Bisheswar Chattapadhya Trust vs State of Assam and Others

D.N. Baruah, J.—Parties to both the Civil Rules are same and they arise out of the same land acquisition proceedings. Therefore, I propose to take up both the Civil Rules together and dispose them of by a common judgment and orders.

The writ Petitioner has challenged the land acquisition proceedings in L.A. Case No. 2 of 1977-78 in respect of land measuring 2 Bighas 13 Kathas 5 Chattaks included in Dag No. 2628, covered by Niskar Patta No. 11 of Silchar Part-V, Pargana Barakpar of Cachar district as well as Anncxurcs-8 and 9 notifications (in CR 12.4/89) dated 29th March, 1988 issued under Sections 4 and 6 of the Land Acquisition Act and has prayed for issuance of appropriate writ or direction quashing the entire proceeding. The Petitioner has further prayed for directing the Respondents to return the land sought to be acquired under the said L.A. Case No. 2 of 1977-78 and to pay compensation for use and occupation of the land by the Respondents for the period from 23.2.66 till date.

The Petitioner is a charitable and religious trust under the name and style of Bisheswar Chattapadhya Trust. The Trust has its office at 6, Mission Row, Calcutta. It purchased a plot of land measuring 2 Bighas 13 Kathas 5 Chattaks together with a building and structures standing thereon by a registered deed of sale from the erstwhile owner Surma Valley Branch of India Tea Association. After the purchase the Trust received possession of the land as well as houses. On 23.2.66, the 3rd Respondent by a notice requisitioned an area of 2 Bighas 8 Kathas 6 Lechas of land out of the aforesaid land with a building and structures thereon under D.I. Rules however, this was done without serving any notice to the owner as required under the provisions of Defence of India Rules, 1962. The Petitioner Trust filed objection. On 30.3.66 the 3rd Respondent released the property and simultaneously passed Anr. order requisitioning the same land and building u/s 3(1) of the Assam Land (Requisition and Acquisition) Act, 1964. Against the order of requisition the Petitioner preferred an appeal before the Government. However, the Government rejected the appeal in the month of October, 1966, Thereafter the Petitioner filed a writ petition in 1967 (Civil Rule No. 25/67). The said Civil Rule was dismissed. However, no award of requisition compensation was ever passed by the authority for use and occupation of the Petitioner''s properly. The Petitioner Trust made efforts to gel 2 bighas of vacant land released even by foregoing the budding and land which housed the 5th Respondent, but to no avail of Thereafter, the 3rd Respondent initiated a proceeding under Land Acquisition Act (L.A Case No. 2 of 1977-78) for acquisition of the land measuring 2 Bighas 13 Kathas 6 Chatiaks including the building thereon. Notification u/s 4(1) was published in the Assam Gazette on 10.1.79. Declaration u/s 6(1) was published on 3.10.79. Claims were invited by the Collector u/s 9 of the Act and the Petitioner filed petition claiming compensation amounting to Rs. 14,75,737.50. No award was made. More than two years elapsed. Meanwhile. Land Acquisition Act was amended on 24.9.84.

I have heard Mr. N.M. Lahiri, learned Senior counsel assisted by Mr. G.N. Sahewalla, learned Counsel appearing on behalf of the Petitioner and Ms. K. Yadav. learned Government Advocate, Assam.

Mr. Lahiri submits that in view of the amended provisions of the Land Acquisition Act, if no award is made within a period of two years from the dale of publication of the declaration, the entire proceedings lapses. In this case the land-was originally under requisition under the provisions of Defence of India rules, 1962. It remained under requisition under the said provisions till 30.3.66. On that day it was derequisitioned and again requisitioned under the provisions of Assam Land (Requisition and Acquisition) Act, 1964. It remained under requisition till 10.1.79 and on that day the first land acquisition case was started. All along the 5th Respondent had been in continuous possession of the land depriving the Petitioner''s right to enjoyment. No amount either for requisition or for acquisition was ever paid to the Petitioner. Mr. Lahiri further submits that the L.A. Case No. 2/77-78 had lapsed and the subsequent notifications (Annexure - 8 and 9) had been issued in the same land acquisition case which had already lapsed. Therefore, the aforesaid notifications have no force and these are liable to be quashed. Ms, K. Yadav learned Govt. Advocate strenuously argues and makes all efforts to support the case of the Department. An affidavit-in-opposition has also been filed day before yesterday. However, Ms, Yadav candidly submits that in spite of her best efforts she has not been able to procure the record of the case.

On the rival contentions of the parties it is to be seen whether the land acquisition proceedings which were initiated as far back in the year 1979 is still in force.

Section 11-A of amended Act specifically mentions that if the Collector fails to make the award within a period of two years from the date of publication of the declaration, the entire proceedings for the acquisition of the land shall lapse. These provisions have been incorporated because of long delay in disposal of the acquisition proceedings. A bare reading of the said provisions indicates that the period has been statutorily determined within which the Collector has to make the award. While dealing with the said Section the Supreme Court in the case of State of U.P. and Others Vs. Rajiv Gupta and Another, observed thus:

...It is common knowledge that after declaration was published, year used to roll by to make the award and the owners of the lands were put to great hardship. Parliament intended to relieve the owners of the lands from this hardship and pegging of the price prevailing as on date of publication of Section 4(1) notification. It is, therefore, a mandatory duty cast on the Land Acquisition Collector to make the award strictly in accordance with the limitation u/s 11-A. II no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. In other orderds (sic, words), on expiry of two years from the date of the publication of the declaration unless the proviso is attracted, if no award is made in the meantime, in the eye of law the proceeding initiated u/s 4(1) of the Act culminated in the declaration made u/s 6 shall stand lapsed and no proceedings, in the eye of law thereafter do exist, to take further action.

In view of the amended provisions, if award is not made, within a period of two years from the date of publication of the declaration, the entire proceedings for the acquisition of the land shall lapse. However, under proviso to Section 11-A, if the declaration is published prior to the amendment, the award shall have to be made within a period of two years front the gate of commencement of the amended Act. In this case no award was made. R.N. Dam, the then Land Acquisition Collector in his order dated 31.7.87 observed thus:

As per amended L.A. Act of 1984 u/s 6(1) and also u/s 11(A) the instant proceeding stands lapsed since 3 years and 2 years respectively has already been elapsed. Thereafter a fresh proceeding has been initiated on 21.2.86 and necessary sale statement prepared and approved, the bigha rate by the District Collector for preparation of L.A. estimate vide DCs order at Order sheet page 17. The connected L.A. papers are almost ready for submission to Govt. through requisitioning department...

From the above observation it appears that the proceedings had lapsed. It also appears that a fresh proceeding was initialed on 21.2.86. If the fresh proceeding is taken into consideration, it lapsed in the year 1988. Annexurc-8 and 9 notifications under Sections 4(1) and 6(1) of the Act were issued on the same date. But these were issued in the old LA. Case 2/77-78 which had already lapsed.

In view of the above, I find sufficient force in the submission of Mr. Lahiri that the land acquisition proceedings had lapsed and subsequent Annexure-8 and 9 notifications issued under Sections 4(1) and 6(1) shall have no force. Accordingly, I set aside Annexures-8 and 9 notifications.

The last point for determination is what relief the Petitioner is entitled to. Admittedly the land had been in occupation of Respondent No. 5 on the basis of requisition under the Defence of India Rules from 22.3.66 to 30.3.66, then under Assam Requisition and Acquisition Act, 1964 and then under the Land Acquisition Act, 1894. For the period from 22.3.66 to 10.1.79 the land was under requisition and the Petitioner was entitled to get requisition compensation under the provisions of law. Thereafter, the possession cannot be said to be under the authority in view of the fact that the Land Acquisition proceedings had lapsed. Therefore, the Petitioner is entitled to reasonable compensation.

In view of the above, the 3rd Respondent i.e. the Collector Cachar is directed to assess the requisition compensation and also determine compensation for the use and occupation of the land in question for the period when the land was under occupation of Respondent No. 5 on the basis of notification issued under Sections 4 and 6 which ultimately lapsed as indicated above. Before assessing compensation as indicated above, the Petitioner shall be given an opportunity of hearing. If the requisition compensation, according to the Petitioner is not adequate and contrary to the provision of law, the Petitioner Trust may agitate it before the appropriate forum. The 3rd Respondent is directed to assess the compensation and make payment of compensation within a period of 2 (two) months from the date of receipt of this judgment. The 3rd Respondent is also directed to immediately release the land under acquisition proceeding and return the same to the Petitioner. If, however, the Respondents feel that the land is necessary, it is open to the Respondents to take appropriate action.