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Meghalaya High Court · body

2021 DIGILAW 23 (MEG)

Effilina Marak v. State of Meghalaya

2021-04-20

W.DIENGDOH

body2021
JUDGMENT : 1. What can be understood from this writ petition is that the Petitioners are said to be the absolute land owners of land situated at Mendipathar village, North Garo Hills (then East Garo Hills District). The details of the land owned by each of the 29 Petitioners herein is given at paragraph 3 of this writ petition. 2. At paragraph 7 of the writ petition, reference was made to the Notification No. RDA.21/08/134, dated Shillong the 24th November, 2009 issued by the Under Secretary to the Govt. of Meghalaya, Revenue and Disaster Management Department, which is a notification made u/s 4 of the Land Acquisition Act, 1894 indicating the requirement of the Government for construction of new B.G Railway Line from Dudhnoi to Mendipathar. In the same notification, the Government in exercise of power conferred by Section 17(4) of the said Land Acquisition Act, 1894 have decided that in view of the urgency of the project, provisions of Section 5 (A) of the Act shall not apply to the land described above. 3. ‘Public Notice’ No. EGH/REV.235/2009/79, dated Williamnagar, the 30th November 2009 was also issued by the Deputy Commissioner, East Garo Hills, Williamnagar whereby, the Government had authorized entry and survey of the land and to do all other Acts required or permitted by sub-Section (2) of Section 4 of the Act. 4. It may be mentioned that the Petitioners citing reference to the fixation of land compensation by the Garo Hills Autonomous District Council, Tura whereby rates were fixed for different category of land within its jurisdiction, had petitioned the Deputy Commissioner, Williamnagar for fixation of a higher rate of compensation by giving stating that since the rate determined by the Garo Hills Autonomous District Council, Tura does not reflect the correct and existing market rate. A similar letter was written to the Deputy Commissioner, East Garo Hills, Williamnagar vide letter dated 16.01.2010 (Annexure-D). 5. Thereafter, vide Notification No. RDA.21/2008/147, dated Shillong the 8th February 2010, the Government of Meghalaya through the Under Secretary to the Govt. of Meghalaya, Revenue and Disaster Management Department, Shillong has issued the declaration u/s 6 of the said Act of 1894, whereby the land of the writ Petitioners and others was acquired for public purpose for the said construction of the new B.G Railway Line from Dudhnoi to Mendipathar. 6. of Meghalaya, Revenue and Disaster Management Department, Shillong has issued the declaration u/s 6 of the said Act of 1894, whereby the land of the writ Petitioners and others was acquired for public purpose for the said construction of the new B.G Railway Line from Dudhnoi to Mendipathar. 6. The Petitioners then filed another representation dated 06.03.2010 addressed to the Executive Secretary, Garo Hills District Council, Tura under the subject ‘Review of Land Compensation for railway affected areas of Mendipathar’. Copy of this representation was also sent to the Respondent/Deputy Commissioner, Williamnagar herein. 7. It is the case of the Petitioners that the Collector in exercise of power u/s 11 of the L.A Act. 1894 had made an award dated 09.11.2010 without taking into consideration the objections raised by the Petitioners in their representation mentioned above. The Petitioners were then called to collect the award which they did between 22.12.2010 to 11.08.2011 after raising serious oral protests against the manner in which the award was determined. However, the Collector inspite of the said protests did not allow them to write the word “Under Protest” on the revenue records at the time of receiving the compensation being 80 per cent of the same received on 22.12.2012. 8. Another letter dated 24.12.2011 was submitted before the Deputy Commissioner, East Garo Hills, Williamnagar by some of the Petitioners herein under the subject ‘Complaint against unjustified and discriminatory land compensation’ whereby reference was made to the letter dated 15.01.2009 and 15.07.2009. 9. The Collector vide letter dated 13.02.2012 asked all the writ Petitioners and others to collect the remaining 20 per cent of the compensation from the office on 24.02.2012 to which the Petitioners received the same with oral protests, which was not recorded on the revenue records prompting them to file another reference application dated 26.02.2012 and a reminder to this being application dated 05.03.2012 and again another reminder dated 03.04.2012 which was sent to the Collector with a request to refer their matter for reference u/s 18 of the said L.A Act, 1894 to which the Collector has declined to take any action on the same. 10. The Petitioners then approached this Court with a writ petition No. 255 of 2012 seeking appropriate relief on being denied of the same by the inaction of the Collector. 10. The Petitioners then approached this Court with a writ petition No. 255 of 2012 seeking appropriate relief on being denied of the same by the inaction of the Collector. This Court sitting in Division Bench has then disposed of the said writ petition vide order dated 25.10.2013 whereby the Petitioners were allowed to filed an application before the Deputy Commissioner, Williamnagar within a period of one month and the Deputy Commissioner may make a reference under Section 18 of the Act to the Reference Court. The Petitioners were also allowed to file an application for condonation of delay which may be considered by the Deputy Commissioner. 11. The Petitioners in compliance with the said direction of this Court, had accordingly filed the said application on 19.11.2013 and on the same not being taken up, a contempt application was preferred before this Court which compelled the Collector to dispose of the said application vide order dated 29.09.2014 rejecting the application. 12. Thus being highly aggrieved by the said order dated 29.09.2014, the Petitioners have come before this Court with a prayer to set aside and quash the said order and to treat the representation dated 15.07.2009, 16.01.2010 and 06.03.2010 as sufficient protest against the final award dated 09.11.2010. There is also a prayer for condonation of the delay in filing the application dated 24.12.2011 and another one dated 26.02.2012 as well as the reminder dated 05.03.2012 and last reminder dated 03.04.2012. 13. Mr. H.L. Shangreiso, learned counsel for the Petitioners after leading this Court to the case of the Petitioners as enumerated above, has submitted that the Deputy Commissioner, East Garo Hills in his affidavit dated 11.04.2017, at paragraph 15 has stated that no award was made under Section 11 of the L.A. Act and 80 per cent of the compensation was made under Section 17(4) of the said Act, however in the additional affidavit dated 22.07.2019 at sub-para (c) of para 4 has admitted that the award statement under Section 11 was prepared and finalized on 14.11.2011 and has alleged that none of the Petitioners has lodged protest at the time of receiving the award or the remaining amount of compensation within six weeks of passing of the award as required under Section 18 of the L.A Act, 1894 and as such, the Petitioners are disqualified from filing the said protest. This, according to the learned counsel is a contradiction made which cannot be contemplated since the date of the award is not known, then how can one calculate the date on which a protest application can be made. 14. In the said proceedings under the L.A. Act, the Deputy Commissioner while passing the purported award under Section 11 has based the rate of compensation on the rates as was given by the Garo Hills Autonomous District Council, to which the Petitioners had made a prayer before the said Deputy Commissioner to not take into account the rate given therein and as such, the Petitioners are entitled to file their protest, which was not allowed, submits the learned Counsel. 15. However, the main thrust of the argument advanced by the learned counsel for the Petitioners is that the representation of the Petitioners dated 24.12.2011 should have been treated as the letter of protest by the Collector and reference should have been made accordingly, which was not done so. 16. Reference to the order dated 25.10.2013 in W.P.(C) 255 of 2012 was made by submitting that the Hon’ble High Court had allowed the Petitioners to file an application for reference in accordance with law which was accordingly filed on 13.11.2013 before the Collector. 17. Mr. Shangrieso has reiterated that the sum and substance of his contention is that even the date of the award is taken to be 14.11.2011, the provisions of Section 18 of the Act provides that any person interested who has not received the same may by written application to the Collector require that the matter be referred for determination by the Court within six weeks from the date of the said award, which was duly complied with by the Petitioners vide their representation dated 24.12.2011. 18. As to the manner of protest in the event of the award being received inspite of the same, Mr. Shangrieso has submitted that proviso to sub-Section 2 of Section 31 of the said L.A. Act was fulfilled by the Petitioners, inasmuch as, though the award was received by them, yet a protest in terms of Section 18 of the Act was also made and as such, the Collector was bound to refer the same to the competent court. 19. Shangrieso has submitted that proviso to sub-Section 2 of Section 31 of the said L.A. Act was fulfilled by the Petitioners, inasmuch as, though the award was received by them, yet a protest in terms of Section 18 of the Act was also made and as such, the Collector was bound to refer the same to the competent court. 19. As to the form and format or manner of protest, the learned counsel for the Petitioners has cited the case of M/S Steel Authority of India v. S.U.T.N.I. Sangam & Ors: AIR 2010 SC 112 at paragraphs 95 and 96 wherein the Hon’ble Supreme Court has held that under the L.A. Act, no form of protest has been prescribed, no form of application in writing has also been prescribed. The form, mode and manner of protest are procedural in nature. The statute does not provide for a thing to be done in a particular manner. 20. Maintaining that the Petitioners had duly registered their protest as is evident from the representations referred to herein, therefore there is no issue of condonation of delay and as such, the impugned order dated 29.09.2014 passed by the Collector is liable to be dismissed and the Collector may be directed to refer the case of the Petitioners to the Reference Court. 21. Also heard Mr K. Khan, learned Sr. GA who at the outset has taken this Court to the Order dated 25.10.2013 passed by the Division Bench of this Court in W.P.(C) No 255 of 2012, wherein this Court has issued certain directions, the first being that the Petitioners were allowed to make reference in accordance with law within a period of one month and secondly, that the Deputy Commissioner may consider the application for condonation of delay if any, moved by the writ Petitioners in accordance with law. 22. Mr. Khan has further submitted that the learned counsel for the Petitioners has stressed on the letter or representation dated 24.12.2011 and the application for reference to the Reference Court, however this particular letter was the subject matter of the said W.P. (C) No 255 of 2012 and the Division Bench of this High Court has not come to any finding as regard the said letter dated 24.12.2011 as to whether it was set aside, or that it was time barred or even that it was filed within the six weeks period. What happened before the Order dated 25.10.2013 was passed got eclipsed by an operation of law, by a new direction, a new mandamus, in other words, a fresh consideration of the Petitioners’ case has emerged by the Court’s allowance to the Petitioners to ‘make an application for reference in accordance with law’. 23. The second part of this Court’s order is that apart from the one months’ period granted to the Petitioners to prefer the said application for reference, the High Court has further granted liberty to the Petitioners to file an application for condonation of delay, perhaps considering the special circumstances surrounding the case of the Petitioners even though there is no express provision of law which empowers the Deputy Commissioner to condone the delay if any, which ran contra to the authority issued by the Hon’ble Supreme Court on this issue. 24. Learned Sr. GA has also referred to the application of the Petitioners before the Deputy Commissioner dated 19.11.2013, the subject of the same being very crucial as it states that it is a ‘Prayer of reference u/s 18 of the Land Acquisition Act, 1894, as per the direction of the Hon’ble High Court of Meghalaya vide Judgment & Order dated 25.10.2013 passed in W.P.(C) No 255/2012’ and nothing was mentioned about the previous applications if any, it was submitted. 25. The second part of the High Court’s Order is that the Petitioners were given the liberty to file an application for condonation of delay, the delay here is not for preferring the said application dated 19.11.2013, which was well within the one month’s period, but it would relate to the date of the award which was passed on 14.11.2011, it was submitted. Here, the Petitioners have not filed any such application for condonation of delay and has thus waived their opportunity for being considered as far as delay is concerned. In the given situation, when the award was made on 14.11.2011, the application for reference was made on 19.11.2013, even if the six weeks period is calculated, there has occurred a delay of almost one and a half year. 26. Finally, Mr. In the given situation, when the award was made on 14.11.2011, the application for reference was made on 19.11.2013, even if the six weeks period is calculated, there has occurred a delay of almost one and a half year. 26. Finally, Mr. Khan has directed the attention of this Court to the order dated 29.09.2014 passed by the Deputy Commissioner on the application dated 19.11.2013 filed by the Petitioners and has submitted that the Deputy Commissioner has observed that the Petitioners have not filed any protest when the award was received by them at the relevant time, however in compliance with the Hon’ble High Court’s Order dated 25.10.2013, the Petitioners were allowed to file an application for reference along with an application for condonation of delay, but there was no compliance to the High Court’s Order as they have failed to file an application for condonation of delay as a separate application and as such, the observation of the Deputy Commissioner in this regard is proper and no infirmity can be attributed to the same. This petition is therefore liable to be dismissed with cost. 27. Having heard the parties, this Court has given due consideration to the submissions made, the factual aspect of the matter need not be repeated as the same has been enumerated above. Be that as it may, what can be understood here is that the Petitioners have approached this Court impugning the order dated 29.09.2014 passed by the Deputy Commissioner which in essence has rejected the application of the Petitioners dated 19.11.2013 for reference under section 18 of the L.A. Act. 28. Again, the genesis of the dispute which culminated in the passing of the said impugned order dated 29.09.2014 is the writ petition filed by the Petitioners before this Court being W.P. ( C) 255 of 2012 wherein the alleged non-reference of the Deputy Commissioner to the Reference Court as provided under the L.A. Act and in particular, the non-consideration of the representation of the Petitioners dated 24.12 2011 as a letter of protest and prayer for reference was the subject matter of the said writ petition No. 255 of 2012. This Court sitting in the Division Bench had passed the order dated 25.10.2013 inter alia by observing that the Court is not inclined to interfere with the acquisition proceeding under the circumstances, however the Petitioners were allowed to make an application for reference under Section 18 of the Act in accordance with law. 29. If any application for reference is to be made in accordance with law, which means that Section 18 of the L.A. Act is to be resorted to, then as pointed out by Mr. Khan, the provisions of the same has to be complied with. Section 18 reads as follows: “18. Reference to Court. - (1) 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 Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made,- (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.” 30. In sub-Section 2 of Section 18 what is seen is that an application so made must be made within six weeks from the date of accepting the award from the Collector or on receipt of notice under Section 12, sub-Section (2), within six weeks or six months from the date of the Collector’s award. 31. Again, in the said order dated 25.10.2013, this Court being mindful of the provision of the L.A. Act and the time limit prescribed therein for making any reference, has given the Petitioners liberty to file an application for condonation of delay, if so desired and that the Deputy Commissioner may consider the same in accordance with law. 32. 31. Again, in the said order dated 25.10.2013, this Court being mindful of the provision of the L.A. Act and the time limit prescribed therein for making any reference, has given the Petitioners liberty to file an application for condonation of delay, if so desired and that the Deputy Commissioner may consider the same in accordance with law. 32. As agreed to by the parties, there is no specific provision for condonation of delay in making an application under Section 18 of the Act and as such, the learned counsel for the Petitioners have candidly submitted that knowing fully well that the Deputy Commissioner has no power to condone any delay, such an application has not been filed. 33. On this premise, what can be deduced is that this Court in the said writ petition No. 255 of 2012 have decided on the prayer of the Petitioners inter alia on the said representation dated 24.12.2011, the Petitioners are therefore precluded from raising the same issue again in this instant petition. The issue under agitation is therefore the impugned order dated 29.09.2014 vis-a- vis the letter dated 19.11.2013. 34. The said letter dated 19.11.2013 is therefore to be taken as the letter seeking reference and this, placed in juxtaposition with the award dated 14.11.2011, as rightly submitted by Mr. Khan, the period for filing the same is indeed time barred and though a narrow window of opportunity was given to the Petitioners to file an application for condonation of delay, the same not being availed, the impugned order is therefore proper and suffers from no legal infirmity. 35. The case laws cited by the learned counsel for the Petitioners are relevant only to the extent that there is no form or format for filing the protest while seeking reference, however this is not the case here as the Petitioners have stressed on the applicability of the said representation dated 24.12.2011 as the letter of protest and application for reference. 36. Consequently, this Court is of the considered opinion that the Petitioners have not been able to make out a case for interference by this Court and this petition is hereby rejected as devoid of merits. 37. Petition disposed of. No cost.