Dismissed

Union of India v. Shri Jamenso Kri

Gauhati HC13 Dec 2019Review Pet./13/2018

Case brief

AI extract

What is this about?

In a review petition challenging an order directing payment of land acquisition compensation, the High Court rejected the argument that a subsequent 2016 notification superseding rates should apply retrospectively. The Court held that the original assessment based on 2015 rates was valid and no error apparent on the face of the record existed.

What did the court decide?

Review petition dismissed; original order dated 18.9.2019 remains operative.

Union of India Vs Shri Jamenso Kri — Land Acquisition | Gauhati HC (2019)

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Page No.# 1/7

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GAHC040001792018

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

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Case No. : Review Pet. 13/2018

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1:UNION OF INDIA

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REPRESENTED BY THE SECRETARY. MINISTRY OF ROAD TRANSPORT ETC, 5TH FLOOR, TRANSPORT BHAVAN, I PARLIAMENT STREET, NEW DELHI

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2: THE COMMANDER 48 BRTF

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C/O 99 APO DIMWE TEZU LOHIT DIST. A

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VERSUS

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1:SHRI JAMENSO KRI

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S/O LT. AMBORONG KRI, R/O VLLAGE DANGLAT, PO/PS TEZU, LOHIT DIST. AP

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2:SYNDULUM NGADONG S/O SRI PALAPSO NGADONG R/O E-486 TAMLA NAGAR PO/PS TEZU LOHIT DIST. AP

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3:GANDHINA NGADONG

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S/O LT. KHUNSO NGADONG R/O VILLAGE MEKAILIANG PO/PS TEZU DIST. LOHIT AP

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4:SMTI. HAWELI KRI

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W/O SOFAM KRI R/O VILLAGE CHANGLIANG PO/PS TEZU DIST. LOHIT A

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Advocate for the Petitioner : MrN Ratan

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Advocate for the Respondent : MrS Mow

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BEFORE

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HONBLE MR. JUSTICE HITESH KUMAR SARMA

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ORDER

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Date : 13-12-2019

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This review petition under Section 114 and Order XLVII, Rule 1, read with Section 151 of Code of Civil Procedure has been made to review the judgment and order, dated 18.9.2019, passed in Writ Petition (C) 502(AP)/2015.

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1. The judgment sought to be reviewed in this application, being a short judgment, is reproduced below:

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“ Heard learned counsel Mr. S. Mow, for the petitioners. Also heard learned junior Government Advocate Ms. R. Basar, for the state respondents as well as learned Central Government Counsel Mr. N. Ratan, for the respondent/Union of India.

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The brief fact of the case is that the petitioners land located adjacent to the National Highway Digaru-Tezu Road was acquired for improvement of Digaru-Tezu NH 52 and for the purpose of widening of the said road. After assessment, the land involved in this case, was acquired and the value of the acquired land was assessed at Rs. 14,32,21550/- (fourteen crore thirty lakhs twenty one thousand five hundred fifty only). Accordingly, this amount is required to be paid by the respondent/Union of India to the land owners.

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It has been submitted by the learned counsel for the petitioners that Rs. 9,00,00,000/- (rupees nine crore) has already been paid against the aforesaid assessment to some land owners and Rs. 5,32,21,550/- (five crore thirty two lakhs twenty one thousand five hundred only) remains to be paid to the petitioners. Learned counsel for the petitioner, by referring to the annexure 8 (eight) at page 71, (seventy one), has submitted that the Deputy Commissioner, Lohit district, Tezu, vide letter dated 30.03.2015, address to the Commander, 48-BRTF HQ, Pin 930048, C/O 99 APO, requested him to deposit the aforesaid amount of Rs. 5,32,21,550/- for disbursement of the same to the affected land owners. It has been admitted that the amount which has

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been assessed is not in dispute. However, the fact remains that the aforesaid Rs. 5,32,21,550/- has not been paid to the petitioners, although, some other persons whose land were acquired got the compensation as per assessment made.

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Learned CGC Mr. N. Ratan has submitted that while he sought instruction, the respondent/Union of India has furnished him with a letter, dated 08.08.2018, issued by Senior Administrative Officer for Commander of 48 Border Roads Task Force.

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On perusal of the letter, it appears that it is in respect of approval of revised DPR for widening and strengthening of NH-52 Road sector from KM 689.800 to KM 705.285 on Digaru-Tezu Road. It further appears from the contents of the said letter that the amount of land compensation will be paid immediately on receipt of approval of the revised DPR from MoRT&H admitting thereby that the aforesaid amount has not been paid and it is required to be paid by the Union of India. It is an admitted fact that present writ petition is pending since 2015 and in the last 3 (three) years it does not appear that action has been taken to make the payment of the said amount in favour of the petitioners to which they are entitled to. The letter dated 08.08.2018, referred to above, makes it clear that the release of the aforesaid amount of compensation is rather dependent on the approval of the revised DPR. For inaction on the part of the respondent/Union of India for several years now, the petitioners are found deprived of their due compensation. That being so, this Court has proposed to dispose of this writ petition, at this order stage itself, directing the respondent/Union of India to make the payment of the aforesaid amount of compensation to the land owners/petitioners within 3 (three) months from today, without fail, in view of the fact that they are entitled to the aforesaid amount is not in dispute in the instant petition. 6. With the above direction, this writ petition stands disposed of. 7. A copy of this order be furnished to the be furnished to learned CGC for communication to the respondent Union of India, during the course of the day.”

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It appears that the decision of this court in the said judgment was principally based, on the instruction letter dated 8.8.2018 produced by the learned CGC, Mr. N. Ratan.

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In paragraph-4 of the review petition, it is submitted by the applicant that because of some error apparent on the face of the record and other sufficient reasons, the review petition has been preferred. The specific grounds taken by the review applicant are quoted below.

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(i) That the land in question was acquired under section 10 of Balipara/Tirap/Sadiya Frontier Tract Jhum Land Regulation, 1947 vide notification dated 14.12.2014. Thereafter the compensation amount was calculated at the rate fixed for Lohit District, Tezu by the Commissioner, Land Management, Govt. of A.P. vide Notification No.LR-43/81(Vol-II) Pt dated 12.02.2015. As per the said notification the rate for (i) Irrigated Agriculture

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land (alongside NH-52) was Rs. 350/- per sq.mtr and for (ii) Irrigated Horticulture land (alongside NH-52) was Rs. 425/- per sq.mtr. Accordingly, the total compensation amount was arrived at Rs. 14,32,21,550/-

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(ii) That by a subsequent Notification vide No.LM/-116/2016/52 dated 16.04.2016, the Govt. of Arunachal Pradesh rescinded all government orders fixing different rates for different districts and declared that the rates notified vide LM-62/2011(Pt) dated 26.11.2011 shall be the basis for fixing rates of compensation for acquisition of land for the entire stretch of Trans Arunachal Highway and other public purposes. As per the Notification dated 26.11.2011, the rate for the land acquired will be Rs. 11/- per st.mtr.

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(iii) That because of the aforesaid Notification dated 16.04.2016, the Notification No. LR-43/81(Vol-II) Pt dated 12.02.2015 was suspended which was the very basis to arrive at the earlier compensation amount of Rs. 14,32,21,550/-. Therefore, the compensation amount was recalculated in accordance to the notifications dated 16.04.2016 and 26.11.2011 after which the actual compensation amount was worked out at Rs. 2.17 crores only. But the department had already deposited Rs. 9 crores and also Rs. 2,69,943/was paid earlier, total of which is much higher than the actual amount of compensation payable, hence no payment is pending from the Union of India to the land owners. Instead, on the other hand, the Union of India has to get refund of Rs. 6,85,06,399/- which was paid in excess based on the Notification dated 12.02.2015 that was subsequently suspended.

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(iv) That as per the decision taken by the High Power Ministerial Committee during its 75^th meeting, it was decided that the compensation for Land Acquisition and structure shall be made as per rates notified by the Government of Arunachal Pradesh Notification dated 26.11.2011 and as such the Union of India has to get refund of Rs. 6,85,06,399/-

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It appears from the above that as per statement made in ground (iii) above, the compensation assessed in respect of the acquired land, involved in this case, was made as per notification dated 12.2.2015. On the other hand, it has been submitted that vide the Notification LM-77/2014 dated 16.4.2016, the Government of Arunachal Pradesh has superseded all earlier notifications in respect of assessment of compensation for acquisition of land and a decision was taken that the compensation rates for acquisition of land shall be as per the notification dated 26.11.2011.

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I have perused the aforesaid notification dated 16.4.2016, furnished with the petition as Annexure-6 at page-24. But, this notification has not provided that it will have retrospective effect. In the instant case, the assessment was made in the year 2015 against the land acquired vide the notification dated 14.12.2014. Paragraph-3 of the review petition makes it clearly appear that due to some miscommunication between different branches of the department, learned CGC was given instruction dated 8.8.2018, stating therein that the approval of revised DPR for widening and strengthening of NH-52 Road sector from Km 689.800 to km 705.285 on Digaru-Tezu to National Highways Double Line Specification (NHDL) in the State of Arunachal Pradesh is still awaited from the MoRT&H and the amount of land compensation will be paid immediately on receipt of approval of revised DPR from

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MoRT&H.

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Admittedly, on such instruction, the judgment, dated 18.9.2018 was passed in Writ Petition(C) 502(AP)/2015. According to the learned counsel for the review petitioner, the notification dated 16.4.2016, referred to above, superseded the earlier notification in respect of fixation of compensation, and therefore, he would pay the compensation amount as per 2011 notification as provided in 16.4.2016 notification.

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Order XLVII Rule 1 of the Code of Civil Procedure, provides for review. The provisions reads as follows:

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ORDER XLVII: REVIEW

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“ Application for review of judgment”

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(1) Any person considering himself aggrieved-

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(a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred,

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(b) by a decree or order from which no appeal is allowed, or

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and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

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(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

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Explanation.-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.

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The Hon’ble Supreme Court in the State of West Bengal and Ors. v. Kamal Sengupta and Anr. reported in (2008) 8 SCC 612, in paragraph No.-21, held as follows:

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“21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae . Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.”

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From the grounds taken for review of the judgment, appears to be covered by Clause 1(c) of the Order XLVII of the Code of Civil Procedure. Further, Hon’ble Supreme Court in the aforesaid judgment has also referred to the decision of M/s Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi , reported in (1980) 2 SCC 167 , particularly paragraph-9 thereof and indicated as to what is the error apparent on the face of the record. The said paragraph is quoted below :

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“9. Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the Respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record.”

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From the paragraph-3 of the review application, it appears that the review applicant produced the instruction dated 8.8.2018 due to some miscommunication between different branches of the departments. Nowhere it has been mentioned in the review application that even after exercise of due diligence, the notification dated 16.4.2019 could not be produced by him or that it was not in his knowledge when the order was made. It has been stated in the grounds taken by the review applicant that had such facts been brought to the notice of this court by the respondent authorities the aforesaid judgment could not have been passed. On examination of the materials on record and on examination of the judgment sought to be reviewed, it is clear that the judgment was passed taking into account/consideration the materials produced and available before the court on the date of judgment. The judgment was passed on the basis of the materials on record, and therefore, there is no error apparent on the face of the record.

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As indicated above, the judgment was passed on the basis of materials on record available at the relevant time. Therefore, taking into consideration the ratio of Kamal Sengupta (supra) , it can be said that the view adopted by this court in the original judgment is the only possible view having regard to what the records stated. Therefore, it is difficult to hold that there is an error apparent on the face of the record. That being so, the review applicant has failed to establish that there was an error apparent on the face of the record and that he has discovered the new and important matter or evidence which, after

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exercise of due diligence, was not within his knowledge and that it could not be produced by him on time when the order was passed on account of some mistake or error apparent on the face of the record.

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It has already been said, in paragraph No. 6, that the notification dated 16.4.2016 has no retrospective effect in respect of assessment of land acquired prior to that notification. As has been mentioned above, the land involved in this case, was acquired in the year 2014 and assessment was made in 2015 in accordance with the notification dated 12.2.2015 as prevalent at that time. Since the aforesaid notification, dated 16.4.2016, has no retrospective effect even if the same would have produced before the court at the time of passing the judgment, it would not have altered the decision of the court.

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Such being the position, in the considered view of this court, this is not a fit case for review of the judgment rendered on 18.9.2018 in Writ Petition (C) 502/2015 on the grounds taken by the review applicant, and accordingly, the review petition is dismissed.

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JUDGE

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Union of India v. Shri Jamenso Kri

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Union of India v. Shri Jamenso Kri

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