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2022 DIGILAW 1236 (GAU)

General Manager, NPCC Ltd. v. Siddartha

2022-11-09

P.J.SAIKIA, S.SERTO

body2022
JUDGMENT : S. Serto, J Heard Mr. A.H. Borbhuiya, learned counsel appearing for the appellants. Also heard Mr. Joseph L. Renthlei, learned counsel appearing for the respondent Nos. 1 to 3 and Ms. Zairemsangpuii, learned CGC for respondent Nos. 4 and 5 and Ms. H. Lalmalsawmi, learned counsel for respondent Nos. 6 to 9. 2. On the request of the Home Ministry, the appropriate Government issued a Notification under Section 4 of the Land Acquisition Act, 1894 on 03.05.2012 and in pursuant thereto the lands of the three private respondents, (Respondent Nos. 1 to 3) were acquired for construction of 17 Border Outpost and fencing. Necessary surveys were conducted by the stakeholders including the 96th Battalion of BSF, who were then in charge of protecting the border between India and Bangladesh. In the process, the land of the respondent Nos. 1 to 3 were acquired and the Award No. 2/2013 was notified along with the compensation amount to be given to the land owners. However, when the Border posts and fencing were constructed, the lands of the private respondents were not utilized but kept outside the Border fence. Therefore, the appellants refused to give them the compensation as awarded. Being aggrieved, the three respondents came before this High Court by filing WP(C) No. 161/2015 claiming for payment of compensation. The appellants herein who were also among the respondents in the writ petition, opposed the claims of the respondents stating that the lands of the respondents were not used for construction of the Border post, therefore, there is no reason to pay compensation to them. 3. However, after hearing the parties, the learned Single Judge disposed the writ petition with the Order dated 24.10.2016 allowing the claim of the writ petitioners (the respondent Nos. 1, 2 and 3 in this appeal). The relevant portions of the Order dated 24.10.2016 are reproduced herein below:- “7. The facts of the case show that there is no dispute to the fact that the petitioners had lands, which were covered by Land Settlement Certificate issued by the Competent Authority. It is also not disputed by the parties that the petitioners’ lands had been identified for construction of a BOP and that the petitioners’ lands were included in the Draft Award No.2/2013. It is not disputed that the lands was also within the Indian Territory. It is also not disputed by the parties that the petitioners’ lands had been identified for construction of a BOP and that the petitioners’ lands were included in the Draft Award No.2/2013. It is not disputed that the lands was also within the Indian Territory. However, with the construction of the border fence by the respondent Nos. 3 and 4, the petitioners’ lands have now been placed beyond the reach of the petitioners and the respondents, as it is beyond the border fence. The above facts clearly goes to show that the respondent Nos. 3 and 4 are responsible for having constructed the fence before reaching the petitioners’ lands. 8. In view of the above, it is quite clear that the respondent Nos. 3 and 4 are responsible for the loss caused to the petitioners and as such, they are liable to pay compensation to the petitioners for denying them the compensation or in the alternative enjoyment and possession of their lands. The respondent Nos. 3 and 4 can rectify their mistake, by demolishing the present fence built by them and build a new border fence which should include the lands of the petitioners. 9. Section 48 of the Land Acquisition Act, 1894 states as follows: “48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.---(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.” 10. A perusal of the provision of Section 48 shows that the Government is at liberty to withdraw from the acquisition of any land of which possession has not been taken. However, the Collector has to determine the amount of compensation due for the damage suffered by the owner. A perusal of the provision of Section 48 shows that the Government is at liberty to withdraw from the acquisition of any land of which possession has not been taken. However, the Collector has to determine the amount of compensation due for the damage suffered by the owner. The Apex Court in the case of Larsen & Toubro Ltd –vs-State of Gujarat & Others reported in (1998) 4 SCC 387 , has held that a notification in the Official Gazette is required to be issued, if the State Government decides to withdraw from the acquisition, under Section 48 of the Act, of any land of which possession has not been taken. 11. At this stage, the counsel for all the parties admit to the fact that no notification in the Official Gazette has been made by the Government under Section 48 of the LA Act, 1894 in respect of withdrawal from acquiring the petitioners’ lands. The official records have also been produced before me and on perusal of the same, I find that no such Gazette notification under Section 48 of the LA Act, 1894 has been issued by the Government. 12. In fact, a perusal of the affidavit-in-oppositions submitted by the respondent Nos. 1 to 4 also does not contain any document issued by the respondent Nos. 1 to 4, asking the respondent Nos. 5 to 8 to withdraw from the acquisition proceeding with regard to the petitioners’ lands. 13. In that view of the matter, it is clear that the acquisition proceeding is still valid and has to come to its logical conclusion. Even otherwise, the respondent Nos. 3 and 4 having put the petitioners’ lands beyond the reach of the petitioners and also the respondent Nos. 1 and 2, the respondent Nos. 3 and 4 cannot escape their liability from paying compensation and damages to the petitioners. 14. In view of the reasons stated above, the respondent Nos. 3 and 4 are directed to pay to the petitioners the amount awarded by the District Collector, Lawngtlai in Draft Award No. 2/2013 by submitting the same in the office of the Deputy Commissioner-cum-District Collector, Lawngtlai. The same shall be done within a period of 2(two) months from the date of receipt of a certified copy of this order. 15. 3 and 4 are directed to pay to the petitioners the amount awarded by the District Collector, Lawngtlai in Draft Award No. 2/2013 by submitting the same in the office of the Deputy Commissioner-cum-District Collector, Lawngtlai. The same shall be done within a period of 2(two) months from the date of receipt of a certified copy of this order. 15. A perusal of the Draft Award No. 2/2013 shows that there has been no calculation made by the Deputy Commissioner, Lawngtlai for payment of solatium and interest, as per the Land Acquisition Act, 1894. The Deputy Commissioner, Lawngtlai is directed to calculate the solatium and interest payable to the petitioners as per Section 23 of the Land Acquisition Act, 1894 within a period of 1 (one) month from the date of receipt of a certified copy of this order. The said solatium and interest payable by the respondent Nos. 3 and 4 shall be communicated by the Deputy Commissioner, Lawngtlai to the respondent Nos. 3 and 4. The respondent Nos. 3 and 4 shall thereafter pay solatium and interest within a further period of 2 (two) months, by depositing the same in the office of the Deputy Commissioner-cum-District Collector, Lawngtlai for further disbursement.” 4. Being aggrieved by the Order, the appellants are here before this Court. Mr. A.H. Borbhuiya, learned counsel appearing for the appellants submitted that though the lands of the private respondents were acquired and award was announced, since their lands were not utilized when the actual construction of the Border post and fencing took place, they are not entitled to any compensation. He also submitted that the lands of the respondents are not within India but in Bangladesh, therefore no compensation could have been given to them. The learned counsel further submitted that in the last spot verification all the stakeholders except, the private respondents were present, therefore, it was not necessary for the appellants to issue any instruction or advise to the State Government to issue the notice under Section 48 of the Land Acquisition Act, 1894. Rather, the State on their own, should have taken the necessary steps and issue the notification under Section 48 of the Land Acquisition Act, 1894. As such, the appellants cannot be blamed and be made accountable for the non-issuance of notice under Section 48 of the Land Acquisition Act, 1894. 5. Mr. Rather, the State on their own, should have taken the necessary steps and issue the notification under Section 48 of the Land Acquisition Act, 1894. As such, the appellants cannot be blamed and be made accountable for the non-issuance of notice under Section 48 of the Land Acquisition Act, 1894. 5. Mr. Joseph L. Renthlei, learned counsel appearing for the respondent Nos. 1 to 3 (the land owners) submitted that the lands of the respondents are very much within Indias’ Territory and the same is supported by the Land Settlement Certificates issued by the Chakma Autonomous District Council, which is the competent authority to issue such certificates. Therefore, the submission of the learned counsel of the appellants is nothing but a lame excuse to avoid payment of the compensation due to the respondent Nos. 1, 2 and 3. The learned counsel also submitted that whenever land is acquired under the LA Act, 1894, a window is always opened for the acquiring authority or for whom the land is acquired, to withdraw the acquisition even if awards are notified, in case, they no longer require the land acquired. However, the land acquisition Authority must issue a notification under Section 48 of the Land Acquisition Act, 1894 in the official Gazette. Till that is done, the status of the land acquired remains the same and the acquiring authority or for whom the same is acquired is liable to pay the compensation already awarded. 6. Mrs. H. Lalmalsawmi, learned Government Advocate submitted that in the entire records, nothing is found which would show or indicate that any instruction or notice for withdrawal of the land acquisition in respect of the lands of the private respondents was given to the State Government by the Central Government or its Agencies and notice under Section 48 of the Land Acquisition Act was issued. She also submitted that as per the record, the land of the respondents is very much within the boundary of India and not within the boundary of Bangladesh as submitted by the learned counsel of the appellants. 7. Ms. Zairemsangpuii, learned CGC submitted that no instruction whatsoever or any intimation was received by the Union of India from the appellants for taking necessary steps for issuance of notification under Section 48 of the Land Acquisition Act, 1894. 7. Ms. Zairemsangpuii, learned CGC submitted that no instruction whatsoever or any intimation was received by the Union of India from the appellants for taking necessary steps for issuance of notification under Section 48 of the Land Acquisition Act, 1894. She also submitted that the Union of India has no much role to play in this land acquisition since the same was between the Home Ministry and the State Government. 8. We have considered the submissions of the learned counsels in the light of the admitted facts and circumstances. From the submissions of the learned counsels, we find that there is no dispute as to the facts that; the lands of the private respondents were surveyed by all the parties involved and they were found to be within the territorial boundary of India and, the land ownership certificates of the same were also verified and they were found to be issued by the competent authorities, and it was only after all these was done that the Award No. 2 of 2013 was notified. Therefore, we are of the view that the stand taken by the appellants is unacceptable. Further, it also appears from the submission of the parties that the Border posts and the border fencings have been constructed on the lands other than that of the private respondents but the lands of the respondents have been kept outside the Border fencing and due to that, they would no longer be able to use them. Furthermore, as per the provision of Section 48 of the Land Acquisition Act, 1894, the Government or Authority who acquired a land has the liberty to withdraw the acquisition but necessary action or steps as required, such as, issuing a notification in an official Gazette has to be taken. In this case, no such notification has been issued as submitted by the Government Advocate. Taking all these into consideration, we are of the view that, the learned Single Judge, while passing the impugned Order dated 24.10.2016 has not committed any illegality or error, which would necessitate our interference. Therefore, the appeal is without merit and accordingly it is dismissed.