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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
DEVASHIS BARUAH, J.
Hoineng Thadou W/o. Lt. Jamkholat Thadou – Appellant
Versus
The State Of Assam And 7 Ors. – Respondents
WP(C) 8025 of 2019
Decided on : 10-11-2022
Constitution of India, 1950 - Article 226, 300A, 31 - Constitution (Forty-Fourth Amendment) Act, 1978 - Land Acquisition Act, 1894 - Section 4 - Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Possession of Land - Challenging Forceful Taking Over Land - Application under Article 226 of Constitution of India challenging forceful taking over possession of land belonging to petitioner without following due process of law – Respondent authorities have failed to establish that they have acquired petitioner’s land in accordance with law and paid due compensation. Para 12
Finding of the Court :
Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on date of forcible dispossession - Reliance is placed on judgment of this Court in Tukaram Kana Joshi v. MIDC wherein it was held that State must comply with procedure for acquisition, requisition, or any other permissible statutory mode - State being a welfare State governed by rule of law cannot arrogate to itself a status beyond what is provided by Constitution”- In backdrop of above proposition of law as laid down by Supreme Court in both judgments and taking note of fact involved in instant case to effect that respondent authorities have failed to establish that they have acquired petitioner’s land in accordance with law and paid due compensation, this Court following direction which was issued in case of Vidya Devi(supra) and also taking into consideration submission made by counsel for respondent No.2 to effect that they want to retain land directs Principal Secretary (N) of respondent No.2 to acquire land by initiating appropriate procedure as envisaged under law and to pay compensation including rehabilitation envisaged to petitioner in accordance with provision of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
Result: Petition disposed of.
JUDGMENT :
Heard Mr. I. H. Saikia, the learned counsel for the petitioner. Also heard Mr. R. Borpujari, the learned counsel appearing on behalf of the respondent No.1 and Mr. A. Khanikar, the learned counsel appearing on behalf of the respondent Nos.2, 3, 4, 5, 7 & 8 as well as Mr. N. Goswami, the learned counsel appearing on behalf of the respondent No.3.
2. It has been submitted by Mr. A. Khanikar, the learned counsel appearing on behalf of the respondent Nos.2, 3, 4, 5, 7 & 8 that there is no post of the Circle Officer, Maibang Revenue Circle and as such the name of the said respondent No.6 may be deleted.
3. This is an application under Article 226 of the Constitution of India challenging the forceful taking over the possession of the land belonging to the petitioner without following the due process of law.
4. The case of the petitioner in brief is that her late husband Jamkholet Thadou and his ancestors were in continuous possession of a plot of land measuring 1 bigha 1 katha 19 lechas of paddy land; 1 bigha 6 lechas of homestead land, in total 2 bighas 2 kathas 5 lechas of land at village Sungbung/Semdikhor, Pargana Haflong in the district of Dima Hasao since last six decades. Thereupon the said land was brought within the ambit of Annual Khiraj Patta No.6 which was issued in favour of the husband of the petitioner for the year 2018-2019. Pursuant to the issuance of the said Annual Khiraj Patta No.6, the petitioner has been duly paying the land revenue in that regard. It is the case of the petitioner that the concerned respondent authorities, without following the due process of law, had taken over 1 bigha 1 katha 19 lechas of the paddy land of the petitioner and handed possession of the same to Maibang PWD Building Sub-Division for construction of a Community Hall in pursuance of an order No.Rev/S/4/-MoS/2019-20 dated Haflong the 7th June, 2019. Thereupon, the petitioner lodged an FIR on 12.10.2019 against the ongoing construction over her plot of land with standing crops before the Office-in-Charge of Mahur Police Station which was received vide GDE No.231/2019 dated 12.10.2019.
5. It has been further mentioned in the writ petition that the petitioner had to run from pillar to post to get back the land from the authorities. It has been also alleged that the authorities concerned did neither return the land nor pay any compensation in respect to the land of the petitioner. Having no alternative, the instant writ petition has been filed by the petitioner challenging the forceful dispossession and taking over the land belonging to the petitioner by the concerned respondent authorities and construction of the Community Hall upon the said land.
6. This Court vide the order dated 04.11.2019 issued notice to the respondents. It appears from the records that only the respondent No.5 has filed an affidavit-in-opposition. In the said affidavit-in-opposition it has been stated that the land measuring 3 bighas has been donated by the Gaonbura of Semdikhor Village as he is the custodian of the village land for the purpose of construction of Community Hall under the special package of Clause 9.3 of the Memorandum of Settlement dated 08.10.2012 between the Government of India, Ministry of Development of North Eastern Region (DoNER), Government of Assam and Dima Halam Daogah. It has been mentioned that the Ministry of DoNER had sanctioned the project for construction of Community Hall at Mahur, Dima Hasao with an estimated amount of Rs.3,00,00,000/-which would serve the larger public interest. Further to that, it has been mentioned that the Executive Engineer, PWD, Haflong Building Division vide letter No.376 dated 03.06.2019 requested the Secretary Revenue, H.C. Hills Autonomous for allotment of land for the said project proposed under the MoS Clause No.9.3. Thereafter the Lot Patowari, i/c Mahur was deputed for enquiry prior to the allotment of land for construction of the Community Hall at Semdikhor. The Lot Patowari on 04.06.2019, subm
SupremeToday
If right of property is a human right as also a constitutional right, same cannot be taken away except in accordance with law. Article 300-A of Constitution protects such right.
State's unauthorized occupation of private property without acquisition violates Article 300A; unsubstantiated donation claims rejected; delay and laches no bar to compensation for continuing wrong. ....
The main legal point established in the judgment is the mandatory requirement of prior approval by the competent authority under Section 11(1) of the Land Acquisition Act, 1894, and the prohibition o....
Public authorities must follow statutory procedures for land acquisition; failure to do so violates constitutional rights.
The court emphasized that land acquisition must follow due process, and failure to do so renders the acquisition invalid, protecting the property rights of individuals.
State as welfare entity cannot claim adverse possession over private property; must acquire with compensation or return possession. Delay and laches rejected for continuing deprivation without due pr....
Where the deprivation of property without sanction of law is admitted and clearly established, there is no difficulty in applying above principle and, as such, a petition for compensation cannot be d....
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