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2006 DIGILAW 130 (GAU)

R. Laltluanga v. State of Mizoram

2006-02-03

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. The Petitioners involved in this writ petition are the father and daughter and they have assailed the legality and validity of the decision to allot a portion of the land under their occupation to the Respondent No. 4 and issuing direction to the Petitioner No. 1 in this regard to submit the land records and his consent for the decision. 2. The Petitioner No. 1 was allotted a plot of land measuring 53 bighas by the erstwhile Mizo District Council located at Buhchangphai under Permit No. 436 of 1963 and thereafter he had started looking after the developing it straight away. After some years the Petitioner had divided his said plot of land into two parts by giving 25 bighas to the Petitioner No. 2 under Permit No. 552 of 1975 and the rest of the land measuring 28 bighas still remained in his name under original Permit No. 346 of 1963. 3. In the year 1976, the Petitioner had converted his Permit No. 346 of 1963 to periodic Patta No. 500/1976 under Section 4 of the Mizo District (Agricultural Land) Act, 1963, and in the following year the Petitioner No. 2 had also converted her permit No. 552 of 1975 to P. Patta No. 107/1977, under the same provision of law. It is pertinent to mention here that the land belonging to the Petitioners was extended by the Revenue authorities in the year 2003 during cadastral survey by issuing P. Patta No. 501604/09/01 of 2003 for 21.5 bighas in the name of Lalchhuanmawii daughter of the Petitioner No. 2 and P. Patta No. 501604/10/02 of 2003 for 19.17 bighas in the name of Lalngaihawma, son of the Petitioner No. 2. 4. The Petitioners have also given the description of the land covered by P. Patta No. 500/76 in paragraph 4 of the writ petition. It is the case of the Petitioner that the Respondent No. 4, through his representative had begun encroaching a portion of the land belonging to the Petitioner No. 1 which forced him to submit a complaint to the Deputy Commissioner, Kolasib district, who in turn endorsed the complaint to the Magistrate, 1st Class, Kolasib for disposal of the matter. It is the case of the Petitioner that the Respondent No. 4, through his representative had begun encroaching a portion of the land belonging to the Petitioner No. 1 which forced him to submit a complaint to the Deputy Commissioner, Kolasib district, who in turn endorsed the complaint to the Magistrate, 1st Class, Kolasib for disposal of the matter. The complaint was registered as Criminal Complaint No. 73/2002 under Section 441/380 IPC and the same was disposed of by order dated 21.2.2003 directing the Assistant Settlement Officer (ASO) to settle the matter, since it was a revenue matter. 5. After the aforesaid order of the Magistrate, the ASO by his order dated 22.9.2003 issued a direction to the Respondent No. 4 to refrain from encroaching the land of the Petitioners till final disposal of the dispute. The ASO, Land Revenue & Settlement, Kolasib passed the final order on 15.10.2003 declaring the portion of the land encroached upon by the Respondent No. 4 as "No Man Land" and directing the Respondent No. 4 to vacate the land. He also issued further direction that the boundary description of the land would be modified as indicated in the order. Being aggrieved by the order, the Petitioner No. 1 through his daughter i.e. the Petitioner No. 2 made an appeal dated 21.10.2003 to the Respondent No. 3 i.e. the Director, Land Revenue & Settlement Department, Government of Mizoram. 6. Entertaining the appeal, the Respondent No. 3 by his order dated 27.10.2003 made certain observations relating to appointment of the land amongst the Petitioner No. 1 and 2 and also the grand children of the Petitioner No. 1, i.e. the son and daughter of the Petitioner No. 2. An observation was also made that the Respondent No. 4 could not have been allotted land by the village council. By the said order, the order passed by the ASO on 15.10.2003 was cancelled. The Petitioners being dis-satisfied with some of the observations made in the order passed by the Respondent No. 3 filed an application on 27.1.2004 making a prayer for setting aside the order passed by the ASO by which the boundary description of the land belonging to the Petitioner No. 1 was directed to be modified. 7. The Petitioners being dis-satisfied with some of the observations made in the order passed by the Respondent No. 3 filed an application on 27.1.2004 making a prayer for setting aside the order passed by the ASO by which the boundary description of the land belonging to the Petitioner No. 1 was directed to be modified. 7. After the aforesaid application, filed by the Petitioners, the Respondent No. 3 by his letter dated 3.2.2004 addressed to the Petitioner No. 2 informed her that after carefully going through the records, it was revealed that the boundary description of the P. Patta No. 500/76 belonging to the Petitioner No. 1 on the east side was hill area and as the PWD road was constructed along side the hill area, therefore, the land below the PWD road was included within the boundary description of their land and hence they could look after it. It was also informed that since the Village Council had no authority to allot land, therefore, the area of land covered by the aforesaid Patta cannot be encroached upon by any one else and that the Petitioners were entitled to take steps for protecting their land by fencing it. 8. Being aggrieved by the aforesaid order passed by the Respondent No. 3, the Respondent No. 4 made a representation dated 17.2.2004 to the Minister, in-charge of Revenue requesting him to re-consider the matter. However, the Respondent No. 3 by his letter dated 23.4.2004 addressed to the Respondent No. 4 informed him that his prayer could not be allowed as the matter was very clear on the basis of the permit bearing No. 346/63 allotted to the Petitioner No. 1 and reiterated the stand in the aforementioned communication dated 3.2.2004 as regards the description of the boundary. It was also intimated that in absence of any Pass in favour of the Respondent No. 4, the recommendation made by the Village Council could not be considered to be a Pass. It was further intimated that as per Section 5 and 7(2) of the Mizo District (Agricultural Land) Act, 1963, the action of the Respondent No. 4 in encroaching upon some one else's land was in violation of prevailing law. In the communication it was also indicated as to how the land was allotted to the Petitioner No. 1 in 1963 and whereas the PWD road was constructed only in the year 1986. In the communication it was also indicated as to how the land was allotted to the Petitioner No. 1 in 1963 and whereas the PWD road was constructed only in the year 1986. By the said communication, the Respondent No. 4 was directed to stop encroaching upon the land of the Petitioners from the date of receipt of the communication. 9. Inspite of the aforesaid clear position reflected by the Respondent No. 3, he once again by his order dated 26.4.2004 directed the ASO to make spot verification of the Passes belonging to the Petitioners and the Village Council Pass belonging to the Respondent No. 4. Thereafter, upon receipt of the verification report, the Respondent No. 3 by his communication dated 2.6.2004 forwarded the report to the Respondent No. 2, who by his letter dated 18.6.2004 requested the Respondent No. 3 to take action as per the observation made by the Minister, in-charge of Revenue. The letter dated 18.6.2004 issued by the Under Secretary to the Government of Mizoram, in the Department of Revenue reads as follows: GOVERNMENT OF MIZORAM REVENUE DEPARTMENT NO.C1801/201/99-REV Dated the 18th June, 2004 To, The Director Land Revenue & Settlement Mizoram Sub: Land dispute between R. Laltluanga, Upper Republic and Rohmingliana Kolasib at Buhchangphai. Ref.: No. C. 13016/K/2/01-DISP/DTE (REV) Dt. 2.6.04 Sir, With reference to the above, I am directed to reproduce herewith the observation made by the Hon'ble Minister Revenue for settlement of the said land dispute. You are requested to look into the matter and take appropriate necessary action as below: It will be right to proceed in accordance with the proposal made by the Asstt. Director of Survey (T) in his report. (Ann-1 last para). It will be appropriate to give 1 bigha out of 93.68 bighas belonging to Laltluanga and his family. The area of the original Pass of Sh. Laltluanga was increased from 72 bighas to 93.68 bighas and to give 1 bigha to the opposite party, who has been looking after the same for a long time, is quite reasonable. Action taken may be intimated at the earliest. Yours faithfully Sd/- 18.6.2004 (H. LALENGMAWA) Under Secretary to the Govt. of Mizoram Revenue Department. 10. Laltluanga was increased from 72 bighas to 93.68 bighas and to give 1 bigha to the opposite party, who has been looking after the same for a long time, is quite reasonable. Action taken may be intimated at the earliest. Yours faithfully Sd/- 18.6.2004 (H. LALENGMAWA) Under Secretary to the Govt. of Mizoram Revenue Department. 10. After the aforesaid development, the Respondent No. 3 by his letter dated 29.6.2004 addressed to the Petitioner No. 1 asked for his willingness to slice out one bigha of land from his land covered by P. Patta No. 500/76 in favour of the Respondent No. 4 and to intimate his willingness in writing. The Petitioner No. 1 declined to furnish such willingness and conveyed the same by his letter dated 2.7.2004. When the matter rested thus, the Respondent No. 3 by his letter dated 8.7.2004 addressed to the Respondent No. 2 intimated about the technical observation made by the Deputy Director, Survey that it would be against the law to slice out a portion of some one's land without his permission. It was also observed that if encroachers can deprive people of the land allotted to them by the Government, then it would be no use for the Government to issue P. Patta/Patta. It was also indicated that the Department cannot recommended partition of the area without the consent of the land owner. It was further intimated that the Petitioner had already conveyed his dis-agreement to slice out a portion of his land. 11. Inspite of the aforesaid clear cut intimation regarding in-admissibility of partition of the land of the Petitioner No. 1, the Respondent No. 3 by his letter dated 28.7.2004 directed the Petitioner No. 1 to submit his P. Patta No. 506/76 both in original and duplicate as the same were required for slicing out a portion thereof in favour of the Respondent No. 4. The letter was issued in terms of the above quoted letter dated 18.6.2004. 12. Being aggrieved, the Petitioner No. 1 made representation to the Respondent No. 1 and objected for slicing out a portion of his land, but the same having not evoked any response, the Petitioners approached this Court by filing the instant writ petition. The letter was issued in terms of the above quoted letter dated 18.6.2004. 12. Being aggrieved, the Petitioner No. 1 made representation to the Respondent No. 1 and objected for slicing out a portion of his land, but the same having not evoked any response, the Petitioners approached this Court by filing the instant writ petition. Although the facts in detail and as have been narrated in the writ petition have been stated above, but the basic fact, which is material for the purpose of disposal of the writ petition is as to whether, the Respondents could without the consent of the Petitioners and for that matter the Petitioner No. 1 take a unilateral decision to slice out a portion of his land only with a view to allot the same in favour of the Respondent No. 4, who is admittedly an illegal encroacher to the land of the Petitioners. 13. Despite service of notice on the Respondent No. 4, there is no representation on his behalf. The official Respondents have filed their counter affidavit virtually admitting the case of the Petitioner. As regards the statement made in paragraph 3 of the writ petition as to how the land was allotted to the Petitioner and came under his occupation, the Respondents have not stated anything in the counter affidavit. However, at the time of hearing of the case, Mr. N. Sailo, learned State Counsel, submitted that due to inadvertence, no statement could be made in respect of the averments made in paragraph 3 of the writ petition. He submitted that as per his instruction, the averments are not supported by any documentary evidence. It is not understood as to why no additional affidavit could be filed highlighting the position in respect the clear statement made by the Petitioner in paragraph 3 of the writ petition. The Respondents got enough opportunity to do so. Thus, the statements made in paragraph 3 of the writ petition have gone unrefuted. 14. In the counter affidavit, the Respondents have, confirmed as to how the ASO, by his order dated 15.10.2003 directed the Respondent No. 4 to vacate the land as he had no Pass/Permit/Permission from the competent authority. They have also admitted about the cancellation of the order dated 15.10.2003, by which the land in question was declared as "No Man Land". In the counter affidavit, the Respondents have, confirmed as to how the ASO, by his order dated 15.10.2003 directed the Respondent No. 4 to vacate the land as he had no Pass/Permit/Permission from the competent authority. They have also admitted about the cancellation of the order dated 15.10.2003, by which the land in question was declared as "No Man Land". In paragraph 7 of the counter affidavit, the Respondents have admitted that as per notification dated 11.7.88 issued by the Government of Mizoram, all allotments of land made by the Village Council stood cancelled. They have also admitted the boundary demarcation notified by the Respondent No. 3. However, they have not stated as to on what basis the Petitioners were asked to surrender a portion of their land. Only statement made is that as per the decision of the Government conveyed vide their letter dated 18.6.2004, which have been quoted above, the Petitioner No. 1 was requested to submit the original and duplicate of his P. Patta No. 500/76 and that since the Petitioner has not submitted the same, no alteration has been made to the land by slicing out a portion of it in favour of the Respondent No. 4. 15. I have heard Mr. A.R. Malhotra, along with Mr. C. Lalramzauva, learned Counsel for the Petitioner. I have heard Mr. N. Sailo, learned State Counsel representing the official Respondents. Learned Counsel for the parties made their respective submissions on the basis of the aforesaid facts and circumstances. In fact they agreed that the facts in detail need not be gone into and the only issue involved is as to whether the manner and method in which the Petitioner No. 1 was directed to submit his P. Patta No. 500/76 in original and duplicate towards slicing out a portion of his land in favour of the Respondent No. 4 is sustainable in law. 16. I have considered the submissions made by the learned Counsel for the parties and the materials on record. As noticed above, the Respondents in their counter affidavit have not been able to justify their impugned action. 16. I have considered the submissions made by the learned Counsel for the parties and the materials on record. As noticed above, the Respondents in their counter affidavit have not been able to justify their impugned action. After the communications made by the Respondent No. 3, which have been discussed above, highlighting that slicing out a portion of the land of the Petitioner No. 1 in favour of the Respondent No. 4 would not be in accordance with law, the same very Respondents could not have resorted to the impugned action. It appears that the entire action was on the basis of the representation made by the Respondent No. 4 to the Minister, in-charge of Revenue. The Minister by passing the departmental authorities issue the direction as contained in the letter dated 18.6.2004, which has been quoted above. Thus, there was no review of the orders passed by the departmental authorities and the said authorities, who had earlier issued the communications favouring the case of the Petitioners issued the impugned communication dated 28.7.04 only in reference to the above quoted letter dated 18.6.2004. The impugned communication having been issued by the same authority, of course, in reference to the said communication dated 18.6.2004, who earlier clarified the position in favour of the Petitioners and there being no independent application or mind not to speak of applying the sound discretion in the matter, same is not sustainable in law. The Respondents are not authorized, which position they also admitted in their aforementioned communications, to deprive the Petitioner No. 1 from his land, only to favour the Respondent No. 4. 17. In the above context, Mr. Malhotra, learned Counsel for the Petitioners have referred to Rule 42 of the Mizo District (Agricultural Land) Rules, 1971, in terms of which the Patta can be cancelled for the reasons mentioned therein only after giving the person concerned opportunity to defend himself. In the instant case, admittedly, no such opportunity was given to the Petitioners. After the communications made in favour of the Petitioners, the same very authority issued the impugned communication solely guided by the dictation and desire of the Minister concerned. Such exercise of power without being guided by the principles involved relating to exercise of sound discretion in the matter cannot be upheld and accordingly interference is called for to such a decision. 18. Such exercise of power without being guided by the principles involved relating to exercise of sound discretion in the matter cannot be upheld and accordingly interference is called for to such a decision. 18. In view of the above, I find sufficient force in the submissions made by the learned Counsel for the Petitioners and consequently, the writ petition stands allowed by setting aside and quashing the Annexure-18 A impugned communication dated 28.7.2004 as well as the above quoted communication dated 18.6.2004 based on which the impugned communication was issued and about which a mentioned has been made in the impugned communication dated 18.7.2004. 19. Writ petition stands allowed, leaving the parties to bear their own costs. Petition allowed