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2010 DIGILAW 147 (GAU)

Bawihthuami v. State of Mizoram

2010-02-24

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A.R. Malhotra, learned Counsel for the petitioners as well as Mrs. H. Dawngliani, learned Govt. Advocate, appearing on behalf of the respondent Nos. 1 to 4 and 6 and also heard Mr. M. Zothankhuma, learned Counsel, appearing for Respondent No. 5. 2. The petitioners are all owners of landed properties at Kulikawn, Aizawl which are covered by LSC No. 104502/01/745 of 2007, 104502/01/746 of 2007 and LSC No. 104502/01/747 of 2007. It is pleaded that the respondents while undertaking the construction of Aizawl bypass road (Zemabawk-Silaimual) under World Bank Project had illegally encroached upon the petitioners land of an area measuring 18.94 metres. A spot verification conducted on 25.3.2008 on the basis of representation dated 15.3.2008 had also revealed that respondents had encroached upon an area measuring 18.94 metres. Under the Resettlement and Rehabilitation Policy prepared by the respondents themselves, the respondents are duty bound to pay compensation to the petitioners for their illegal encroachment upon their land. In fact, under Clause/Rule 5.1 of the Resettlement and Rehabilitation Policy of the Government, the State respondents are bound to give due value to the traditional practice of the tribal people and recognize their right over the land and absence of legal title to land would not be a bar for the people from getting the land compensation or replacement value for the affected land. Denial of payment of compensation to petitioners is highly illegal, arbitrary and is in violation of Articles 14 and 300A of the Constitution of India. 3. Mr. Malhotra, learned Counsel for the petitioners referring to para 5.1 (ii) submits that the petitioners are entitled to get compensation for the land inasmuch as they belong to local tribe and the traditional practice recognises their right over the land, no matter whether they have legal title to the land or not. They have the house passes at the time of acquisition of land which is enough for claiming compensation of the value of the affected land and they can claim the privilege under the traditional practice and their right over the land as local tribal people must be recognized and protected. They have the house passes at the time of acquisition of land which is enough for claiming compensation of the value of the affected land and they can claim the privilege under the traditional practice and their right over the land as local tribal people must be recognized and protected. According to him, demand for valid LSC or Patta at the time of acquisition of land in question, for the purpose of payment of land compensation, is too hyper technical, which is not applicable to the present petitioners, more so, when they are still holding the valid LSCs and the same are not yet cancelled by the revenue authority. 4. Mrs. H. Dawngliani, learned State Counsel vehemently opposing the submission made by the learned Counsel for the petitioners, submits that the claim of the petitioners was considered by the special committee constituted by the Government under "Resettlement and Rehabilitation Policy" introduced by the Government. In the said committee, representatives of the project affected persons of the concerned villages were included as members and they participated in the meetings convened for the said purpose. The said committee determined and settled the claims of the petitioners along with others and it was decided to pay compensation to them for damage of standing crops only. Accordingly, the petitioners were paid the compensation for damage of crops and they have accepted the same and they cannot now claim land compensation. She submits that the representation dated 15.3.2008 submitted by the petitioners to the Project Director, PIU, PWD was considered and a suitable reply was sent to the petitioners vide letter dated 25.8.2008 (Annexure-4 to the writ petition) issued by the Special Land Acquisition Officer & Executive Engineer (Proc). According to her, para 5.1 (ii) of the resettlement and rehabilitation policy is meant only for assistance at replacement value for the affected land and not for compensation for the loss of land due to acquisition. The recognition of people's right on the basis of traditional practice cannot be extended to persons who have no valid legal title over the land in question. Admittedly, the petitioners had no LSCs claiming title over the land in question and hence, the benefit under the aforesaid para 5.1 (ii) cannot be extended to the petitioners. The recognition of people's right on the basis of traditional practice cannot be extended to persons who have no valid legal title over the land in question. Admittedly, the petitioners had no LSCs claiming title over the land in question and hence, the benefit under the aforesaid para 5.1 (ii) cannot be extended to the petitioners. The petitioners, having no valid legal title to the land have no vested right upon them to claim land compensation and as such, the present petition, according to Mrs. Dawngliani, is liable to be dismissed. 5. In reply to the aforesaid submission, Mr. Malhotra, learned Counsel for the petitioners submits that para 7.4 (ii) of the "Resettlement and Rehabilitation Policy" provides for fixing up market value of land "based on any transaction that might have taken place or the value assessed by considering the topography and accessibility of basic requirement". With the existence of such provision in the scheme, the State respondents cannot disown its liability to pay land compensation to the petitioners and as such, they are entitled to get compensation for the land acquired from them. 6. From the pleadings and submission of the learned Counsel for the parties, it is discernible that the petitioners were holding the house passes issued by the revenue authority as they have been possessing the land for a long period of time and said house passes were valid at the time of acquisition of the land. At that time of the petitioners, no doubt, acquired no heritable right over the land but they were allowed to continue in their possession. Even long after acquisition of the land, the petitioners were granted LSCs. A plea was taken by the respondent-State that the LSCs were issued wrongly. But the fact remains that the said LSCs, although wrongly issued, as claimed by the respondent-State, were never cancelled/withdrawn and the same are still remaining valid. No action has been taken by the State to cancel/withdraw the said LSCs. It is also admitted that the petitioners have been growing crops on the said land for which the respondent-State had paid compensation for damage of the crops. 7. I have gone through the communication dated 25.8.2008 (Annexure-4 to the writ petition), as referred to earlier, whereby the land compensation claimed by the petitioners was turned down. It is also admitted that the petitioners have been growing crops on the said land for which the respondent-State had paid compensation for damage of the crops. 7. I have gone through the communication dated 25.8.2008 (Annexure-4 to the writ petition), as referred to earlier, whereby the land compensation claimed by the petitioners was turned down. No observation of finding has been recorded in the said letter as to whether the persons affected in the acquisition proceeding who are having valid house passes only in 2005, that is after the acquisition proceeding took place in 2002 and completed in 2003 had acquired title over the land so as to claim compensation for the land acquired. The respondent authorities, while disposing the claim for land compensation, is required to consider this aspect with due regard to the provisions contained in para 5.1 (ii) and 7.4 (ii) of the "resettlement and Rehabilitation Policy." 8. The concern of this Court is about the strict application of the Land Acquisition and Compensation Act, 1894 made by the British Rule. It is to remember that laws made by the Indian Parliament or by the provincial Legislatures were not to apply in Lushai Hill District (now Mizoram) unless the Governor General or the Governor as the case may be, accorded sanction to application of such laws. What is more to be noted is that the Lushai Hill District was an Excluded Area, which means excluded from the Reforms Act and the said Reforms Act were not applicable to this Hill District under 1935 Act. Like other excluded area, the Inner Line Regulation was also made applicable to this hill district under the Bengal Frontier Regulation Act, 1873. Under the Inner Line Regulation, no British subject or foreign residents could go beyond the Inner Line without a valid licence or permit issued by the concerned district administration. So there has been a restriction of the free entry of general people in this District, now a State. Because of the topographical condition and other reason, the local tribal people have been practicing fondly what is popularly known as "jhum" cultivation or shifting cultivation. Due to such background, the local tribal people had the least botheration for obtaining legal title over the lands they occupy for cultivation and that may be the reason why the tribal people are occupying or enjoying land without any valid title for generations. Due to such background, the local tribal people had the least botheration for obtaining legal title over the lands they occupy for cultivation and that may be the reason why the tribal people are occupying or enjoying land without any valid title for generations. This is prevalent not only in the State of Mizoram but also in the entire hill areas of North, even in the plain district of Assam. The common experience is that whenever any public institution, office, establishment, industrial until etc. are set-up, the State of its instrumentalities choose the tribal areas as they know that the land could be acquired without any financial involvement i.e. to say without payment of compensation and the tribal people could be removed from their places, land without payment of compensation on the technical ground that they have no valid legal title like land Pattas as is called in the rest of the States in North East or what is called LSCs in the State of Mizoram. It is not to say that land belonging to tribal people should not be acquired by the Government for public purpose but the Government must give due consideration and attention to the question of payment of compensation on the socioeconomic background of the local people. This Court can only hope and trust that the Respondent-State would reconsider the entire "resettlement and Rehabilitation Policy" in the light of the point noted above. It is happy to note that the State Government has already recognised the traditional practice in its present Scheme for rendering assistance at replacement value. Can that be extended further towards payment of land compensation? 9. It is happy to note that the State Government has already recognised the traditional practice in its present Scheme for rendering assistance at replacement value. Can that be extended further towards payment of land compensation? 9. In view of the above, this petition is disposed of with a direction to the respondent No. 1, Chief Secretary to the Government of Mizoram to re-examine the petitioner's claim for land compensation in the light of the aforesaid provisions in the "Resettlement and Rehabilitation Policy" taking into consideration that the petitioners have been holding the house passes after the land were acquisitioned and also holding the LSCs after the acquisition of land, which are still valid, as not being cancelled or withdrawn, by the authorities concerned and decided as to whether the petitioners would be entitled to get land compensation and the decision so taken shall be communicated to the petitioners in writing within a period of 4 (four) months from the date of receipt of a certified copy of the judgment and order. Considering to be made and decision that may be taken by the respondent-Chief Secretary shall not be a precedent to give benefit to all who have not approached this Court. 10. At the time of hearing, Mr. M. Zothankhuma, learned Counsel appearing for respondent No. 5 expresses apprehension that his client may be made liable to pay the compensation to the petitioners and in that case, it would cause irreparable loss and injustice to it. It may be made clear that the respondent No. 5 is an Agency only for construction of road in the interest of the public and it cannot be made liable to bear or share the amount of compensation that may be directed to be paid to the petitioners by any authority. 11. The petitioners shall obtain a certified copy of the judgment and order and furnished the same to the respondent No. 1. 12. With the aforesaid observations and directions, this writ petition stands disposed of. There shall be no order as to costs. Petition allowed.