Dhiren Chandra Sarmah vs Hojai Municipal Board and Others

R.S. Mongia, C.J.—Heard Mr. C. Baruah, learned counsel for the appellant.

From the facts as emerge from the pleadings it is evident that on 2.6.1994 the Director, Municipal Administration, Assam, Guwahati addressed a communication to the Commissioner & Secretary to the Govt. of Assam, Municipal Administration Department, Dispur, Guwahati for granting approval for acquisition of a plot of land by Hojai Municipal Board for construction of a bus terminus at Hojai. In this communication it is mentioned that the Municipal Board had adopted a resolution in its meeting held on 24.5.1994 to acquire the plot of land measuring 6B, 1 Katha under Periodic Patta No. 7, Deg No. 13 at Hojai town for construction of a bus terminus by the Board and all the expenses for the acquisition of the land were to be borne by the Board. It is further mentioned that the matter has been discussed with the Circle Officer Hojai Revenue Circle, who has informed that necessary steps have already been initiated by the Revenue authority for the purpose of acquisition of the land as per the request of Hojai Municipal Board, but further approval is required for further processing the matter. It was under these circumstances that in the aforesaid communication Governments approval was asked for acquisition of the plot of land at the cost of Hojai Municipal Board under the provisions of Section 63(1) of the Assam Municipal Act, 1956 (for short, the Act). There was some further correspondence between the Municipal Board and the State Government and on 17.7.1995 the Under Secretary to the Govt. of Assam, Municipal Administration Department, Dispur wrote a letter to the Chairman, Hojai Municipal Board, in which it is stated as under :-

"With reference to your letter cited above on the subject, I am directed to convey the Government approval u/s 63(1) of Assam Municipal Act, 1956 for acquisition of land measuring 6 Bigha, 1 Katha, 0 Lessa at Pachim Dhaniram Pathar under P.P. No. 7, Dag No. 13 at Hojai Town for the purpose of construction of a Bus Terminus at Hojai at the cost of Hojai Municipal Board."

It seems, no further action was taken by the State Government and the Hojai Municipal Board filed a writ petition, i.e., WP(C) No. 5563/1999, in this court for directing the State Government to take necessary steps for acquiring the land in view of the aforesaid communication dated 17.7.1995. The said writ petition was disposed of on 12.11.1999 in the following terms :-

''The case of the petitioner in this writ petition is that although the Govt. has approved for acquisition of land measuring 6 Bighas, 1 Katha 0 Lessa at Pachim Dhaniram Pathar, under P.P. No. 7, Dag No. 13 at Hojai town for the purpose of construction of a Bus Terminus at Hojai at the cost of Hojai Municipal Board by its communication dated 17th July, 1995, copy of which has been annexed to this writ petition as Annexure-3, no steps has been taken by the Sub-Divisional Officer (C), Hojai Sub-Division to initiate proceeding for acquisition of the said land in accordance with rules. As a result persons are taking steps to encroach the said land by constructing walls etc.

I dispose of this writ petition with a direction that a certified copy of this order and copies of the writ petition including all annexures will be filed by the petitioner before the SDO(C), Hojai Sub-Division as well as the Deputy Commissioner, Nagaon, Assam within 2 months from the date of receipt of the said copies from the petitioner the aforesaid two authorities will initiate steps for acquisition of the said land in accordance with law and complete the acquisition of land after complying the provisions of law as early as possible."

The present appellant is the owner of the land which is sought to be acquired for the purpose of construction of the Bus Terminus at Hojai by the Municipal Board. The appellant was not a party in the writ petition. It is further stated that till today even the certified copy of the judgment of the learned Single Judge has not been made available to the appellant. However, the counsel for the appellant to the appellant. However, the counsel for the appellant has produced an uncertified copy of the judgment, which is taken on record. Section 63(1) of the Assam Municipal Act, 1956 is in the following terms :-

"63. Power to purchase, lease, sell land.- (1) A Baord may, at a meeting decide, to purchase or take on lease or by gift any land for the purpose of this Act, with the approval of the State Government."

Learned counsel for the appellant argued that as per the terms of Section 63(1) (supra), the approval of the Government was only granted to the Municipal Board to purchase the land from the land owner for the purpose of construction of Bus Terminus and, therefore, the direction of the learned Single Judge that the State Government should take steps to acquire the land for the Municipal Board would run counter to the provisions of Section 63(1) of the Act (supra). The argument proceeded that once the approval is granted u/s 63(1) of the Act by the State Government, the Municipal Board could only purchase or take on lease or by gift any land, and not by acquisition of the same under the Land Acquisition Act.

We do not agree with the learned counsel for the appellant. Admittedly, in the present case no negotiations by the Municipal Board ever took place with the appellant the owner of the land in question. Section 63(1) would only come into play if the tentative price, etc. is known and the Municipal Board wants to purchase the land, for which approval of the State Government is necessary before actually the purchase of the land is completed. From the facts as narrated above, the Municipal Board wanted the State Government to acquire the land for the Municipal Board for construction of Bus Terminus at the cost of the Municipal Board. Under the Land Acquisition Act, the Municipal cannot acquire land and has to make a request to the State Government to acquire land for the Municipal Board. Of course, the expenditure etc. and the compensation would have to be borne by the authority/organisation for whom the land is acquired by the State Government. Really speaking, the request as contained in Annexure-A dated 2.6.1994, from the Director, Municipal Administration to the State Government was for acquisition of the land for the Municipal Board. It is mentioned in that very communication that steps have already been initiated by the Revenue Authority for the purpose of acquisition of the land. Infact, for such a purposes no approval is necessary from the State Government. The State Government is to accede or not to accede to the request of the authority/organisation for whom the land is to be acquired and if it accedes to the request, it must go ahead for acquisition of the land at the cost of the Municipal Board.

We may observe that Section 63(1) of the Act, under which the approval was granted, it was really a communication acceding to the request for acquiring the land for the Municipal Board. Having done that, if the State Government sits tight over the matter, naturally, the Municipal Board can seek its remedy before an appropriate forum to direct the State Government to do its duty which precisely has been done in the present case by filing the writ petition and by the order of the learned Single Judge.

So far as the question of the appellant being not a party in the writ petition is concerned, we may observe that he was not a necessary party at all. After the notification u/s 4 of the Land Acquisition Act is issued, the appellant would step in. It will be open to him to file all possible objections u/s 5A of the Land Acquisition Act against the proposal to acquire the land. Even if his objections are rejected and a notification u/s 6 follows, still he can challenge the notification u/s 6 before an appropriate forum in accordance with law.

For the foregoing reasons, we find no infirmity in the judgment and order of the learned Single Judge.