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2017 DIGILAW 525 (GAU)

Saikhumi v. State of Mizoram

2017-05-02

NELSON SAILO

body2017
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. L.H. Lianhrima, the learned senior counsel assisted by Ms. H. Lalmalsawmi, learned counsel for the petitioner as well as Mrs. Linda L. Fambawl, the learned Government Advocate, Mizoram on behalf of all the respondents. The case of the petitioner in brief is that the petitioner was allotted a Periodic Patta covering an area of 15135.50 square metre located at Saihapui in the District of Kolasib. Subsequently, the Periodic Patta was converted into Agricultural Land Settlement Certificate (Agricultural LSC) registered as LSC No. 101707/09/11 of 2000 covering the same area. The learned senior counsel for the petitioner submits that since the issuance of the Periodic Patta as well as the Agricultural LSC, the petitioner has been looking after the land and paying the due tax and fee as fixed by the State respondents from time to time. 2. The learned senior counsel submits that in the year 1989, the Public Works Department (PWD) started construction of motorable road over her land without her permission devastating the plantation and thereby causing loss of her earning from her land. Likewise, the Forest Department of the State also removed sand from her land without her permission. The representation of the petitioner having not been favourably considered by the respondent authorities, the petitioner filed other Suit No. 2/1996 before the Court of the Senior Civil Judge, Aizawl. The suit was finally disposed of by the learned Senior Civil Judge vide Judgment and Order dated 13.09.2012 with a direction to the Public Works Department to acquire the land used for constructing the motorable road and for this purpose the Revenue Department of the State was directed to make an assessment of the land value in respect of the portion of the land where the road was constructed. 3. Pursuant to the decision of the learned Senior Civil Judge, Aizawl, the petitioner was given compensation to the tune of Rs. 18,01,013/- (Rupees eighteen thousand one thousand and thirteen) only as assessed by the respondent authorities. 4. The learned senior counsel submits that apart from the construction of the road for which the petitioner was compensated, a number of Bru families came to reside upon her land and thereby completely destroying the plantation in the land and also residing upon the same. 4. The learned senior counsel submits that apart from the construction of the road for which the petitioner was compensated, a number of Bru families came to reside upon her land and thereby completely destroying the plantation in the land and also residing upon the same. The petitioner being unable to evict the illegal settlers, submitted a representation to the Minister-in-Charge of Land Revenue & Settlement Department on 4.05.2012 (Annexure-2A). Pursuant to her representation, a verification was conducted by a Surveyor of the Revenue Department and accordingly, the Assistant Settlement Officer, Land Revenue & Settlement Department, Kolasib District vide communication dated 16.05.2012 (Annexure-3) informed the Minister-in-Charge of Revenue Department that on conducting a technical verification over the land of the petitioner under the aforesaid Agricultural LSC, it was found that there were 35 families residing in the land of the petitioner. Besides such settlement, there was also a Field, Pavilion and Anganwadi Centre. The report of the Surveyor dated 11.05.2012 has been annexed as Annexure-3 A in the writ petition. 5. Following the technical report, a meeting was held on 2.7.2012 (Annexure-4) in the Office Chamber of the Principal Secretary of the Revenue Department to discuss about the encroachment of the land of the petitioner by the Bru and Mizo families. The meeting while perusing the report of the Surveying Officer resolved that the Deputy Commissioner of Kolasib District be requested to issue show cause notice to the illegal encroachers requiring them to explain within 20 days as to why they should not be evicted. 6. Accordingly, a show cause notice was issued to the settlers in the petitioner's land vide show cause notice dated 11.07.2012 (Annexure-5A). The Additional Deputy Commissioner of Kolasib District in response to the communication dated 4.7.2012 from the Secretary to the Government of Mizoram, Revenue Department also submitted a verification report over the occupation of the petitioner's land by the 35 families. The said report stated that after a long deliberation with the Village Council of Saihapui (K), the representative of the petitioner as well as the representative of the 35 families, it appears that the 35 families who had settled over the petitioner's land were not aware of the fact that they had settled in a private land. The said report stated that after a long deliberation with the Village Council of Saihapui (K), the representative of the petitioner as well as the representative of the 35 families, it appears that the 35 families who had settled over the petitioner's land were not aware of the fact that they had settled in a private land. Although discussion was held as to whether there was an alternative site for the settlers to shift but it was found that there was no vacant land except those belonging to the Forest Department. The report suggested that since no proper solution could be found besides evicting the settlers from the land, the State Government may acquire the land in question so as to solve the problem between the two parties i.e. the petitioner and the settlers. 7. The settlers over the land of the petitioner in response to the show cause notice that was issued to them on 26.07.2012 (Annexure-7A) submitted a reply to the effect that they were permitted to settle in the land in question with the permission of the Village Council of Saihapui (K) and that they never felt that they had settled in a private land. 8. The learned senior counsel submits that an information was sought from the Department of Social Welfare Department as to how an Anganwadi Centre-II was being constructed in the petitioner's land and to which the Deputy Director (E), Social Welfare Department vide communication dated 3.8.2012 (Annexure-9) had submitted that a verification was done and pursuant to which, it was found that the Anganwadi Centre-II for an area of 60 x 30 feet was constructed based on the House Pass issued by the Village Council of Saihapui (K) under Pass No. 24/2006 issued in the year 2006 and thereafter re-issued again on 4.3.2009. 9. At this stage, the learned senior counsel submits that since the petitioner was issued a Periodic Patta in the year 1976 which was again converted into an Agricultural LSC in the year 2000, the Village Council of Saihapui (K) could not have issued the House Pass in the year 2006 and that too without the knowledge and consent of the petitioner. 10. 10. The learned senior counsel further submits that on 3.4.2014 (Annexure-11), another meeting was held under the Chairmanship of the Chief Secretary of the State, wherein it was resolved that since re-location of the families who have settled in the land of the petitioner would necessarily involve relief measures and other implications, acquisition of the land of the petitioner be contemplated. Accordingly, the Deputy Commissioner, Kolasib and the Settlement Officer of the Land Revenue & Settlement Department at Kolasib be asked to make an assessment of the land. In terms of the resolution made in the meeting held on 3.4.2014, the Deputy Commissioner of Kolasib District then made an assessment over the land of the petitioner including the damage towards crops to the tune of Rs. 43,32,154/- and communicated the same to the Principal Secretary to the Government of Mizoram, Revenue Department vide letter dated 23.06.2014 (Annexure 12). Upon receiving the assessment of the Deputy Commissioner, Kolasib, another meeting was held on 21.07.2014 (Annexure-13), whereby it was resolved that since the 43 families had settled in the petitioner's land, there were no crops and plants at the time of preparing the assessment and the Deputy Commissioner having not deducted some area of the land for which compensation was already paid to the petitioner, resolved to ask the Deputy Commissioner to make a reassessment of the land after deducting the area for which compensation was already paid and without the crops/plants which were not in existence. 11. Accordingly, the Deputy Commissioner vide communication dated 28.08.2014 (Annexure-14) made the reassessment and arrived at an assessment to the tune of Rs. 40,15,003/-. With the aforesaid amount, the learned senior counsel submits that the respondents in another meeting held on 19.9.2014 (Annexure-15) tried to negotiate the compensation amount with the petitioner by asking her representative who was present in the meeting as to whether the petitioner would be agreeable to waive the assessed amount of Rs. 18,88,088/- assessed toward compensation for crops damage and in lieu of which as to whether solatium @ Rs. 30/- can be added to the balance amount of Rs. 21,26,203/- out of the total assessment made by the Deputy Commissioner i.e. Rs. 40,15,003/-. 18,88,088/- assessed toward compensation for crops damage and in lieu of which as to whether solatium @ Rs. 30/- can be added to the balance amount of Rs. 21,26,203/- out of the total assessment made by the Deputy Commissioner i.e. Rs. 40,15,003/-. However, as it was not agreeable to the petitioner, the meeting resolved that the settlers in the land of the petitioner be evicted and necessary steps be taken to identify alternative site where the families can be accommodated/resettled. 12. The learned senior counsel thus submits that after the meeting which was held on 19.09.2014, the State respondents have not taken any steps to compensate the petitioner towards the illegal settlement and construction over her land and also no steps have been taken to acquire her land as was contemplated by the respondents in the various meetings held in the Office Chamber of the respondent No. 1 i.e. Secretary to the Government of Mizoram, Revenue Department as well as the Chief Secretary to the State. The petitioner, therefore, having no alternative option, approached this Court by filing the instant writ petition. 13. The learned senior counsel Mr. L.H. Lianhrima submits that this Court vide Order dated 22.03.2017 directed the State respondents to apprise the Court as to whether the re-assessed amount submitted by the Deputy Commissioner, Kolasib District on 28.8.2014 was a reasonable assessment and if the same was found to be a reasonable, the State respondents shall make a fresh proposal to the petitioners with regard to the reassessed compensation report dated 28.08.2014. In terms of the direction of this Court, the Chief Secretary to the Government of Mizoram convened a meeting on 22.02.2017, wherein after deliberation and discussion, the meeting found the reassessed amount of Rs. 40,15,003/- as reasonable and decide that a fresh proposal/intimation be made to the petitioner by the Land Revenue & Settlement Department. In terms of such decision, the petitioner was communicated that the reassessed amount was found to be reasonable and if the petitioner was not satisfied with the reassessed compensation, she may approach the Hon'ble High Court. Such communication was made to the petitioner on 25.4.2017. 14. The learned senior counsel submits that as the assessment was made way back in the year 2014 and also due to the fact that a similarly situated land in the same District of Kolasib was assessed @ Rs. Such communication was made to the petitioner on 25.4.2017. 14. The learned senior counsel submits that as the assessment was made way back in the year 2014 and also due to the fact that a similarly situated land in the same District of Kolasib was assessed @ Rs. 200 per square feet excluding the solatium of 30% and interest @ 12%, the said assessment was made by the Reference Court in LA Case No. 31/2013 which came to be challenged by the aggrieved requisitionist in RFA No. 24/2014 before this Court. This Court vide Judgment and Order dated 18.06.2015 upheld the findings of the Reference Court. The requisitionist thereafter challenged the order of the Reference Court as well as the judgment and order passed by this Court on 18.06.2015 in RFA No. 24/2014 before the Hon'ble Apex Court. However, the Hon'ble Apex Court vide its Order dated 19.02.2016 was pleased to dismiss the special leave petition of the requisitionist. Such being the position, the petitioner cannot accept the reassessed amount of compensation made by the District Collector and offer to the petitioner based on their assessment made in the year 2014. 15. The learned senior counsel further submits that the petitioner on earlier occasions was given compensation to the tune of Rs. 18,01,013/- by the Public Works Department of the State for construction of road over her land in question. The compensation was paid for her land covering an area of 1965 square meter which corresponds to 21151.26 square feet. He submits that considering the amount of compensation paid to the petitioner, her land was acquired @ Rs. 85.14 per square feet. Such assessment having made in the year 2012, the present land offered by the State respondents based on the reassessment of the District Collector of Kolasib is hardly adequate and therefore the assessment of the State respondents for acquisition of her land cannot be less than Rs. 85.14 per square feet as was assessed in the year 2012. He therefore prays that suitable direction be issued to the State respondents to acquire the land of the petitioner with an assessment which should not be less than Rs. 85.14 per square feet or the present market value of land. 16. Appearing for the State respondents, the learned Government Advocate, Mrs. He therefore prays that suitable direction be issued to the State respondents to acquire the land of the petitioner with an assessment which should not be less than Rs. 85.14 per square feet or the present market value of land. 16. Appearing for the State respondents, the learned Government Advocate, Mrs. Linda L. Fambawl, submits that the respondents have filed affidavit- in opposition on 18.04.2016, whereby they have conducted inter alia that Village Council Pass No. 224/2006 was allotted by the Village Council of Saihapui (K) as per the provision of law for construction of Anganwadi Centre-II and as for the settlement by the families who were about 43 families in terms of the last verification made by the Deputy Commissioner, Kolasib, the petitioner herself should take steps for evicting the families as per law. In other words, the State respondents cannot be held to be responsible for the settlement of the families in the land of the petitioner. She thus submits that under such circumstances, the State respondents do not have any liability against the issuance of the Village Council Pass for construction of the Anganwadi Centre as well as for the settlement by a number of families in the land of the petitioner. Accordingly, she submits that the writ petition should be dismissed as far as the State respondents are concerned. 17. I have considered the submissions made by the learned counsels for the parties and I have also perused the materials available on record. 18. It may be noticed that the petitioner was granted a Periodic Patta in the year 1976 under Periodic Patta No. 2047/1976 for an area of 15135.50 sq. metre/11.31 bighas. The same was thereafter converted into an Agricultural LSC in the year 2000 which was registered as LSC No. 101707/09/11 of 2000. The petitioner has been regularly paying the land revenue and other tax as has been prescribed by the State respondents from time to time. Importantly, there is no dispute as regarding the ownership of the land by the petitioner in terms of the Agricultural LSC issued to her. The respondents have also acknowledged the ownership of the land of the petitioner which can be seen from the other Suit No. 2/1996 as mentioned earlier and shall also disposed of by the learned Senior Civil Judge on contest vide Judgment & Order dated 13.09.2012. The respondents have also acknowledged the ownership of the land of the petitioner which can be seen from the other Suit No. 2/1996 as mentioned earlier and shall also disposed of by the learned Senior Civil Judge on contest vide Judgment & Order dated 13.09.2012. In compliance with the direction passed by the learned Senior Civil Judge, the State Public Works Department authorities paid compensation for construction of road over the land of the petitioner covered by Agricultural LSC to the tune of Rs. 18,01,013/-. As for the remaining portion of the land herein, Anganwadi Centre-II was constructed and also the settlement made by the 43 families as was found by the verification done by the Deputy Commissioner's office in the year 2015, the state respondents on their part have acknowledged that the land of the petitioner should be acquired inasmuch as resettlement or finding alternative site for the settled families would become a major issue under the given facts and circumstances. 19. It was, therefore, that the State respondents held several meetings and even requested that the Deputy Commissioner of Kolasib to make reassessment of the land pursuant to the first assessment that was made on 23.06.2014. After the first assessment was made, the second assessment made by the Deputy Commissioner of Kolasib District was offered to the petitioner. However, with certain deduction as regard to the compensation towards crop damage, the petitioner was not agreeable to such offer considering the fact that the petitioner during the relevant time had invested and planted lots of crops under the land issued to her under the Agricultural LSC. The respondents on the other hand after having compensated the petitioner for the construction of road over her land have failed to address the grievance of the petitioner as regard to the illegal construction and occupation over her land by the settlers. The state as a welfare state is duty bound to address the cause of the petitioner. Although the right to property is no longer a fundamental right but never the less, the state as a welfare state cannot deprive its citizens from their lawful possession and enjoyment of their property issued and possess as per due processes of law. 20. The Apex Court in the case of State of Haryana Vs. Mukesh Kumar & Ors. Although the right to property is no longer a fundamental right but never the less, the state as a welfare state cannot deprive its citizens from their lawful possession and enjoyment of their property issued and possess as per due processes of law. 20. The Apex Court in the case of State of Haryana Vs. Mukesh Kumar & Ors. reported in (2011) 10 SCC 404 has observed that the right to property is now considered to be not only a constitutional or statutory right but also a human right. Human rights have already been considered in the realm of individual rights such as the right to health, right to livelihood, right to shelter and employment, etc. Human rights in fact are now gaining a multifaceted dimension and among which the right to property is also considered very much a part of the new dimension. 21. In the instant case, the petitioner admittedly has been deprived of the right to enjoy her land which was issued by the state respondents as per due process and therefore, the State respondents cannot shun their responsibility to adequately address the grievances of the petitioner and such remedy can be resorted to be acquiring the land of the petitioner as per the provisions of law. 22. The learned senior counsel for the petitioner submits that since the cause of action arose prior to the coming of the Mizoram (Land Acquisition, Rehabilitation and Settlement) Act, 2016 which in fact came into force on 06.05.2016, the respondents should be directed to make an assessment in terms of the Land Acquisition Act, 1894. 23. To the submission made by the learned senior counsel, I am of the considered opinion that since no acquisition proceedings was drawn for acquiring the land of the petitioner apart from only an assessment made by the District Collector and keeping in view of the fact that the Mizoram (Land Acquisition, Rehabilitation and Settlement) Act, 2016 has by now come into force that is w.e.f. 06.05.2016, it would be proper for the authorities concerned to acquire the land of the petitioner under the new Act. 24. 24. In the result, the respondents, more particularly, the respondents No. 1 is directed to initiate acquisition proceedings for acquiring the land of the petitioner covered by Agricultural LSC No. 101707/09/11 of 2000 excluding the land measuring 1965 square metre/21,151.26 square feet wherein the Public Works Department had constructed road and for which the petitioner has already been compensated within a period of one month from the date of receipt of a certified copy of this order. 25. The respondent concerned thereafter will take all necessary steps for expeditious acquisition of the land of the petitioner and such steps including payment of the assessed amount should be completed within a period of 4 months from the date on which the notification for acquiring the petitioner's land is issued. With the above directions and observations, the writ petition stands disposed of. No cost.