The National Projects Construction Corporation Ltd v. Smt. Gopa Devi Chakma W/O Doya Ranjan (L) and 717 Ors

JUDGEMENT AND ORDER (ORAL) (D. Baruah, J.) Heard Mr. S. Dutta, the learned Senior counsel assisted by Mr. R. Subedi, the learned counsel appearing on behalf of the Appellants and Mr. C. Lalfakzuala, the learned counsel appearing on Page No.# 14/27 behalf of the private Respondents. I have also heard Ms. Zairemsangpuii, the learned CGC, appearing on behalf of the Union of India.

¶2This intra-Court Writ Appeal is directed against the judgment and order dated 04.12.2019 passed in WP(C) No.71/2018 whereby the learned Single Judge directed the District Collector Lawngtlai District, Lawngtlai to make appropriate calculation on the interest payable to the Petitioners which should be for the entire amount of compensation i.e. including the solatium and interest. The learned Single Judge further directed that the said calculation should be done within a period of 6 (six) weeks from the date of receipt of the certified copy of the impugned judgment and order. Further to that, the learned Single Judge directed that upon such calculation being made, the Collector shall forward the same to the Respondent Nos. 3 to 6 of the writ petition who shall make necessary arrangements of the funds required as expeditiously as possible and preferably within a period of 3 (three) months from the date of receipt of the requisition for funds from the Collector. It was further directed that the Respondents in the writ petition shall co-ordinate and ensure that the petitioners get their due compensation without delay.

¶3To adjudicate the challenge to the impugned judgment and order, it is relevant to take note of the brief facts which led to the Page No.# 15/27 filing of the writ petition as well as the present Writ Appeal.

¶4For the purpose of convenience, the parties herein are referred to in the same status as was arrayed in the Writ Petition. The Government of Mizoram through its Principal Secretary, Land Revenue and Settlement Department had published a notification under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act of 1894') on 26.10.2012 for construction of Indo-Bangla Border Fencing (IBBF) and approach road to BOPs within Lawngtlai District. Subsequent thereto, a declaration was made in terms with Section 6 of the Act of 1894 on 08.04.2013 that the land specified in the Schedule which included the land of the Petitioners, were required for public purpose. The Deputy Commissioner, Lawngtlai District was also appointed to perform the functions of a Collector and directed to take order for acquisition of the said land. Thereafter, the necessary formalities in terms with the provisions of the Act of 1894 were carried out and two awards were prepared. The first award pertained to Award No. 1'A' of 2015 amounting to Rs.16,24,94,217/- and the second award being Award No. 1'B' of 2015 amounting to Rs.8,65,75,526/-. Both these awards were approved by the Government of Mizoram vide Memo No. K.12011/53/13-REV/Pt dated 18.09.2015. The contents of the approval of Award No. 1'A' of 2015 and Award No. 1'B' of 2015 dated 18.09.2015 are reproduced herein under: Page No.# 16/27

"NO.K. 12011/53/13-REV/PT GOVERNMENT OF MIZORAM LAND REVENUE & SETTLEMENT DEPARTMENT Secretariat Annex-1, 2nd Floor, Room No.205 Treasury Square, Aizawl – 796001 Aizawl, the 18th Sept., 2015

To The Deputy Commissioner/District Collector, Lawngtlai District, Lawngtlai. Mizoram.

Subj. : Approval of Award No. 1'A' of 2015 and Award No. 1'B' of 2015

Sir, With reference to the subject cited above, I am directed to convey herewith approval of Draft Award No.1'A' of 2015 amounting to Rs.16,24,94,217/- (Rupees sixteen crore twenty four lakh ninety four thousand two hundred seventeen) only and Draft Award No.1'B' of 2015 amounting to Rs.8,65,75,526/- (Rupees eight crore sixty five lakh seventy five thousand five hundred twenty six) only respectively for acquisition of land for construction of IBB Fencing and approach road within Lawngtlai District. Payment should be made by crossed cheque and not in cash. Compensation should be disbursed subject to the conditions stated below:

¶1Genuineness and authentication of passes should be as per registration/record/register maintained.

¶2Proper marking of the land acquired should be done at the spot. This superceed previous letter of even no. dt. 11.9.2015 Page No.# 17/27

Yours faithfully,

(MARTINI LALHLUPUII) Under Secretary to the Govt. of Mizoram Land Revenue & Settlement Deptt."

¶5From the above quoted communication, it would be seen that the approval so granted in respect to the quantum of compensation as well as the area have been approved. However, as regards the payment of compensation, the manner in which it is to be paid have only been mentioned.

¶6It is further seen from the records that in respect to the compensation awarded pertaining to the Draft Award No. 1'A' of 2015, the amount of Rs.16,24,94,217/- have already been released and disbursed to the beneficiaries. However, in respect to the Draft Award No.1'B' of 2015 which pertained to Indo-Bangla Border Fencing Phase-II , BP No.2350 to BP No.2364, the amount of Rs.8,65,75,526/- was not paid to the Petitioners.

¶7It is further relevant to take note of that there have been various inter-departmental communications regarding payment of compensation in respect to the Award No. 1'B' of 2015. Further to that, the beneficiaries in respect to the Award No. 1'B' of 2015 had also filed an application seeking reference challenging the quantum of compensation under Section 18 of the Act of 1894. Pursuant to Page No.# 18/27 that, a reference proceedings being L.A. Case No.3/2015 was initiated. In the said proceedings, the Respondent Nos. 3 to 6 were parties in the said proceedings. The learned Additional District Judge, Lawngtlai District vide a judgment dated 11.12.2017 rejected the enhancement of the market value of the acquired land however, granted the claim for compensation in respect to solatium and interest.

¶8At this stage, it is very pertinent to mention that a perusal of Draft Award No. 1'B' of 2015 would show that the Collector while determining the compensation, only took into consideration the market value of the land as well as the crops/trees etc. but there was no determination of compensation in terms with Section 23(1A) as well as Section 23(2) of the Act of 1894 which pertained to payment of interest @12% from the date of the notification under Section 4 of the Act of 1894 till the date of passing of the Award as well as solatium @30% on such market value. This aspect of the matter was allowed by the Reference Court in the proceedings.

¶9The record further reveals that the Respondents have paid an amount of Rs.4,57,55,437/- and the remaining amount have not been paid. It is also seen that a written objection was filed on

29.11.2016 by the Respondents stating that the award included the assessment of several border roads and link roads which were not Page No.# 19/27 acquired by the Respondents. It is also relevant to take note of that vide the written objection dated 29.11.2016, the Deputy Commissioner, Lawngtlai District was requested to make a fresh assessment by deleting the assessment made towards link roads and border roads. It is also seen that in view of the filing of the said written objections and as no verification was done, the Respondents who were the requiring authority did not deposit the remaining amounts in terms with the Award No. 1'B' of 2015. It is under such circumstances, the writ petition was filed seeking appropriate directions for release of the said amounts to which the Petitioners were entitled to in view of the Award No. 1'B' of 2015 as well as the judgment dated 11.12.2017 passed in L.A. Case No.3/2015.

¶10Pursuant to the filing of the instant Writ Appeal, pleadings were exchanged and the learned Single Judge vide the impugned judgment and order taking into account that the Award in question had not been challenged in any proceedings and there was an approval of the award directed the Collector to make necessary calculation within a period of 6 (six) weeks and thereupon forward the same to the Respondent Nos. 3 to 6 who were further directed to make payment within the time frame. It is under such circumstances, the instant Writ Appeal has been preferred.

¶11In the backdrop of the above, let this Court now take into Page No.# 20/27 consideration the case of the Appellants insofar as the challenge to the impugned judgment and order. The case of the Appellants as submitted by Mr. S. Dutta, the learned Senior counsel is that there was no proper verification being carried out as requested vide letter dated 29.11.2016 which the learned Single Judge failed to take into consideration. It was submitted by the learned Senior counsel that the learned Single Judge had acted as an Executing Court which was not permissible in view of the judgment of the Supreme Court in the case of National Highways Authority of India Vs. Sheetal Jaidev Vade and Others reported in AIR (2022) SC 3980.

¶12We have also heard the learned counsels for the Appellants as well as the State Respondents.

¶13The Award No. 1'B' of 2015 was made in the year 2015 pursuant to the approval on 18.09.2015. In terms with the provisions of Section 18 of the Act of 1894, objections in terms with Section 18(1) of the Act of 1894 could have been filed within a period of 6 (six) weeks from the date of the Collector's award if the person was present or represented before the Collector at the time when the award was made or in other cases, within 6 (six) weeks of the receipt of the notice from the Collector under Section 12(2) of the Act of 1894 or within 6 (six) months from the date of the Collector's award whichever period shall expire first. Page No.# 21/27

¶14In the instant case, it would be seen that an objection was filed on 29.11.2016 much after the statutory period in terms with Section 18(2) of the Act of 1894. It would also be relevant to take note of that in view of the judgment of the Supreme Court in the case of Neyvely Lignite Corporation Ltd. Vs. Special Tahsildar (Land Acquisition) Neyvely and Others reported in (1995) 1 SCC 221, the Respondents Nos. 3 to 6 who are the Appellants in the instant proceedings would be "persons interested" in terms with Section 3(b) of the Act of 1894. It would also be seen that the Respondent Nos. 3 to 6 were parties before the Reference Court and there is no appeal filed in terms with Section 54 of the Act of 1894. The Respondent Nos. 3 to 6 who are the Appellants before this Court have allowed the Award No. 1'B' of 2015 to attain finality. This aspect of the matter was duly taken into consideration by the learned Single Judge in passing the impugned judgment and order.

¶15The issue as regards certain lands not acquired was taken into consideration in the Award having not been put to challenge cannot be agitated by filing the present Writ Appeal or by objecting to the enforcement of the award in a writ proceedings more so when by virtue of Section 12(1) of the Act of 1894, the subject matter of acquisition had become final and conclusive. Under such circumstances, we are of the opinion that the learned Single Judge was justified in arriving at a finding that as there was no challenge Page No.# 22/27 to the Award No. 1'B' of 2015 which stood modified in terms with the judgment dated 11.12.2017 passed in LA Case No.3/2015, the Respondents were bound to pay the awarded compensation.

¶16Now let this Court take into consideration the submission of the learned Senior counsel that the learned Single Judge had converted the proceedings under Article 226 of the Constitution to an Executing Court. In that regard, the learned Senior counsel had relied upon the judgment of the Supreme Court in the case of Sheetal Jaidev Vade (supra). A perusal of the facts involved in the said judgment reveals that pursuant to the award passed by the Arbitrator in terms with Section 3G of the National Highways Authorities Act, 1956, there was a challenge to the said award by filing an application under Section 34 of the Arbitration and Conciliation Act, 1996 (for short "the Act of 1996"). While the said challenge was pending and no stay being granted, a writ petition was filed by the beneficiaries of the award for payment of the amount as awarded by the Arbitrator. The Supreme Court observed in Paragraph No.6.2 of the said judgment that when the award dated 12.06.2018 was challenged by the National Highways Authority of India by initiating a proceedings under Section 34 of the Act of 1996, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution seeking the relief to execute the award passed by the learned Arbitral Tribunal/Court. Page No.# 23/27

¶17The facts in the instant case are different taking into account there is no challenge to the Award No. 1'B' of 2015 in any proceedings. There being no challenge to the award and the Respondents in the writ petition i.e. the acquiring authority as well as the requiring authority were statutorily obligated to make payments to the beneficiaries of the award.

¶18We have also taken note of that the possession of the lands in question were taken in the year 2013 and as such the Petitioners have been divested their rights over the land in question by operation of law that too without receiving the compensation to which they are entitled to as per law. It is very pertinent to mention that Article 300A of the Constitution declares that no person shall be deprived of his property save by authority of law. It therefore mandates the twin requirement to be satisfied i.e the acquisition has to be for a public purpose which is subject to payment of compensation in lieu of acquisition. It is also seen as settled by the Supreme Court in the case of Kolkata Municipal Corporation and Another Vs. Bimal Kumar Shah and Others reported in 2024 SCC OnLine SC 968 that the rights under Article 300A is a combination of various sub-rights which weave themselves into each other. Amongst the seven sub-rights, one of such sub-rights is that the duty of the State to restitute and to rehabilitate i.e. the right of restitution or fair compensation. It also includes the duty of the Page No.# 24/27 State to conduct the process of acquisition efficiently and within prescribed timelines of the proceedings i.e. the right to an efficient and expeditious process. Each of these seven sub-rights are foundational components of law i.e. in tune with Article 300A of the Constitution and the absence of one of these or some of them would render the law susceptible to challenge. Paragraph Nos. 25 to 29 of the said judgment is quoted herein under: "25. While it is true that after the 44th Constitutional Amendment, the right to property drifted from Part III to Part XII of the Constitution, there continues to be a potent safety net against arbitrary acquisitions, hasty decision-making and unfair redressal mechanisms. Despite its spatial placement, Article 300Awhich declares that "no person shall be deprived of his property save by authority of law" has been characterised both as a constitutional and also a human right. To assume that constitutional protection gets constricted to the mandate of a fair compensation would be a disingenuous reading of the text and, shall we say, offensive to the egalitarian spirit of the Constitution.

¶26The constitutional discourse on compulsory acquisitions, has hitherto, rooted itself within the 'power of eminent domain'. Even within that articulation, the twin conditions of the acquisition being for a public purpose and subjecting the divestiture to the payment of compensation in lieu of acquisition were mandated. Although not explicitly contained in Article 300A, these twin requirements have been read in and inferred as necessary conditions for compulsory deprivation to afford protection to the individuals who are being divested of property. A post-colonial reading of the Constitution cannot limit itself to these components alone. The binary reading of the constitutional right to property must give way to more meaningful renditions, where the larger right to property is seen as comprising intersecting sub rights, each with a distinct character but interconnected to constitute the whole. These sub-rights weave Page No.# 25/27 themselves into each other, and asa consequence, State action or the legislation that results in the deprivation of private property must be measured against this constitutional net as a whole, and not just one or many of its strands.

¶27What then are these sub-rights or strands of this swadeshi constitutional fabric constituting the right to property? Seven such sub rights can be identified, albeit non-exhaustive. These are : i) duty of the State to inform the person that it intends to acquire his property-the right to notice, ii) the duty of the State to hear objections to the acquisition - the right to be heard, iii) the duty of the State to inform the person of its decision to acquire - the right to a reasoned decision, iv) the duty of the State to demonstrate that the acquisition is for public purpose - the duty to acquire only for public purpose, v) the duty of the State to restitute and rehabilitate - the right of restitution or fair compensation,

vi) the duty of the State to conduct the process of acquisition efficiently and within prescribed timelines of the proceedings - the right to an efficient and expeditious process, and vii) final conclusion of the proceedings leading to vesting - the right of conclusion.

¶28These seven rights are foundational components of a law that is tune with Article 300A, and the absence of one of these or some of them would render the law susceptible to challenge. The judgment of this Court in K.T. Plantations (supra) declares that the law envisaged under Article 300A must be in line with the overarching principles of rule of law, and must be just, fair, and reasonable. It is, of course, precedentially sound to describe some of these sub-rights as 'procedural', a nomenclature that often tends to undermine the inherent worth of these safeguards. These seven sub-rights may be procedures, but they do constitute the real content of the right to property under Article 300A, non-compliance of these will amount to violation of the right, being without the authority of law.

¶29These sub-rights of procedure have been synchronously incorporated in laws concerning compulsory acquisition and are also recognised by our constitutional Page No.# 26/27 courts while reviewing administrative actions for compulsory acquisition of private property. The following will demonstrate how these seven principles have seamlessly become an integral part of our Union and State statutes concerning acquisition and also the constitutional and administrative law culture that our courts have evolved from time to time."

¶19In the backdrop of the above, it would be seen that the learned Single Judge while passing the impugned judgment and order have duly taken note of that since 2013, the Petitioners have been divested their rights to enjoy their property and the Award was passed in the year 2015 which were subsequently enhanced with the inclusion of the solatium and interest. The learned Single Judge taking into account these aspects had invoked the jurisdiction under Article 226 of the Constitution more so taking into account that there was no challenge to the Award and thereby had issued the mandamus issuing the directions as stated therein.

¶20We are of the opinion that the said directions so issued by the learned Single Judge cannot in any circumstances be said to be a direction issued in excess of its jurisdiction or there is any infirmity.

¶21Accordingly, we do not find any ground to interfere with the impugned judgment and order. We accordingly dismiss the Writ Appeal and direct the authorities to comply with the directions passed by the learned Single Judge as state therein forthwith. Page No.# 27/27

¶22Interim order passed if any, stands vacated.

JUDGE JUDGE Comparing Assistant

Page No.# 1/27 GAHC030003662023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/5/2023 The National Projects Construction Corporation Ltd. (A Govt. of India Enterprise) r/b its Zonal Manager VERSUS Smt. Gopa Devi Chakma w/o Doya Ranjan (L) and 717 Ors. S/o Kamal Kisto, Jarulsury 2:Taroka 3:Nilo Ranjan 4:Jorna 5:Sobika 6:Anga Dhan 7:Senci 8:Kamal Kisto 9:Kali Prasad 10:Molai Pudi 11:Shanti Lal Page No.# 2/27 12:Guno Muni 13:Amulya Dhan 14:Sadhanya 15:Pukkon 16:Ganga Dhah 17:Kina Muni 18:Moha Ranj 19:Binoy Kanti 20:Ganga 21:Janu 22:Shanti Kumar 23:Asapuron 24:Bana Sova 25:Gandhi 26:Juddha Dhan 27:Ganga Dhan Page No.# 3/27 28:Birosen 29:Monga Dhan 30:Bimanda Kumar 31:Chandra Sekar 32:Mirogo Tara 33:Mena Kumari 34:Kandra 35:Rashna 36:Rattua Ram 37:Jama Anguli 38:Kalia Muni 39:Sushil Bikas 40:Subhas 41:Raja Lokhi 42:Debendra 43:Indra Bahu Page No.# 4/27 44:Indu Kumar 45:Gyanamoy 46:Jugendra 47:Arun Kumar 48:Chibo Rattan 49:Chigon Mila 50:Padha Kumari 51:Kali Prasad 52:Anil Prasad 53:Shanti Kumar 54:Lokhi Muni 55:Adhai Sur 56:Bimal Kanti 57:Gyana Jyoti 58:Shanga Kumar 59:Chandra Sushi Page No.# 5/27 60:Sonati 61:Allo Sundoni 62:Anudra 63:Dobona 64:Som Muni 65:Mallika 66:Anjum Muni 67:Mereya 68:Bar Pallya 69:Shanti Ranjan 70:Jingya 71:Aduri 72:Shanti Bihari 73:Shanti Lal 74:Nilo Banan 75:Anil Banan Page No.# 6/27 76:Sunil Banan 77:Dilip Kumar 78:Badsha Dhan 79:Kushal Kumar 80:Jashna Maya 81:Anil Mala 82:Amarson 83:Danjyo 84:Lakkhan 85:Chanjyo Kumar 86:Rajesh 87:Kalpana 88:Monika 89:Zothanliana 90:Hmangaihsanga 91:Rananjoy Page No.# 7/27 92:Bara 93:Suro Naksha 94:Doya Sova 95:Nanda Kumar 96:Arun Kumar 97:Gyana 98:Chigon Mon 99:Punong Chand 100:Doyal Kumar 101:Meyabi 102:Basanta Kumar 103:Provat Kusum 104:Mangala Pudhi 105:Urijoy 106:Madhan Kumar 107:Mona Page No.# 8/27 108:Adi Chandra 109:Surjyo Kumar 110:Krishna 111:Jorbo Dhan 112:Bubeneshwar 113:Bhagyo Dhan 114:Chandra Hangsha 115:Doya Lal 116:Lalmon 117:Sumbuda 118:Purna Jyoti 119:Gutyo 120:Binanda 121:Jostnat Dhan 122:Kalasoga 123:Joyno Mohan Page No.# 9/27 124:Kina Mon 125:Biroda 126:Kala Badhi 127:Ptttya Ban 128:Kina Ranjan 129:Sanzeukaka 130:Rattti Jabta 131:Gyana Rattan 132:Bijoy Kumar 133:Ranjan 134:Soroda 135:Dhai Kumar 136:Bimileshwar 137:Bishnu Kanta 138:Satya Bikash 139:V.Vanlalruata Page No.# 10/27 140:Bannyo 141:Khuchuhma 142:Kala 143:Binu Mon 144:Bana Chandra 145:Mohedra 146:Biju Joy 147:Priyo Lal 148:Surath 149:Rannyabi 150:Vanlalrema 151:Mangala 152:Bana Ram 153:Kalabija 154:Indu Kumar 155:Jodi Moy Page No.# 11/27 156:Chalzuama 157:Dhana Kumar 158:Pattor Muni-III 159:Rashya 160:Surosen 161:Lalnunsanga 162:Indrasur 163:Ananda Mughi 164:Sushi Mon 165:Dema 166:Bijolal 167:Guri Chandra 168:Barakana 169:Robi Chand 170:Dino Mon 171:Punyoban Page No.# 12/27 172:Pattor Muni 173:Punyosova 174:Ripon 175:Indra Ban 176:Santa Shil 177:Satyo Priyo 178:Sawpna Devi 179:Gunoban 180:Ananda Tara 181:Delhi Kumar 182:Mritujoy 183:Bimal Chandra 184:Doy 185:Birobahu 186:Doya Mon 187:Jalanta Page No.# 13/27 188:Bangallo 189:Sodiong 190:Subhashine 191:Lokhitama 192:Jeeban 193:Asonia 194:Bhim 195:Ronjitto 196:Meya Ranja Advocate for the Appellant : Mr. S. Dutta, Sr. Advocate : Mr. R. Subedi, Advocate Advocate for the Respondents : Mr. C. Lalfakzuala, Advocate : Ms. Zairemsangpuii, CGC Date of Hearing : 28.10.2024 Date of Judgment : 28.10.2024 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA