WP(C) 2649/2009 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL) 1. This writ petition is directed against the Annexure-5 letter dat ed 27.2.2009 addressed to the Deputy Chief Engineer (CON, BG) NF Railway, Lumdin g by the Deputy Commissioner, NC Hills, Haflong preceded by Annexure-4 Enquiry R eport dated 12.12.2009 submitted to the Deputy Commissioner, NC Hills, Haflong b y the Additional Deputy Commissioner, NC Hills, Haflong. 2. The aforesaid enquiry report dated 12.12.2009 submitted by the A dditional Deputy Commissioner, NC Hills, Haflong to the Deputy Commissioner, NC Hills, Haflong is pursuant to the order dated 27.6.2008 passed by this Court in PIL No. 61/2007. The PIL was filed by the respondent No. 5 claiming compensation from the Railways on the ground of forceful eviction from the plot of land unde r occupation of 245 members of the respondent No. 5 for construction of BG Line. It was the case of the respondent No. 5 in the PIL Court that they had been occ upying their respective plots of land and that they having been forcefully evict ed destroying properties including crops standing on the land, they are entitled to adequate compensation. 3. The PIL was disposed of by the aforesaid order dated 27.6.2007 w ith the following direction: In view of the aforesaid position, we disposed of the present petition with a d irection to the Deputy Commissioner, NC Hills to make an enquiry as to whether t he land from which 245 concerned tribal villagers were evicted belongs to the ra ilway and whether those 245 concerned tribal villagers, who claims to be in poss ession of the land were in fact possessing the said land and if so, the period o f such possession as well as acquisition of prescriptive right over such land be cause of the long, open and uninterrupted possession. The Deputy Commissioner sh all, in the event found that the concerned villagers acquired the prescriptive r ight, pass necessary order for payment of the adequate compensation by the Railw ay Administration. It is needless to say that in the enquiry to be conducted by the Deputy Commissioner, the concerned parties including the railway are to be g iven the reasonable opportunity of being heard and to produce necessary document s in proof of their claim. 4. Pursuant to the aforesaid direction made to the Deputy Commissio ner, NC Hills, the enquiry was carried out by the Additional Deputy Commissioner and in due course he submitted his report to the Deputy Commissioner, NC Hills, Haflong. The operative part of the report is reproduced below: 16. On careful examination of all facts, as brought before me during hearing/en quiry and on perusal of all documents as submitted by all sides namely represent atives of the affected people, Rly Authority and Revenue Authority of the NC Hil ls Autonomous Council and also the order of DC vide his no. NCH/J-60/2005-06/967 Dated 6/5/06, I am satisfied to believe that the objection petition of Rly B.G. Construction does not contain any material fact to nullify the claim of the eff ected people so far their long term uninterrupted possession, loss of property s tanding on land and carrying out of eviction are concerned. I also believe that these 245 tribal people had been occupying the land in question uninterruptedly for a period of more than 90 years and subsequently their land and property are partially effected due to B.G. construction. And therefore compensation from Rly construction authority on due assessment becomes a deserving case attracting to be addressed. I therefore submit herewith the above report and request Deputy C ommissioner to pass necessary order to Rly B.G. Construction Authority for asses sing the claim as made by the effected people and findings as made by the Land R evenue Authority of NC Hills Autonomous Council by competent authority and for e arly payment of reasonable compensation to these 245 nos. of tribal people of 14 villagers. 5. While conducting the enquiry, the Additional Deputy Commissioner framed the following purported issues in paragraph 14 of the report. 14. During my enquiry the following issues appeared for consideration requiring a little highlights over each point: 1. Matter of 245 people. 2. Claim of affected people. 3. Possession of the affected people. 4. Construction of BG in the affected areas. 5. Settlement/annual patta given by Revenue Authority . 6. While answering the issue No. 5, the Additional Deputy Commissio ner came to the conclusion that total compensation on the basis of the assessmen t made by NC Hills Revenue Authority stood at Rs. 39,77,50,363/- for 245 nos. of people of 14 nos. of villages. 7. Pursuant to the aforesaid report, the Deputy Commissioner, NC Hi lls issued the aforementioned impugned Annexure-5 letter dated 27.2.2009 directi ng the Deputy Chief Engineer (CON, BG) NF Railway, Lumding to take necessary act ion for making early payment of the compensation. Being aggrieved, the Union of India has filed the instant writ petition. 8. At the very outset, Mr. DC Kath Hazarika, learned counsel for th e respondent No. 5 has raised the issue of maintainability of the writ petition in view of the provision of Article 131 of the Constitution of India. He submits that it is the Apex Court which will have original jurisdiction in the matter t o the exclusion of any other Court as the dispute involves is between the Govern ment of India and the State of Assam. 9. I have considered the aforesaid submission made by Mr. Hazarika, learned counsel for the respondent No. 5. Although the Union of India in the Ra ilways has challenged the aforementioned enquiry report and the consequential or der passed by the Deputy Commissioner, NC Hills, Haflong, but the dispute in que stion is relatable to the claim of the respondent No. 5. In fact the impugned or ders are the outcome of the aforementioned order dated 27.6.2008 passed by the D ivision Bench of this Court in PIL No. 61/2007, which was filed by the responden t No. 5 claiming compensation against the Railways for alleged unauthorized evic tion. This being the position, it cannot be said to be a case of any dispute bet ween the Union of India and the State of Assam so as to confer original jurisdic tion to the Apex Court to the exclusion of any other Court. 10. Mr. AK Sarkar, learned Standing Counsel, Railways submits that t he Additional Deputy Commissioner in his report dated 12.12.2009 having not deal t with the vital issues indicated in the PIL order, the same is not sustainable in law. He further submits that the Revenue Authority of the NC Hills could not have assessed the compensation amount to the tune of Rs. 39,77,50,363/- which on the face of it, is unsustainable and devoid of any foundation of relevant mater ials. 11. Mr. Hazarika, learned counsel for the respondent No. 5, on the o ther hand, submits that the poor tribal people under 245 families being in occup ation of the land for which the NC Hills authority had issued Annual Patta, they could not have been evicted by the Railways for the purpose of BG construction without following due procedure. He submits that the Railways had evicted the 24 5 families forcefully and consequently the said families are entitled to compens ation as per the direction of the PIL Court. 12. I have considered the rival submissions made by the learned coun sel for the parties and the materials on record. 13. The basic foundation of the present proceeding is the order date d 27.6.2008 passed by this Court in PIL No. 61/2007. The operative part of the o rder has been quoted above, in terms of which the Deputy Commissioner, NC Hills, Haflong was to deal with the following issues: (1) Whether the land from which 245 concerned tribal villagers were evicted belongs to the railways; (2) Whether those 245 concerned tribal villagers, who claims to be in posses sion of the land were in fact possessing the said land; (3) And if so, the period of such possession; (4) As well as acquisition of prescriptive right over such land because of t he long, open and uninterrupted possession. 14. It is on the basis of the answer to the aforesaid issues, adequa te compensation was to be assessed. 15. On perusal of the enquiry report prepared by the Additional Depu ty Commissioner what is seen is that the said authority had formulated the afore said 5 purported issues. 16. While answering the issue No. 2 i.e. Claim of affected people th e report states as follows: These 245 people claimed that they were evicted from their possessed land agains t which 106 numbers of annual patta were issued. They also claim that they had p ossession over the land for more than ninety years and Railway authority during BG conversion forcefully evicted them from their land damaging their properties. 17. The issue No. 3 i.e. Possession of the affected people has been answered as follows: From the document as submitted by the representatives of the affected people, it appears that they had possessions for more than ninety years. 18. From the above findings recorded in the report, it is seen that the issue Nos. 2 and 3 have been answered in a mechanical manner without highlig hting anything as to what were the documents furnished. 19. While answering the issue No. 2, the Additional Deputy Commissio ner recorded the claim of the respondent No. 5 that they were in occupation of t he land for more than 90 years and that the Railway authority has forcefully evi cted them from the land damaging the properties. While saying so nothing has bee n highlighted as to how such claim of the respondent No. 5 was assessed. Similar ly the issue No. 3 has also been answered mechanically, only stating that from t he document it had appeared that the members of the respondent No. 5 had been in possession of the land for more than 90 years. But there is no reference to the related documents. 20. The issue No. 5 i.e. Settlement/annual patta given by Revenue Au thority has been answered as follows: Issue No. 5. The NCHAC Revenue Authority has submitted necessary documents stat ing that an area of 1912.61 bighas of land belonging to these 245 people was use d by Railway Construction Authority for BG Constructions clearly categorizing th e aforesaid quantum of land into paddy and jhoom cultivation land. Area falling under paddy cultivation is 334.21 bigha while area under jhoom cultivation is 15 78.40 bigha. The Assessment chart was made by the NC Hills Revenue Authority vid e Memo No. REV/S/66/2006-07 dated 23/3/07 and annexed as F and according to th at chart compensation assessed per bigha for paddy land is Rs. 1,20,000/- and Rs . 1,00,000/- for jhoom land. Thus total compensation as assessed by NC Hills Rev enue Authority stands at Rs. 39,77,50,363/- for the 245 nos. of people of 14 nos . of villages. 21. From the above reading of the enquiry report, there is no escape from the conclusion that the real issues which were directed to be examined and answered by this Court in its order dated 27.6.2008 passed in PIL No. 61/2007 h ave not been dealt with at all. As per the direction contained in the said order , the four points/issues that were required to be dealt have been indicated abov e. There is no finding in the report dated 12.12.2009 as to whether the land bel ongs to the Railways and also as to whether the members of the respondent No. 5 had been in occupation of the said Railway land. The report also does not indica ted about acquisition of prescriptive right over such land because of the long, open and uninterrupted possession. 22. Coupled with the above, there is also no materials to show that the enquiring authority itself had assessed the quantum of compensation. It simp ly relied upon the papers furnished by the Revenue Authority. Even in respect of the compensation amount, there is some amount of dispute. 23. Another important aspect of the matter is that by order dated 12 .1.2006, the same very authority i.e. the Deputy Commissioner, NC Hills had vaca ted his earlier order dated 10.1.2006 by which he had fixed compensation in resp ect of using of land for construction of BG line. By the subsequent order dated 12.1.2006, the Deputy Commissioner, NC Hills cancelled his earlier order. For a ready reference, the said order is quoted below: The order dated 10.1.06 in connection with payment of compensation to the affec ted villagers by the railway has been reviewed after discussion with concerned p arties. It has come to light that in the earlier days there was no permanent vil lage and the tribal people used to shift their villagers from time to time and t here was no system of patta. In the process certain villagers were established i n the railway land and the Railway Authority did not raise any objection to such establishment of villages as the land was not required by railway. Now the land is required by the railway for BG conversion. However, the poor tribal people remained in possession of railway land for sever al years and developed the land under their possession. The Council Authority al so without proper verification has issued A.K. Patta for such possessions. After taking into considerations all relevant factors, I have decided to vacate the order dated 10.1.06 passed in connection with payment of compensation to aff ected villagers. The order in question is accordingly vacated. It is considered necessary that the work of BG line construction should continue in the larger interest of the nation. However, efforts will be made for amicable settlement so that the poor tribal pe ople may get some compensation in the form of Zeerut value etc. Inform all concerned. Sd/- Deputy Commissioner NC Hills, Haflong . 24. The petitioner by its additional affidavit filed on 25.1.2010 ha s brought on record another communication dated 6.5.2006 made by the same very a uthority i.e. the Deputy Commissioner, NC Hills to the Research Officer, Nationa l Commission for Scheduled Tribe. By the said letter, it was intimated that issu ance of annual patta and realization of revenue on railway land by the NC Hills authority was bad in law. 25. It was further stated that because of issuance of annual patta b y the NC Hills authority to the villagers who had been in occupation of Railway land developed a sense of right of ownership but in reality they had no such own ership. The clear fact finding recorded in the said communication was that the l and which the 245 families had been occupying was in fact by way of encroachment of Railway land and consequently they were not entitled to get any compensation . 26. All the above aspects of the matter including the own finding of the Deputy Commissioner, NC Hills have not been taken into consideration by the Additional Deputy Commissioner, NC Hills while preparing the impugned report da ted 12.12.2009 and that too without referring to any of the documents and the is sues frame in the PIL order. 27. Another aspect of the matter, which has been agitated by Mr. Sar klar, learned Standing Counsel, Railways is that as per the direction of this Co urt in the PIL, the enquiry was to be carried out by the Deputy Commissioner, NC Hills, but the enquiry was carried out by the Additional Deputy Commissioner an d he submitted the report to the Deputy Commissioner, NC Hills. The Deputy Commi ssioner, NC Hills mechanically accepted the enquiry report unmindful of his earl ier order dated 12.1.2006 and the communication dated 6.5.2006 made to the Resea rch Officer, National Commission for Scheduled Tribe, which have been referred t o above. In the process he also directed the Deputy Chief Engineer (CON, BG) NF Railway, Lumding by his impugned Annexure-5 letter dated 27.2.2009 to pay the co mpensation. 28. For all the aforesaid reasons, I am of the considered opinion th at the enquiry report dated 12.12.2009 (Annexure-4) and the subsequent letter da ted 27.2.2009 (Annexure-5) are not sustainable in law and consequently they are set aside and quashed. However, this will not stand on the way of the Deputy Com missioner to carry out fresh enquiry in terms of the direction passed in PIL No. 61/2007. 29. At this stage, Mr. Hazarika, learned counsel for the respondent No. 5 submits that the Annexure-6 assessment made by the NC Hills authority bein g not under challenge, the said assessment will stand and accordingly the member s of the respondent No. 5 are entitled to get compensation. I am unable to accep t the submission made by Mr. Hazarika, inasmuch as the very foundation of the or der by which direction has been issued for compensation having been interfered w ith, there is no question of implementation of Annexure-6. Moreover, Annexure-6 is not the assessment order as such, but only a statement of names of the member s of the respondent No. 5 and particulars of the land and the amount of compensa tion calculated without disclosing the basis thereof. 30. Writ petition is disposed of.