Gauhati High Court
Page No.# 1/17 vs The State Of Assam And 27 Ors on 6 January, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/17
GAHC010026682018
2025:GAU-AS:130
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/921/2018
BHABENDRA DAS @ TAPAN KR. DAS AND 6 ORS
S/O- LATE GUNARAM DAS, LACHITPUR, AMINGAON, P.O- AMINGAON, P.S-
NORTH GUWAHATI, DIST- KAMRUP, ASSAM, PIN- 781031
2: RABINDRA KUMAR DAS
S/O- LATE GUNARAM DAS
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
3: NIPEN KUMAR DAS
S/O- LATE GUNARAM DAS
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
4: HAREN DAS
S/O- LATE GUNARAM DAS
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
Page No.# 2/17
5: NAREN DAS
S/O- LATE GUNARAM DAS
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
6: KAMINI DAS
W/O- LATE NIRANJAN DAS
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
7: MADHABI DAS
W/O- LATE SRIKANTA DAS
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 78103
VERSUS
THE STATE OF ASSAM AND 27 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
LAND AND REVENUE DEPTT., DISPUR, GHY- 06
2:THE DEPUTY COMMISSIONER
DIST- KAMRUP(M)
GUWAHATI
ASSAM
PIN- 781001
3:THE DEPUTY COMMISSIONER
DIST- KAMRUP
AMINGAON
ASSAM
PIN- 781031
Page No.# 3/17
4:THE SUB-DIVISIONAL OFFICER
NORTH GUWAHATI REVENUE CIRCLE
AMINGAON
DIST- KAMRUP
ASSAM
PIN- 781031
5:THE CIRCLE OFFICER
NORTH GUWAHATI REVENUE CIRCLE
AMINGAON
DIST- KAMRUP
ASSAM
PIN- 781031
6:THE OFFICER-IN-CHARGE
AMINGAON P.S
AMINGAON
DIST- KAMRUP
ASSAM
PIN- 781031
7:DHARMESWAR KAKOTI
LAT MANDAL
NORTH GUWAHATI REVENUE CIRCLE
AMINGAON
DIST- KAMRUP
ASSAM
PIN- 781031
8:KESHAB KALITA
S/O- SRI CHANDAKANTA KALITA
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
9:NAYAN KALITA
S/O- SRI KRISHNARAM KALITA
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
Page No.# 4/17
10:BHAROTI KALITA
W/O- LATE KRISHNARAM KALITA
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
11:SUROVI KALITA
W/O- KESHAB KALITA
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
12:SURENDRA DAS
S/O- RUPA
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
13:DHIREN DAS
S/O- MANURAM DAS
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
14:BHULARAM DAS
S/O- NABIN SUT
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
Page No.# 5/17
ASSAM
PIN- 781031
15:BIPIN DAS
S/O-NABIN SUT
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
16:PANIRAM DAS
S/O- NABIN SUT
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
17:MADHAB THAKURIA
S/O- SRI HARIRAM THAKURIA
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
18:DILIP THAKURIA
S/O- HARIRAM THAKURIA
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
19:RATUL THAKURIA
S/O- LATE UMESH THAKURIA
LACHITPUR
AMINGAON
P.O- AMINGAON
Page No.# 6/17
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
20:BANAMALI THAKURIA
S/O- LATE UMESH THAKURIA
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
21:PRASSANA KALITA
S/O- LATE BAPURAM KALITA
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
22:RAMESH KALITA
S/O- LATE BAPURAM KALITA
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
23:MONOMOTI BARUAH
W/O- LATE KAMALAKANTA BARUAH
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
24:GEETALI BARUAH
D/O- LATE KAMALAKANTA BARUAH
LACHITPUR
Page No.# 7/17
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
25:GEETIKA BARUAH
D/O- LATE KAMALAKANTA BARUAH
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
26:CHANDAKANTA KALITA
S/O- LATE HARAMOHAN KALITA
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 781031
27:DINESH KALITA
S/O- LATE HARAMOHAN KALITA
LACHITPUR
AMINGAON
P.O- AMINGAON
P.S- NORTH GUWAHATI
DIST- KAMRUP
ASSAM
PIN- 78103
For the Petitioner(s) : Mr. M. Bhagabati, Advocate
For the Respondent(s) : Mr. H. Sarma, Addl. Sr. Govt. Advocate
Ms. N. Bordoloi, SC, Revenue
Mr. M. Mahanta, Advocate for respondent Nos. 8 to 19, 26 & 27
Page No.# 8/17
Date of Hearing : 06.01.2025
Date of Judgment : 06.01.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. M. Bhagabati, the learned counsel appearing on behalf of
the petitioners. Mr. H. Sarma, the learned Additional Senior Government
Advocate appears on behalf of the District Administration, Ms. N. Bordoloi,
the learned Standing Counsel appears on behalf of the Revenue Department
and Mr. M. Mahanta appears on behalf of the private respondents.
2. The issue involved in the instant writ petition is relating to apportionment
of the compensation pertaining to a plot of land admeasuring 4 Bighas 1 Katha
7 Lechas covered by Dag No. 21 of Patta No. 97 of village Lachitpur, Amingaon
within the Mouza Silasindurighupa in the district of Kamrup (R), Assam.
3. From the materials on record, it transpires that in connection with L.A.
Case No. 5/2011, a plot of land admeasuring 77 Bighas 2 Kathas 5 Lechas were
acquired. In the said plot of land some lands pertaining to Dag No. 21 of Patta
No. 97 were also acquired. The petitioners herein claim that they are entitled to
compensation in respect of 4 Bighas 1 Katha 7 Lechas covered by Dag No. 21 of
KP Patta No 97. However, the petitioners have only been paid compensations in
respect to 1 Bigha 4 Kathas 1.5 Lechas. It is under such circumstances the
petitioners had submitted an objection before the Deputy Commissioner,
Kamrup (R) objecting to the apportionment of the compensation. The Deputy
Commissioner, Kamrup (R) on such objection instead of making a reference to
Page No.# 9/17
the Court decided the same vide the impugned order dated 03.10.2017 which is
a subject matter of challenge in the instant proceedings.
4. The question therefore arises in the instant proceedings as regards the
legality and validity of the impugned order dated 03.10.2017, as well as, as to
whether this Court should issue a writ in the nature of mandamus directing the
concerned Respondent Authorities to disburse the remaining part of the
compensation to the petitioners. It is noticed from the records that this Court
vide an order dated 28.02.2018 issued notice and further directed that no
payments shall be released in favour of the private respondents in connection
with the acquisition of the disputed land. The interim order thereafter continues
till date.
5. To adjudicate the dispute so involved as to whether this Court or even the
District Commissioner who is the Collector would be the proper forum for
deciding on the question of apportionment of the compensation, this Court duly
takes note of the fact that the proceedings for acquisition i.e. L.A. Case No.
5/2011 was initiated in terms with the provisions of the Land Acquisition Act of
1894 (for short ‘the Act of 1894’). However, the awards were passed post
01.01.2014 and consequently the compensation which was payable in terms
with the provisions of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (for short ‘the Act of
2013’) in view of the mandate of Section 24 of the said Act of 2013.
6. The question of the adequacy of the compensation is not an issue before
this Court. However, the issue involved is as to who should be entitled to the
compensation i.e. whether it is the petitioners or the private respondents who
would be entitled to the compensation in respect to the plot of land
Page No.# 10/17
admeasuring 4 Bighas 1 Katha 7 Lechas covered by Dag No. 21 of Patta No. 97.
7. It is relevant to take note at this stage some of the provisions of the Act of
1894 to decide on the legality of the impugned order. Section 11(1), 12, 30 and
Sub-Section (1) and (2) of Section 31 of the Act of 1894 being relevant are
reproduced herein below:
“11. Enquiry and award by Collector.- [(1)] On the day so fixed, or any
other day to which the enquiry has been adjourned, the Collector shall proceed
to enquire into the objections (if any) which any person interested has stated
pursuant to a notice given under Section 9 to the measurements made under
Section 8, and into the value of the land [ at the date of the publication of the
notification under Section 4, sub-section (1)], and into the respective interests
of the persons claiming the compensation and shall make an award under his
hand of-
(i) the true area of the land;
(ii) the compensation which in his opinion should be
allowed for the land; and
(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, he has information, whether or not they have
respectively appeared before him:
[Provided that no award shall be made by the Collector under this sub-section
without the previous approval of the appropriate Government or of such officer
as the appropriate Government may authorise in this behalf:
Provided further 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 this behalf.]
Page No.# 11/17
12. Award of Collector when to be final.-(1) Such award shall be filed in
the Collector’s office and shall, except as hereinafter provided, be final and
conclusive evidence, as between the Collector and the persons interested,
whether they have respectively appeared before the Collector or not, of the true
area and value of the land, and apportionment of the compensation among the
persons interested.
(2) The Collector shall give immediate notice of his award to such of the
persons interested as are not present personally or be their representatives
when the award is made.
30. Dispute as to apportionment.- When the amount of compensation has
been settled under Section 11, if any dispute arises as to the apportionment of
the same or any part thereof, or as to the persons to whom the same or any
part thereof, is payable, the Collector may refer such dispute to the decision of
the Court.
31. Payment of compensation or deposit of same in Court.- (1) On
making an award under Section 11, the Collector shall tender payment of the
compensation awarded by him to the persons interested entitled thereto
according to the award, and shall pay it to them unless prevented by some one
or more of the contingencies mentioned in the next sub-section.
(2) If they shall not consent to receive it, or if there be no person competent
to alienate the land, or if there be any dispute as to the title to receive the
compensation or as to the apportionment of it, the Collector shall deposit the
amount of the compensation in the Court to which a reference under Section 18
would be submitted:
Provided that any person admitted to be interested may receive such payment
under protest as to the sufficiency of the amount:
Provided also that no person who has received the amount otherwise than
Page No.# 12/17under protest shall be entitled to make any application under Section18:
Provided also that nothing herein contained shall affect the liability of any
person, who may receive the whole or any part of any compensation awarded
under this Act, to pay the same to the person lawfully entitled thereto.”
8. A perusal of Section 11(1) of the Act of 1894 as above quoted would show
that the award would be filed by the Collector upon getting the approval from
the appropriate Government. The award shall include, amongst others, the true
area of the land; the compensation which in the opinion of the Collector should
be allowed for land and the apportionment of the said compensation amongst
all persons known or believed to be interested in the land, or of whose claims
the Collector has information, whether or not they have respectively appeared
before him. Section 12 is of relevance taking into account that once an award is
being filed pursuant to the approval received from the appropriate Government,
the award is final and a conclusive piece of evidence as between the Collector
and the persons interested, whether they have respectively appeared before the
Collector or not, as regards the true area of the land, the value of the land and
the apportionment of the compensation amongst the persons interested. Be that
as it may, Section 30 of the Act of 1894 obligates the Collector to refer disputes
to the decision of the Court when disputes arises as to the apportionment of the
compensation or any part thereof or as to the persons to whom the
compensation or part thereof is payable when amount of compensation is
settled in terms with Section 11 of the Act of 1894.
9. Section 31 and more particularly Sub-Section (1) of Section 31 of the Act
of 1894 obligates the Collector to make payment of the compensation to the
persons interested, save and accept the contingencies as referred to in Sub-
Section (2) of Section 31. The contingencies, amongst others include a
Page No.# 13/17
contingency pertaining to a dispute as to the title to receive the compensation
or as to the apportionment of it. In such circumstances, Section 31(2) of the Act
of 1894 mandates that a Collector shall deposit the amount of compensation in
the Court to which a reference under Section 18 should be submitted.
10. The interplay amongst the above quoted provisions of the Act of 1894
came up for consideration before the Supreme Court in the case of Sharda
Devi Vs. State of Bihar & Another reported in (2003) 3 SCC 128. The
Supreme Court observed that the award made by the Collector is final and
conclusive as between the Collector and the persons interested whether they
have appeared before the Collector or not on the following issues i.e. as to the
true area of the land i.e. the measurement of the land acquired; as to the value
of the land that is the amount of compensation as well as to the apportionment
of the compensation amongst the persons interested. It was further observed
that the finality attached is between the persons interested and the Collector
and not persons interested inter se. It is the Court who can decide. In this
regard this Court finds it relevant to refer to paragraphs 26, 33 and 34 of the
said judgment which is reproduced herein under:
“26. The scheme of the Act reveals that the remedy of reference under Section
18 is intended to be available only to a “person interested”. A person present
either personally or through a representative or on whom a notice is served
under Section 12(2) is obliged, subject to his specifying the test as to locus, to
apply to the Collector within the time prescribed under Section 18(2) to make a
reference to the court. The basis of title on which the reference would be
sought for under Section 18 would obviously be a pre-existing title by reference
to the date of the award. So is Section 29, which speaks of “persons
interested”. Finality to the award spoken of by Section 12(1) of the Act is
Page No.# 14/17between the Collector on one hand and the “persons interested” on the other
hand and attaches to the issues relating to (i) the true area i.e. measurement of
the land, (ii) the value of the land i.e. the quantum of compensation, and (iii)
apportionment of the compensation among the “persons interested”. The
“persons interested” would be bound by the award without regard to the fact
whether they have respectively appeared before the Collector or not. The
finality to the award spoken of by Section 29 is as between the “persons
interested” inter se and is confined to the issue as to the correctness of the
apportionment. Section 30 is not confined in its operation only to “persons
interested”. It would, therefore, be available for being invoked by the “persons
interested” if they were neither present nor represented in the proceedings
before the Collector, nor were served with notice under Section 12(2) of the Act
or when they claim on the basis of a title coming into existence post-award. The
definition of “persons interested” speaks of “an interest in compensation to be
made”. An interest coming into existence post-award gives rise to a claim in
compensation which has already been determined. Such a person can also have
recourse to Section 30. In any case, the dispute for which Section 30 can be
invoked shall remain confined only (i) as to the apportionment of the amount of
compensation or any part thereof, or (ii) as to the persons to whom the amount
of compensation (already determined) or any part thereof is payable. The State
claiming on the basis of a pre-existing right would not be a “person interested”,
as already pointed out hereinabove and on account of its right being pre-
existing, the State, in such a case, would not be entitled to invoke either
Section 18 or Section 30 seeking determination of its alleged pre-existing right.
A right accrued or devolved post-award may be determined in a reference
under Section 30 depending on the Collector’s discretion to show indulgence,
without any bar as to limitation. Alternatively, such a right may be left open by
the Collector to be adjudicated upon in any independent legal proceedings. This
view is just, sound and logical as a title post-award could not have been
canvassed up to the date of the award and should also not be left without
remedy by denying access to Section 30. Viewed from this angle, Sections 18
Page No.# 15/17and 30 would not overlap and would have fields to operate independent of each
other.
33. The Collector acts as a representative of the State whilst holding
proceedings under the Land Acquisition Act. In fact, he conducts the
proceedings on behalf of the State. The award of the Collector is not the source
of the right to compensation; it is the pre-existing right which is recognized by
the Collector and guided by the findings arrived at in determining the
objections, if any, the Collector quantifies the amount of compensation to be
placed as an offer of the appropriate Government to the owner recognized by
the State. The offeree may accept or decline the offer. If he accepts the offer
and the Government takes possession over the land, the title of the offeree is
extinguished and vests absolutely in the Government free from all
encumbrances. The power to make an award under Section 11 and to make a
reference under Section 18 or 30 of the Act is a statutory power. The sweep of
jurisdiction of the court to determine the disputes is also statutory and is
controlled by the bounds created by Section 17 or 30 whereunder the reference
has been made to the court. The power has to be exercised to the extent to
which it has been conferred by the statute and on availability of pre-existing
conditions on the availability of which and which alone the power can be
exercised.
34. The award made by the Collector is final and conclusive as between the
Collector and the “persons interested”, whether they have appeared before the
Collector or not, on two issues : (i) as to true area i.e. measurement of land
acquired, (ii) as to value of the land i.e. the amount of compensation, and (iii)
as to the apportionment of the compensation among the “persons interested”
— again, between the Collector and the “persons interested” and not as
amongst the “persons interested” inter se. In the event of a reference having
been sought for under Section 18, the Collector’s award on these issues, if
varied by the civil court, shall stand superseded to that extent. The scheme of
Page No.# 16/17
the Act does not attach a similar finality to the award of the Collector on the
issue as to the person to whom compensation is payable; in spite of the award
by the Collector and even on failure to seek reference, such issue has been left
available to be adjudicated upon by any competent forum.”
11. From the above quoted paragraphs it would therefore be clear that when
the objection was filed by the petitioners as regards the apportionment of the
compensation, a duty was cast upon the Collector to make a reference to the
Court insofar as the apportionment of the compensation inter se between the
persons interested. However, it is noticed that the Collector on his own decided
the said issue which the Collector could not have after the passing of the award.
Under such circumstances, the impugned order dated 03.10.2017 is without
jurisdiction and authority and accordingly liable to be interfered with. This Court
further is of the opinion that the Collector on the basis of the objections so filed
by the petitioners ought to have made a reference in terms with Section 18 or
even under Section 30 of the Act of 1894 which the Collector failed to do
although being statutorily obligated.
12. Consequently, this Court therefore disposes of the instant writ petition
with the following observations and directions:
(i) The impugned order dated 03.10.2017 passed by the
Collector is set aside and quashed. It is however observed that
the quashing and setting aside of the said order dated
03.10.2017 shall not prejudice either of the parties in respect
to the compensation receivable pertaining to the land in
question.
Page No.# 17/17
(ii) The Collector is directed to forthwith, and not later than
15 (fifteen) days from the date a certified copy of this
judgment is served upon him to make a reference to the Court
of the District Judge, Kamrup (R), to decide on the sole
question as regards apportionment of the compensation
pertaining to the land admeasuring 4 Bighas 1 Katha 7 Lechas
covered by Dag No. 21 of Patta No. 97 between the petitioners
and the private respondents.
(iii) The Collector is further directed to deposit the
compensation amount which was stayed by this Court by way
of an interim order before the Court of the District Judge,
Kamrup (R) which is the reference Court. The release of the
said amount to parties shall be dependent upon the decision in
the reference proceedings.
(iv) The observations so made herein above, however, shall
not affect any of the parties in the said reference proceedings.
13. The records which were produced by Mr. H. Sarma, the learned Additional
Senior Government Advocate is returned.
JUDGE
Comparing Assistant
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