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Judgment
Heard Mr. G. P. Bhowmik, learned senior counsel assisted by Ms. M. Hore, learned counsel appearing for the petitioner as well as Mr. R. De,
learned counsel appearing for the respondents No. 1 to 5. Also heard Mr. M. R. Adhikary, learned Government Advocate along with Mr. M. K. Nath,
learned Govt. Advocate appearing for the respondents No. 6 and 7.
This is a Land Acquisition (L.A.) Appeal under Section 54 of the Land Acquisition Act, 1894 read with Section 96 and Order XLI Rule I of the
CPC. The appeal is against the judgment and decree dated 22.08.2006 passed by the learned District Judge, Dibrugarh in Misc. (L.A.) Case No.
153/2005.
The brief facts of the case is that by virtue of L.A. Case No. DRA/22/91 that an area of land measuring 02 Bigha-03 Katha-05 Lecha, covered by
Dag No. 195, 196 and Part of 289 of Periodic Patta No. 60 and 67 of Naharkatia Town was acquired for public purposes for setting up of a
Telephone Exchange at Naharkatia. The Collector-cum-Deputy Commissioner, Dibrugarh, by his letter requested the Telecom Department through
the Telecom District Manager, Dibrugarh to deposit the estimate of Rs.21,16,887/- only at the disposal of the Collector, Dibrugarh. Thereafter, the
necessary papers were sent to the Revenue (L.R.) Department, Government of Assam. Accordingly, a notification under Section 4(1) of the L.A.
Act was issued and published in the official gazette on 26.02.1993. However, as the money was not deposited by the appellant, the declaration under
Section 6 could not be published. However, on 20.04.1993, the possession of the acquired land was taken over by the Collector from the respondent
No. 1 had and the said acquired land was handed over to the appellant on the same date. Thereafter, the respondent No. 1 approached this Court by
filing C.R. No. 2986/94 for expeditious release of the land acquisition compensation amount. This Court by order dated 20.06.1997, arrived at a finding
that in view of the finding that notice under Section 6 of the L.A. Act was not issued within one year from the date of declaration issued under Section
4 of the L.A. Act, there was no land acquisition proceeding in the eye of law and therefore, issuance of direction to the respondents therein to pay
compensation fixed by the Collector did not arise and therefore, this said writ petition was dismissed. The respondent No. 1 filed an appeal against the
said order, which was registered as W.A. No. 420/1997. The Hon’ble Division Bench of this Court, by referring to the various communications
had issued a direction to the effect that the Collector, Dibrugarh and the appellant herein should initiate the process under the provisions of the L.A.
Act and to expedite the acquisition process after receipt of the certified copy of this order. The writ appeal was allowed and the impugned judgment
passed by the learned Single Judge was set aside.
Pursuant to the judgment passed by the Hon’ble Division Bench of this Court in W.A. 420/1997, the land acquisition proposal was prepared
afresh as per request of the appellant vide Letter No. BD-2032/1999-2000/13 dated 17.01.2002. A fresh notice under Section 4 was issued and
published in the official gazette on 25.04.2001. Thereafter, a declaration under Section 6 was issued vide notification dated 05.03.2002, and published
in the Official Gazette of 07.03.2002. It was projected that the acquired land had already been delivered to the appellant on 20.04.1993. Dissatisfied
with the quantum of compensation awarded, the respondents No. 1 and 5 raised their objection and accordingly, a reference was made by the Deputy
Commissioner, Dibrugarh on 16.06.2005 and on receipt of the said reference, the learned District Judge, Dibrugarh registered the same as Misc.
(L.A.) Case No. 153/2005. Notice was issued on the appellant but as they did not appear, the said case proceeded ex- parte against the appellant.
However, the Government Pleader representing the Collector, had appeared in the said proceedings. The Deputy Collector has submitted a parawise
in reply to the reference petition and the records of original Case No. DRA/22/91/Pt. was also sent.
On the basis of the pleadings the following issues were framed by the learned reference Court:
Whether the market value of the acquired land awarded by the Collector is fair, adequate and reasonable? If not, whether the petitioners are
entitled to get the market value of the land as claimed for?
Whether the claimants are entitled to get enhancement of compensation for their house and  zirats over the acquired land as claimed for?
Whether the claimants are entitled to get additional compensation under the provisions of  Section 23(A) and 23(2) of the Land Acquisition Act,
1894 as amended in 1984?
Whether the claimants are entitled to get any damage compensation for their severed land  u/s 23 thirdly and fourthly of the Land Acquisition
Act, 1894?
Whether the claimants are entitled to get interest u/s 28 on the amount enhanced by the Court from the date of possession @ 9% for one year and
@ 15% from the expiry of one   year till the date of final payment?
Whether the claimants are entitled to get interest u/s. 34 on amount awarded by the  Collector from the date of possession till the date of final
payment made by the Collector?
To what other relief, if any, the Petitioners are entitled?
The respondents No. 1 to 5 examined seven witnesses including the respondent No. 1, a Senior Assistant in the office of the Collector as well as
the Lat Mandal and exhibited various documents including the certified copies of five sale deeds of similar land at Naharkatia Town in support of their
claim. In respect of issue No. 1, the learned trial Court, on examining the five sale deeds and considering the nature and situation of the land and the
then existing as well as future potential value of the acquired land, arrived at a finding that the respondents No. 1 to 5 were entitled to get
compensation @ Rs.3,01,245/- per katha. In respect of issue No. 2, by considering the award of the Collector of Rs.65,628/- as inadequate, assessed
the value zirats at Rs.79,260/- to be just and reasonable. In respect of issue No. 3, by considering the provisions of Section 23 (1-A) and Section 23 of
the L.A. Act as well as Section 23(2) of the said Act, it was held that the respondents No. 1 to 5 were entitled to an additional amount at the rate of
12% and 30% under Section 23 (1-A) and 23 (2) on the enhanced amount of compensation. In respect of issue No. 4, in rd th respect of the damage
compensation under 3 and 4 factor of Section 23 of the L.A. Act, in respect of land measuring 01 bigha-01 katha- 10 lechas of Dag No. 289 (Part),
which was left out after acquisition, the respondents No. 1 to 5 were held to be entitled to damage compensation at the rate of Rs.1,00,000/- (Rupees
One lakh only) per katha. In respect of issues No. 5 and 6, by considering the provisions of Sections 28 of the L.A. Act and Section 34 of L.A. Act,
interest was awarded at the rate of 9% for the first year from 20.04.1993 to 19.03.1994 and at the rate of 15% from 20.04.1994 till date of payment
of such excess amount. In respect of issue No. 7, it was held that the respondents No. 1 to 5 were entitled to the benefits as stated above, i.e.
enhanced compensation, additional compensation of 12% and 30%, damage compensation as well as interest and it was directed that the amount
already paid by the Collector to the respondents No. 1 to 5 should be deducted by the Collector. Accordingly, the reference case was allowed and
disposed of without cost.
Challenging the said award, the learned senior counsel for the appellant, by referring to his grounds of appeal, has submitted that the order to
proceed ex-parte against them was without satisfaction of due service of notice. Moreover, it is submitted that as the earlier process of land
acquisition had lapsed by non-issuance of declaration under Section 6, after the process was renewed by publishing of the declaration under Section 6
on 07.03.2002, the physical possession of the acquired land was not handed over to the appellant. It is submitted that the earlier delivery of possession
of land if any, on 20.04.1993, stood lapsed by the lapse of the previous land acquisition process. In this connection it is further submitted that Exts. 2
and 14 by which possession is shown to be handed over to the appellant, was absolutely unauthorized and Biren Kumar, who had signed the said
document was only a LDA and he was not authorized to receive possession of the acquired land because he was present in the site only for the
purpose of assessment of zirats and he was not authorized to take over the possession of the acquired land. It is further submitted that as per the
scheme of Land Acquisition Act, the handing over of the possession of the land would follow only after declaration of Section 6 of the L.A. Act is
made and the awarded sum is deposited. In this regard, he has referred to the provisions of Section 16 of the L.A. Act. It is also submitted that the
LCR would reveal that Exts. 2 and 14 were merely photocopies and as the original document was not proved, the delivery of possession to the
appellant had not been proved in accordance with law and therefore, without giving any finding as to whether possession of the acquired land was
handed over to the appellant, the judgment impugned herein is not sustainable.
It is also submitted that none the five sale deeds which were proved for the purpose of land valuation, were similar to the land acquired and
moreover, these land were not in the vicinity of the acquired land. It is submitted that the sale deeds pertained to small plots of land which consisted of
small shops in the market area, where apart from the value of the land, there was an inherent commercial reason for various purchasers to purchase a
land together with a running shop and therefore, the comparative assessment of the compensation was erroneous.
The learned senior counsel for the appellant has referred to a series of correspondence which is annexed to his affidavit-in-opposition to I.A.
1869/15. The said I.A. is filed by the respondents No. 1 and 5 herein under Order XLI Rule 27 CPC for permitting the respondent to adduce them
additional evidence at the appellate stage. It is submitted that by their said letters, the appellant was continuously seeking the delivery of possession of
land till the year 2008. It is submitted that he is referring to those letters to counter the documents sought to be relied on by the respondents No. 1 and
5, wherein the respondents are trying to assert that the possession of the land was handed over to the appellant from 20.04.1993.
Mr. R. De, learned counsel for the respondents No. 1 to 5, per contra, has submitted that not only the said respondents are in a position to justify
the award passed in their favour but they have also filed cross objection that is being C.O.No.7/2007, seeking further enhanced compensation on the
ground that the learned reference Court had valued enhanced compensation at a lower side. By referring to the contents of Exts. 2 and 14, it is
submitted that while notice of the said reference case was validly served on the appellant, which is duly received at the office of the appellant on
26.10.2005. The said acknowledgement card was returned to by the learned Court and based on the said acknowledgment card, the learned trial Court
by order dated 07.11.2005, took cognizance of the service of notice on the appellant and ordered case of ex-parte against the appellant. He further
submits that having failed to take their defence in the reference case, the grounds on which the appeal has been filed was not sustainable.
It is submitted that the appellant had not taken any defence at the appropriate time. It is by referring to the various sequence of events
commencing from the issuance of the first notification dated 26.02.1993, the order passed by the Hon’ble Division Bench of this Court in W.A.
420/1997 and the subsequent notification issued under Section 4 and 6 of the L.A. Act on 25.05.2001 and 07.03.2003 respectively, it is submitted that
the Hon’ble Division Bench of this Court had accepted the stand of the respondent that the possession of land in question was delivered to the
appellant on 20.04.1993. It is submitted that the issues raised by the appellant is merely a ploy to avoid payment of huge interest that has been piling
up. By referring to the Annexure A/8 of the present appeal as well as the calculation of amount due to the respondents No. 1 to 5, which is a sum of
Rs.1,77,73,620/- as on 25.05.2007 (Annexure A-9), it is submitted that when such a demand was raised by the Additional Deputy Commissioner
(REV), the appellant has filed this appeal so as to frustrate the lawful decree passed in the Reference Case. By referring to the acknowledgment
card, the learned counsel for the respondent has submitted by not appearing before the learned Reference Court, the appellant had invited ex-parte
award against themselves. As regards, the possession certificate, it is submitted that in the reference case, the Collector had appeared and they had
not disputed that possession was handed over to the appellant on 20.04.1993, rather they supported the said stand and therefore, the photocopy of
Exts. 2 and 14, having not been objected to cannot be faulted with at appellate stage. As regards, the valuation of the land for assessing compensation,
by referring to the five sale deeds, exhibited as Exts. 9 to 13, it is submitted that the learned Reference Court having examined the said exhibit had
recorded in the order sheet about the sale consideration of the said land, but still awarded inadequate compensation and therefore, not only the award
was justified but the counter claim also deserved to be allowed.
By referring to the application filed under Order XLI Rule 27 CPC, it is submitted that as there was never any dispute as regards the fact that the
possession of the acquired land was handed over to the appellant on 20.04.1993, as such, the handing over of the acquired land, being an admitted fact
ws not required to be specifically proved. Hence, because of the stand now being taken in this appeal, the respondents be permitted to adduce
additional evidence. There was no need for them to exhibit any the documents.
It is also submitted that the appellant has not produced any document to show that by virtue what sort of authorization, the person who had signed
Exts. 2 and 14 on behalf of the appellant, namely, Biren Kumar, had been present at site on the said date. Therefore, it is submitted that the appellant
has not approached this Court with clean hands. By referring to the letter dated 17.01.2000, by which the reference case was initiated, it was
submitted that prior to that, the Deputy Commissioner, Dibrugarh, by letter dated 26.11.1999, had informed the Telecom District Manager, Dibrugarh
that advance possession of the acquired land was handed over to the appellant on 20.04.1993 but the appellant never denied receipt of advance
possession and therefore, if at this appellate stage any new the documents are not permitted to be proved, the respondents No. 1 to 5 shall suffer
prejudice and therefore, he also pressed that his application for additional evidence, being I.A. 1869/15, I.A. 2645/15 is required to be allowed.
Mr. M. R. Adhikary, learned Government Advocate appearing for the respondents No. 6 and 7 has made his submissions in support of the
respondents No. 1 to 5 by referring to the records available with him, it is submitted that the possession of the acquired land was handed over to the
appellant on 20.04.1993 and further submits that the question of assessment of compensation is a dispute between the appellants and the respondents
No. 1 to 5 and therefore, he does not have anything to say as regards the quantification of compensation is concerned.
This Court has considered the diverse submissions made at the Bar. The LCR as well as the memo appeal, cross-objection and I.A. No. 1869/15
and 2645/15 have been perused. The LCR reveals that by order dated 07.10.2005 process was issued against the appellant vide Issue No. 3398/2005
dated 07.10.2005. The said process is found available in Page 16 of File ‘D’ of the LCR which reflects that the process issued under Sl. No.
3398/2005 dated 07.10.2005 was returned back unserved with the process servers report that the process was received after the date had lapsed.
However, at the pre-page 15 of File â€"‘D’, the A/D card after due service of notice is found available.
However, the order dated 07.10.2005 reflects issuance of only ‘one single’ process. There is no judicial order for issuance of any additional
notice by registered post. Therefore, in the considered opinion of this Court, as the notice was issued by usual process under Sl. No. 3398/05, the
learned trial Court ought not to have accepted due service of process sent by registered post in the absence any judicial order to allow the notice to be
served by registered post with acknowledgment due. In fact when notice that was issued under Sl. No. 3398 is found returned, no judicial notice of
contents of postal envelope in respect of which acknowledgment card is returned can be taken. Therefore, this Court is not inclined to accept that
notice of Misc. (L.A.) Case No. 153/2005 was properly served on the appellant.
Having found the defect in the issuance of notice as well as acceptance of service of notice on the appellant, this Court is inclined to remand the
matter back to the Court below as such this Court is not inclined to make any remarks on the any factual aspects of this appeal as same would cause
prejudice to either of the parties.
Hence, the Reference Court order dated 07.11.2005, passed by the learned to proceed exparte against the appellant is not found to be sustainable.
In the present case, the only dispute between the parties is related to the question as to whether the possession of the acquired land was handed over
to the appellant. Therefore, this Court is of the considered view that on remand, the learned Reference Court would frame additional issue to that
effect and would decide the matter afresh by considering all issues afresh. The Hon’ble Apex Court in the case of Jaya Prakash and Anr. Vs.
T.S. Devid and Ors.,  2018 2 SCC 294: (2018)0 Supreme (SC) 80 had approved of order of remand by the Hon’ble High Court on the ground
that the notices were not duly served. Therefore, this Court is of the considered opinion that it would be in the interest of justice for remanding the
matter back to the learned reference  Court for fresh decision after hearing both sides.
Therefore, the impugned judgment and order dated 22.08.2006 passed by the learned District Judge, Dibrugarh in Misc. (L.A.) Case No. 153/2005
is set aside and the matter is remanded back to the said learned Court for a fresh trial. This order of remand is within the meaning of Order XLI Rule
23-A CPC.
The appellant i.e., BSNL, the respondents No. 1 to 5 i.e. the Reference Petitioners, as well as the Collector (Respondents No. 6 and 7), who are
duly represented by their learned counsel shall appear before the Court of learned District Judge, Dibrugarh on 23.07.2018 without any further notice
of appearance. On the said date by producing a certified copy of this order, the parties shall seek further instructions from the said learned Court.
At this stage, the learned counsel for the respondent has submitted that he may be permitted to make a prayer before the learned Reference Court
that if it is found that the acquired land in question was handed over to the appellants on 20.04.1993, all consequential benefit should flow on the
respondents No. 1 to 5, having parted with the possession of the land way back on 20.04.1993.
Liberty as prayed is left to open to the discretion of the learned Reference Court.
As this is L.A. case of 1991, which was revived in the year 2002, the learned Reference Court may expedite the hearing.