Wp(C) 5730/2014

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

WP(C) 5730/2014

1. Sri Ananta Ram Nath Son of Late Nabin Chandra Nath Resident of village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup Assam, PIN-781125. 2. Sri Ramesh Chandra Talukdar & 3. Sri Jogeswar Talukdar & 4. Sri Sanjay Talukdar All are sons of Late Maheswar Talukdar Residents of Village Bangara (Majpara), P.S. Palasbari, P.O. Mirza, Kamrup, Assam 5. Smt. Kashallya Talukdar Wife of Late Mowaram Talukdar Resident of Village Bangara (Majpara), P.S. Palasbari, P.O. Mirza, Kamrup, Assam 6. Sri Purna Ram Nath, 7. Sri Marmeswar Nath, 8. Sri Sabharam Nath & 9. Sri Deven Nath, All are sons of Late Dhani Ram Nath, Residents of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup, Assam, PIN-781125. 10.Sri Birahu Nath, Son of Rajin Nath, Resident of Village Bangara (Majpara), P.S. Palasbari, P.O. Mirza, Kamrup, Assam 11.Sri Prafulla Chandra Nath, Son of Late Adit Nath, Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup, Assam, PIN-781125. 12.Sri Pratap Mali, Son of Maheswar Mali, Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup, Assam, PIN-781125. 13.Sri Kamaleswar Mali, Son of Late Chakin Mali, Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup, Assam, PIN-781125. 14.Sri Manik Chandra Nath, Son of Late Chandi Nath, Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup, Assam, PIN-781125.

WP(C) 5730/2014 with WP(C) 6397/2014

15.Smt. Nirala Bala Choudhury, D/o Late Krishna Choudhury, Village Palasbari, W/No. 4, P.O. & P.S. Palashbari, Kamrup, PIN-781128 16.Smt. Bhanu Prava Kalita, Wife of Sri Suren Kalita, R/o Village Palasbari, W/No. 4, P.O. & P.S. Palashbari, Kamrup, PIN-781128 17.Sri Anil Boro, Son of Raheswar Boro, R/o Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup, Assam, PIN-781125. 18.Sri Subhash Boro @ Bharat Ch. Boro, Son of Raheswar Boro, Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup, Assam, PIN-781125. - Petitioners

-Versus- 1. The State of Assam, Represented by the Commissioner and Secretary to the Government of Assam, Department of Revenue & D.M. (L.R.), Dispur, Guwahati-781006, Assam. 2. The Union of India represented by the Secretary to the Government of India, Ministry of Human Resources Development, Shastri Bhawan, C-Wing, Dr. Rajendra Prasad Road, New Delhi-110001. 3. The Deputy Commissioner of Kamrup District, Amingaon, Guwahati-781031, Assam. 4. The Indian Institute of Information Technology, Guwahati, Represented by its Director, having its temporary Institute campus at GNB Road, Ambari, Guwahati-781001, Kamrup (Metro), Assam. 5. M/s TATA Consultancy Services Limited, Represented by its Managing Director, having its Registered Office at Nirmal Building, 9th Floor, Nariman Point, Mumbai, PIN-400021. 6. M/s Oil India Limited, Represented by its Managing Director, Having its Corporate Office at Plot No. 19, Sector-16A, Film City, Noida, Uttar Pradesh, PIN-201301. 7. M/s Novatium Solutions (P) Limited, Represented by its Managing Director, Having its Corporate Office at Plot of 2, V.G.P. Saraswathy Nagar, 1st Street, Rajakilpakkam, Chennai, PIN-600073.

WP(C) 5730/2014 with WP(C) 6397/2014

8. M/s Medhassu e-Solutions (P) Limited, Represented by its Managing Director, Having its registered office at H. NO. G-4, 2-2-647/125A, Sagarika Apartments, Central Excise Colony, Bagh Amberpet, Hyderabad, PIN-500013, Andhra Pradesh. ** 9. M/s Srei Infrastructure Finance Limited, Represented by its Managing Director, Having its Office at Vishwakarma 86C, Topsia Road (South) Kolkata-700046, West Bengal. 10. M/s Assam Electronics Development Corporation Ltd. (AMTRON), Represented by its Managing Director, Having its Office at Industrial Estate, Bamunimaidum, Guwahati-781021, Assam. (** The name of respondent No. 9 was struck off vide order dated 22.06.2015 in MC 1265/2015) - Respondents

WP(C) 6397/2014

1. Sri Deben Chandra Nath Son of Late Kateru Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 2. Mrs. Jona Nath Wife of Late Narayan Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 3. Sri Ajit Nath, Son of Late Narayan Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 4. Sri Hitesh Nath Son of Late Narayan Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 5. Smti Gahan Nath Wife of Late Krishna Nath Son of Late Narayan Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 6. Sri Kamaleswar Nath Son of Late Krishna Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 7. Sri Rameswar Nath Son of Late Krishna Nath Resident of Village Bongora, P.O. Bongora,

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P.S. Palashbari, Kamrup, Assam, PIN-781015. 8. Sri Nipen Nath Son of Late Krishna Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 9. Smti Bina Rani Talukdar Daughter of Late Beliram Talukdar Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 10. Sri Sarat Nath Son of Late Rajin Nath, Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 11. Sri Dinesh Mali Son of Late Kalicharan Mali Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup Assam, PIN-781125. 12. Sri Chandra Dhar Nath Son of Late Sambhu Ram Nath Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup Assam, PIN-781125. 13. Sri Surjya Kanta Nath Son of Late Sambhu Ram Nath Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup Assam, PIN-781125. 14. Sri Dhaneswar Nath Son of Late Sambhu Ram Nath Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup Assam, PIN-781125. 15. Sri Sarbeswar Nath Son of Late Harimohan Nath Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup Assam, PIN-781125. 16. Sri Ajit Nath Son of Bhugeswar Nath Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup Assam, PIN-781125. 17. Sri Gopi Kanta Nath Son of Late Madhab Chandra Nath Resident of Village Bongora, Haru Kaitasiddhi, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 18. Sri Manik Nath Son of Late Dhandala Nath Resident of Village Bongora, Haru Kaitasiddhi, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015.

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19. Sri Prabhat Nath Son of Dhandala Nath Resident of Village Bongora, Haru Kaitasiddhi, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 20. Sri Arun Nath Son of Dhandala Nath Resident of Village Bongora, Haru Kaitasiddhi, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 21. Sri Dilip Nath Son of Late Nabin Nath Resident of Village Bongora, Haru Kaitasiddhi, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 22. Smt. Sabita Nath Wife of Late Manik Nath Resident of Village Bongora, Haru Kaitasiddhi, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 23. Sri Munu Nath Wife of Late Tanu Ram Nath Resident of Village Bongora, Haru Kaitasiddhi, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 24. Sri Babul Das Son of Late Kalu Das Resident of Village Bongora, Haru Kaitasiddhi, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 25. Sri Girindra Nath Son of Rameswar Nath Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup Assam, PIN-781125. 26. Sri Rajani Nath Son of Late Rajat Nath Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup Assam, PIN-781125. 27. Sri Jogen Nath Son of Late Rajat Nath Resident of Village Sontola, P.O. Mirza, P.S. Palasbari, Kamrup Assam, PIN-781125. 29. Smti Nirada Nath Wife of Ningna Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 30. Sri Bipul Nath Son of Ningna Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 31. Sri Nagen Nath Son of Latge Kalaram Nath

WP(C) 5730/2014 with WP(C) 6397/2014

Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 32. Sri Maheswar Nath Son of Late Kalaram Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 33. Sri Jogen Nath Son of Late Kalaram Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 34. Sri Prafulla Nath Son of Late Bhablu Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 35. Sri Renu Nath Wife of Late Upen Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 36. Sri Kamaleswar Nath Son of Bhablu Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 37. Sri Jayanta Nath Son of Bhablu Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 38. Sri Hareswar Nath Son of Bhablu Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. 39. Sri Sibu Ram Nath Son of Late Maheswar Nath Resident of Village Bongora, P.O. Bongora, P.S. Palashbari, Kamrup, Assam, PIN-781015. - Petitioners -Versus- 1. The State of Assam, Represented by the Commissioner and Secretary to the Government of Assam, Department of Revenue & D.M. (L.R.), Dispur, Guwahati-781006, Assam. 2. The Union of India represented by the Secretary to the Government of India, Ministry of Human Resources Development, Shastri Bhawan, C-Wing, Dr. Rajendra Prasad Road, New Delhi-110001.

WP(C) 5730/2014 with WP(C) 6397/2014

3. The Deputy Commissioner of Kamrup District, Amingaon, Guwahati-781031, Assam. 4. The Indian Institute of Information Technology, Guwahati, Represented by its Director, having its temporary Institute campus at GNB Road, Ambari, Guwahati-781001, Kamrup (Metro), Assam. 5. M/s TATA Consultancy Services Limited, Represented by its Managing Director, having its Registered Office at Nirmal Building, 9th Floor, Nariman Point, Mumbai, PIN-400021. 6. M/s Oil India Limited, Represented by its Managing Director, Having its Corporate Office at Plot No. 19, Sector-16A, Film City, Noida, Uttar Pradesh, PIN-201301. 7. M/s Novatium Solutions (P) Limited, Represented by its Managing Director, Having its Corporate Office at Plot of 2, V.G.P. Saraswathy Nagar, 1st Street, Rajakilpakkam, Chennai, PIN-600073. 8. M/s Medhassu e-Solutions (P) Limited, Represented by its Managing Director, Having its registered office at H. NO. G-4, 2-2-647/125A, Sagarika Apartments, Central Excise Colony, Bagh Amberpet, Hyderabad, PIN-500013, Andhra Pradesh. 9. M/s Srei Infrastructure Finance Limited, Represented by its Managing Director, Having its Office at Vishwakarma 86C, Topsia Road (South) Kolkata-700046, West Bengal. 10. M/s Assam Electronics Development Corporation Ltd. (AMTRON), Represented by its Managing Director, Having its Office at Industrial Estate, Bamunimaidum, Guwahati-781021, Assam. - Respondents For the petitioners : Mr. A. Chamua, Mr. C. P. Sarma, Advocates, For respondent Nos. 1 and 3 : Mr. Y. Doloi, Addl. Advocate General, Assam, Mr. T. C. Chutia, Government Advocate, Mr. D. Nath, Government Advocate, For respondent No. 2 : Mr. H. Gupta, Advocate, For respondent No. 6 : Mr. A. Sarma, Advocate, Date of hearing : 20.12.2016 and 24.01.2017.

Date of judgement : 15.03.2017.

WP(C) 5730/2014 with WP(C) 6397/2014

BEFORE HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI

JUDGEMENT AND ORDER

The relevant facts, shortly, as projected by the writ petitioners in both the writ petitions, namely, WP(C) 5730/2014 and WP(C) 6397/2014, are that the Government of India and the Government of Assam had collaborated with six private/public companies for the purpose of establishment of an institute, namely, Indian Institute of Information Technology, Guwahati (hereinafter referred to as “Institute”). While the share of Ministry of Human Resources Development Department of Government of India is 57.5%, that of Government of Assam is 35%. The other entities comprised the balance of 7.5% shares.

2. For the purpose of setting up of the Institute, a notification dated 25.05.2012 under Section 4 of the Land Acquisition Act, 1894 (for short, “the LA Act”), issued by the Government of Assam in LA Case No. 2/12, was published in the Assam Gazette (Extraordinary) on 13.07.2012, whereby the Government of Assam proposed to acquire about 222 Bigha 0 Katha 5 Lecha of land in village Sontola under Chayani Mouza of Palasbari Revenue Circle in the District of Kamrup (Rural). Apart from LA Case No. 2/12, LA Case No. 1/12, LA Case No. 11/12 and LA Case No. 12/12 were also started and, in the notification dated 25.05.2012 LA Case No. 11/12 and LA Case No. 12/12 were included for acquisition of land. In LA Case No. 11/12, the total area of land to be acquired was 27 Bigha 3 Katha 17 Lecha and, in LA Case No. 12/12, the total area of land was 46 Bigha 0 Katha 19 Lecha, totaling 73 Bigha 4 Katha 8 Lecha. Thus, the total area of land sought to be acquired was 296 Bigha 1 Lecha. The petitioners in these writ petitions are some of the land owners of part of the land sought to be acquired. The total land of the petitioners in WP(C) 5730/2014 is 45 Bigha 3 Katha 8 Lecha and that of the petitioners in WP(C) 6397/2014 is 39 Bigha 1 Katha 11 Lecha.

3. In WP(C) 6397/2014, land is acquired in respect of the petitioner Nos. 1 to 10 and 24 under LA Case No. 1/12 and, that of the petitioner Nos. 11 to 23 and 25 to 39 under LA Case No. 2/2012. Though not very clearly stated in the writ petition, it appears that the land of the writ petitioners in WP(C) 5730/2014 is covered under LA Case No. 2/12.

WP(C) 5730/2014 with WP(C) 6397/2014

4. In both the writ petitions, additional affidavit was filed by the petitioners on 07.04.2015. In the said additional affidavit, it is pleaded that by letter dated 12.11.2013, issued by the Government of Assam, the Deputy Commissioner, Kamrup (Rural), Amingaon, was required to furnish fresh Draft Notification under Section 4 and Draft Declaration under Section 6 in LA Case No. 2/12 if the requiring department was still interested in acquisition of the proposed land as the notification in LA Case No. 2/12, issued under Section 4 of the LA Act, had lapsed. Accordingly, fresh notification under Section 4 was issued on 04.12.2013. It is further pleaded that in respect of LA Case Nos. 1/12, 11/12 and 12/12 also, fresh notifications under Section 4 of the LA Act were issued in the month of December, 2013.

5. It is pleaded that till 31.08.2014, about 296 persons had not received or accepted award and, therefore, an un-dated notice was published by the respondent No. 3 to accept the award/compensation and requesting them to submit the requisite documents for the purpose. Respondent No. 3 made payment to the petitioners in their respective bank accounts in the month of September, 2014, but majority of the persons, whose land had been acquired, had not been paid.

6. At this stage, it must be put on record that the foundation of both the writ petitions rests on an erroneous premise, as reflected in the pleadings, that the Right to fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, “2013 Act”) came into effect on 27.09.2013. The basic grounds why the land acquisition proceedings in question are liable to be quashed and/set aside are set out in identical words in paragraph 15 of WP(C) 5730/2014 and paragraph 16 of WP(C) 6397/2014.

7. The prayers made in the writ petitions are (i) to quash Land Acquisition Cases No. 1/12, 2/12, 11/12 and 12/12, (ii) to direct the respondent Nos. 1 and 2 to initiate de novo proceedings under 2013 Act, (iii) to direct the respondents to pay compensation and other benefits to the petitioners in terms of 2013 Act and (iv) to direct the respondent Nos. 1 and 2 to fix a reasonable time limit to complete the land acquisition proceedings and to pay compensation after affording appropriate hearing to the petitioner under the 2013 Act within a specified time limit after grant of appropriate hearing to the petitioners.

WP(C) 5730/2014 with WP(C) 6397/2014

8. In WP(C) 5730/2014, respondent No. 3 filed an affidavit on 23.06.2015. In the said affidavit it is stated that Section 4 notification dated 25.05.2012, for acquisition of 222 Bigha 0 Katha 5 Lecha of land at village Sontola, notification dated 12.10.2012 for acquisition of 27 Bigha 3 Katha 17 Lecha of land at village Maliata, and notification dated 25.05.2012 for acquisition of 63 Bigha 2 Katha 10 Lecha of land at village Bongora, totaling 313 Bigha 1 Katha 12 Lecha of land for establishment of the Institute were published in the Gazette on 13.07.2012, 16.11.2012 and 14.06.2012, respectively. While hearing objections, nobody objected to establishment of the Institute and, accordingly, objections were disposed of 23.09.2013. However, vide letter dated 12.11.2013 the Government opined that the Draft Notifications under Section 4(1) had lapsed and asked to furnish fresh Draft Notification under Section 4(1) along with Draft Notification under Section 6(1) under the LA Act in LA Case No. 2/12 if the requiring department [Higher Education (Technical)] was still interested in acquisition of the proposed land. The requisitioning department requested to submit acquisition proposal for land with a minimum area of 300 Bigha from the selected plot adjacent and contiguous to the plot of land acquired for IT Park. Accordingly, vide letter dated 25.11.2013, fresh Draft Notification under Section 4(1) and Draft Declaration under Section 6 in LA Case No. 2/12 for acquisition of land measuring 222 Bigha 0 Katha 5 Lecha at village Sontola were forwarded to the Government invoking Section 17(4) of the LA Act for approval. The Government accorded approval of Draft Notification issued in terms of Section 4(1) along with Section 17(4) on 04.12.2013. Section 4 Notification was thereafter published in the Gazette on 09.12.2013 and publication was also made in local newspapers. Section 6 notification was approved by the Government on 18.12.2013 and the same was published on 19.12.2013 in the Gazette and the declaration was also duly published in local newspapers.

9. So far as LA Case No. 1/12 is concerned, it is stated that in view of lapsed notifications in LA Case No. 1/12, fresh Draft Notification was sent to the Government on 22.11.2013 invoking urgency clause under Section 17(4) of the LA Act. The Government approved the notification on 17.12.2013. Declaration under Section 6(1) was forwarded to the Government on 20.12.2013 and the same was approved on 21.12.2013. Gazette Notification was accordingly published on 21.12.2013 and paper publication was also made on 23.12.2013. In LA Case No. 11/12, for acquisition of land measuring 227 Bigha 3 Katha 7 Lecha in village Maliata, which had also lapsed,

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fresh Draft Notification under Section 4(1) invoking Section 17(4) was forwarded to the Government on 18.12.2013 and the same was duly approved on 19.12.2013 and was also published in the Gazette on that very day. Declaration under Section 6(1) was approved by the Government on 20.12.2013 and Gazette Notification was published on 21.12.2013. Paper publications were also made in respect of both Section 4 and Section 6 Notifications on 23.12.2013.

10. It is pleaded that award having been passed in LA Case No. 1/12, 2/12 and 11/12 on or before 31.12.2013, the exercise had been completed before the 2013 Act came into force. It is also stated that 80% of the awardees had accepted their compensation in LA Case Nos. 1/12, 2/12 and 11/12.

11. The contents of the affidavit filed by the Deputy Commissioner in WP(C) 6397/2013 is more or less in the same vein as in the affidavit filed in WP(C) 5730/2014. It is averred that non-payment of compensation had occasioned due to family disputes in respect of 7 pattadars in LA Case No. 1/12, 6 pattadars and 9 tenants, totaling 15 in respect of LA Case No. 2/12 and 1 pattadar in LA Case No. 11/12. It is also averred that in the aforesaid three land acquisition cases the total number of persons eligible for compensation was 324.

12. In the affidavit-in-replies filed in both the writ petitions, it is stated that the Deputy Commissioner, Kamrup (Rural) had forwarded the awards in LA Cases No. 1/12, 2/12 and 11/12 to the Government and the Government of Assam had approved the awards on 09.01.2014 and, thereafter, the Deputy Commissioner passed final awards declaring compensation to the land owners on 10.01.2014. It is also stated that physical possession of the land was handed over to the Institute on 30.04.2014. In the said reply affidavits, the writ petitioners stated that possession was delivered and award was passed after coming into force of 2013 Act. In these reply affidavits, the date of coming into force of the 2013 Act is correctly reflected as 01.01.2014.

13. In both the cases, one more additional affidavit was filed by the petitioners on 17.01.2017 to bring on record certain documents. In the said affidavit it is stated that in all the three land acquisition cases, the award that was passed is less than the land acquisition estimate. The petitioners had enclosed documents which they had obtained by filing application under RTI Act. On 23.01.2017, respondent No. 3 filed a

WP(C) 5730/2014 with WP(C) 6397/2014

reply affidavit in connection with the additional affidavit filed by the petitioners, primarily, seeking to explain the discrepancy sought to be raised in the additional affidavit with regard to difference in the land acquisition estimate and the award passed.

14. Mr. Chamua, learned counsel for the petitioners has submitted that it is wholly incorrect that the awards were passed by the Deputy Commissioner, Kamrup (Rural)/Collector on 31.12.2013 and, in fact, the Deputy Commissioner passed the awards after approval was accorded by the Government on 09.01.2014. He has specifically drawn the attention to pages 174 to 179 of the Paper Book prepared in connection with WP(C) 5730/2014 and has submitted that when it is apparent that awards were approved by the Government on 09.01.2014, in view of first proviso to Section 11(1) of the LA Act, it cannot be said that awards were passed by the Deputy Commissioner on 31.12.2013. Therefore, he contends that there is no manner of doubt that the awards were passed only after coming into force of the 2013 Act. Pressing into service Section 24(1)(a) of the 2013 Act, he has accordingly contended that all the provisions of the 2013 Act will have to be applied for the purpose of determination of compensation. Relying on the provision of Section 24(2) of the 2013 Act with reference to pages 181 and 184 of the Paper Book, which are replies to the applications made under the RTI Act, he has submitted that the petitioners are entitled to compensation under the provisions of 2013 Act as, on 26.11.2014, only 95 land owners had been paid compensation and 225 land owners were yet to be paid. Accordingly, he has submitted that the petitioners are entitled to compensation under 2013 Act and, therefore, appropriate directions may be issued to the respondents to grant compensation and benefits as available under the 2013 Act. He has also placed before the Court photocopies of the relevant note-sheets of Department of Revenue and DM (LR Branch) File No. RLA 191/2012 containing 31 pages in respect of LA Case No. 2/12, File No. RLA 192/2012 in LA Case No. 1/12 containing 15 pages, and File No. RLA 327/2012 in LA Case No. 11/2012 containing 11 pages, which were furnished to him on by the SPIO and Deputy Secretary to the Government of Assam, Revenue and DM Department. In order to buttress his arguments, Mr. Chamua has placed reliance on the cases of State of U.P. and Others vs. Rajiv Gupta and Another, reported in (1994) 5 SCC 686, Bailamma (Smt) alias Doddabailamma (dead) and Others vs. Poornaprajna House Building Cooperative Society and Others, reported in (2006) 2 SCC 416. He had also referred to the case of Darshan Lal Nagpal (dead) by

WP(C) 5730/2014 with WP(C) 6397/2014

LRS. vs. Government of NCT of Delhi and Others, reported in (2012) 2 SCC 327, which was rendered in the context of Section 17(1) and 5-A of the LA Act.

15. Mr. Y. Doloi, learned Additional Advocate General, Assam, has produced relevant records of the land acquisition proceedings and has submitted that the awards were passed in the three land acquisition cases on 31.12.2013, i.e., before coming into force of the 2013 Act and the arguments advanced by the learned counsel for the petitioners that the awards were passed on 10.01.2014 is entirely misconceived. Mr. Doloi submitted that awards were made by the Collector on 31.12.2013 in Form 15 in terms of paragraph 65 of Assam Land Acquisition Manual. Mr. Doloi has produced three files of the office of the Deputy Commissioner in respect of LA Case No. 1/12, LA 2/12 and LA 11/12.

16. In view of the arguments of the learned counsel for the parties, the issue that has arisen for consideration of this Court is as to whether the awards were passed by the Deputy Commissioner, Kamrup (Rural)/Collector in respect of the land acquisition proceedings initiated under the LA Act before coming into force of the 2013 Act on 01.01.2014? The other issue that will require consideration of the Court is as to whether the petitioners are entitled to compensation under the provisions of the 2013 Act as, according to the petitioners, majority of the land owners had not been paid compensation amount.

17. The first issue arising for consideration rests on Section 24(1)(a) of the 2013 Act and the second issue is relatable to the proviso to Section 24(2) of the 2013 Act. It is because of Section 24(1)(a) that the date of passing of the award has assumed crucial significance. Section 24 of the 2013 Act is reproduced herein below:

“24. (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceeding initiated under the Land Acquisition Act, 1894, - (a) Where no award under Section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or (b) Where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

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(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of the Act. Provided that where an award has been made and compensation in respect of a majority of land holding has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.”

18. Section 24(1)(a) provides that in any case of land acquisition proceeding initiated under the LA Act, when no award under Section 11 had been made, then, all provisions of the Act of 2013 relating to the determination of compensation shall apply. In other words, if no award had been made under the provisions of LA Act before the Act of 2013 came into force, it will be mandatory to apply all provisions of the Act of 2013 relating to the determination of compensation. As a logical corollary it follows that a fresh exercise has to be carried out by the Collector to pass an award. Section 24(1)(b) provides that if an award under Section 11 of LA Act was made before coming into force of 2013 Act, then such proceeding initiated under LA Act shall continue under the LA Act as if the LA Act was not repealed by the 2013 Act. Thus, Section 24(1)(a) and Section 24(1)(b) operate in two different fields.

19. Section 24(2) provides that notwithstanding what is contained in Section 24(1), in case where an award was made under Section 11 of the LA Act five years or more prior to the commencement of the 2013 Act but physical possession of the land had not been taken or the compensation had not been paid, the said LA proceedings shall be deemed to have lapsed and appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of the 2013 Act. Proviso to Sub-Section 24(2) provides that where an award under Section 11 had been made five years or more prior to the

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commencement of the 2013 Act and possession had been taken but compensation in respect of majority of the land holdings had not been deposited, then, all beneficiaries specified in the Notification under Section 4 of the LA Act shall be entitled to compensation in accordance with the provisions of 2013 Act.

20. According to the petitioners the awards were passed after coming into force of the 2013 Act while the State respondents contend that awards were passed on 31.12.2013. Proviso to Section 24(2) of 2013 Act will come into play only if award was made under Section 11 of the LA Act five years or more prior to the coming into force of 2013 Act coupled with the fact that compensation in respect of majority of land holdings had not been deposited in the account of the beneficiaries. In that view of the matter, the argument advanced by Mr. Chamua that the petitioners are entitled to compensation under the 2013 Act on the ground that majority of the land holders have not been paid compensation has no merit.

21. The first proviso to Section 11(1) of the LA Act provides that no award shall be made by the Collector without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorize in that behalf. The Second proviso to Section 11(1) provides that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in that behalf.

22. Page Nos. 16 and 17 of LA Case No. 2/12 of the file of Revenue and DM (LR) Department are relevant. Accordingly, the relevant portion of the aforesaid pages are quoted herein-below:

“Additional C.S. Notes from Sl. 14/N-15/N.

DC, Kamrup has submitted L.A. Estimate in respect of L.A. Case No. 2/2012 in connection with acquisition of land measuring 222 Bigha 0 Katha 5 Lessas at Village-Sontala, Mouza-Chayani in Kamrup District for construction of IIIT, Guwahati (Sl. 58c – 59c). Declaration u/s 6(1) of the L.A. Act, 1894 in respect of the said L.A. Case has been published in the Gazette (S. 55c – 57c). The L.A. Estimate amounting to Rs. 21,04,37,543.00 (Rupees twenty one crore four lakh thirty seven thousand five hundred forty

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three) only – details of which is shown at office note at pre-page may kindly be approved.

Submitted. Sd/- (Illegible) 31.12.13 Deputy Secretary

Minister, R&DM May kindly approve. Sd/- (Illegible) 31.12.13 ACS Approved Sd/-(Illegible) 31.12.13 31.12.2013” ______“No. RLA 191/2012/66 Dtd. 31.12.2013 No. LA 2/2012/1727-28 dtd. 31.12.2013 received from ADC, Kamrup, Amingaon. Dy. Secy (D.D.) Sl. 67-79c may kindly be seen. ADC, Kamrup has furnished Award in respect of LA case No. 2/2012 for a/l at Sontola for establishment of IIIT, Guwahati. On examination, the Award amounting to Rs. 19,12,75,316/- (Rupees nineteen crore twelve lakh seventy-five thousand three hundred sixteen)only is found to tally with the compensation amount in the approved LAE (Sl. 59c). Names of the Award claimants also found to tally with the names recorded in the Citha/Jamabadi & Zirat assessment copy. Submitted. Sd/-(Illegible) 31/12/13

Additional C.S. Notes prepage and above. ADC, Kamrup has submitted Award in respect of L.A. Case No. 2/2012 in connection with acquisition of land measuring 222 Bigha-0

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Katha – 5 Lessas in Village-Sontola, Mouza Chayani in Kamrup District for construction of IIIT, Guwahati (Sl. 67c – 79c). The award amounting to Rs. 19,12,75,316.00 (Rupees nineteen crore twelve lakh seventy five thousand three hundred sixteen) only may kindly be approved. The L.A. Estimate of the L.A. Case has already been issued vide order at Page-16N. Submitted. Sd/-(Illegible) 9.1.2014 Deputy Secretary

Approved Sd/-(Illegible) 09.01.14 ACS, R&DM

Sd/-(Illegible) 09.01.2014”

23. Relevant portions of page Nos. 12 and 13 of LA Case No. 1/12 of the file of Revenue and DM (LR) Department are also reproduced below: “Additional C.S. Notes from Sl. 10/N-11/N.

ADC, Kamrup has submitted L.A. Estimate in respect of L.A. Case No. 1/2012 in connection with acquisition of land measuring 63 Bigha 2 Katha 10 Lessas at Village-Bangra, Mouza-Chayani in Kamrup District for construction of IIIT, Guwahati (Sl. 43c – 44c). Declaration u/s 6(1) of the L.A. Act, 1894 in respect of the said L.A. Case has been published in the Gazette (S. 40c – 42c). The L.A. Estimate amounting to Rs. 5,95,22,122.00 (Rupees five crore ninety-five lakh twenty two thousand one hundred twenty- two) only – details of which is shown at office note at pre-page may kindly be approved. Submitted. Sd/- (Illegible) 31.12.13 Deputy Secretary

Minister, R&DM May kindly approve.

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Sd/- (Illegible) 31.12.13 ACS Approved Sd/-(Illegible) 31.12.13 Sd/- (Illegible) 31.12.13” ______

“No. RLA 192/2012/45 Dtd. 31.12.2013 No. LA 1/2012/1719-21 dtd. 31.12.2013 received from ADC, Kamrup Dy. Secy (D.D.) Sl. 46-53c may kindly be seen. Approved LAE has been issued to all concerned vide Sl. 45c. ADC, Kamrup, has furnished Award in respect of LA Case No. 1/2012 for a/l at village-Bongara for establishment of IIIT, Guwahati, seeking necessary approval. On examination the Award amounting to Rs. 5,41,02,000/- (Rupees five crore forty-one lakh two thousand) only is found to tally with the compensation amount in the approved LAE at Sl. 44c. Names of the Award claimants in the Awardees list also tally with the names recorded in the land records. Now, we may perhaps approve the Award with the approval of Addl. C.S. Submitted. Sd/-(Illegible) 31/12/13

Additional C.S. Notes pre-page and above. ADC, Kamrup has submitted Award in respect of L.A. Case No. 1/2012 in connection with acquisition of land measuring 63 Bigha-2 Katha – 10 Lessas in Village-Bongara, Mouza Chayani in Kamrup District for construction of IIIT, Guwahati (Sl. 46c – 53c). The award amounting to Rs. 5,41,02,000.00 (Rupees five crore forty-one lakh two thousand three hundred sixteen) only may kindly be approved.

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The L.A. Estimate of the L.A. Case has already been issued vide order at Page-12N. Submitted. Sd/-(Illegible) 9.1.2014 Deputy Secretary

Approved Sd/-(Illegible) 09.01.14 ACS/R&DM

Sd/-(Illegible) 09.01.2014”

24. Relevant portions of page Nos. 10 and 11 of the file of Revenue and DM (LR) Department, in respect of LA Case No. 11/2012 are also reproduced below: “Additional C.S. Notes from Sl. 8/N-9/N.

DC, Kamrup has submitted L.A. Estimate in respect of L.A. Case No. 11/2012 in connection with acquisition of land measuring 27 Bigha 3 Katha 17 Lessas at Village-Maliata, Mouza-Chayani in Kamrup District for construction of IIIT, Guwahati (Sl. 41c – 42c). Declaration u/s 6(1) of the L.A. Act, 1894 in respect of the said L.A. Case has been published in the Gazette (S. 39c – 40c). The L.A. Estimate amounting to Rs. 2,60,30,383.00 (Rupees two crore sixty lakh thirty thousand three hundred eighty three) only – details of which is shown at office note at pre-page may kindly be approved. Submitted. Sd/- (Illegible) 31.12.13 Deputy Secretary

Minister, R&DM May be approved. Sd/- (Illegible) 31.12.13 ACS Approved Sd/-(Illegible)

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31.12.13 Sd/- (Illegible) 31.12.13” ______

“No. RLA 327/2012/43 Dtd. 31st Dec,2013 No. LA 11/2012/1722-24 dtd. 31.12.2013 received from ADC, Kamrup, Amingaon

Dy. Secy (D.Das) Sl. 44c-48c may kindly be seen. The Additional Deputy Commissioner, Kamrup, Amingaon, has submitted Award Statement amounting to Rs. 2,36,60,040.00 (Rupees two crore thirty-six sixty thousand forty) only is respect of L.A. Case No. 11/2012 for approval. The Award amount tally with that of approval L.A.E. and names of awardees list tally with the Jamabandi. Now, we may perhaps approve the Award with the approval of Addl. Chief Secy. Sd/-(Illegible) 31/12/13

Additional C.S. Notes prepage and above. ADC, Kamrup has submitted Award in respect of L.A. Case No. 11/2012 in connection with acquisition of land measuring 27 Bigha-3 Katha – 17 Lessas in Village-Matiala, Mouza Chayani in Kamrup District for construction of IIIT, Guwahati (Sl. 44c – 58c). The award amounting to Rs. 2,36,60,040.00 (Rupees two crore thirty-six sixty thousand forty) only may kindly be approved. The L.A. Estimate of the L.A. Case has already been issued vide order at Page-10N. Submitted. Sd/-(Illegible) 9.1.2014 Deputy Secretary

Approved Sd/-(Illegible) 09.01.14 ACS, R&DM

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Sd/-(Illegible) 09.01.2014”

25. The three letters dated 31.12.2013 at pages 174, 175 and 176 of the Paper- book of WP(C) No. 5730/2014, on which reliance was placed by Mr. Chamuah, are letters dated 31.12.2013 issued by the Additional Deputy Commissioner, Kamrup, and which are mentioned in the notes above are also reproduced herein below for better appreciation: (i)

“GOVERNMENT OF ASSAM OFFICE OF THE DEPUTY COMMISSIONER: KAMRUP: AMINGAON (LAND ACQUISITION BRANCH)

No. LA 2/2012/1727-28 Date: 31.12.2013

To The Deputy Secretary to the Government of Assam, Revenue & D.M. (L.R.) Department, Dispur, Ghy-781006 Sub: Submission of Award Statement along with Proceeding (Form- 15) in connection with acquisition of land for construction of IIIT, Guwahati under Palasbari Revenue Circle in Kamrup District.

Sir,

With reference to the subject cited above, I have the honour to submit herewith Award Statement 2(two) copies along with Proceeding (Form-15) 2(two) copies duly signed by the i/c Deputy Commissioner & Collector, Kamrup, Amingaon in LA Case No. 2/2012 in connection with acquisition of land for construction of IIIT, Guwahati, under Palasbari Revenue Circle in Kamrup District in anticipation of the placement of fund by the requiring department for your information & necessary action.

Yours faithfully, Encl-As stated Sd/- Addl. Deputy Commissioner, Kamrup, Amingaon”

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(ii)

“GOVERNMENT OF ASSAM OFFICE OF THE DEPUTY COMMISSIONER: KAMRUP: AMINGAON (LAND ACQUISITION BRANCH)

No. LA 1/2012/1719-21 Date: 31.12.2013

Sir,

With reference to the subject cited above, I have the honour to submit herewith Award Statement 2(two) copies along with Proceeding (Form-15) 2(two) copies duly signed by the i/c Deputy Commissioner & Collector, Kamrup, Amingaon in LA Case No. 1/2012 in connection with acquisition of land for construction of IIIT, Guwahati, under Palasbari Revenue Circle in Kamrup District in anticipation of the placement of fund by the requiring department for your information & necessary action.

Yours faithfully, Encl-As stated Sd/- Addl. Deputy Commissioner, Kamrup, Amingaon” (iii) “GOVERNMENT OF ASSAM OFFICE OF THE DEPUTY COMMISSIONER: KAMRUP: AMINGAON (LAND ACQUISITION BRANCH)

No. LA 11/2012/1722-24 Date: 31.12.2013

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IIIT, Guwahati under Palasbari Revenue Circle in Kamrup District.

Sir,

With reference to the subject cited above, I have the honour to submit herewith Award Statement 2(two) copies along with Proceeding (Form-15) 2(two) copies duly signed by the i/c Deputy Commissioner & Collector, Kamrup, Amingaon in LA Case No. 11/2012 in connection with acquisition of land for construction of IIIT, Guwahati, under Palasbari Revenue Circle in Kamrup District in anticipation of the placement of fund by the requiring department for your information & necessary action.

Yours faithfully, Encl-As stated Sd/- Addl. Deputy Commissioner, Kamrup, Amingaon”

26. From the above, it appears that in all the aforesaid three LA Cases, land acquisition estimates were approved on 31.12.2013 and by letters dated 31.12.2013 Award Statement along with proceeding (Form 15) in connection with acquisition of land for construction of IIIT in respect of LA Case Nos. 1/12, 2/12 and 11/12 in respect of the three LA Cases were submitted to the Government.

27. The three letters dated 09.01.2014, which are at pages 177, 178 and 179 of the Paper-book of WP(C) 5730/2014, are also reproduced hereinbelow:

(i)

“GOVERNMENT OF ASSAM REVENUE & D.M. (LR) DEPARTMENT ASSAM SECRETERIAT (CIVIL), DISPUR, GUWAHATI-6

No. RLA 191/2012/80 Dated Dispur, the 9th January, 2014. From : Shri D. Das, ACS, Deputy Secretary to the Govt. of Assam, Revenue and D.M. (LR) Department. To : The Deputy Commissioner, Kamrup, Amingaon

Sub : Approved Award in respect of LA. Case No. 2/2012 for

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acquisition of land for construction of IIIT, Guwahati at village- Sontola, Mouza-Chayani in Kamrup District. Ref : Your letter No. LA.2/2012/17276-28 dtd. 31.12.2013.

Sir, I am directed to forward herewith an approved copy of the Award amounting to Rs. 19,12,75,316.00 (Rupees nineteen crore twelve lakh seventy five thousand three hundred sixteen) only in respect of LA. Case No. 2/2012 in connection with acquisition of land for above named project for taking necessary action from your end. Yours faithfully,

Sd/- Deputy Secretary to the Govt. of Assam, Revenue & D.M. (LR) Department” (ii)

“GOVERNMENT OF ASSAM REVENUE & D.M. (LR) DEPARTMENT ASSAM SECRETERIAT (CIVIL), DISPUR, GUWAHATI-6

No. RLA 192/2012/54 Dated Dispur, the 9th January, 2014. From : Shri D. Das, ACS, Deputy Secretary to the Govt. of Assam, Revenue and D.M. (LR) Department. To : The Deputy Commissioner, Kamrup, Amingaon

Sub : Approved Award in respect of LA. Case No. 1/2012 for acquisition of land for construction of IIIT, Guwahati at village- Sontola, Mouza-Chayani in Kamrup District. Ref : Your letter No. LA.1/2012/1719-21 dtd. 31.12.2013.

Sir, I am directed to forward herewith an approved copy of the Award amounting to Rs. 5,41,02,000.00 (Rupees five crore forty-one lakh two thousand) only in respect of LA. Case No. 1/2012 in connection with acquisition of land for above named project for taking necessary action from your end. Yours faithfully,

Sd/- Deputy Secretary to the Govt. of Assam, Revenue & D.M. (LR) Department”

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(iii)

“GOVERNMENT OF ASSAM REVENUE 7 D.M. (LR) DEPARTMENT ASSAM SECRETERIAT (CIVIL), DISPUR, GUWAHATI-6

No. RLA 327/2012/849 Dated Dispur, the 9th January, 2014. From : Shri D. Das, ACS, Deputy Secretary to the Govt. of Assam, Revenue and D.M. (LR) Department. To : The Deputy Commissioner, Kamrup, Amingaon

Sub : Approved Award in respect of LA. Case No. 11/2012 for Acquisition of land for construction of IIIT, Guwahati at village- Sontola, Mouza-Chayani in Kamrup District. Ref : Your letter No. LA. 11/2012/1722-24 dtd. 31.12.2013.

Sir, I am directed to forward herewith an approved copy of the Award amounting to Rs. 2,36,60,040.00 (Rupees two crore thirty six lakh sixty thousand forty) only in respect of LA. Case No. 11/2012 in connection with acquisition of land for above named project for taking necessary action from your end. Yours faithfully,

Sd/- Deputy Secretary to the Govt. of Assam, Revenue & D.M. (LR) Department”

28. The aforesaid three letters were issued based on the approval granted by the Additional Chief Secretary, Revenue and DM Department, on 09.01.2014.

29. The extracts of the note-sheets go to show that the estimates submitted in connection with the three LA Cases were approved by the Minister concerned 31.12.2013. What was approved on 31.12.2013 was the estimate. It is also evident that awards in the three land acquisition cases in Form-15 were submitted to the Government by the Collector on 31.12.2016. The approval of the estimate by the Government is not one and the same thing as the approval of the award passed by the Collector.

30. In Rajiv Gupta (supra), the Supreme Court held that under first proviso to Section 11 of the LA Act, no award can be made by the Collector without the previous approval of the appropriate Government or of such officer as the

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appropriate Government may authorize in that behalf. Such approval is a condition precedent for passing of an award.

31. In Bailamma (Smt) (supra), the Supreme Court laid down that the Collector is required to send his award to the Government for approval . It is further observed that an award shall not be made by the Collector without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorize and, therefore, before an award can be said to have been made, it is mandatory that it must be approved by the Government or the officer authorized in this behalf. It was also held that the award which had already been signed by the Collector becomes an award as soon as it is approved by the Government without any alteration.

32. The note sheets demonstrate that the Deputy Secretary had put up notes on 09.01.2014 in all the three cases indicating that the awards had been submitted and the same may be approved. The Additional Chief Secretary, Revenue and DM (LR) Department approved the same on 09.01.2014 in all the three cases and, thereafter, letters dated 09.01.2014 had been issued forwarding approved copy of the awards in respect of the three LA Cases. Therefore, the only conclusion that can be reached is that the awards in question having been approved by the Government on 09.01.2014, the awards cannot be said to have been made on 31.12.2013. Thus, the awards were made after coming into force of the 2013 Act.

33. In view of the above determination, the State respondents are directed to determine compensation on the basis of the provisions of the 2013 Act and to pay such compensation expeditiously by adjusting the amounts already paid.

34. The writ petitions are allowed as indicated above. No cost.

35. The records produced by Mr. Doloi are returned herewith. The documents placed before the Court by Mr. Chamuah, including the letter dated 11.01.2017 addressed to him by the SPIO and Deputy Secretary to the Government of Assam, Revenue and DM Department, 64 pages in total, are placed in the record of WP(C) 5730/2014.

JUDGE

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