THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) Writ Petition (C) No. 946 OF 2009

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1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) Writ Petition (C) No. 946 OF SRI PRAMOD KUMAR KEDIA, S/O. LATE BISWANATH KEDIA. 2. SRI SMTI. NIMAWATI KEDIA, S/O. LATE BISWANATH KEDIA. 3. SRI SANTOSH KUMAR JALAN, S/O. LATE MOHANLAL JALAN. ALL ARE RESIDENTS OF RAHA C/O. M/S. MAA KALI RICE MILL P.O. RAHA DIST : NAGAON, ASSAM. 4. M/S. MAA KALI RICE MILL, RAHA, DISTRICT NAGAON, ASSAM. A PARTNERSHIP FIRM, REPRESENTED BY ITS PARTNER SRI SANTOSH KUMAR JALAN, HAVING ITS OFFICE AT RAHA, DIST : NAGAON, ASSAM. Petitioners -Versus- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF ROAD TRANSPORT ETC., NEW DELHI. 2. THE NATIONAL HIGHWAY AUTHORITY OF INDIA, NEW DELHI THROUGH ITS PROJECT DIRECTOR, AMALAPATTY, NAGAON, ASSAM. 3. THE PROJECT DIRECTOR, THE NATIONAL HIGHWAY AUTHORITY OF INDIA, AMALAPATTY, NAGAON, ASSAM. 4. THE STATE OF ASSAM, REPRESENTED BY THE DEPUTY COMMISSIONER, NAGAON, ASSAM. 5. THE SUB-DIVISIONAL OFFICER CUM COMPETENT AUTHORITY, LAND ACQUISITION OFFICE OF THE DEPUTY COMMISSIONER, NAGAON, ASSAM. 6. SRI PRAMOD CHANDRA KUNDU, S/O. LATE JOGESWAR KUNDU, MORIGAON, DIST MORIGAON, ASSAM.. Respondents

2 Writ Petition (C) No. 260 OF SRI PRAMOD KUMAR KEDIA, S/O. LATE BISWANATH KEDIA. 2. SMTI. NIMAWATI KEDIA, S/O. LATE BISWANATH KEDIA. 3. SRI SANTOSH KUMAR JALAN, S/O. LATE MOHANLAL JALAN. ALL ARE RESIDENTS OF RAHA C/O. M/S. MAA KALI RICE MILL P.O. RAHA DIST : NAGAON, ASSAM. 4. M/S. MAA KALI RICE MILL, RAHA, DISTRICT NAGAON, ASSAM. A PARTNERSHIP FIRM, REPRESENTED BY ITS PARTNER SRI SANTOSH KUMAR JALAN, HAVING ITS OFFICE AT RAHA, DIST : NAGAON, ASSAM. Petitioners -Versus- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF ROAD TRANSPORT ETC., NEW DELHI. 2. THE NATIONAL HIGHWAY AUTHORITY OF INDIA, NEW DELHI THROUGH ITS PROJECT DIRECTOR, AMALAPATTY, NAGAON, ASSAM. 3. THE PROJECT DIRECTOR, THE NATIONAL HIGHWAY AUTHORITY OF INDIA, AMALAPATTY, NAGAON, ASSAM. 4. THE STATE OF ASSAM, REPRESENTED BY THE DEPUTY COMMISSIONER, NAGAON, ASSAM. 5. THE SUB-DIVISIONAL OFFICER CUM COMPETENT AUTHORITY, LAND ACQUISITION OFFICE OF THE DEPUTY COMMISSIONER, NAGAON, ASSAM. (a) SMTI. JAMUNA RANI KUNDU (b) SRI MRIDULA KUNDU (c) SRI RAJKUMAR KUNDU (d) SRI GANESH KUNDU (e) SRI PUTUL KUNDU (f) SRI KARUNA KUNDU (g) SMTI. ANIMA KUNDU (h) SMTI. ANITA KUNDU (WIFE) (SON) (SON) (SON) (DAUGHTER) (DAUGHTER) (DAUGHTER) (DAUGHTER) ALL ARE RESIDENTS OF C/O. JIWAN KUNDU, P.O. MORIGAON(ASSAM) 7. SRI PRAMOD CHANDRA KUNDU. 8.(a) SMTI. KHUKHU KUNDU (WIFE) WPC No. 946 Of 2009 Page 2 of 14

3 (b) SMTI. MILI KUNDU (c)smti. MINAKHI PAUL (d) SMTI. MITHU PAUL (DAUGHTER) (DAUGHTER) (DAUGHTER) NO. (a) TO (c) ARE RESIDENTS OF C/O. SAILENDRA KUNDU, MORIGAON, DIST : MORIGAON, ASSAM. (d) RESIDENT OF GAROWAN PATTI, P.O. TEZPUR, DIST : SONITPUR (ASSAM).. Respondents BEFORE THE HON BLE MR. JUSTICE UJJAL BHUYAN For the Petitioner : Mr. RL Yadav, Advocate. Mrs. K Yadav, Advocate. Ms. A Barua, Advocate. Mr. A. Kabra, Advocate. For the Respondents : Mr. C Baruah, Advocate. Mr. Nur Mohammad, Advocate. Mr. Z Mukit, Advocate. Date of Hearing : Date of Judgment : Judgment & Order (Oral) Since the subject matter of both the writ petitions is interrelated, those were heard together and are being disposed of by this common judgment and order. 02. For the sake of convenience, facts of WP(C) No.946/2009 are briefly narrated hereunder. 03. Petitioner Nos. 1, 2 & 3 are the partners of petitioner No.4, which is a partnership firm carrying on the business of rice mill under the name and style of Maa Kali Rice Mill at Raha in the district of Nagaon. According to the petitioners, in the year 1954, father of WPC No. 946 Of 2009 Page 3 of 14

4 petitioner Nos.1 & 2, late Biswanath Kedia, entered into an agreement with late Jogeswar Kundu, father of respondent No. 6, taking on lease one godown and an existing mill on yearly rental basis. Though agreement entered into between the parties was initially for a period of five years, the same had been extended subsequently from time to time. In the meanwhile, predecessor-in-interest of petitioner Nos. 1 & 2 made constructions over the land on which the godown and the rice mill stood. The said constructions were made as per business requirement. 04. The land in question measures 4 bighas 1 katha 2 lechas, covered by Dag Nos. 49, 53 & 54 of Patta No. 52 & 242 of village Raha Town under Raha Mouza in the district of Nagaon. 05. The construction carried out by the predecessor-in-interest of petitioner Nos. 1 & 2 included one RCC building, which presently houses the Punjab National Bank on the ground floor. Because of certain differences between the parties, petitioners instituted a civil suit in the court of the Civil Judge, Nagaon for declaration of right, title and interest over the suit land and for confirmation of their possession. The said suit was registered as TS No. 42/2004. In the connected injunction petition filed by the petitioners, learned Civil Judge passed an order directing maintenance of status quo in respect of the suit land and building. WPC No. 946 Of 2009 Page 4 of 14

5 06. In the meanwhile, notification was issued by the Sub- Divisional Officer(S)-cum-Competent Authority, Nagaon on stating that the Central Government had declared that the land specified in the schedule annexed thereto would be acquired for the purpose of building, maintenance, management and operation of National Highway 37. The above land in question was included in the said notification. Petitioners lodged claim before the competent authority claiming compensation. When there was no response to the claim of the petitioners, pleader s notice was issued to the respondents. On the other hand, on inquiry, petitioners could come to know that an amount of Rs. 20,54, had been sanctioned for compensation against acquisition of land and building. Apprehending that the entire amount would be released in favour of respondent No.6, petitioners filed a writ petition before this Court seeking a direction to the State respondents to restrain them from making any payment to respondent No. 6 and other persons. The said writ petition was registered as WP(C) No. 260/2007. This Court vide order dated issued notice and directed that 50% of the compensation amount only should be released to the respondent No. 6 and his other relations. 07. National Highway Authority started demolishing houses and clearing the acquired lands, which are situated nearby by the land in question. Apprehending that the godown, rice mill, RCC building and WPC No. 946 Of 2009 Page 5 of 14

6 other structures built by the petitioners over the land in question would be demolished without payment of compensation, the present writ petition has been filed. Prayer made in the present writ petition is for a direction to the State respondents restraining them from demolishing structures of the petitioners standing on the acquired land without payment of due compensation and without prior notice. 08. This Court vide order dated , while issuing notice, directed that the RCC building and the structures of the petitioners standing on the land in question should not be demolished. 09. Respondent Nos. 1, 2 & 3 (National Highway Authority of India) have filed a common affidavit. Stand taken is that though this Court had directed release of 50% of the compensation amount to the respondent No. 6 and his relations in WP(C) No.260/2007, the competent authority is yet to finalize the award since there is dispute over ownership of land in question. It is stated that it would be difficult on the part of the competent authority to determine the compensation. It is further stated that following publication of notification under section 3-D of the National Highways Act, 1956, since the acquired land vested with the Central Government, the district administration had carried out demolition drive over the acquired land to hand over the land to the National High Authority of India free from all encumbrances for completion of the project relating to 4 laning of National Highway 37. It is further stated that WPC No. 946 Of 2009 Page 6 of 14

7 assessment of compensation is completely within the purview of the competent authority. 10. Heard Mr. RL Yadav, learned counsel for the petitioners and Mr. C Baruah, learned Central Government Counsel. Also heard Mr. Nur Mohammad, learned Govt. Advocate, Assam and Mr. Z Mukit, learned counsel for the private respondents. 11. Mr. Yadav, learned counsel for the petitioners has referred to various provisions of the National Highways Act, 1956 (Act), more particularly provisions from sections 3-A to 3-H, to contend that petitioners are persons interested in the land and, therefore, they would also be entitled to compensation under the provisions of the Act along with the owner i.e., respondent No. 6. The competent authority has to first make a proper determination of the quantum of compensation, then apportionment between the two claimants and without paying compensation, no demolition or eviction drive can be carried out as per provisions of the Act. He submits that petitioners have no grievance as to acquisition of the land and their only claim is that they should be suitably compensated for demolition of the rice mill, RCC building and other structures standing on the land before demolition is carried out and possession of the land is handed over to the Central Government. Learned counsel submits that duty is cast upon the competent authority, which, in the present case, is the Sub- Divisional Officer(S) to determine the quantum of compensation of the WPC No. 946 Of 2009 Page 7 of 14

8 rival claimants and if the parties are aggrieved by such determination, the parties can taken recourse to the provisions as provided under the Act for enhancement of compensation. 12. Mr. C Baruah, learned Central Government Counsel appearing for the National Highway Authority of India submits that because of the pendency of the two writ petitions and the interim orders passed therein, physical possession of the land in question could not be taken over, though legally the land stood vested with the Central Government following issuance of the notification under section 3-D of the Act. He, however, fairly submits that petitioners may also be entitled to compensation, if they can show to the satisfaction of the competent authority that they are persons interested in the land. He, therefore, seeks immediate resolution of the dispute in the larger public interest as completion of the project is being held up because of the stay order. 13. Mr. Z Mukit, learned counsel appearing for the private respondents submits that it is the private respondents, who are the owners of the land in question, though they do not dispute that petitioners and their predecessor-in-interest had been using the rice mill and godown over the land as lessees. They however dispute the claim of the petitioners to have constructed the RCC building and other structures on the land. He submits that TS No. 42/2004 WPC No. 946 Of 2009 Page 8 of 14

9 instituted by the petitioners seeking declaration of right, title and interest over the suit land has been dismissed by the civil court. 14. Replying to the above, Mr. Yadav, learned counsel for the petitioners submits that petitioners have filed appeal against dismissal of their civil suit and the said appeal is pending. He however submits that dismissal of the civil suit by the civil court would have no bearing on the claim of the petitioners for compensation as persons interested. 15. Submissions made have been considered. 16. Before proceeding further, the relevant provisions of the Act may be briefly referred to. 17. The Act has been enacted by the Indian Parliament to provide for declaration of certain highways to be National Highways and for matters connected therewith. Section 3(a) defines competent authority to mean any person or authority authorized by the Central Government, by notification in the Official Gazette, to perform the functions of the competent authority for such area as may be specified in the notification. It is stated at the Bar that Sub-Divisional Officer(S), Nagaon is the competent authority in so far the land in question is concerned. Land is defined in section 3(b) to include benefits arising out of land and things attached to the earth or permanently fastened to anything attached to the earth. Thus, building or any structure attached or fastened to anything attached to the earth would also WPC No. 946 Of 2009 Page 9 of 14

10 come within the purview of the definition of land within the meaning of section 3(b) of the Act. Section 3-A to section 3-J of the Act contain a comprehensive scheme for acquisition of land for the purpose of building, maintenance, management or operation of national highway or part thereof and for determination of compensation for such acquisition of land and issues connected therewith or related thereto. It is also provided that provisions of the Land Acquisition Act, 1894, would not apply to an acquisition under this Act. 18. While section 3-A empowers the Central Government to acquire land by declaring its intention through publication by notification in the official gazette and newspaper publications, section 3-C deals with filing of objections by any person interested in the land and hearing of objection. Section 3-D provides for declaration of acquisition. Once such a declaration is made after taking a decision on the objections filed, the land shall vest absolutely in the Central Government free from all encumbrances. Power to take possession of the land vested in the Central Government is laid down in section 3-E. It provides that once any land is vested in the Central Government and the amount determined by the competent authority with respect to acquisition of such land is deposited with the competent authority by the Central Government, the competent authority may, by notice in writing, direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to WPC No. 946 Of 2009 Page 10 of 14

11 the competent authority within 60 days from service of notice. Thus, section 3-E mandates the following things: - i) the land is vested in the Central Government following issuance of declaration under section 3-D, ii) the amount determined by the Central Government is deposited with the competent authority, iii) the competent authority has to issue notice to the owner or any other person in possession of such land to handover possession thereof to the competent authority within 60 days. As such, without such a notice, the owner or possessor of land acquired cannot be dispossessed of the land. 19. Section 3-G deals with determination of the amount payable as compensation. Such determination shall be made by the competent authority. As per sub-section (2), a person having even easementory right would be entitled to compensation. Procedure for compensation is laid down in sub-sections (3), (4) and (7). If the amount determined by the competent authority is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the Arbitrator to be appointed by the Central Government and in such arbitration, the provisions of the Arbitration and Conciliation Act, 1996 shall apply. 20. Under section 3H, the amount determined under section 3- G shall be deposited by the Central Government with the competent authority before taking possession of the land. As soon as such WPC No. 946 Of 2009 Page 11 of 14

12 amount is deposited, the competent authority shall, on behalf of Central Government, pay the amount to the person or persons entitled thereto. In case, there are several persons claiming to be interested in the amount deposited, the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them and if there is any dispute as to the apportionment, the dispute is to be referred to the principal civil court of the concerned district i.e., within the limits of whose jurisdiction the land is situated by the competent authority. 21. Having noticed the broad contours of the Act as above, let us now turn to the facts of the present case. 22. As already noticed, respondent No. 6 or the private respondents have not disputed the factum that petitioners are in possession of the rice mill and godown standing over the land in question since 1954 though construction of the other structures have been disputed. It is true that petitioners claim of title over the said land has been rejected by the civil court. Having regard to the broad scheme of the Act, the Court is of the view that notwithstanding rejection of the claim of the petitioner for title of the suit land, claim of the petitioners as persons interested over the land in question would still survive and can stand on its own strength. The Act mandates the competent authority to take a fair decision on the quantum of compensation for acquisition of land as well as apportionment of the WPC No. 946 Of 2009 Page 12 of 14

13 same between rival claimants. The competent authority i.e., respondent No. 5 is thus duty bound to take a decision in this regard. He cannot shirk his responsibility or shy away from taking a decision on the plea that there is dispute over ownership of the land. Once such a decision is taken, if the parties are aggrieved by the quantum, it will be open to them to make necessary application under subsection(5) of section 3-G of the Act for determination of the quantum by the Arbitrator to be appointed by the Central Government. If there is dispute as to the apportionment of the compensation amount, the dispute may be referred to the principal civil court of the district for resolution. It is also clear from a reading of the relevant provisions of the Act that without notice in writing to the owner as well as to any other person in possession of the land, they cannot be dispossessed. 23. Thus in view of the discussions made above, respondent No. 5 i.e., the competent authority is directed to determine the compensation amount due to be paid for acquisition of the land in question and thereafter the apportionment of the same between the petitioners and respondent No. 6 and his other relatives within a period of sixty (60) days from the date of receipt of a certified copy of this order. Once the determination is made and payment is released to the parties, notice to deliver possession of the land under section 3-E shall be issued and possession taken over accordingly. If either of the parties are aggrieved by the quantum of compensation or WPC No. 946 Of 2009 Page 13 of 14

14 apportionment thereof, it will be open to them to take recourse to the provisions of sub-section (5) of section 3-G of the Act and/or for the competent authority to take recourse to the provisions of sub-section (4) of section 3-H of the Act. This disposes of the writ petitions. No costs. Beep Judge WPC No. 946 Of 2009 Page 14 of 14