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2022 DIGILAW 207 (GAU)

Kejanglwa Village Peren v. State of Nagaland

2022-03-01

DEVASHIS BARUAH

body2022
JUDGMENT : Devashis Baruah, J. 1. Heard Mr. Tali Ao, learned counsel for the petitioner, assisted by Mr. Limawapang, learned counsel and Mr. T.B. Jamir, learned Senior Addl. A.G. appearing on behalf of respondent Nos. 1 to 3 as well as Mr. Diezeseilie Nagi, learned counsel appearing on behalf of respondent No. 4. 2. This application under Article 227 of the Constitution of India is challenging the order dated 08.05.2019, passed by the Principal District and Sessions Judge, Dimapur, Nagaland in Land Acquisition Reference Case No. 01/2016. From a perusal of the said order, it reveals that the reference proceedings originates under Section 12(1) of the Nagaland Land (Requisition and Acquisition) Act, 1965. It further appears from the said order that the award dated 21.04.2015 was passed by the Deputy Commissioner, Peren, who is the Collector of the said district, by which a compensation amount of Rs. 1,25,65,500/- was awarded and vide the said award, the Deputy Commissioner had apportioned an amount of Rs. 95,65,500/- to Kejanglwa Village and Rs. 32,00,000/- to Old Jalukie Village, i.e. the petitioner herein as well as the respondent No. 4. Being aggrieved by the award dated 21.04.2015, both the petitioner and the respondent No. 4 herein, submitted application under Section 12(1)(a) to the Deputy Commissioner praying for referring the matter to the Court. It further appears from the said order that the Deputy Commissioner, Peren did not make the reference for which two writ petitions, being WP (C) No. 81(K)/2015 and WP (C) No. 107(K)/2015 were filed by both the petitioner and the respondent No. 4 praying for a direction to the Deputy Commissioner, Peren to refer the dispute relating to payment of compensation for the land measuring 3715.18 acres to the Court in terms of Section 12(1) of the Act, 1965. This Court, by the judgment and order dated 03.08.2015 disposed of the said two writ petitions directing the Deputy Commissioner, Peren to refer the matter in terms of Section 12(1) of the Act of 1965. This Court, by the judgment and order dated 03.08.2015 disposed of the said two writ petitions directing the Deputy Commissioner, Peren to refer the matter in terms of Section 12(1) of the Act of 1965. Subsequent thereto, vide communication dated 27.04.2016, the Deputy Commissioner made a reference in terms with Section 12(1) of the Act and the terms of the said reference as stated in the said communication dated 27.04.2016 is quoted herein-below: “That the terms of reference as may be decided by the Hon'ble Civil Court may be stated below: (a) As to whether in terms of the various judgments and orders of the courts, which village has the right of title on the land acquired by the government immediately before it was acquired? (b) As to who were in possession, occupation and enjoyment of the land acquired by the government immediately before it was acquired? If so, what was the basis of possession, occupation and enjoyment? (c) As to whether in facts as well as in law which village is the rightful owner of the land immediately before it was acquired by the government? (d) As to whether the land owner village is entitled for any enhanced compensation? If so, on what basis and what are the amounts?” 3. Vide the impugned order dated 08.05.2019, the Principal District and Sessions Judge, Dimapur, Nagaland had held that as the reference case is in a reference made under Section 12(1) of the Act of 1965, which is still in force and as such, the prayer made by the parties for assessment of the compensation in terms with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (herein after referred to as the Act of 2013) is beyond the scope of terms of reference made to the Court and the parties were given the liberty to approach the appropriate forum for enforcement of the Act of 2013, if so advised. It is against the said direction made in the order dated 08.05.2019, that the petitioner is before this Court under Article 227 of the Constitution of India. 4. The learned counsel for the petitioner submits that vide the communication dated 27.04.2016, the Deputy Commissioner had made a reference in terms with Section 12(1) of the Act of 1965. It is against the said direction made in the order dated 08.05.2019, that the petitioner is before this Court under Article 227 of the Constitution of India. 4. The learned counsel for the petitioner submits that vide the communication dated 27.04.2016, the Deputy Commissioner had made a reference in terms with Section 12(1) of the Act of 1965. Amongst various points which were referred, it was also referred as to whether the land owner village is entitled for enhanced compensation and if so, on what basis and what are the amounts. On the basis there of, the learned counsel, therefore, submits that taking into consideration that the Act of 2013 came into force on the basis of the notification issued on 19.12.2013, by the Ministry of Rural Development, Department of Land Resources, Central Government, w.e.f. 01.01.2014 and the award having been passed on 21.01.2015, the petitioner is entitled to the compensation in terms with the provisions of the Act of 2013. Further to that, the learned counsel also submits that the terms and reference though have been made into provisions of Section 12(1) of the Act of 1965, but there is no mention in the said terms of reference that the said compensation has to be as determined as per Section 11 of the Act of 1965 or the Land Acquisition Act, 1894. 5. On the other hand, Mr. T.B. Jamir, learned Senior Addl. A.G. submits that the question of granting compensation in terms with the provisions of the Act of 2013 does not arise at all in as much as, the award dated 21.04.2015, is based upon consent and agreement much prior to the coming into effect of the Act of 2013. He submits on the basis of the affidavit filed by the respondent authorities that the Memorandum of Understanding dated 03.07.2006 and Agreement dated 30.10.2009 was executed between the Government of Nagaland and 3 (three) villages, namely the petitioner, Old Peren and New Peren for acquisition of land to establish the New Peren district headquarter. As regards the present petitioner village, 510.62 acres of land was acquired @ Rs. 25,000/- per acre totaling to an amount of Rs. 1,27,57,500/-. The compensation for the land was disbursed to Old Peren and New Peren Village sometime in the year, 2010. As regards the present petitioner village, 510.62 acres of land was acquired @ Rs. 25,000/- per acre totaling to an amount of Rs. 1,27,57,500/-. The compensation for the land was disbursed to Old Peren and New Peren Village sometime in the year, 2010. The compensation in respect to the petitioner's village could not be disbursed as Old Jalukie Village filed writ petition, being WP (C) No. 143(K)/2010, disputing the petitioner's ownership of the land. He further submits that WP (C) No. 143(K)/2010 was disposed of by this Court vide judgment and order dated 14.05.2014, directing the Deputy Commissioner, Peren to make necessary enquiry within the meaning of Section 11 of the Act of 1965 as well as the Land Acquisition Act of 1894 to arrive at a decision as to the persons interested in the land and the quantum of compensation to be paid and this Court had also directed to invest the compensation amount in any fixed deposit scheme under any Centralized Bank till the dispute was resolved. Subsequent to the said judgment and order dated 14.05.2014, the learned Senior Addl. A.G. further submits that the Deputy Commissioner, Peren adjudicated the matter and by an award dated 21.04.2015, apportioned the compensation amount of Rs. 1,27,65,500/- between the petitioner and the respondent No. 4 village whereby the petitioner village was held to be entitled to Rs. 95,65,500/- and the respondent No. 4 village was entitled to Rs. 32,00,000/-. He further submits that the petitioner and the respondent No. 4 filed applications for making reference in terms with Section 12 of the Act of 1965, but as the Deputy Commissioner, Peren did not make the reference, two writ petitions, i.e. WP (C) No. 81(K)/2015 and WP (C) No. 107(K)/2015, were filed by both the petitioner and the respondent No. 4 respectively. The said writ petitions were disposed of by an order dated 03.10.2015, directing the Deputy Commissioner to refer the matter to the Court under Section 12(1) of the Act of 1965 and till the decision was made by the Reference Court, it was directed that no disbursement should be made. It is the further submission of the learned Senior Addl. A.G. that both the petitioner and the private respondent for the first time raised before the Reference Court that the compensation should be assessed afresh under the Act of 2013, which was rejected vide the impugned order dated 08.05.2013. It is the further submission of the learned Senior Addl. A.G. that both the petitioner and the private respondent for the first time raised before the Reference Court that the compensation should be assessed afresh under the Act of 2013, which was rejected vide the impugned order dated 08.05.2013. It is the further contention that the enhanced compensation under the Act of 2013 cannot be granted to the petitioners as the same is a new plea being taken before the Reference Court. 6. I have heard the learned counsel for the parties and given my anxious consideration to the matter. 7. First and foremost, it is relevant to take note of as to what are the terms of reference. The said terms of the reference which were made on 27.04.2016 has already been quoted herein above. Amongst the various terms of the reference, one of such terms at Serial No. (d) was whether the land owner village was entitled for enhanced compensation and if so, on what basis and what are the amounts? The said terms of reference in so far as the enhanced compensation is in question, does not limit the determination of the compensation to the provisions of the Act of 1965 or the Land Acquisition Act of 1894. The compensation which is required to be granted on the basis of acquisition has to be a just and fair compensation as per the provisions of the prevailing law. Section 11 of the Act of 1965 stipulates the manner in which the compensation is to be arrived at. While Section 11(1) stipulates that the market value of the land has to be taken into consideration for a period of 5 years preceding the date of publication of the notice under Section 6(1) of the Act of 1965 and when the land is acquired under Section 9 of the said Act from the date of passing of the order under Section 9(1) of the said Act and the amount of compensation payable shall be on the basis of the average market value so arrived at. Further to that it has also been provided that in addition to the market value of the land, the Collector shall, in every case award a sum of 15% of such market value in consideration of the nature of acquisition in terms with the second proviso to Section 11(1). Further to that it has also been provided that in addition to the market value of the land, the Collector shall, in every case award a sum of 15% of such market value in consideration of the nature of acquisition in terms with the second proviso to Section 11(1). It is relevant to take note of that the second proviso to Section 11(1) was inserted to the provisions of the Act of 1965 vide the Nagaland Land (Requisition and Acquisition) First Amendment Act, 1969. 8. Section 11(2) of the Act of 1965 is relevant for the purpose of the instant dispute, more particularly, in view of the contentions made by the learned Senior Addl. A.G. Sub-section (2) of Section 11 stipulates that when compensation has to be determined under Section 11(1) of the Act of 1965, the Collector shall make an Award in accordance with the principles set out in Section 11 of the Land Acquisition Act, 1894. What has been done by Section 11(2) of the Act of 1965 is that Section 11 of the Land Acquisition Act, 1894 was incorporated to the provisions of the Act of 1965, on the basis of the principle which is known as the legislation by incorporation. The legislation by incorporation is a legislative device for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the later Act. Once the incorporation is made, the provisions of the incorporated statute becomes an integral part of the statute in which it is transferred and thereafter, there is no need to refer to the statute from which incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute. 9. Accordingly, by virtue of the said incorporation of Section 11 of the Land Acquisition Act, 1894, (for short the Act of 1894) to the Act of 1965, the manner of enquiry and the award by the Collector as stipulated in Section 11 of the Act, 1894 becomes a part of the Act of 1965. Relevant at this stage to take note of that the Collector in terms with Section 11(1) of the Act, 1894 shall make an award under his hand in relation to: (i) the true area of the land. (ii) the compensation which in his opinion should be allowed for the land. Relevant at this stage to take note of that the Collector in terms with Section 11(1) of the Act, 1894 shall make an award under his hand in relation to: (i) the true area of the land. (ii) the compensation which in his opinion should be allowed for the land. (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, the Collector has information, whether or not they have respectively appeared before him. 10. The first proviso to Section 11(1) of the Act, 1894 mandates that no award shall be made by the Collector under Section 11(1) without the previous approval of the appropriate Government or of such officer as the appropriate Government authorized in that behalf. However, the second proviso to Section 11 of the Act, 1894 provides that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in that behalf. 11. Sub-Section (2) of Section 11 of the Act of 1894 is relevant for the purpose of the instant dispute and the same is quoted herein-below: “(2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement.” A reading of sub-section (2) of Section 11 stipulates that notwithstanding anything contained in sub-section (1) of Section 11, if at any stage of the proceedings the Collector is satisfied that all persons interested in the land who appeared before him have agreed in writing on matters to be included in the Award of the Collector in the form prescribed by the rules made by the appropriate Government, he may, without making further enquiry, make an Award according to the terms of such agreement. Therefore, sub-section (2) of Section 11 of the Act, 1894 being applicable to the provisions of the Act of 1965, it is required that the Collector has to make an award in terms with such agreement and unless and until such an award has not been made, merely the agreement or the consent cannot be deemed to be an award affecting the rights of the parties. 12. The next aspect which needs to be taken into consideration is as to on what basis the compensation has to be determined taking into consideration that admittedly the award was passed on 21.04.2015. The said consideration has two facts. First is the determination as to whether the said award is passed under the provisions of Section 11(2) of the said Act of 1894 as then it would be a consent award passed in terms with Section 11(2) of the said Act. The second aspect arises only if the award is not an award under Section 11(2) of the Act of 1894 as then the Reference Court has to decide the question of determination of compensation in terms with Section 11(1) of the Act of 1894. 13. In view of the impugned order whereby, it was observed seeking assessment of compensation under the provisions of the Act of 2013, was outside the scope of the said Reference Court, this Court, therefore, has to deal with the legality of the said observations. As already stated herein above in the terms of reference, there is no mention as to under what provisions the compensation is to be assessed. The terms of reference dated 27.04.2016, more particularly at Serial No. (d), as quoted herein above, is as to whether the land owner village is entitled for any enhanced compensation and if so, on what basis and what are the amounts. Under such circumstances, to restrict the compensation in terms with the Act of 1965 on the basis that the reference was made under the provisions of Section 12(1) of the Act of 1965 in the opinion of this Court is incorrect and misconceived. It is the opinion of this Court that the compensation to which the petitioner village would be entitled to has to be a just and fair compensation, subject to that the award which was passed on 21.04.2015 is not a consent award within the meaning of Section 11 of the Act, 1894. 14. It is the opinion of this Court that the compensation to which the petitioner village would be entitled to has to be a just and fair compensation, subject to that the award which was passed on 21.04.2015 is not a consent award within the meaning of Section 11 of the Act, 1894. 14. The issue involved can also be seen from another angle. The Act of 2013 as already stated herein above, came into effect w.e.f. 01.01.2014 on the basis of the Notification dated 19.12.2013 issued by the Central Government. Section 25 to 30 of the Act, 2013 stipulates the manner in which the compensation is to be determined and in that regard, the said sections refer to the First Schedule of the Act of 2013. A reading of the First Schedule to the said Act of 2013 stipulates the minimum compensation package to be given to those whose land is acquired, meaning thereby, that the compensation package as mentioned in the First Schedule to the Act of 2013, which is in tune with Section 25 to Section 30 of the Act of 2013 of the said Act is the minimum compensation package. By virtue of Section 106 of the Act of 2013, it is only the Central Government who has the power to amend or alter any of the Schedules to the Act, however, without reducing the compensation or diluting the provisions of the Act relating to compensation or rehabilitation or resettlement. Sub-section (2) of Section 106 stipulates the manner in which a notification can be issued for amending or altering any of the Schedules to the Act. Section 107 stipulates that the State legislature can enact any law to enhance or add to the entitlement enumerated in the Act of 2013, which confers higher compensation than payable under the Act of 2013 or make provisions for rehabilitation and resettlement which is more beneficial than provided under the Act of 2013. Section 108 gives an option to the affected families to avail better compensation and rehabilitation and resettlement when the State law or a policy framed by the Government of a State provides for a higher compensation than calculated under the Act of 2013 for acquisition of land. 15. Section 108 gives an option to the affected families to avail better compensation and rehabilitation and resettlement when the State law or a policy framed by the Government of a State provides for a higher compensation than calculated under the Act of 2013 for acquisition of land. 15. In the backdrop of the said, this Court also needs to take into consideration Section 103 of the Act of 2013 which stipulates that the provisions of the Act of 2013 shall be in addition to and not in derogation of any other law for the time being in force, meaning thereby, that benefits ensuing under the provisions of the Act of 2013 are in addition to the provisions of the Act of 1965 and the Act of 1894. In the said perspective, if this Court further takes into consideration Section 105 of the Act of 2013, it would be seen that by virtue of the said provision, certain acts, which were enlisted in the Fourth Schedule, the provisions of the Act of 2013 shall not apply and from a perusal of sub-section (3) of Section 105, the Central Government shall, by notification within one year from the date of commencement of the Act of 2013 direct that any of the provisions of the Act of 2013, relating to determination of compensation in accordance with the Fourth Schedule and rehabilitation and resettlement specified in the Second & Third Schedule being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of the Act of 2013 relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be. The Act of 1965 do not feature in the Fourth Schedule and as such, by virtue of Section 103 of the provisions of the Act of 2013, the additional benefits as regards determination of compensation under the Act of 2013 shall duly apply to all land acquisitions made under the provisions of the Act of 1965 after the coming into effect of the Act of 2013. 16. 16. Accordingly, in view of the observations made herein above, the impugned order so passed, holding inter-alia that as the reference was made under the provisions of the Act of 1965, the determination of compensation cannot be made in terms with the Act of 2013 and directing the petitioner to approach the appropriate forum for seeking determination under provisions of the Act of 2013, in the opinion of this Court, is totally misconceived and contrary to the provisions of the Act of 2013 as well as the scheme of determination of compensation. The instant observations made is, however with the caveat that if the award dated 21.04.2015 is an award coming within the purview of Section 11(2) of the Act, 1894, the question of deciding enhancement of compensation would not arise. On the basis of the above observations, this Court, therefore, directs that the learned Principal District and Sessions Judge, Dimapur shall first decide as to whether the award dated 21.04.2015, is an award within the meaning of Section 11(2) of the Act, 1894 and if not, then determine the compensation in so far as the terms of reference as mentioned in Serial No. (d) i.e. as to whether the land owner village is enlisted to any enhanced compensation and if so, on what basis and what are the amounts, in terms with the Act of 2013. 17. With the above observations, the impugned order dated 08.05.2019 is set aside and quashed and the instant petition stands disposed of. 18. The Registry is directed to forthwith, send back the LCR and the parties are directed to appear before the learned Principal District Judge, Kohima on 04.04.2022.