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2014 DIGILAW 60 (MAN)

Union of India and Anr. v. S. Shangreikhai

2014-05-12

L.K.MOHAPATRA, N.KOTISWAR SINGH

body2014
JUDGMENT L.K. Mohapatra, ACJ. These two writ appeals arise out of the judgment and order of the learned Single Judge dt. 14.3.2011 in WP(C)No.420 of 2002. The writ appeal No.42 of 2013 has been by the State of Manipur whereas Writ Appeal No.49 of 2011 has been filed by the Union of India. 2. The private respondents were the petitioners in the writ application. Their case is that they own private land/paddy fields at Kahui, Khaiwar, Mashang and Mailan which are situated near to Kahui Kong river at Halang village in the district of Ukhrul. They solely depend on Kahui River for the purpose of irrigation during rainy and winter seasons and grow different types of crops in the paddy fields owned by them. Their further case is that they used to do pisciculture during rainy season to earn money for livelihood. In early eighties 20th Assam Rifles stationed at Somsai, in the District of Ukhrul constructed Water Tank/Dam in the middle of the river for diverting water to their Camp. Because of such diversion of water by the Assam Rifles, irrigation to the private fields got badly affected as a result of which there was reduction of yield in the lean season as well as in rainy season and they had to abandon pisciculture as such field got dried. It was, therefore, their further case that there was increase of labour force during the lean season to make their paddy fields cultivable and accordingly they were loosing all the income they were having earlier. In view of the loss of income sustained by them, representations were filed for payment of compensation in respect of loss of usufructs. The representations were not considered for which land owners formed a Committee and the Convenor of the Committee wrote a letter on 11.6.1998 to the Dy. Commissioner, Ukhrul praying for payment of compensation to those who are the victims of the said project of diversion of water by the Assam Rifles. After receipt of the said representation from the Convenor, the Sub Deputy Collector, on 8.4.1999, requested the Sub Divisional Officer, Ukhrul to verify the allegations, visit the spot and submit report. The SDO was also directed to take help of the District Fishery Officer, Ukhrul to assess the loss suffered for lack of water to continue pisciculture. After receipt of the said representation from the Convenor, the Sub Deputy Collector, on 8.4.1999, requested the Sub Divisional Officer, Ukhrul to verify the allegations, visit the spot and submit report. The SDO was also directed to take help of the District Fishery Officer, Ukhrul to assess the loss suffered for lack of water to continue pisciculture. Accordingly, the District Fishery Officer issued a letter on 14.7.1999 deputing two officers to conduct enquiry and assess 3 the damage caused to the Fish Farms because of diversion of water. On 20.7.99 the District Fishery Officer, Ukhrul furnished report with regard to the loss suffered because of diversion of water by Assam Rifles in terms of money to the Addl. Deputy Commissioner, Ukhrul and the S.D.O. also by his letter dt. 12.4.2000 submitted a list of owners of the paddy fields who had suffered loss due to diversion of water. District Agriculture Officer, Ukhrul wrote a letter on 12.4.2000 giving details of each farmers who suffered loss due to diversion of water. In spite of such reports, when no compensation was paid, the private respondents filed writ application for payment of compensation. 3. The present appellants filed their counter affidavits. They did not deny drawal of water from Kahui River for the purpose of use by the members of the Assam Rifles. It was their case that water was being drawn from the River 6-8 hours everyday and the rest water left in the river was adequate for irrigation and agriculture as well as pisciculture even during lean season. Specific stand was taken in the counter affidavit that the private respondents had not produced any document in proof of their title over the land claimed by them as their paddy fields. Therefore, in absence of any document in proof of title, the private respondents were required to go to the Civil Court to establish their title before asking for payment of compensation. It was also the stand of the present appellants that their officers were not involved in course of the enquiry either by the Agriculture Department or by the Fishery Department. 4. During pendency of the writ petition, the private respondents filed an additional affidavit stating that during pendecy of the writ petition, Govt. It was also the stand of the present appellants that their officers were not involved in course of the enquiry either by the Agriculture Department or by the Fishery Department. 4. During pendency of the writ petition, the private respondents filed an additional affidavit stating that during pendecy of the writ petition, Govt. Of Manipur instructed for an enquiry and the SDPO, Ukhrul submitted a report to the SP/ Ukhrul indicating therein that the diverted water is used by the 4 Assam Rifles and a small kutcha Dam has been made up of boulders and mud temporarily across the river by the Assam Rifles personnel blocking the stream just below the pump house and as such no water is flowing down the river. SP/Ukhrul also, in his report dt. 14.4.2008, stated that a Kutcha Dam has been constructed in the middle of the river by the Assam Rifle as a result of which no water is flowing down to the river into the kutcha irrigation canal which reportedly caused a lot of problem for the land owners to irrigate their paddy fields. Dy. Commissioner, Ukhrul also wrote a letter on 5.6.2008 informing the Principal Secretary (Revenue) that all the private respondents are the genuine owners of the paddy fields under cultivation, which had been affected due to diversion of water by the Assam Rifles. 5. The learned Single Judge, relying on all the above reports, came to the conclusion that Assam Rifles is using the water by constructing Tank/Dam over the Kahui river which was being used by the private respondents from irrigation of their paddy fields. However, there is dispute as to whether drawal of water by the Assam Rifles has really caused or reduced usufructs of the paddy fields of the private respondents. However, there is dispute as to whether drawal of water by the Assam Rifles has really caused or reduced usufructs of the paddy fields of the private respondents. Referring to some judgments of the Apex Court as well as of the Gauhati High Court, the learned single Judge, in the concluding paragraph of the judgment, held that the present appellants have to pay compensation to the private respondents for the loss caused to the private respondents and a Committee is required to be constituted for verification and for determining the amount of compensation to be paid for reduction of yields or usufructs from the paddy fields of the private respondents because of diversion of water from the river which resulted in failure of irrigation of the said paddy fields belonging to the private respondents. The learned Single Judge, further, directed constitution of a Committee consisting of three Government officers, two 5 representatives of the Assam Rifles as well as representatives of the private respondents for the above purpose. 6. After disposal of the writ application, it appears steps were taken for implementation of the judgment. The District Agriculture Officer assessed the loss in production of paddy during 1981-2011 in respect of 112 paddy field owners at Rs. 1,29,39,865/- and the Fishery Department also assessed the loss during the said period at Rs. 1,98,84,050/-. 7. Mr. C. Komol, learned CGSC appearing on behalf of the Union of India and Mr. RS Reisang, learned Sr. G.A. appearing on behalf of the State of Manipur assailed the impugned judgment of the learned Single Judge basically on two grounds. First ground of challenge is that the private respondents did not produce any document before the learned Single Judge in proof of their title over the lands alleged to be under their occupation and in absence of any document in proof of title, no compensation could be awarded by the learned Single Judge. Mr. C. Komol, learned CGSC, further submitted that no one from the Assam Rifles was directed to represent the Assam Rifles when the enquiry was conducted by different officials in order to assess the loss and accordingly the assessment of loss made by the Fishery Department specifically, is not acceptable to the Union of India. Mr. RS Reisang, learned Sr. Mr. C. Komol, learned CGSC, further submitted that no one from the Assam Rifles was directed to represent the Assam Rifles when the enquiry was conducted by different officials in order to assess the loss and accordingly the assessment of loss made by the Fishery Department specifically, is not acceptable to the Union of India. Mr. RS Reisang, learned Sr. GA further submitted that the dam having been constructed by Assam Rifles to divert the water for its own use, no compensation can be awarded against the State. 8. In the writ petition, in proof of title, the private respondents had produced Certificates issued by their respective Headman. Since all the documents relating to title are more or less of same nature on of such document is reproduced below: “TO WHOM IT MAY CONCERN This is to Certify that Shri Z. Shaklei s/o Lt. Z.Kahaosan of Hunphun Village is the sole and absolute owner and possessor of the Kahui to Meilan paddy field having an area of 0.70(Seventy) hactare bounded on the North : KS Vareichin South: VS Shimthar East : Z. Shaklei West : Z. Shaklei Sd/- Headman Hunphun Village ” Non Encumbrance Certificates were also issued in favour of some land owners by the SDO/Ukhrul and one such certificate is reproduced below: “GOVERNMENT OF MANIPUR OFFICE OF THE SUB DIVISIONAL OFFICER:UKHRUL LAND VALUATION NON ENCUMBRANCE CERTIFICATE Ukhrul, the.........16.........1........2004 No.2/US/L-V/2003 Certified that a Land measuring 0.80(eighty) sq. Ft/Acres/Hacs sitated at Kahui within the boundary belongs to Shri V.S. Hunterson s/o, d/o, w/o Vs Phungshim of Hunphun village, Ukhrul Sub-Division, Ukhrul District, Manipur is free from all encumbrance as per Mandol Zilladar enquiry report. Further certified that the land may be assessed at Rs.1,00000/-(Rupees One Lakh) approximately as per existing market value of the Mandol Zilladar report of this office, LAND SCHEDULE: North : Z. Shaklei South : R. Ramkahao East : VS. Hunterson West : VS. Hunterson Sd/-Sub Divisional Officer : UKhrul Sub Divisional Collector, Ukhrul” 9. Since both the documents do not prove title of the private respondents therein, the Court had called upon the learned counsel appearing for the private respondents, Mr. Markh Khapai to produce documents in support of title but he could not produce any document in proof of title. Hunterson Sd/-Sub Divisional Officer : UKhrul Sub Divisional Collector, Ukhrul” 9. Since both the documents do not prove title of the private respondents therein, the Court had called upon the learned counsel appearing for the private respondents, Mr. Markh Khapai to produce documents in support of title but he could not produce any document in proof of title. On 6.5.2014 when the appeals were taken up for hearing, the learned counsel for the private respondents submitted that there is no document of title except the documents annexed to the writ petition. It was, further, contended by the learned counsel for the private respondents that they are in possession of their respective lands since generations and in the hill areas of Manipur, Manipur Land Revenue and Land Reforms Act, 1960(for short “MLR & LR Act”) does not apply. According the learned counsel for the private respondents the lands were occupied by the private respondents who are tribal for generations and Headman of the village is the only authority who can certify ownership over the land. Since the practice in the hill areas is that possession of land by a particular tribal is recognized by the Headman, no document of title is required. So far as assessment of loss in usufructs due to lack of irrigation and pisciculture is concerned, it was contended by the learned counsel for the private respondents that the assessment has been made by the respective department after due verification and enquiries and therefore there is no reason for the Court to interfere with such assessment. 10. So far as the first ground of challenge is concerned, undisputedly the private respondents have not filed any document to show their title over the land under their occupation. Much reliance has been placed by the learned counsel appearing for the private respondents on the two documents quoted above and similar other documents in respect of other private respondents to prove title. The Certificate issued by the Headman shows that the land owner is the sole and absolute owner and possessor of a particular land, boundary of which has been indicated. The question that was put to the learned counsel for the private respondents was as to whether the Headman of the village was competent to allot land or declare somebody as owner thereof. The question that was put to the learned counsel for the private respondents was as to whether the Headman of the village was competent to allot land or declare somebody as owner thereof. The learned counsel for the private respondents could not produce any Rule/Circular/Administrative instructions empowering the Headman to either allot lands or give such a 8 declaration. On the other hand, it was contended by the learned counsel for the private respondents that in hill areas of Manipur, no land records are maintained and the tribals occupy lands for generations. 11. We are afraid that in absence of any Rule/Circular/Administrative instructions the Headman of a village is not competent to either allot land or give a declaration that a particular person belonging to a particular tribe is the owner of any land. The Non Encumbrance Certificate issued by the SDO also does not speak of title over the property. Since a specific stand was taken by the appellants in both the appeals that in absence of any document of title no compensation could be paid, the learned single Judge should have answered the said objection in the impugned judgment. From the impugned judgment, we find that there is no direct answer to the said objection raised by the appellants, but at the same time it appears the learned single Judge has relied upon certain reports submitted by the DC/Ukhrul in his letter dt. 5.6.2008 stating that all the private respondents are genuine owners of the paddy fields. The DC/Ukhrul could only say as to whether the private respondents were in possession of the land alleged to be under their occupation or not, but could have given an opinion that the private respondents are the owners of their respective lands in absence of any document of title. 12. In view of the fact that none of the private respondents has been able to produce any document in proof of title, compensation cannot be paid to them so long as they do not prove title over the lands under their possession. So far as assessment of loss in terms of the agriculture and pisciculture is concerned, we find that both the reports have been prepared by the officers of the concerned Department after an enquiry at the spot and there is no reason for this Court to discard the assessment made by them. So far as assessment of loss in terms of the agriculture and pisciculture is concerned, we find that both the reports have been prepared by the officers of the concerned Department after an enquiry at the spot and there is no reason for this Court to discard the assessment made by them. However, such compensation can only be paid provided the private 9 respondents establish their title over the land under their occupation. We, therefore, dispose of both the appeals by modifying the judgment & order of the learned single Judge to the following extent: The compensation as assessed by the Agriculture and Pisciculture Departments shall be paid to the private respondents in accordance with the extent of land under their occupation provided they produce document(s) in support of their title over the land under their possession. The private respondents may obtain such document either from the officer competent to declare such title or by way of obtaining a decree from the competent civil Court. Only on production of document in proof of title, the respondents shall be paid compensation according to the extent of lands under their occupation and loss sustained by them. 13. So far as liability of the State to pay compensation is concerned, there is no dispute that the Assam Rifle has several camps in the State for maintenance of security and it is the responsibility of the State to provide the members of Assam Rifles water. Admittedly, the State has not extended any such facility as a result of which Assam Rifles had to make its own arrangement. Therefore, the State cannot escape the liability to share the compensation to be paid to the affected land owners who prove title over the land under their occupation. 14. Both the Writ Appeals are disposed of accordingly with the above modification to the judgment of the learned Single.