Gauhati High Court
Central Inland Water Transport ... vs Shri Dipendra Adhikari & Anr on 16 February, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
LA App. 7 of 2016
CENTRAL INLAND WATER TRANSPORT CORPORATION LIMITED
A REGISTERED GOVT. CO. HAVING ITS REGISTERED OFFICE AT 4 FAIRELY PLACE,
KOLKATA -1 AND A BRANCH OFFICE AT CIWTC COLONY, M.G. ROAD, FANCY
BAZAAR, GUWAHATI 781001, DIST. KAMRUP (M), ASSAM.
- Appellant/Claimant
Versus-
1. SHRI DIPENDRA ADHIKARI
S/O LATE UPENDRA DEVA ADHIKARI, R/O HOUSE NO. 129, GOPINATH NAGAR,
GUWAHATI 781016, DIST. KAMRUP (M), ASSAM.
-Claimant/Respondent
2. THE COLLECTOR, DIST. KAMRUP (M), GUWAHATI 781001, ASSAM.
- (Referring Authority)/Respondent BEFORE HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA Advocate for the appellant Mr. B Kalita, Sr. Advocate Assisted by Mr. A Khanikar Advocate for the respondent Mr. C K S Baruah, Govt. Advocate Mr. B M Choudhury Date of hearing & Judgment: 16th February, 2017.
LA App. 8 of 2016 M/S VALLEY VIEW REAL ESTATE A REGISTERED PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT SHARMA RICE MILL COMPLEX, FATASIL, GLASS FACTORY COMPOUND, GUWAHATI 781009, DIST. KAMRUP (M) ASSAM, REPRESENTED BY ITS MANAGING PARTNER, NAMELY SRI PAWAN KUMAR SHARMA, S/O SRI SHIW BHAGAWAN SHARMA, R/O SHARMA RICE MILL COMPLEX, FATASIL, GLASS FACTORY COMPOUND, GUWAHATI 781009, DIST. KAMRUP (M), ASSAM.
- Appellant/Claimant Versus-
2.THE COLLECTOR CUM DEPUTY COMMISSIONER KAMRUP KAMRUP (M), PANBAZAR GUWAHATI 781001 LA.App.07 of 2016 LA.App.08 of 2016 Page No.2
3. DWIPENDRA ADHIKARI S/O LATE UPENDRA DEV ADHIKARI.
4. SMT. NAMITA KAKATI ADHIKARI D/O LATE UPENDRA DEV ADHIKARI
5. MONIKA ADHIKARI D/O LATE UPENDRA DEV ADHIKARI
6. SMT. ANIMA ADHIKARI D/O LATE UPENDRA DEV ADHIKARI, SL. NO. 2, 3, 4 & 5 ARE R/O HOUSE NO. 129, ADHIKARI HOUSE, SHANKARPUR, GOPINATH NAGAR, GUWAHAI-16, DIST. KAMRUP (M), ASSAM.
7. THE CENTRAL INLAND WATER TRANSPORT CORPORATION (CIWTC) FOR AND ON BEHALF OF M/S MACMILAN AND COMPANY AGENT OF RSM COMPANY AND M/S KIBURN & COMPANY, AGENT OF IGN AND RAILWAY CO. LTD., REPRESENTED BY ITS COMPANY SECY., FANCY BAZAR, GUWAHATI-781001, DIST. KAMRUP (M), ASSAM.
- Respondent/Opposite party BEFORE HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA Advocate for the appellant Mr. A D Choudhury Advocate for the respondent Mr. C K S Baruah, Govt. Advocate Mr. B M Choudhury Date of hearing & Judgment: 16th February, 2017.
JUDGMENT AND ORDER The LA.App.07/2016 and LA.App. 08/2016 has arisen out of the common Reference Case No. 07/2014 which was sent for a dispute as to the apportionment of compensation and referred by the Collector, Kamrup(M) in LA. Case No. 24/2008 which was disposed of by a common judgment passed by the learned Additional District Judge (FTC) No.3, Kamrup, Guwahati in Reference Case No.07/2014. Under Section 11 of the Land Acquisition Act,1894 an amount of Rs.5,44,21,500/- was awarded as compensation in connection with acquisition of land measuring 15B 1K 13L's covered by Dag No.466 and 468 patta No.45 Grant, Village- LA.App.07 of 2016 LA.App.08 of 2016 Page No.3 Sahar Kharguli, Mouza-Ulubari. While apportioning the said amount of compensation a dispute followed between the appellant in the present LA App.07/2016 and LA.App.08/2016 and as such the Collector, Kamrup(M) made a reference of the said dispute to the learned court below. The case of the claimants/petitioner, Dipendra Adhikari in LA Case No.24/2008 who is the respondent No.1 in LA. App.07/2016 and respondent Nos. 2 in LA. App. No.08/2016, that Late Saroj Kumari the grandmother of the respondent No.1 in LA.07/2016 and respondent Nos. 2 to 5 in LA. App.08/2016 was the original pattadar of the aforesaid land measuring 15B 1K 13L as referred hereinabove. After the death of Saroj Kumari the aforesaid plot of land was mutated in the name of her daughter Late Chinmoye Adhikary, who was the mother of the present respondent No.1 in LA.App. 07/2016 and the respondent Nos. 2 to 5 in LA.App.08/2016 who inherited the said land being the children of Late Chinmoye Adhikary. Moreover, the plot of land measuring 5B's 8L's covered by Dag No.466 and 468 were mutated in the names of the aforesaid respondents in the year 1997-1998. Sri Dipendra Adhikary, the respondent No.1 in LA.App.7/2016 and respondent No.2 in LA.App.08/2016 receive the notice dated 04.02.2011 in LA Case No.24/2008 in the name of Saroj Kumari informing that land measuring 205.7 ares covered by Dag No.466 and 468 under Revenue Village-Sahar Kharguli, Mouza-Ulubari was required to be acquired for construction of Water Treatment Plant under JICA. Dipendra Adhikari along with his sisters applied for compensation against the acquisition of the aforesaid land vide LA Case No.24/2008 which was received vide receipt No.513 dated 28.06.2011. Thereafter in demarcation Case No. 49/1999-2000 vide notice dated 02.03.2000 Central Inland Water Transport Corporation in short (CIWTC), the appellant in LA.App. No. 07/2016 was asked to appear on 07.03.2000 for demarcation of land measuring 15B 1K 13L covered by Dag No.466 and 468 of patta No.145 Sona Fs grant situated at Village-Sahar Kharguli, Mouza- Ulubari.
LA.App.07 of 2016 LA.App.08 of 2016 Page No.4
2. The representative of the appellant in LA. App.7/2016 appeared accordingly and without raising any objections agreed for demarcation. Thereafter, the land was duly surveyed and the map was also prepared and the said Dipendra Adhikari along with his sisters were asked to hand over possession of the said land to the authorities concerned Mondols took possession of the said land from the said Dipendra Adhikari and his three sisters. Thereafter, vide notice dated 14.11.2013 issued by the Additional Deputy Commissioner, Kamrup(M), the said Dipendra Adhikari and his three sisters were asked to appear on 19.11.2013 for joint spot verification and to finalize the share of compensation against the acquired land. By the said notice dated 14.11.2013, the company Secretary of CIWTC was also asked to appear on behalf of Ms. Macmilan Company.
3. The said Dipendra Adhikari, respondent No.1 in LA.App.7/2016 and respondent No.2 in LA.App.08/2016 submitted that original RSN Company Limited was a company from England and after they left India in the early 60s its landed property was mutated in the name of CIWTC, the Appellant in LA.07/2016 which was formed by the Government of India. However, as the said company from England had no mutation with respect to Dag No.464, 466 and 468 so, the said land were not mutated in the name of CIWTC. Hence, as submitted by the said Dipendra Adhikari CIWTC is not a pattadar with respect to Dag No. 464, 466 and
468. Thereafter the said Dipendra Adhikari, the respondent No.1 in LA.App.07/2016 and respondent No.2 in LA. App. 08/2016 by way of a letter to the Collector, Kamrup asked the names of the claimants in LA Case No.24/2008. Though, there was no reply from the Collector, however, the said Dipendra Adhikari received a letter from CIWTC dated 22.03.2013 claiming to be the owner of the land covered by Dag No.464, 466 and 468 and as such laid claim for compensation for the same land.
4. The appellant in LA.App.07/2016 i.e. CIWTC earlier filed three appeal before the Assam Board of Revenue which was registered as Case No.91RA(K)/2003, 92 RA(K)/2003 and 100 RA(K)/2003 challenging the mutation of the names of the said Dipendra Adhikari LA.App.07 of 2016 LA.App.08 of 2016 Page No.5 and the other family members in respect of the land measuring 15B 1K 13L covered by Dag No.464,466 and 468 but the said appeals were dismissed. Thereafter, the appellant in LA.App.7/2016 (CIWTC) preferred Review Petition against the dismissal orders which were subsequently dismissed vide judgment dated 09.03.2009. However, CIWTC never challenged the said judgment till date and as such the said judgment attained its finality. Therefore, the CIWTC cannot be a claimant to seek compensation in respect of LA Case No.24/2008. The appellant in LA. App. 08/2016 in his appeal submits that the appellant had right, title and interest to the extent of a plot of land measuring 5B 8L under Dag No. 466, 468 of FS grant patta No.1 of the Sahar Village-Sahar Kharguli, Mouza-Ulubari in the district of Kamrup(M) which has been acquired by the Government of Assam under the provision of Land Acquisition Act,1894 for the purpose of construction of Water Treatment Plan. The respondent Nos. 2, 3, 4 and 5 respectively Sri Dipendra Adhikari and the three sisters are the recorded owner of the acquired land from whom the appellant had purchased land measuring 5B 8L prior to initiation of the land Acquisition process. The respondent No.6 (CIWTC) also claimed right, title and interest over the land so acquired without having any semblance of right, title and interest over the land. The appellant in LA.App.08/2016 further submits that it is a registered partnership firm and in the first part of March, 2009, the appellant had purchased total land measuring 5B 8L under Dag No. 466, 468 of FS grant No.1, Village-Sahar Kharguli, Mouza-Ulubari, District-Kamrup(M) from its recorded owners namely, Sri Dwipendra Adhikari, Smt. Namita Kakati Adhikari, Smt. Monika Adhikari and Smt. Anima Adhikari, respondent Nos. 2, 3, 4 and 5 in LA. App.08/2016 vide four different registered sale deed bearing No. 4030, 4031, 4033 and 4026 all dated 16.03.2009. The said Dag No.466 and 468 consists in total land of 15B 1K 18L and originally belonged to the said respondent Nos. 2, 3, 4 and 5 out of which 5B's 8 L's of land had been purchased by the said appellant in LA.App.08/2016 and as such he was the owner with respect to the said land so purchased. The said appellant in LA.App.08/2016 was the owner with respect to the said LA.App.07 of 2016 LA.App.08 of 2016 Page No.6 land so purchased. However, though the said appellant in LA.App.08/2016 applied for mutation, same was not granted and later, on inquiry it came to the notice that the total land covered under Dag No. 466 and 468 was under the process of acquisition of land, Acquisition Case No. 24/2008 was pending. Thereafter, on an application was filed by the appellant in LA.App.08/2016 for entering its name in LA Case No. 24/2008 enabling the appellant to file objection as well as to get relief/compensation as per law. That after long persuasion, finally the appellant in LA App.08/2016 was incorporated for apportionment of the compensation but the committee formed for apportionment of the compensation failed to come to a final concluded relief for the apportionment of the compensation amongst the claimants. Thereafter the matter was referred under Section 30 of the Land Acquisition Act, 1894 for apportionment of the compensation vide reference dated 24.10.2014 of the Collector, respondent No.1.
5. The said reference was accordingly as aforesaid, was disposed of by the learned Additional District Judge (FTC) No.3, Kamrup(M) and being aggrieved by the said judgment, the appellants in LA.App.07/2016 and 08/2016 have preferred the said appeals against the common judgment.
6. Mr. B Kalita, learned senior counsel assisted by Mr. A Khanikar, learned counsel for the appellant submits that the learned court below while deciding the reference so made by the Collector never asked the parties to adduce evidence in order to show there extent of interest upon the land so acquired. The same amounts to violation of the principles of natural justice and as such the impugned judgment are bad in law. On the other hand, Mr. A D Choudhury, learned counsel appearing on behalf of the appellant in LA.App.8/2016 submits that though the appellant was very much included as one of the claimant for the apportionment of the compensation while referring it to the learned court below but the learned court below failed to mention and/or discuss as to what extent the appellant was entitled for the compensation. Mr. Choudhury further submits that the registered sale deeds LA.App.07 of 2016 LA.App.08 of 2016 Page No.7 were produce before the learned court below which were never objected by the respondent Nos. 2, 3, 4 and 5. Under such circumstances, a duty was cast upon the learned court below at least to give a finding to what extent the said appellant is entitled for compensation. Having not done so the impugned judgment is bad in law and required to be set aside.
7. Perused the case record of Reference Case No.07/2014 and the documents submitted by the appellants before the said learned court below. The document prima facie so far the appellant in LA.08/2016 is concerned namely, the registered sale deed shows that prima facie there is a title with respect to an area of land measuring 5B 8L's of land out of the total land covered by Dag No. 466 and 468. On the other hand, so far the appellant in LA.App.07/2016 is concerned the order passed by the Revenue Board though its a photocopy, is very much on record and from the judgment passed in Case No. 91RA(K)/2003, 92 RA(K)/2003 and 100 RA(K)/2003 which was preferred by one Padmeswar Konwar against the respondent Nos.2, 3, 4 and 5 in LA.App.08/2016 clearly makes the reference of the appellant CIWTC in LA.App.07/2016. The said judgment was passed by the Assam Board of Revenue dated 08.03.2007. In the said judgment it is apparent that a report from the concerned Circle Officer was called for wherefrom the Hon'ble Board of Revenue had concluded that the predecessor-in-interest of the respondent Nos. 2, 3, 4 and 5 of LA.App.08/2016 were possessing the land which was claimed by the appellant in LA.App.07/2016. The said appeal before the Assam Board of Revenue was under Section 147 of the Assam Land and Revenue Regulation, 1886 against the mutation orders passed in favour of the respondent Nos. 2, 3, 4 and 5 in LA.App.08/2016. The said appeals were dismissed and since the appellant in LA.App.07/2016 failed to challenge the same in the higher courts till date the learned court below has come to a finding that the findings in the Revenue appeal before that Board of Revenue has attained its finality and as such the appellant in LA.App.07/2016 has no interest over the land in question and they are not entitled for apportionment of the compensation.
LA.App.07 of 2016 LA.App.08 of 2016 Page No.8
8. The learned court below at least keeping in view the principles of natural justice ought to have given chances to the respective parties before it to adduce evidence in order to show their respective existence of interest involved over the said land covered by Dag No. 466 and 468. Thereafter, the learned court below ought to have passed a judicious judgment by discussing the piece of evidence so placed before the learned court below. It is not disputed by the learned counsels that there was no endeavor on the part of the appellants to pray for adducing their respective evidence before the learned court below. However, this Court having gone through the materials on record feels it necessary to set aside the judgment dated 29.06.2016 passed by the learned Additional District Judge(FTC) No.3, Kamrup at Guwahti and remand the same with a direction to allow the appellants and the private respondents in both the appeals to adduce their respective piece of evidence and thereafter pass a judicious judgment. It is pertinent to mention here that the respective parties to the proceeding in Reference Case No.07/2014 had filed their petition/claim in support of their respective interest over the land in question. Under such circumstances, their does not arose any question in allowing the parties in the Reference Case No.07/2014 to further file any petition for amending their earlier petition. Further while deciding the Reference Case No.07/2014 the learned court below is at liberty to decide the same judiciously without considering any of the observations made in this order.
9. Accordingly, with the said direction, this appeal is disposed of. The learned court below shall make an endeavor to dispose of the Reference Case No.07/2014 preferably within a period of 3(three) months from receipt of the Case Record.
10. Registry is directed to send back the LCR at the earliest.
JUDGE Rakhi LA.App.07 of 2016 LA.App.08 of 2016 Page No.9 LA.App.07 of 2016 LA.App.08 of 2016