R. Zarzoliana and Ors. v. State of Mizoram and Ors.
2013-02-19
UJJAL BHUYAN
body2013
DigiLaw.ai
Ujjal Bhuyan, J. -- By way of this petition under article 226 of the Constitution of India, petitioners, 29 in numbers, have challenged the legality and validity of order dated 08-08-1988 issued by the Director, Land Revenue and Settlement, Mizoram declaring Land Settlement Certificates of the petitioners as invalid, approval of the Government of Mizoram dated 10-06-2005 to the cancellation of Land Settlement Certificates and the order dated 16-11-2005 issued by the Director, Land Revenue and Settlement, Mizoram cancelling the Land Settlement Certificates of the petitioners. 2. Facts of the case as projected in the writ petition may be briefly noted. 3. Petitioners, except petitioner Nos. 9 and 10, claim to be owners of different plots of land settled in their favour by the respondents under the Mizo District (Land and Revenue) Act, 1956. Land Settlement Certificates (LSCs) were issued to the petitioners on various dates in the years 1986 and 1987. Petitioner Nos. 9 and 10 claim to be owners of plots of land settled in their favour by the respondents under the Mizo District (Agricultural Land) Act, 1963. LSCs were also issued to them in the year 1987. All the lands claimed by the petitioners as belonging to them are located at Zemabawk in the district of Aizawl. 4. Government of Mizoram in the Revenue Department issued notification dated 14-05-1985 under section 4(1) of the Land Acquisition Act, 1894 stating that lands located at Zemabawk falling within the old Zokhawsang village and its surrounding areas were earmarked for the 1st Assam Rifles. Affected persons were asked to submit their claims for compensation in writing to the Deputy Commissioner, Aizawl. It was also notified that further construction of houses etc. and plantation of new crops in the scheduled area was restricted w.e.f. the date of the notification until further notice. Description of the land proposed to be acquired was given in the schedule. 5. One month thereafter, Deputy Secretary to the Government of Mizoram, Revenue Department passed an order on 14-06-1985 declaring that allotment of land to private individuals following Government notification dated 14-05-1985 was restricted / frozen along the main national highway and the road bending to old Zokhawsang village earmarked for shifting of 1st Assam Rifles. All concerned authorities were instructed not to entertain applications for allotment of land within the above area. 6.
All concerned authorities were instructed not to entertain applications for allotment of land within the above area. 6. Thereafter, declaration under section 6 of the Land Acquisition Act, 1894 was made by the Deputy Secretary on 01-10- 1985 declaring that Government of Mizoram had decided to acquire the land at Zokhawsang village in the district of Aizawl for shifting of 1st Assam Rifles. It was stated that due compensation as assessed by the Collector would be paid to the land owners. 7. Secretary to the Government of Mizoram, Revenue Department (respondent No.2) issued another notification dated 13- 08-1987 under section 4(1) of the Land Acquisition Act, 1894 (for short “LA Act”) stating that land in the proximity of the area between the site allotted to the Church for locating Theological College and NH 54 (Aizawl-Lunglei road) at Zokhawsang in the district of Aizawl was likely to be needed for a public purpose i.e., to be included in the area allotted to the Assam Rifles. Objections under section 5A of the LA Act were called for within 30 days. Thereafter, notification under section 6 of the LA Act was issued by the respondent No.2 on 20-11-1987. The Collector of Aizawl district was directed to take order for acquisition of the said land having total area of about 31 hectares approximately. 8. Director of Land Revenue and Settlement, Mizoram (respondent No.3) issued letters to the petitioners on 19-04-1988 to submit their LSCs to him before 10-05-1988. 9. The Collector / Deputy Commissioner, Aizawl district (respondent No.4) issued order on 25-04-1988 under section 17 of the LA Act taking over possession of the said land w.e.f. 26-04-1988. It was stated that while proceedings for acquisition of land at Zokhawsang had been initiated for allotment to 1st Assam Rifles, the matter had assumed extreme urgency in the wake of the incidents at Aizawl on 29th and 30th March, 1988 involving Assam Rifles personnel. Therefore, it became necessary to invoke the provision of section 17 of the LA Act. In between, notices under sections 9 and 10 of the LA Act were already issued to the individual land owners on 07-04-1988. It was declared that the said land stood vested absolutely in the Government, free from all encumbrances. 10. Respondent No.3 issued order dated 08-08-1988 (impugned in the present proceeding) declaring the LSCs issued to 38 persons, including the petitioners, as invalid.
It was declared that the said land stood vested absolutely in the Government, free from all encumbrances. 10. Respondent No.3 issued order dated 08-08-1988 (impugned in the present proceeding) declaring the LSCs issued to 38 persons, including the petitioners, as invalid. The said order was passed pursuant to the instructions of the Government of Mizoram in the Revenue Department dated 07-07-1988. The LSCs were declared invalid on the ground that those were issued without the approval and sanction of the competent authority and in violation of Government notification dated 14-05-1985 and order dated 14-06-1985. 11. Long thereafter (after about 16 years), respondent No.3 issued show cause notices dated 10-03-2004 to the petitioners stating that they were issued LSCs by the Assistant Settlement Officer (ASO)-1, Aizawl within the area earmarked for the 1st Assam Rifles after issuance of the Government notification dated 14-05-1985 and order dated 14-06-1985. It was also stated that ASO-1 Aizawl was not authorized to issue the LSCs without the approval and sanction of the competent authority. Petitioners were, therefore, asked to submit their show-cause reply within 20-04-2004 as to why their LSCs should not be cancelled. 12. Petitioners submitted their reply. Stand taken in their reply was that their lands did not fall within the area covered by the Government notification dated 14-05-1985. Their lands were situated outside the demarcated area. It was contended that if their lands were to be included within the demarcated area, they should be paid adequate compensation. 13. Respondent No.3 submitted report before respondent No.2 on 11-05-2005 seeking approval for cancellation of LSCs. It was stated that allotment of land to private individuals in the area were restricted vide order dated 14-06-1985. All the concerned LSCs were issued after the order dated 14-06-1985. The LSC holders did not submit objection under section 5A of the LA Act. 14. Government granted approval on 10-06-2005 to the cancellation of the 38 LSCs. Following the approval, respondent No.3 issued order dated 16-11-2005 cancelling the LSCs with immediate effect. The reason cited for cancellation was that those LSCs were issued without the approval and sanction of the competent authority. Both the approval dated 10-06-2005 and cancellation order dated 16- 11-2005 have also been impugned in the present proceeding. 15.
Following the approval, respondent No.3 issued order dated 16-11-2005 cancelling the LSCs with immediate effect. The reason cited for cancellation was that those LSCs were issued without the approval and sanction of the competent authority. Both the approval dated 10-06-2005 and cancellation order dated 16- 11-2005 have also been impugned in the present proceeding. 15. According to the petitioners, respondent No.3 had issued an order dated 18-01-1983 declaring that all proposed LSCs would henceforth be scrutinized and passed by the ASO-II and only those cases which were found to be complicated should be endorsed to the respondent No.3 for his decision and approval. Therefore, it could not be said that the LSCs were issued without the approval and sanction of the competent authority as the ASO, who had issued the LSCs, was himself the competent authority. It is the further case of the petitioners that though the challenge to the cancellation of the 38 LSCs before this Court in two writ petitions by way of public interest litigation were dismissed by this Court, liberty was granted to the affected individuals to put forth their claim before the appropriate authority. Moreover, in a connected writ petition where the petitioners were not given compensation for acquisition of their lands on the ground that their House Site Settlement Certificates were cancelled by respondent No.3 vide the order dated 08-08-1988 (which is impugned in the present proceeding), a Single Bench of this Court held that as only the House Site Settlement Certificates were cancelled, those petitioners would be entitled to compensation for the acquisition of lands falling under the Agricultural Land Settlement Certificates, which were not cancelled. It was held that those petitioners were entitled to compensation for acquisition of their right over the lands which they held under the Agricultural Land Settlement Certificates. Though a Division Bench of this Court set-aside the judgment of the Single Bench, the Hon’ble Supreme Court set aside the judgment of the Division Bench and restored the order passed by the Single Bench. In view of above developments and for the grounds urged in the writ petition, which will be considered in the latter part of the judgment, petitioners have questioned the legality and validity of the impugned orders. 16. Respondents have filed counter affidavit.
In view of above developments and for the grounds urged in the writ petition, which will be considered in the latter part of the judgment, petitioners have questioned the legality and validity of the impugned orders. 16. Respondents have filed counter affidavit. Stand taken is that LSCs of the petitioners were issued by an incompetent authority and also in violation of Government notification dated 14-05-1985 and order dated 14-06-1985. Notification under section 4(1) of the LA Act was issued twice, firstly on 14-05-1985 for the main portion and secondly on 13-08-1987 for the additional portion. The LSCs were cancelled after giving reasonable opportunity to the petitioners. Contention of the petitioners that their lands were outside the schedule of the acquired land has been denied. Referring to the order dated 18-01-1983, the respondents have stated that proposed LSCs which were considered complicated were required to be endorsed to the respondent No.3 for his decision and approval. Since allotment of lands which were sought to be acquired for 1st Assam Rifles were restricted under order dated 14-06-1985, issuance of those LSCs were complicated ones which ought to have been endorsed to the respondent No.3. Since the Government order dated 14-06-1985 restricted / froze allotment of land in the area proposed to be acquired for allotment to the 1st Assam Rifles, issuance of LSCs thereafter and that too by an incompetent authority can confer no right on the petitioners. Even if the notification dated 14-05-1985 was not published in the official gazette, that would not confer legitimacy on the LSCs issued in violation of the restriction order dated 14-06-1985. Though in the cancellation order dated 16-11-2005 only the ground of non-approval and non-sanction by the competent authority has been cited as the reason for cancellation, the cancellation was on account of violation of Government order dated 14-06-1985 as well, which was mentioned in the show-cause notices as well as in the proposal of respondent No.3 to respondent No.2 sent on 11-05-2005. 17. Petitioners have filed reply affidavit to the counter affidavit filed by the respondents. It is contended that the LSCs belonging to the petitioners were issued by the competent authority in terms of order dated 18-01-1983. Since notification dated 14-05-1985 was not published in the official gazette as held by the Hon’ble Supreme Court, the said notification is void and non-est.
Petitioners have filed reply affidavit to the counter affidavit filed by the respondents. It is contended that the LSCs belonging to the petitioners were issued by the competent authority in terms of order dated 18-01-1983. Since notification dated 14-05-1985 was not published in the official gazette as held by the Hon’ble Supreme Court, the said notification is void and non-est. Since order dated 14-06- 1985 was issued in pursuance of notification dated 14-05-1985, which has been declared as null and void, it is also of no legal consequence. Petitioners have reiterated that their lands do not fall within the area covered by the restriction order dated 14-06-1985. Petitioners have further stated that issuance of LSCs to them did not involve any complicated issue and, therefore, endorsing the matter of issuing LSCs in favour of the petitioners to the respondent No.3 did not arise. Petitioners have also stated that land measuring 1296 acres located at Zemabawk were acquired for allotment to the Assam Rifles vide award No.4 of 1988. As per the said award, LSCs of only 15 land owners were held to be valid and entitled to compensation. However, those LSCs were also issued by the ASO-1 like the petitioners and after the Government order dated 14-06-1985. Therefore, petitioners have been discriminated against which calls for interference by this Court. 18. Heard Mr. Lalramzauva, learned Senior Counsel for the petitioners and Mr. Lalsawirema, learned Government Advocate, Mizoram, appearing for the respondents. 19. Learned Senior Counsel for the petitioners submits that cancellation of LSCs of the petitioners cannot be justified and is wholly illegal. After the judgment of the Hon’ble Supreme Court in which the notification dated 14-05-1985 has been held to be void and nonest, the order issued following the same on 14-06-1985 would be of no legal consequence. Therefore, cancellation of LSCs on the ground that those were issued in violation of the order dated 14-06-1985 is wholly untenable. Moreover, in view of the order dated 18-01-1983 empowering the ASOs to issue LSCs, it would not be open to the respondents to cancel the LSCs on the ground that those were issued by an incompetent authority.
Therefore, cancellation of LSCs on the ground that those were issued in violation of the order dated 14-06-1985 is wholly untenable. Moreover, in view of the order dated 18-01-1983 empowering the ASOs to issue LSCs, it would not be open to the respondents to cancel the LSCs on the ground that those were issued by an incompetent authority. According to the learned Senior Counsel, after the judgment of the Hon’ble Supreme Court upholding the claim of compensation of affected persons notwithstanding declaration of their LSCs as invalid vide order dated 08-08-1988, there can be no justification to uphold cancellation of petitioners LSCs and denying compensation to them for acquisition of the lands covered by those LSCs. In support of his submissions, he has placed reliance on the judgment of the Hon’ble Supreme Court in the case of State of Haryana-vs-Mukesh Kumar and Others reported in (2011) 10 SCC 404 . 20. Opposing the submissions of learned Senior Counsel for the petitioners, Mr. Lalsawirema, learned Government Advocate submits that petitioners have raised highly disputed questions of fact which may not be gone into in a writ proceeding. Petitioners contention that their lands fell outside the notified area has been refuted by the respondents. In such circumstances, petitioners may approach the appropriate forum for declaration of their right and enforcement thereof. Referring to the award placed on record by the petitioners as an annexure to their rejoinder affidavit, he submits that the award gave compensation to the petitioners for standing crops only. If the petitioners were aggrieved, they should have availed the remedy under the provisions of the LA Act for redressal of their grievance, which they did not. He, therefore, prays for dismissal of the writ petition. 21. Mr. Lalramzauva, learned Senior Counsel for the petitioners in his reply submitted that contention of the learned Government Advocate that petitioners should avail alternative remedy as disputed questions have been raised in the writ petition is without any substance as it is a settled legal position that a civil suit relating to land acquisition proceeding is not maintainable. He places reliance on a decision of the Hon’ble Supreme Court in the case of S.P. Subramanya Shetty and Others -Vs- Karnataka State Road Transport Corporation and others reported in AIR 1997 SC 2076 .
He places reliance on a decision of the Hon’ble Supreme Court in the case of S.P. Subramanya Shetty and Others -Vs- Karnataka State Road Transport Corporation and others reported in AIR 1997 SC 2076 . He further submits that cancellation of LSCs was without any legal authority as its very foundation was knocked down by the Hon’ble Supreme Court. He submits that there cannot be an exercise of power unless such power exist in law. He has placed reliance in paragraph 126 of the judgment of the Hon’ble Supreme Court in the case of Union of India –Vs- Tulsiram Patel reported in (1985) 3 SCC 398 . He, however, did not dispute that petitioners received compensation for standing crops under award No.4 of 1988 but contends that petitioners have been subjected to hostile discrimination as persons having similar LSCs were granted full compensation. 22. Submissions made have been considered. 23. Moot question for consideration is the legality and correctness of the declaration that the LSCs of the petitioners were invalid and cancellation of the same. Related to the above issue is the entitlement or otherwise of the petitioners to compensation under the LA Act for acquisition of land covered by those LSCs. 24. Since the facts have already been stated in detail, a renarration of facts may not be necessary. Suffice it to say that the first notification under section 4(1) of the LA Act was issued on 14-05-1985 notifying that land located at Zemabawk within the old Zokhawsang village would be acquired and, therefore, construction of houses etc. and planting of new crops in the said area were restricted. This was followed by the Government order dated 14-06-1985 imposing restriction / freezing allotment of land to private individuals in the land notified vide the notification dated 14-05-1985. 25. Admittedly, all the LSCs of the petitioners were issued after 14-06-1985. In the midst of the land acquisition proceeding, because of an emergent situation, the Collector invoked power under section 17 of the LA Act and took over possession of the land w.e.f. 26-04-1988. Thereafter, respondent No.3 issued order dated 08-08- 1988 declaring the LSCs of the petitioners as invalid. The LSCs were declared invalid on two grounds, firstly, the LSCs were issued without the approval and sanction of the competent authority, and secondly, those were issued in violation of Government notification dated 14-05- 1985 and Government order dated 14-06-1985. 26.
Thereafter, respondent No.3 issued order dated 08-08- 1988 declaring the LSCs of the petitioners as invalid. The LSCs were declared invalid on two grounds, firstly, the LSCs were issued without the approval and sanction of the competent authority, and secondly, those were issued in violation of Government notification dated 14-05- 1985 and Government order dated 14-06-1985. 26. There was no challenge to the said order dated 08-08- 1988 by the petitioners even though the lands covered by the invalidated LSCs were acquired on 26.04.1988. As a matter of fact, two writ petitions were filed before this Court, being Civil Rule Nos. 1759 and 1763 of 1988, in the form of public interest litigation seeking compensation following acquisition of land under section 17 of the LA Act and by invalidating the LSCs. A Division Bench of this Court by the common judgment and order dated 20-07-1994 rejected those writ petitions, firstly, on the ground that it was for the affected individuals to come forward to ventilate their grievance and secondly, on the ground that the writ petitions raised highly controversial facts. Though the writ petitions were dismissed, this Court observed that such dismissal would not affect the individual right of the claimants. It was further observed that they could still put forth their claims before the appropriate authority in which case the authority would dispose of the same in accordance with law. Significantly, this Court while dismissing the two writ petitions recorded a finding that “Settlement certificates issued were the result of fraudulent practices indulged in by the petitioners concerned”. 27. This judgment has not been challenged before the higher forum and consequently, the finding recorded therein that the settlement certificates issued were the result of fraudulent practices indulged in by the petitioners concerned has become final. 28. Long 24 years thereafter petitioners have filed the present writ petition challenging the legality and validity of the said order dated 08-08-1988. In between, the authority after giving opportunity to the petitioners, cancelled the LSCs vide order dated 16-11-2005 after obtaining approval of the Government. Even this order dated 16-11-2005 has been challenged after about 7 years. 29. There is no explanation in the writ petition for such huge delay in instituting the challenge. This Court vide order dated 26-04- 2012 observed that there is considerable delay in filing the writ petition and issued notice on the point of maintainability.
Even this order dated 16-11-2005 has been challenged after about 7 years. 29. There is no explanation in the writ petition for such huge delay in instituting the challenge. This Court vide order dated 26-04- 2012 observed that there is considerable delay in filing the writ petition and issued notice on the point of maintainability. No affidavit or explanation has been filed by the petitioners even thereafter to explain the delay in filing the writ petition. 30. By the impugned orders, valuable “rights” of the petitioners were affected, firstly by declaring their LSCs as invalid and thereafter, by cancelling those LSCs. Therefore, there can be no justification for such a belated challenge as it is beyond one’s comprehension that an affected party, whose property rights were extinguished, will wait so long to seek redress. In such circumstances, there can be no escape from the inevitable conclusion that the writ petition is hit by delay and laches. 31. In view of the above finding and coupled with the finding recorded earlier by a Division Bench of this Court that the settlement certificates issued, which were declared as invalid, were the result of fraudulent practices indulged in by the petitioners concerned, the Court is of the unhesitant view that no relief can be granted by the Court to the petitioners in exercise of its discretionary powers under article 226 of the Constitution of India. 32. Notwithstanding the above conclusion, since the matter was admitted and heard at length, the Court would like to proceed and decide the case on merit as well. 33. Petitioners have placed on record a copy of award No.4/1988 relating to acquisition of land for allotment to Assam Rifles. Referring to the LSCs of the petitioners, the Collector noted that 38 LSCs were declared as invalid. But it was held that holders of such LSCs were still entitled to claims for their crops / plants within the respective areas on the basis of their passes prior to their conversion into LSCs. Accordingly, assessments of compensation for standing crops in the land holdings covered by the invalid LSCs were made. At the time of hearing, it was submitted at the bar by the learned Government Advocate that the petitioners had received such compensation, which was not disputed by the learned Senior counsel for the petitioners. If that be the case, the remedy of the petitioners lay elsewhere.
At the time of hearing, it was submitted at the bar by the learned Government Advocate that the petitioners had received such compensation, which was not disputed by the learned Senior counsel for the petitioners. If that be the case, the remedy of the petitioners lay elsewhere. The LA Act is a self contained code and provides adequate remedy in the event of such grievance. As a matter of fact, the Division Bench while dismissing the public interest litigations gave liberty to the affected parties to put forth their claim before the appropriate authority. Petitioners have not been able to show that they had availed the remedy as provided under the LA Act. A writ proceeding cannot be a substitute for the statutory remedy available under the LA Act, more so when the claim of the petitioners that their lands fell outside the notified area is highly disputed and contested by the respondents. 34. A writ petition was filed by one Shri Lalrivenga and another before this Court in the year 2000, which was registered and numbered as W.P.(C) No.114/2000, seeking compensation for land acquisition. That was a case where the petitioners had purchased periodic patta lands in the year 1984, which were later on converted into Agricultural Land Settlement Certificates. Subsequently, the Agricultural Land Settlement Certificates were again converted into House Site Land Settlement Certificates. Later on, the said land was acquisitioned but compensation was not paid on the ground that the House Site Settlement Certificates were declared invalid by the respondent No.3 vide order dated 08-08-1988 on the ground that the certificates were issued without the approval of the competent authority and those were issued in violation of Government notification dated 14-05-1985 and Government order dated 14-06- 1985. It was agreed by both the sides at the time of hearing that although the House Site Settlement Certificates were declared invalid, the Agricultural Land Settlement Certificates remained valid and that the petitioners were entitled to compensation for acquisition of right over the land covered by the Agricultural Land Settlement Certificates. Order was passed accordingly. 35. On appeal by the State, being Writ Appeal No.1/2005, the Division Bench reversed the decision of the Single Bench.
Order was passed accordingly. 35. On appeal by the State, being Writ Appeal No.1/2005, the Division Bench reversed the decision of the Single Bench. The Division Bench held that as the passes originally issued were converted to LSCs subsequent to the declaration under section 6(1) of the LA Act and the order dated 14-06-1985 prohibiting allotment of land, such conversion of passes to LSCs would not confer any right to claim compensation. 36. The matter was carried to the Hon’ble Supreme Court. In Civil Appeal No. 7825/2011, the Apex Court vide the judgment and order dated 13-09-2011 set aside the judgment of the Division Bench and restored the order passed by the Single Bench. The Apex Court held that no material was produced to show that notification dated 14- 05-1985 issued under section 4(1) of the LA Act was published in the official gazette. The cancellation of LSCs on the ground that those were issued without the sanction or approval of the competent authority was also disapproved as the State could not controvert the assertion that vide order dated 18-01-1983, ASO- II was authorized to process and decide applications for grant of LSCs. The Hon’ble Supreme Court held that the appellants had purchased land in 1984 and the Settlement Officer issued LSCs in 1987 after duly scrutinizing the applications made for that purpose. It was therefore held that this action was not in violation of the Government order dated 14-06-1985 by which allotment of land to private individuals was restricted / frozen along the main national highway and the road leading to old Zokhawsang village which was earmarked for allotment to 1st Assam Rifles. 37. A careful reading of the above judgments would reveal the factual divergence of the said case and the present one. In that case, admittedly, the lands which were then under periodic patta, were purchased in the year 1984 and the conversion took place in the year1987. Therefore, it was held that the said action was not in violation of the Government order dated 14-06-1985. Moreover, that was a case where the petitioners were held entitled to limited compensation under Agricultural Land Settlement Certificates. In the present case, the LSCs were issued for the first time after the restriction order dated 14-06-1985. However, the present petitioners were also given limited compensation for standing crops.
Moreover, that was a case where the petitioners were held entitled to limited compensation under Agricultural Land Settlement Certificates. In the present case, the LSCs were issued for the first time after the restriction order dated 14-06-1985. However, the present petitioners were also given limited compensation for standing crops. Facts and issue in the present case are qualitatively different from that case. The issue in the present case is as to whether the authority could have issued the LSCs to the petitioners after the Government order dated 14-06-1985. Considering the background facts of the present case as already noticed, the answer to the question posed above can only be in the negative. In such circumstances, the Court is of the unhesitant view that petitioners are not entitled to any relief. 38. The decisions relied upon by the learned Senior Counsel for the petitioners are clearly distinguishable and are not attracted to the facts and circumstances of the case. While Mukesh Kumar (supra)is on adverse possession, the well known decision in Tulsiram Patel(supra) is on the scope and ambit of Article 311 (2) of the Constitution of India. Reliance placed on Subramanya Shetty (supra) is also misplaced as the petitioners did not avail the statutory remedy under the LA Act. 39. Consequently, this Court finds no merit in the writ petition, which is accordingly dismissed. 40. No cost.