06.2019 and letter dated 03.07.2019 (Annexure-V and VI series to the affidavit-in-opposition filed by respondent No. 2), clearly demonstrate that the members of the Board are seen to have conducted the exercise of the verification process without the respondent No.2 challenging the orders dated 24.08.2018 and 22.05.2019. Accordingly, in the absence of any challenge to the assessment of compensation, the award quantified at Rs.13,89,83,210/- by deducting 2% from the total amount of Rs.14,03,31,469/-, which appears from the minutes of meeting held on 04.06.2019, has attained finality and, as such, the Court is of the considered opinion that this is a fit and proper case wherein the present writ petition deserves to be allowed in respect of the six petitioners, namely, (1) Shri Rohit Mele, (2) Shri Makho Mele, (3) Shri Kanto Melo, (4) Shri Rukmo Mow, (5) Shri Jeepa Meto, and (6) Shri Nogoro Melo. Accordingly, the respondent No.3 i.e. the National Highways and Infrastructure Corporation Ltd. is directed to release the award as assessed against the six petitioners herein and their portion of the award shall be deposited before the Deputy Commissioner, Anini (respondent No.2) within a period of 4(four) weeks from today so as to enable the said authority to make onwards disbursement to the petitioners herein, being few of the left out project affect villagers. It is provided that if the respondent No.3 fails to deposit the compensation in respect of the six petitioners herein within the time allowed, the award as against the six petitioners shall carry interest @ 9% per annum on and from the date of this order till such payment is actually made to the respondent No.2. 21. Before parting with the record, it is made clear that this order shall not stand as a bar for the respondent No.3 to take recourse to such appropriate steps as they may be permitted in accordance with law to protect their interest in respect of the award. 22. The writ petition stands allowed to the extent as indicated above. 23. There shall be no order as to cost.