Monday, October 3, 2022

Gauhati HC dismisses PIL over land compensation fraud

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The Gauhati High Court recently dismissed a Public Interest Litigation (PIL) filed alleging that in the matter of assessment and payment of land acquisition compensation for the project relating to construction and improvement of road viz. Dite-Dime-Migging from (0.00 to 191 Kms) Package I,II,III & IV at Upper Siang District, Yingkiong which is being carried out through the agency called Project Brahmank, under the Border Road Organisation, the requisite transparency was not maintained by not disclosing the award in public domain either on the website or in the newspaper.

The PIL, filed by one Empalo Mena, further projected that in the list of beneficiaries several outsiders and non-holders of land in that area were shown as beneficiaries and compensation amount has been paid to those fake beneficiaries without providing appropriate compensation to eligible beneficiaries.

It is alleged in this PIL that before the acquisition of land, appropriate and proper assessment and survey was not carried out. Aggrieved by such illegalities, several complaints and representations were made to various authorities and it is further projected that the petitioner had also submitted a representation dated 29.07.2021 to the Superintendent of Police, SIC Vigilance, to the Chief Secretary of the State as well as to the Officer-in-Charge of SIC police station on 06.01.2022 and additional facts were also brought to the notice of the Officer-in-Charge of SIC Vigilance by letter dated 11.11.2021. However, no effective steps have been taken by the any of the said authorities.

It is also alleged that although a Board was constituted for the purpose of making an enquiry but in fact, no such Board had actually functioned and it was only on the paper that the Board was constituted and in this regard reference has been made to the herein before referred letter dated 11.11.2021. It is also projected that a series of criminal offences of forgery and misappropriation of compensation amount was rampantly made and it is alleged that substantial amount of money was transferred to the bank account of fake beneficiaries who do not posses and own land or property at the proposed project site. It is also projected that approximately a sum of Rs1 crore is pending to be disbursed to the actual beneficiaries due to incorrect assessment by the concerned government officials. In order to project that compensation details are to be uploaded in public domain, the learned counsel for the petitioner has referred to the provisions of Section 37(3) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 

The counsel for the petitioner has further submitted that by highlighting various anomalies, several affected persons had approached the High Court and at the motion stage on 23.08.2021, the Court had ordered an enquiry to be made and it is submitted that surprisingly, before the Court could adjudicate on the enquiry report, the said writ petition was withdrawn and accordingly, it is submitted that the entire acquisition process is mired with suspicious transactions, compensation amount has been diverted on the account of three beneficiaries thereby government officials have misappropriated a large chunk of compensation amount, depriving the actual land owners.

The Itanagar Bench of Justice Kalyan Rai Surana and Justice Robin Phukan observed that no person has been named in the PIL with appropriate details to show that the land of the particular person was acquired and that he/she has been deprived of compensation. Allegations are made with regard to few persons having been paid land acquisition compensation who are not from the concerned villages. No positive statement has been given that although these persons are not the residents of the concerned villages, they did not own any part and parcel of land in the project area. Moreover, though specific allegations have been made against three specific individuals, but they have not been arrayed as a party respondents in the PIL, therefore, the Court found it not appropriate to direct any enquiry against the specifically named persons without affording any opportunity to them of being heard as it would amount to denial of right to natural justice.

“In this PIL no positive statement has been made that the land which was acquired for the aforesaid project was an exercise done under the 2013 Act. In the absence of land being acquired specifically under 2013 Act. By now, it is well settled by various judgments of the Supreme Court of India as well as of this Court that compensation has to be calculated under the 2013 Act, yet the Court is unable to take a judicial notice of the fact that the requirement of Section 37(3) is mandatorily required to be followed if land was not acquired under 2013 Act. It may be mentioned herein that in the State the land are usually acquired under the Balipara/Tirap/Sadiya Frontier Tract Jhum Land Regulation, 1947. Therefore, in the absence of specific statement, the Court is not inclined to take cognizance of nonadherence to provisions of Section 37(3) of the 2013 Act,” further observed the High Court.

Assuming for a limited purpose that certain beneficiaries are not paid the land acquisition compensation, the Court held that  it is for the concerned persons to apply before the Deputy Commissioner for payment of land acquisition compensation. There is no material on record to show that any specific person whose land was acquired had submitted any representation before the Deputy Commissioner concerned about non receipt of land acquisition compensation. Moreover, assuming that the contention of the petitioner is correct that appropriate compensation was not paid or offer to the beneficiaries, under the appropriate land acquisition act, statutory remedy of filing an appeal is not a bar. No reason has been assigned why statutory remedy was not availed.

The Court also takes note of the fact that the State Government has implemented the Legal Services Authorities Act, 1987 and State Level and District Level Legal Services Authority has been constituted and the affected persons who are not aware of their legal rights can definitely approach the Legal Services Authority of the concerned districts to take their assistance and to file an appropriate applications or appeal if there is merit in their claim of having not been paid an appropriate land acquisition compensation.

Therefore, the persons at whose instance the PIL  had being filed, having agitated the cause of non-payment of appropriate compensation and having withdrawn it, the presumption would be that at least the said group of persons did not have any existing grievance on the date the petition was withdrawn, said the Court while dismissing the PIL.

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