Tuesday, November 29, 2022

Gauhati HC directs payment of compensation to 18 petitioners evicted near helipad in Arunachal Pradesh

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The Gauhati High Court has directed the State respondent to compensate the petitioners by paying Rs 50,000 each for the highhanded and inhuman action of forcefully evicting the petitioners from their houses and for non-adherence to the due process of law.

The Itanagar Bench of Justice Arun Dev Choudhury disposed of a petition filed by 18 petitioners.

The background of the petition can be summarized as under: 
I. During 2011 and 2015, the writ petitioners purchased their respective plots of land located at backside of Naharlagun Helipad, and since then, some of the writ petitioners had been staying there with their family members by constructing houses until they were evicted therefrom on 15.07.2019. 
II. The Additional District Magistrate, Capital Complex, cum Chief Estate Officer carried out an eviction on 15.07.2019 and demolished the houses of the petitioners. The affidavit filed by the respondent No. 7 shows that such demolition has been carried out in exercise of power under Section 133 of the CrPC. 
III. Being aggrieved by the aforesaid eviction, the writ petitioners under the banner of Helipad Land owner Forum, jointly filed a representation on 18.07.2019 before the Chief Minister of the State. Subsequently, by letter dated 30.07.2019 the State Government directed the Additional District Magistrate to hold back further eviction till the finalization of the obstacle limitation survey of Naharlagun Helipad by the competent authority. 
IV. Thereafter, pursuant to a meeting held on 11.10.2019, under the chairmanship of Chief Secretary, Government of Arunachal Pradesh, a decision was taken to the effect that the Deputy Commissioner, Itanagar Capital Complex, should assess the land required near the boundary of present Helipad for landing and taking off safely. 
V. The Deputy Commissioner, by its order dated 04.11.2019, constituted a seven-member Board to assess the affected land and the properties damaged during the eviction process as well as other properties likely to be affected for the required extension of the Helipad. The Board submitted its report on 28.01.2020. 
VI. Thereafter, the Deputy Commissioner forwarded the verification report of the affected land to the Secretary, Department of Civil Aviation, Government of Arunachal Pradesh, for necessary action. But till today the petitioners have not been paid any compensation.

From the perusal of the affidavit-in-opposition of the State respondents, it is crystal clear, the Court said, that the land belongs to the petitioners and some other persons and the lands were private land. From the pleadings of the State respondents, it is also crystal clear that no proceeding/procedure for acquisition of such land was initiated and the petitioners were evicted inhumanly from their land under purported exercise of power under Section 133 of the CrPC on the alleged ground of obstruction in landing and taking-off helicopter at the Helipad and after such eviction and demolition of the dwelling houses of the petitioner, the State is now projecting that it will acquire the land and compensate the petitioners.

Section 133 CrPC empowers District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate to remove any unlawful obstruction or nuisance from any public place or from any way, river or channel which is or may be lawfully used by the public. The said Section also provides that the Magistrate can also pass conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order.

The explanation to the said Section clarifies the Court that a “public place” includes also property belonging to the State, camping grounds and ground left unoccupied for sanitary or recreative purpose.

It is observed by the Court that in the case in hand, the eviction and demolition were carried out on the ground that there already exists an order of prohibition, prohibiting construction of building within the limits of 100 metres crest of the outer parapet of these helipads and mandating that no trees shall be planted or other infrastructures shall be created/developed or any land within the limits of 100 meters from the helipad. Such prohibitory notification dated 04.02.2011, was issued by the Commissioner (Civil Aviation), Government of Arunachal Pradesh.

Though it is not discernible under what authority of law the said notification was issued, the Bench noted that the said notification dated 04.02.2011 clearly shows that by way of the notification, all Deputy Commissioners were asked to promulgate the order in District Gazette. However, no such Gazette notification was issued by the concerned Deputy Commissioners.

When the petitioners constructed their houses, there was no prohibitory order under Section 133 CrPC and they had already constructed their dwelling houses over their private land. Therefore, in the considered opinion of the High Court, the findings of the  Additional District Magistrate that the petitioners and the similarly situated persons are unauthorized occupant cannot sustain in law and the facts of the present case inasmuch by the time the order under Section 133 CrPC. was issued on 28.06.2019, the petitioners had already constructed their houses.

The Court cannot be oblivious of the fact and law that the State is having their right to acquire the private land of the petitioners for public purpose and in the case in hand for expansion of the helipad. But the same needs to be done by following due process of law and such due process is mandated by the legislature.

In this regard,  counsel for the petitioners submitted that they are entitled for land acquisition compensation under the provision of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Such contention has been refuted by the learned counsel representing the State on the ground that the Balipara/Tirap/Sadiya Frontier Tract Jhum Land Regulation, 1947,  is applicable in the State of Arunachal Pradesh and the State of Arunachal Pradesh is acquiring land on the basis of such land Regulation, 1947.

Sub Section 2 of Section 1 of the Act, 2013 declares that the Act, 2013 extends to the whole of India except the State of Jammu and Kashmir and the same came into force on 01.01.2014, when the Central Government notified the Act, 2013 in official Gazette as per Sub Section 3 of Section 1 of the Act, 2013. Thus it is clear that the said Act, 2013 has been made applicable in the State of Arunachal Pradesh w.e.f. 01.01.2014.

Section 107 of the Act, 2013 provides that nothing in the Act 2013 shall prevent any State from enacting any law to enhance or add to the entitlements enumerated under the Act 2013, which confers higher compensation than payable under Act 2013 or make provisions for rehabilitation and resettlement which is more beneficial than provided under the Act 2013.

Therefore, it is clear for the Court that the State is competent to enact law relating to land acquisition but the same cannot be less beneficial in terms of the compensation and rehabilitation than Act, 2013.

“Therefore, while giving the liberty to the State to acquire the land, this Court treats the present case as a deemed acquisition and accordingly, directs the acquiring authority and the State to pay the compensation as per Act, 2013 which is more beneficial than Balipara/Tirap/Sadiya Frontier Tract Jhum Land Regulation, 1947, including all other benefits as mandated in the Act, 2013 within a period of 6 months from today in terms of the foregoing discussions and reasons,” the order reads.

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