Salik Uddin Ahmed And 6 Ors vs State Of Assam And 5 Ors

A.M. Bujor Barua, J

Heard Mr. N. Dhar, learned counsel for the appellants. Also heard Mr. T.C. Chutia, learned Additional Senior Govt. Advocate for the respondent.

The appellants had preferred WP(C) 95/2018 assailing amongst others the notice dated 08.12.2017 by which the four writ petitioners were required

to come forward for receiving the compensation amount of Rs. 1,36,702.00 for the acquisition of their land in connection with the expansion of the

Patharkandi by-pass in the National Highway No.44. Earlier a notice was issued in Land Acquisition Case No.10/2012-13 vide Memo No.RLA

206/2013/5 for acquisition of more or less 31 bighas 8 kathas 10 chattaks of land for construction of the by-pass.

The writ petitioners made a claim that their lands are also included in the said area of 31 bighas 8 kathas and 10 chattaks, which are sought to be

acquired for the purpose of construction of the national highway by-pass. The writ petitioners raised a claim that although their land came within 31

bighas 8 kathas 10 chattaks, but after the initial notice under Section 4 of the Land Acquisition Act, 1894 ( in short Act of 1894) was issued in the year

2013, the authorities had not taken any further action in the matter. Accordingly, it is the claim of the writ petitioners that the acquisition process had

lapsed. According to them in the event, the acquisition process had lapsed, the land can only be taken away by initiating a fresh process under the

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-settlement Act, 2013 ( in short Act of 2013) and not under

the Act of 1894.

The said contention of the petitioners clearly lead us to a situation that for the purpose of compensation, the writ petitioners are claiming it at a rate

to be determined under the Act of 2013 and not under the earlier Act of 1894. Apart from the said claim, we do not find any other claim that has been

made by the writ petitioners. In either view, irrespective of the Act under which the petitioners would be entitled to get the compensation, it ultimately

would lead to a question as to the amount of compensation that the writ petitioners are required to be paid.

But as a consequence of the notice dated 08.12.2017 being stayed by the order dated 24.01.2018, the authorities are unable to further proceed with

the construction of the by-pass on the land over which the writ petitioners are making a claim and the construction of the highway by-pass accordingly

remains incomplete.

Upon the aforesaid consideration, the learned Single Judge by the order dated 29.08.2019 in I.A.(Civil) 2384/2019 was pleased to vacate the interim

order. In doing so, the learned Single Judge arrived at its conclusion as under:-

“Having heard the arguments advanced by the learned counsel for the parties, this Court is of the opinion that subject to the question of

existing rights, if any, of the petitioners over the acquired land, the issues raised in the writ petition would ultimately boil down to the

question of payment of compensation payable to them. Since adequate relief in terms of money can be granted to the petitioners in the event

they succeed in establishing their claims, I find no justifiable reason to continue with the interim order which is stated to be coming in the

way of completion of the work of construction of the By-pass.

By granting leave to the petitioners to bring in additional pleadings, if so advised, in support of their claim in the writ petition, I vacate the

interim order dated 24.01.2018, making it clear that the claim of the petitioners, in so far as their right to receive adequate compensation is

concerned, would remain open and shall be gone into at the stage of hearing of the writ petition.â€​

The learned Single Judge clearly arrived at a conclusion that the issue in the writ petition ultimately boils down to the question of payment of

compensation and since adequate relief can be provided to the writ petitioners in terms of money, in the event they succeed in establishing their claim,

no justifiable reason could be found to continue with the interim order which came in the way of completing of the work of construction of the by-

pass.

We do not find any infirmity in the conclusion arrived at by the learned Single Judge. Learned Single Judge had given a due consideration to the

balance of convenience involved and the irreparable loss that the parties may suffer. Stopping of the construction of the highway would definitely be a

relevant factor to determine the balance of convenience and again when the petitioners can be compensated in adequate monetary terms, the element

of irreparable suffering loss would also be against the writ petitioners. As regards the prima facie case that the writ petitioners tries to make out, the

same would again depend on a successful establishment of their claim as regards the entitlement to receive the compensation and secondly as to

under which of the two Acts the compensation is to be paid or the compensation is to be paid under any other enactment or law.

From the said aspect, we do not find any infirmity in the order of the learned Single Judge. But however considering the aspect that the land of the

petitioners have been taken away since the year 2013 and they have not been paid any compensation, we are of the view that if the lands of the

petitioners were taken away, surely they would have to be paid the appropriate compensation. But again it would have to be subject to the condition

that they could establish that it was their lands that were taken over. It is stated by Mr. T.C. Chutia that the entitlement of the writ petitioners to the

compensation had also been considered in the order dated 22.06.2015 and the notice dated 08.12.2017 was issued pursuant thereof. If it is so, we

provide that pendency of the writ petition shall not be a bar on the writ petitioners to receive on protest the amount offered to them and thereafter

continue with their claim in the writ petition for an adjudication as to whether they entitled to compensation under the Act of 1894 or they are entitled

under the Act of 2013 or whether the entitlement would be under some other law. Accordingly, we make a request to the learned Single Judge to

adjudicate the said aspect of the matter as expeditiously as possible.

In terms of the above, writ appeal stands disposed of.