Point of Law : In case there is no other public purpose for which the land was needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction should be utilised for the public purpose envisaged in the Directive Principles of the Constitution of India.

JUDGMENT :

Heard Ms. R. Choudhury, learned counsel for the petitioners; Mr. P.S. Deka, learned Standing Counsel, Revenue & Disaster Management Department for the respondent nos. 1 & 4; Ms. D. Borah, learned Standing Counsel, Health & Family Welfare Department for the respondent nos. 2, 3, 9 & 10; and Mr. N. Goswami, learned Junior Government Advocate, Assam for the respondent nos. 5-8.

2. The petitioners, 13 [thirteen] in nos., have claimed themselves to be successors in interest of one Amatullah Sk. By this writ petition, they have stated that they are espousing a common cause of action. It is the case of the petitioners that Amatullah Sk was the owner of a parcel of land measuring 6 Bighas and 19 Lessas [06B-19L] located at Village – Jhogra Part-II in the district of Dhubri [Erstwhile, Goalpara district]. The parcel of land was comprised of different dag nos. A plot of land measuring 2 Kathas and 12 Lessas [02K-12L] [hereinafter referred to as ‘the demised-plot’], out of the above parcel of land, was covered by Dag no. 957/787, under Khatian no. 267. There was a graveyard on a part of the subject-land, which was about 1 Katha and 5 Lessas [01K-5L] [hereinafter referred to as ‘the subject-plot’] in area. The dead bodies of the predecessors-in-interest of the petitioners were used to be cremated in the subject-plot. The entire plot of land measuring 06B-19L belonging to Amatullah Sk came to be acquired by the State Government by a land acquisition proceeding being L.A. Case no. 7/1976-77. The State Government acquired the said land for construction of a civil hospital therein. The predecessors-in-interest of the petitioners, Amatullah Sk received due compensation in connection with L.A. Case no. 7/1976-77 against his entire acquired plot of land. The land acquisition proceeding was drawn up as per the provisions of the Land Acquisition Act, 1894 [since repealed].

3. Ms. Choudhury, learned counsel for the petitioners has submitted that the subject-plot was recorded as graveyard in the revenue records prior to its acquisition. It was realized by Amatullah Sk later on that the subject-plot which was used by their family as private graveyard also got included within the acquired land and realizing such inclusion of the subject-plot, he submitted a representation before the respondent authorities in March, 1983 to exclude the subject-plot from acquisition. On receipt of the representation, the respondent no. 3 forwarded the same vide his letter dated 13.03.1984 [Annexure-2 to the writ petition] to the respondent no. 9, who in turn, requested the respondent no. 5 to cause an enquiry as to whether the subject-plot, reserved as graveyard, got included in the process of acquisition and whether the same can be derequisitioned as the subject-plot cannot be used for construction purpose. It was also mentioned therein that the original landowner was agreeable to return the compensation amount in the event of the subject-plot was returned back to them.

3.1. Ms. Choudhury has submitted that after repeal of the Land Acquisition Act, 1894, the Parliament has brought in a new Act, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [‘the 2013 Act’ and/or ‘the Act, 2013’ for short]. Section 101 of the Act has contained a provision for return of unutilized land to the original owner if the acquired land remains unutilized for a period of 5 [five] years from the date of taking over the possession of the acquired land. It is her submission that as the subject-land, measuring 01K-5L, has not been utilized till date for the purpose of construction of the civil hospital for which it was originally acquired. Thus, there is no bar to return the subject-land to the petitioners who are the successors-in-interest of the original landowners and the petitioners are ready to return the compensation amount their predecessor-in-interest had received. Submitting so, the learned counsel for the petitioners ha