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2017 DIGILAW 913 (GAU)

Union of India v. Vimedo Rutsa

2017-07-13

SONGKHUPCHUNG SERTO

body2017
JUDGMENT AND ORDER : S. Serto, J. This is an appeal filed under Section 96(1) and Order 41, Rule 1 of CPC, 1908 against the order dated 07.06.2004, passed by the Deputy Commissioner, Kohima, Nagaland in Rev/108/73, and the related order dated 25.11.14, passed by the same Deputy Commissioner in REV/108/73/2007 (PT-I) 1367. 2. Heard Mr. K.A. Rongmei, learned ASGI for the appellants. Also heard Mr. C.T. Jamir, learned Sr. counsel who appeared on behalf of the respondent No. 1, and Ms. V. Chishi, learned Government Advocate who appeared on behalf of the respondents No. 2 to 7. 3. The case of the appellants as submitted by the learned ASGI is as follows: That in the year 1988, the Border Security Force (in short, BSF) requested the Deputy Commissioner, Kohima to acquire land and to lease out the same to them for establishment of a base for BSF Battalion within Kohima District. Accordingly, the Deputy Commissioner, Kohima identified the land at Chedema where BSF Camp is established now. After exchange of several communications an understanding was between them. Accordingly, the BSF sent two Bank Drafts, bearing No. DA-347506, dated 20.10.1989, for a sum of Rs. 9,00,000/- and another bearing No. DA-347505, dated 20.10.1989, for a sum of Rs. 4,05,392/- in favour of the Deputy Commissioner, Kohima, the two parties i.e. the Deputy Commissioner and the Second in Command of 111 Battalion BSF signed a lease agreement for a land measuring 117.20 acres on 22.01.1991 fora period of 50 years with effect from the date of signing of the lease agreement. Soon thereafter. a survey of the land was conducted by BSF and it was found that the land handed over to them was only 51.815 acres. Following the survey and the findings made thereof. BSF informed the Deputy Commissioner, Kohima about it vide letter No. Engg/88/111/91-92/1266, dated 03.06.1991, and requested him to handover possession of the remaining area of the lease land. But, nothing was done immediately by the Deputy Commissioner, Kohima. Due to persistent insistence from the side of the BSF, some more land measuring 11.180 acres was handed over to BSF by the Deputy Commissioner, K of' vide his letter dated 10.07.1995. But, nothing was done immediately by the Deputy Commissioner, Kohima. Due to persistent insistence from the side of the BSF, some more land measuring 11.180 acres was handed over to BSF by the Deputy Commissioner, K of' vide his letter dated 10.07.1995. However, as for the remaining 54.205 acres of land, the same has never been handed over in spite of several request made by successive Batallions of BSF posted at Chedema and the matter having been taken up at different levels with the Government of Nagaland. Since all the efforts did not bear any fruit, on 29.08.2011, a joint meeting of the officers of the BSF and the Officers of the State Government was held as per Circular No. CNR-2/2/96(PT-II), dated 26.08.2011, issued by the Additional Chief Secretary to the Government of Nagaland cum Commissioner, Kohima. In that joint meeting the District Administration, Kohima was requested to thoroughly examine all the records available and to submit a detailed report by 10.09.2011. Thereafter, the Deputy Commissioner, Kohima, issued a Notice No. REV/108/78/2007(PT-1), dated 05.09.2011, to all concerned for a joint survey and demarcation of the boundaries of the land occupied by the BSF at Chedema on 07.09.2011 at 10:00 A.M. However, the joint survey and demarcation did not take place. That while waiting and hoping to get the remaining portion of the land, the Deputy Commissioner, Kohima on 07.06.2004, passed the impugned order No. REV/108/73, directing that 0.35 acres of land which belong to one Mr. Pucha be handed over to his younger brother i.e. the respondent No. 1. And about 10 years thereafter, the Deputy Commissioner, Kohima also passed the order dated 25.11.2014, in REV/108/73/2007 (PT-1) 1367, thereby directing the appellant to vacate the above stated 0.35 acres of land for the respondent No. 1. These two orders of the Deputy Commissioner has aggrieved the appellant therefore has come to this High Court on appeal challenging them. And about 10 years thereafter, the Deputy Commissioner, Kohima also passed the order dated 25.11.2014, in REV/108/73/2007 (PT-1) 1367, thereby directing the appellant to vacate the above stated 0.35 acres of land for the respondent No. 1. These two orders of the Deputy Commissioner has aggrieved the appellant therefore has come to this High Court on appeal challenging them. The two orders of the Deputy Commissioner, Kohima which are impugned herein are reproduced here below one after the other:- "In the Court of the Deputy Commissioner Kohima District Order No. REV/108/73 Dated: 07th June, 2004 In the matter of site dispute between 38Bn BSF, Chedema and Shri Vimedo Rutsa and Party of Kohima Village a joint survey team consisting of the following members representing both the parties headed by Shri Zhaleo Rio Deputy Commissioner, Kohima, Revenue Officer Kohima, LRSO Kohima, Chairman Kohima Village Council and GB. Kiyake conducted spot verification along with the relevant land sketch map and documents. On verification it was ascertained that Shri Vimedo Rutsa and Party have put up 2 (two) numbers Kutcha house within the BSF boundary fencing adjacent to BSF house construction and recent damage of L.P. School building by Shri Vimedo Rutsa and Party followed by lodging of complaint and counter complaint leading to arrest of 2 (two) labourers of the former. Following the incident between the two parties the BSF organization have lodge a complaint to police on the damage of the school building and a police case had been registered under North police station Kohima. After verification of the ground realities and consulting the office records available and the land lease deed of agreement, it is ascertained that an area measuring 117.20 acres of land situated near the Chedema village was acquired by the DC office Kohima from private individuals belonging to Kohima Village and the same land was leased out to the BSF organization on 22nd Jan. 1991 by Deputy Commissioner Kohima and Revenue Officer Kohima and took over by Shri S.C. Nanhorya 2nd in command 111 Bn BSF c/o 99 APO. 1991 by Deputy Commissioner Kohima and Revenue Officer Kohima and took over by Shri S.C. Nanhorya 2nd in command 111 Bn BSF c/o 99 APO. However, on actual survey of the land, a total of 62.995 acres is found to be under the actual physical occupation of the BSF (51.815 acres + 11.180 acres) thus rendering a short-fall of 54.105 acres of land from the actual land acquisition of 117.20 acres which is a clear case of manipulation and irregularities on the part of the land revenue authority and the lessee (BSF) which could have been avoided at the time of contour survey by the central team and during the handing and taking over by concerned parties. Coming back to the portion of land (primary school building site), which is the present subject matter of dispute in this case, Shri Vimedo and Party, who is the elder brother of Lt. Pucha S/o Lt. Charelie, had claimed that a site measuring 0.35 acres proposed for acquisition within the total acquired area of 117.20 acres still remains their private land as they have refused to part with it at the time of land acquisition and for which they have also no accepted or taken any land compensation money. Hence the claimant even after about fourteen years though lapsed. On hearing of both the parties and on scrutiny of the available office records, the following observations and findings are made :- 1. It is an established fact that an area measuring 117.20 acres near Chedema was acquired by Government and leased out to the 111 Bn BSF c/o 99 APO for which corresponding land compensation amount was paid to the actual land owners which can be substantiated as per the list of payment released in the APR except for Shri Pucha s/o Lt. Charelie appearing under serial no. 11 of the list who is the landowner for 0.35 acres. Though, the final actual land acquired for the BSF should be 116.85 acres since land revenue competent authority could not proceed with the acquisition of land for the area measuring 0.35 acres as per the Land Requisition and Acquisition Act 1965 which empowers the Govt., to acquire land for use for any Govt., project in the interest of public service. 2. 2. It is evidently clear that the land belonging to Shri Pucha measuring 0.35 acres still remains as a private land and does not come within the acquired total area of 117.20 acres in view of the reasons elaborated above under serial no. 1. 3. In view of the above facts and findings mentioned under serial no. 1 & 2 as regards to the status of land belonging to Shri Pucha s/o Lt. Charelie for an area measuring 0.36 acres still established to be a private land, it is hereby ordered that restoration of 0.35 acres shall be made to Shri Vimedo Rutsa and party, younger brother of Lt. Pucha under BSF boundary fencing within the boundary schedule shown here, North Private RCC building South Chakhabama road West Paddy Field East BSF land 4. The total area of 62.645 acres presently under the physical occupation of BSF which has been demarcated by land revenue staff and boundary fencing already put up by BSF shall be allowed to be used by the lessee (BSF) for any type of development works on the strength of land already acquired by Govt., and as per the land Lease Deed given to the BSF without nay hindrance from any private individual or group henceforth. 5. An area measuring 54.105 acre found short within the total area of 117.20 acres for BSF, it is impressed upon the lessee to take up the issue with an appropriate authority for restoration of their remaining land, if they wish so. 6. Any party found will fully violating the above order shall be penalized under the appropriate section of law. 7. The above order shall be executed by Revenue Officer Kohima including LRSO-DC office Kohima along with revenue staff forgiving the final and clear demarcation between the two disputing parties within two weeks from the date of issue of this order. Judgment Order passed today the 3rd June 2004, under my signature and seal. (Zhaleo Rio) Deputy Commissioner Kohima" "Government of Nagaland Office of the Deputy Commissioner Kohima: Nagaland No. REV/108/73/2007(PT-1)1367 Dated Kohima, the 25th November 2014 To The Commandant 155 Bn. BSF Chedema, Dist. Kohima, Nagaland Sub: Handing over of 0.35 acres of land occupied by the BSF at Chedema to Shri Vimedo Rutsa. (Zhaleo Rio) Deputy Commissioner Kohima" "Government of Nagaland Office of the Deputy Commissioner Kohima: Nagaland No. REV/108/73/2007(PT-1)1367 Dated Kohima, the 25th November 2014 To The Commandant 155 Bn. BSF Chedema, Dist. Kohima, Nagaland Sub: Handing over of 0.35 acres of land occupied by the BSF at Chedema to Shri Vimedo Rutsa. Sir, Inviting a reference to the above cited subject, I am to draw your attention to this office judgment order No. REV/108/73 dated 7.06.2004 wherein the land dispute case between BSF and Shri Vimedo Rutsa and party at Chedema was settled by the then Deputy Commissioner, Kohima. The order was passed in favour of Shri Vimedo Rutsa and party with a direction for restoration of the 0.35 acres to Shri Vimedo Rutsa and party within two weeks time. However, after a lapse of more than 10 years the land is still not vacated by the BSF ignoring the judgment order which is viewed very seriously and has compelled this office to once again remind your authority to vacate and hand over the land i.e. 0.35 acres to Shri Vimedo Rutsa and party without further delay. Your compliance will be highly appreciated. Yours faithfully, (W. Honje Konyak) Deputy Commissioner Kohima: Nagaland" According to the learned ASGI price of 117.20 acres of the lease land has already been paid to the Deputy Commissioner, Kohima and the same has not been denied. Therefore, to pass such orders while they are still under obligation to hand over the remaining area of the leased land is not only illegal but not fair on the part of the respondents specially the Deputy Commissioner, Kohima Therefore, the orders are not be justified and they deserve to be quash and set aside. 4. Mr. C.T. Jamir, learned Sr. counsel appearing for the respondent No. 1 submitted that though the name of the brother of respondent No. l was among the person in the list of landowner's whose lands were to be acquired he was never paid for his land, as such, his land was never acquired. Therefore, the Deputy Commissioner, Kohima and the State respondents had no authority or right to handover the land of respondent No. 1 to the appellants. As such, the appellants had no right to occupy the land of the private respondent. 5. The learned Government Advocate, Ms. Therefore, the Deputy Commissioner, Kohima and the State respondents had no authority or right to handover the land of respondent No. 1 to the appellants. As such, the appellants had no right to occupy the land of the private respondent. 5. The learned Government Advocate, Ms. Vilika Chishi submitted that as per record, it is true that the brother of the respondent No. 1 owner of the land under dispute was not paid for his land. 6. From the submissions of the learned counsels appearing for the parties and the impugned order passed by the Deputy Commissioner, Kohima, it is clear that the price of the land of the respondent No. 1 measuring 0.35 acres was never paid by the Deputy Commissioner, Kohima. Therefore, it can never be concluded that the land of the respondent No. 1 was acquired by the Deputy Commissioner, Kohima for the appellants. As such, the Deputy Commissioner, Kohima has not committed any illegality in having passed the impugned orders. The appellants cannot claim right over a land for which no price or value has been paid for and the respondent cannot be allowed to part with his land for which he is not paid for. Therefore, I find no merit in the appeal. Accordingly, the appeal is dismissed.