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2017 DIGILAW 436 (GAU)

Zampuii v. State of Mizoram

2017-04-06

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. A.R. Malhotra, learned counsel appearing for the appellant. Also heard Mr. Rosangzuala Ralte, Government Advocate appearing for the State respondent Nos. 1 to 4 and Mr. L.H. Lianhrima, senior counsel assisted by Ms. H. Lalmalsawmi, counsel for the respondent No. 5. The appellant by way of the present regular first appeal has made a challenge to the Judgment and Order dated 9.4.2014 passed by the Senior Civil Judge-I, Aizawl in Title Suit No. 11/2002, by which the suit has been dismissed. 2. The present case relates to overlapping of land. The appellant is the owner of land which was initially covered by House Pass No. 539/1989, which was later superseded by the LSC No. 394/1990. The respondent No. 5, on the other hand is the owner of land initially covered by House Pass No. 854/1974, which was later superseded by LSC No. 3126/1985. The overlapping of land covered by the two LSCs does not pertain to the entire land in question but only pertains to overlapping in some areas of the lands covered by the 2 LSCs. 3. The brief facts of the case is that the father of the respondent No. 5 had bought the land covered by LSC No. 3126/1985 from one Sh. L.N. Tluanga and on his death in the year 1992, the present respondent No. 5 had inherited the said land. The respondent No. 5 filed a complaint in the year 1996 to the Land Revenue and Settlement Department, Government of Mizoram complaining that her land had been encroached upon by the appellant. The Revenue Department thereafter issued three Orders dated 24.05.2000, 19.06.2000 and 25.06.2002, wherein it held that the dispute regarding overlapping of land between the appellant and the respondent No. 5 had been enquired into and the parties were also summoned. As no amicable settlement could be made between the parties, the respondent authorities came to a decision that the House Pass and LSC belonging to the respondent No. 5, being issued prior in time to the House Pass and LSC issued in favour of the appellant, the disputed area would belong to the respondent No. 5. As no amicable settlement could be made between the parties, the respondent authorities came to a decision that the House Pass and LSC belonging to the respondent No. 5, being issued prior in time to the House Pass and LSC issued in favour of the appellant, the disputed area would belong to the respondent No. 5. The above orders also directed that the building constructed by the appellant on the disputed land would be valued by the PWD as per the PWD Schedule rate and the value of the said building would be paid by the respondent No. 5. The respondent authorities also directed the appellant to look out for a convenient vacant land for transfer of her LSC. 4. The appellant being aggrieved by the three Orders dated 24.05.2000, 19.06.2000 and 25.06.2002 issued by the Revenue Department, she filed Title Suit No. 11/2002 praying for a decree of title over the disputed question of land and for setting aside the orders passed by the Revenue Department. 5. The Court of the Senior Civil Judge-II, Aizawl vide its Judgment and Order dated 04.08.2011 dismissed the Title Suit No. 11/2002. 6. The appellant thereafter filed RFA No. 26/2011 challenging the Judgment and Order dated 4.8.2011. RFA No. 26/2011 was disposed of vide Order dated 1.8.2013 directing the learned Trial Court to start the proceedings afresh, from the stage of framing of issues. 7. In pursuant to the Order dated 1.8.2013 passed by this Court in RFA No. 26/2011, the proceedings was started afresh by the learned Trial Court. Thereafter, vide Judgment and Order dated 9.4.2014, the Court of the Senior Civil Judge-I, Aizawl dismissed Title Suit No. 11/2002. 8. The appellant's counsel submits that the appellant had been allotted the land covered by LSC No. 394/1990 by way of House Pass No. 539/1989 initially. The appellant accordingly constructed a building in the year 1989. Thereafter in the year 1990, House Pass No. 539/1989 was converted/superseded by LSC No. 854/1974. 9. The appellant's counsel submits that some time in the year 1996, a complaint was lodged for the first time by the respondent No. 5 stating that the appellant had encroached upon the appellant's land. The appellant accordingly constructed a building in the year 1989. Thereafter in the year 1990, House Pass No. 539/1989 was converted/superseded by LSC No. 854/1974. 9. The appellant's counsel submits that some time in the year 1996, a complaint was lodged for the first time by the respondent No. 5 stating that the appellant had encroached upon the appellant's land. The appellant's counsel submits that the respondent No. 5 having known all along that the appellant was occupying the suit land and as they did nothing even at the time of construction of the building by the appellant on the suit land, the respondent No. 5 could not be allowed to agitate the issue of title and possession of the suit land, as the same was barred by the principle of acquiescence. In this regard, the appellant's counsel has relied upon the Judgment of this Court in Sailala v. Smt. Ngurtaiveli reported in AIR 1980 Gauhati 70. 10. The appellant's counsel submits that as per the proviso to Section 22(1) of the Mizoram (Land Revenue) Act, 2013 (hereinafter referred to as 2013 Act), which is applicable to the present case, the appellant has to be deemed to be the owner of the suit land. In this regard, the appellant's counsel has relied upon the Judgment of the Hon'ble Supreme Court in the case of Lakshmi Narayan Guin & Ors. v. Niranjan Modak reported in (1985) 1 SCC 270 , wherein it has been held by the Apex Court that a change in law during the pendency of an appeal has to be taken into account and will govern the rights of the parties. He also submits that as per the evidence on record, the father of the respondent No. 5 was well aware, sometime between 1990 to 1992, that there was overlapping of land between the two LSCs and yet nothing was done by the father of the respondent No. 5. He also submits that as per the evidence of the Assistant Director (Survey) of the Revenue Department, and the Village Council President of Chanmari West, there was no illegality in the issuance of the LSC No. 394/1990 to the appellant. He therefore prays for setting aside the impugned Judgment and Order passed by the learned Trial Court. 11. Mr. Rosangzuala Ralte, Government Advocate for the respondent Nos. He therefore prays for setting aside the impugned Judgment and Order passed by the learned Trial Court. 11. Mr. Rosangzuala Ralte, Government Advocate for the respondent Nos. 1 to 4 submits that the complaint of overlapping of land having been received by the State respondents in 1996 from the respondent No. 5, an inquiry was instituted and as no amicable settlement could be reached by the parties, the State respondents had to decide the matter on the basis of seniority of the Land Passes, inasmuch as, the person who had been allotted land earlier in point of time was declared to be the rightful owner/title holder of the land. He submits that there is no infirmity in the decision made by the authorities as there was no cancellation of land allotted earlier and, accordingly, prays that the appeal should be dismissed. 12. Mr. L.H. Lianhrima, senior counsel for the respondent No. 5 submits that the deposition of some of the witnesses given in their examination-in-chief and which had been relied upon by the appellant's counsel, cannot be taken into consideration, as it is inadmissible in law, as they were not cross examined. He submits that opportunity of cross examination not having been given to the respondents with respect to those witnesses relied upon by the appellant, their evidence cannot be treated as admissible. 13. The counsel for the respondent No. 5 also submits that as per the evidence given by the respondent No. 5, there was no acquiescence on the part of the respondent No. 5 or her father with regard to construction of a building or encroachment by the appellant on the suit land. He also submits that the House Pass and LSC issued to the appellant in the years 1989 and 1990 respectively was done on the basis of a "No Objection Certificate" issued by the Village Council President of Chanmari West. However, as the Chanmari West Village Council was first formed only in the year 1987, the issuance of the No Objection Certificate by the Village Council President had not taken into consideration the House Pass and LSC, which are now owned by the respondent No. 5 and which were issued in the years 1972 and 1985 respectively. 14. However, as the Chanmari West Village Council was first formed only in the year 1987, the issuance of the No Objection Certificate by the Village Council President had not taken into consideration the House Pass and LSC, which are now owned by the respondent No. 5 and which were issued in the years 1972 and 1985 respectively. 14. The counsel for the respondent No. 5 submits that a "No Objection Certificate" would have to be signed by the owner of the property adjacent to the vacant land, before allotment of the vacant land. This ensures that the new allotment of vacant land does not overlap, already allotted lands. However, in this case the "No Objection Certificate" was not taken from the respondent No. 5, before allotment of land by way of House Pass No. 539/1989 and LSC No. 394/1990 to the appellant. 15. I have heard the learned counsels for the parties. 16. The issue in question lies in a very narrow compass, i.e., whether the allotment of House Pass No. 539/1989 and the subsequent LSC No. 394/1990 was validly issued. It is an admitted fact that the land belonging to the respondent No. 5 is covered by House Pass No. 854/1974 and LSC No. 3126/1985, which is prior in time to the allotment of land to the appellant by way of House Pass No. 539/1989 and LSC No. 394/1990. At the time of issuance of House Passes and LSCs in question, Sections 4 and 6 of the Mizo District (Land and Revenue) Act, 1956 were applicable. Sections 4 and 8 of the Mizo District (Land and Revenue) Act, 1956 are reproduced below:- "4. No person shall acquire by length of possession or otherwise any right over land disposed of, allotted or occupied before the commencement of this Act unless such land had been recorded and registered either in the Deputy Commissioner's Office or the District council's Office. 8. Power of the Administrator over vacant land: In the case of any land over which no person has right of use or occupancy under this Act or which is not under use or occupancy of the Government, the Administrator may direct that:- (a) such land may be disposed of by way of grant, lease or otherwise in the manner prescribed; (b) the person who has entered into unauthorized occupation of such land may be rejected in the manner prescribed. (c) any crop, building or other constructions erected without authority may be disposed of in a manner it deems fit." 17. A perusal of the above two provisions would go to show that allotment of land can only be done in respect of vacant land. Accordingly, as the appellant's land covered by House Pass No. 539/1989 and the subsequent LSC No. 394/1990 covered land which had already been allotted by way of House Pass No. 854/1974 or LSC No. 3126/1985, and which were not cancelled by the authorities, the allotment of that portion of the appellant's land, which encroached upon the land of the respondent No. 5 is not valid. To that extent, the appellant's House Pass and LSC would not be valid. 18. The appellant has taken reliance of the proviso of Section 22(1) of the Mizoram (Land Revenue) Act, 2013 to state that the appellant having been in constructive possession of the land, on the basis of a legally issued LSC, the appellant should be deemed to be the owner of the said land, if he has fulfilled all the conditions of the LSC. Section 22(1) of the Mizoram (Land Revenue) Act, 2013 (hereinafter referred to as the 2013 Act) is reproduced below:- "Section 22 : Accrual of rights of land-holders (1) Every person who, at the commencement of this Act, holds any land from the Government for agricultural purposes or non-agricultural purposes as a Land Settlement Certificate holder including his successor or successors-in-interest shall be deemed to be the owner thereof on and from such commencement. Provided that in the case of more than one claim for ownership over one and the same plot or parcel of land, and all the related Land Settlement Certificates having been found valid and duly acted upon, subject to the decree of a competent Civil Court, if any, the first Certificate-holder, if in actual and constructive possession of the land, in accordance with the satisfactory fulfillment of the conditions specified in his Land Settlement Certificate, shall become the owner." 19. A reading of the above proviso to Section 22(1) of the 2013 Act would be applicable only in the case of a valid LSC. A reading of the above proviso to Section 22(1) of the 2013 Act would be applicable only in the case of a valid LSC. Section 131 of the 2013 Act, while repealing the Mizo District (Land and Revenue) Act, 1956, states that the previous operation or anything done or issued in pursuant to the repealed Act shall be deemed to have been made or taken to be done under the 2013 Act. 20. The proviso to Section 22(1) of the 2013 Act would not come to the aid of the appellant regarding his claim to ownership of the suit land in view of the fact that House Pass No. 539/1989 & LSC No. 394/1990 had been issued at the time of the applicability of the Mizo District (Land and Revenue) Act, 1956, and after the earlier allotment of the overlapped portion of land to the respondent No. 5, covered by House Pass No. 854/1972 and LSC No. 3126/1985. The main reason being that the land allotted to the appellant vide the House Pass and LSC, in so far as it overlapped the land covered by the House Pass and LSC of the respondent No. 5, is illegal and not valid. Accordingly the appellant's House Pass No. 539/1989 and LSC No. AZL. 394/1990 of the appellant is invalid, to the extent that it encroaches/overlaps the land of the respondent No. 5. As the allotment of land to the appellant which overlaps the land of the respondent No. 5 is bad in its inception, any consequent action/development cannot validate the action, which was not lawful in its inception, as the illegality strikes at the very root of the problem. 21. The land of the respondent No. 5 covered by the earlier House Pass No. 854/1972 and LSC No. 3126/1985 was never cancelled by the authorities and as such, the said land was never a vacant land. It remained the land of the respondent No. 5 and her predecessor in interest. The State respondents thus could not have allotted any portion of the land of the respondent No. 5 covered by the House Pass No. 854/1972 and LSC No. 3126/1985 to the appellant and the allotment of the same was an illegality, which was violative of the land laws applicable to the State. 22. The State respondents thus could not have allotted any portion of the land of the respondent No. 5 covered by the House Pass No. 854/1972 and LSC No. 3126/1985 to the appellant and the allotment of the same was an illegality, which was violative of the land laws applicable to the State. 22. The evidence showing that the Village Council President of Chanmari West had given a "No Objection Certificate" for allotment of land to the appellant cannot be the basis for validating an illegal action, inasmuch as, the Village Council President of Chanmari West did not know or had overlooked the fact that parts of the land allotted to the appellant had already been allotted to the respondent No. 5 earlier. As such, no weight or value can be given to the "No Objection Certificate" issued by him. 23. With regard to the question of the doctrine of acquiescence, this Court finds that the evidence on record goes to show that the father of the respondent No. 5 came to know of overlapping of the land in between the years 1990 and 1992 and that the father of the respondent No. 5 died in the year 1992. There is nothing on record to show that the respondent No. 5 was aware of the overlapping of land, prior to the year 1996. Also, as the civil suit is not barred by limitation, this Court does not find any infirmity in the learned Lower Court, not applying the doctrine of acquiescence in the present case, as there is nothing in the evidence to show that the respondent No. 5 or her father had acquiescence to the construction of a building by the appellant in the disputed land. Thus, this Court finds that appellant has no right or title to that portion of the land covered by her House Pass No. 539/1989 and LSC No. 394/1990, which overlaps the land covered by the respondent No. 5's House Pass and LSC. In view of the reasons stated above, the present appeal is dismissed. No cost. Appeal Dismissed.