JUDGMENT :

S. Serto, J

Heard Mr. A.H. Borbhuiya, learned counsel appearing for the appellants. Also heard Mr. Joseph L. Renthlei, learned counsel appearing for the respondent Nos. 1 to 3 and Ms. Zairemsangpuii, learned CGC for respondent Nos. 4 and 5 and Ms. H. Lalmalsawmi, learned counsel for respondent Nos. 6 to 9.

2. On the request of the Home Ministry, the appropriate Government issued a Notification under Section 4 of the Land Acquisition Act, 1894 on 03.05.2012 and in pursuant thereto the lands of the three private respondents, (Respondent Nos. 1 to 3) were acquired for construction of 17 Border Outpost and fencing. Necessary surveys were conducted by the stakeholders including the 96th Battalion of BSF, who were then in charge of protecting the border between India and Bangladesh. In the process, the land of the respondent Nos. 1 to 3 were acquired and the Award No. 2/2013 was notified along with the compensation amount to be given to the land owners. However, when the Border posts and fencing were constructed, the lands of the private respondents were not utilized but kept outside the Border fence. Therefore, the appellants refused to give them the compensation as awarded. Being aggrieved, the three respondents came before this High Court by filing WP(C) No. 161/2015 claiming for payment of compensation. The appellants herein who were also among the respondents in the writ petition, opposed the claims of the respondents stating that the lands of the respondents were not used for construction of the Border post, therefore, there is no reason to pay compensation to them.

3. However, after hearing the parties, the learned Single Judge disposed the writ petition with the Order dated 24.10.2016 allowing the claim of the writ petitioners (the respondent Nos. 1, 2 and 3 in this appeal). The relevant portions of the Order dated 24.10.2016 are reproduced herein below:-

“7. The facts of the case show that there is no dispute to the fact that the petitioners had lands, which were covered by Land Settlement Certificate issued by the Competent Authority. It is also not disputed by the parties that the petitioners’ lands had been identified for construction of a BOP and that the petitioners’ lands were included in the Draft Award No.2/2013. It is not disputed that the lands was also within the Indian Territory. However, with the construction of the border fence by the respondent Nos. 3 and 4, the petitioners’ lands have now been placed beyond the reach of the petitioners and the respondents, as it is beyond the border fence. The above facts clearly goes to show that the respondent Nos. 3 and 4 are responsible for having constructed the fence before reaching the petitioners’ lands.

8. In view of the above, it is quite clear that the respondent Nos. 3 and 4 are responsible for the loss caused to the petitioners and as such, they are liable to pay compensation to the petitioners for denying them the compensation or in the alternative enjoyment and possession of their lands. The respondent Nos. 3 and 4 can rectify their mistake, by demolishing the present fence built by them and build a new border fence which should include the lands of the petitioners.

9. Section 48 of the Land Acquisition Act, 1894 states as follows:

“48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.---(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provisions of Part III of this Act shall apply, so fa