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2018 DIGILAW 1082 (GAU)

Lianthangpuia v. State of Mizoram

2018-07-23

SONGKHUPCHUNG SERTO

body2018
ORDER : 1. Heard Mr. L.H. Lianhrima, learned senior counsel assisted by Ms. H. Lalmalsawmi for the appellant No. 1 and Mr. C. Lalfakzuala, learned counsel appearing on behalf of the appellant No. 2. Also heard Mr. Samuel Vanlalhriata Chhangte, learned Government advocate for the State respondent Nos. 1, 2, 4, 5 and 6 and Mr. B. Lalramenga, learned counsel for the respondent No. 3. 2. This is an appeal directed against the judgment and decree dated 1.9.2012, passed by the learned Senior Civil Judge I, Aizawl District, in Civil Suit No. 12/2010. 3. The brief facts of the case are as follows: In the year 1996, the Director of Industries, Geology & Mining Wing, Government of Mizoram, vide his letter dated 26.9.1996, informed the father and predecessor of the appellants that shell limestone deposits have been found in his land near Tuirial Bridge and the Government of Mizoram is interested to exploit the same for manufacturing shell limestone tiles, therefore, a meeting in that connection was being held on 1.10.1996 and 11.10.1996 at the Official Chamber of Director of Industries and he is requested to attend the meeting with necessary documents in respect of the land. Thereafter, by another letter dated 15.10.1996, the Director of Industries, Geology and Mining Wing, Government of Mizoram, requested the Deputy Commissioner, Aizawl to assess the compensation amount to be paid to the appellants for his land, within which shell limestone deposit have been found. As per the request, the D.C. Aizawl made his detail assessment of the compensation to be paid to the appellants and forwarded the same to the Director of Industries, Geology & Mining Wing, Government of Mizoram, vide his letter dated 9.3.1998. The D.C. Aizawl in his assessment work out a sum of Rs. 4,72,718 as the compensation amount to be paid, Rs. 1,18,487 for the trees that were growing in the garden and Rs. 2,10,423 for the land that would need to be acquired. The D.C. Aizawl in his assessment work out a sum of Rs. 4,72,718 as the compensation amount to be paid, Rs. 1,18,487 for the trees that were growing in the garden and Rs. 2,10,423 for the land that would need to be acquired. It transpires from the documents and from the submission of the learned counsels that after several meetings were held, the respondents entered in the land of the appellants for the purpose of exploration of the limestone in the year 1996, however, the father of the appellants was not paid the amount assessed by the D.C. Aizawl, thereby compelling him to approached the civil court by filing Civil Suit being No. 12/2010 praying as follows: “(a) Let a decree be passed directing the defendants for payment of Rs. 4,42,718 with interest at the rate of 20% per annum for damages of fruit bearing trees, teak trees, etc. to the plaintiff. (b) Let the decree be passed directing the defendants for rental compensation at the rate of Rs. 7 per square feet with effect from the year, 1995. (c) Let the decree be passed directing the defendants for a lumpsum payment of Rs. 100 lakhs for acquisition of the landed area covered by LSC No. G. 69 of 1989 to the plaintiff. (d) Let the decree be passed directing the defendants for payment of Rs. 2 lakhs for damages caused to crops and fruit bearing trees, etc. to the plaintiff. (e) Let the decree be passed directing that the defendants are liable to pay an amount of Rs. 5 lakhs on account of mental suffering, agony and unnecessary harassment of the plaintiff. (f) Let the cost of the suit be decreed in favour of the plaintiff against the defendants. (g) Let any other relief to which the plaintiff is entitled according to Justice, Equity and Good Conscience be decreed in favour of the plaintiff.” 4. After the suit was filed, the respondents also filed their written statement stating that the plaintiff was no longer entitled to receive any compensation since the project was abandoned due to non-viability of the same. The respondent No. 3 also filed a written statement stating that the land in question falls under Tuirial riverine reserve forest of Aizawl Forest Division, and that the plaintiff has no right to claim the said compensation. The respondent No. 3 also filed a written statement stating that the land in question falls under Tuirial riverine reserve forest of Aizawl Forest Division, and that the plaintiff has no right to claim the said compensation. The plaintiff examined three witnesses including himself and the State respondents examined four witnesses and the respondent No. 3 also examined one witness. After the examination of witnesses, the learned Senior Civil Judge heard the parties on the five issues framed and thereafter, came to a conclusion that the plaintiff is entitled to receive compensation amounting to Rs. 20,000 for the occupation of his land by the Government and a sum of Rs. 30,000 for the five pits dug by the State respondents in his land. Not satisfied with the judgment and decree, the appellants after the demised of their father (the plaintiff) has approached this court by filing the present appeal challenging the judgment and decree mainly on the quantum of the compensation granted to him. 5. Mr. L.H. Lianhrima, learned senior counsel for the appellants submitted that the learned Senior Civil Judge while passing the impugned judgment and decree had totally ignored the evidence of the plaintiff which clearly proved that from the land in question, the plaintiff was earning at least a sum of Rs. 63,840 per annum by cultivating the same with agricultural crops, and that since he had not been allowed to do the same for at least six years, i.e., from the day the State respondents entered into his land and started the exploration works till the project was abandoned he have been deprived of that income. The learned senior counsel also submitted that as per the assessment made by the D.C. Aizawl, which was done on the direction of the Government of Mizoram, the plaintiff should have been given the compensation. The learned senior counsel in support of his submission referred to the evidence given by the appellants as PW-1, especially at para 1 of his evidence (examination-in-chief), wherein it is stated as follows: “1. That I am the plaintiff of the instant suit and I was allotted Periodic Patta No. 270 of 1978 which was superseded by LSC No. G. 69 of 1989 with an area of 20.92 bighas by the competent authority. That I am the plaintiff of the instant suit and I was allotted Periodic Patta No. 270 of 1978 which was superseded by LSC No. G. 69 of 1989 with an area of 20.92 bighas by the competent authority. And my family and I had been developing my said land for the past several years by planting various cash crops and several fruit bearing trees within my said land covered by my said LSC No. G. 69 of 1989 and earned the livelihood of my family commencing from the year, 1975. In fact, I used to sell my farm products at the market and earned not less than Rs. 63,840 in a year.” The learned senior counsel also referred to the evidence (examination-in-chief) of the other two witnesses, wherein the statement made by the plaintiff is supported by the witnesses, particularly at paras 2 and 3 of their evidence respectively. After having referred to the contents of the affidavits, the learned senior counsel submitted that the evidence of the plaintiff has never been discredited in any way or proved to be wrong by the State respondents both in their cross-examination and in the evidence given by their witnesses, therefore, it can be concluded that the plaintiff is the owner of the land in question and was making at least a sum of Rs. 63,840 per annum from the land. The learned senior counsel further submitted that the plaintiff was never informed about the abandoning of the said project in fact, he came to know about it only after the suit was filed and the State respondents mentioned about it in their written statement. Therefore, even if the project has been abandoned, the plaintiff would still be entitled to compensation for the years during which he was not allowed to pursue his agricultural activities and thereby deprived of his income from it. The learned senior counsel thereafter, pointed at para 18 of the cross-examination-in-chief of DW-1 of the State respondents, i.e. Mr. P. Sanghnuna, Geologist Junior, Geology and Mining Resource Department. The contents of the para 18 of the cross-examination is as follows: “18. I accept the fact that as para 3 of my e-in-c the GIEM Consortium Ltd. Kolkata was asked to verify the deposit of Limestone in the plaintiff land and as the reserve was not enough to set up Shell limestone factory, the plan was scrapped in 2002. The contents of the para 18 of the cross-examination is as follows: “18. I accept the fact that as para 3 of my e-in-c the GIEM Consortium Ltd. Kolkata was asked to verify the deposit of Limestone in the plaintiff land and as the reserve was not enough to set up Shell limestone factory, the plan was scrapped in 2002. It is also a fact that this plan was not intimated to the plaintiff till date.” After having referred to the above, the learned senior counsel also submitted that it is clear from the above statement that the project was abandoned in 2002. Therefore, the appellants are at least entitled to receive compensation for the loss of income from agricultural products which the plaintiff was not allowed to continue for at least six years. The learned senior counsel also referred to the two documents given by the two witnesses on the annual income of the appellants/plaintiff from the agricultural products produced from the land in question, which are exhibited as “Exts. 3 and 4.” The learned senior counsel submitted that these documents were not challenge in the lower court when they were produced, therefore, the State respondents cannot do the same at this stage.” 6. Mr. Samuel Vanlalhriata Chhangte, learned Government advocate submitted that the project to explore limestone from the land of the appellant-plaintiff was abandoned since sufficient limestone deposit was not found, therefore, there is no question of acquiring the land of the appellant-plaintiff and as such, the question of giving compensation for the land and the trees growing therein as assessed by the D.C. Aizawl does not arise anymore. The learned Government advocate, however, submitted that the appellant-plaintiff can be given compensation for the damage caused to the land by the digging of five pits while undertaking the exploration and for that the compensation awarded by the Civil Judge is quite fair and adequate. The learned Government advocate referred to the letter dated 15.10.1996, of the Director of Industries, Geology and Mining Wing, Government of Mizoram, addressed to the D.C. Aizawl, particularly the 3rd and 4th line, wherein it is stated as follows: “In order to exploit the deposit, we require 10ft. of land on both side of Shell Limestone deposit. The learned Government advocate referred to the letter dated 15.10.1996, of the Director of Industries, Geology and Mining Wing, Government of Mizoram, addressed to the D.C. Aizawl, particularly the 3rd and 4th line, wherein it is stated as follows: “In order to exploit the deposit, we require 10ft. of land on both side of Shell Limestone deposit. On the basis of Mines and Mineral Act, 1957, we can pay compensation to the land owner for surface damages only.” After referring to the above two sentences of the letter, the learned Government advocate submitted that the land required was not the whole land of the appellant-plaintiff, covered by the LSC but only as mentioned above. Therefore, the appellant-plaintiff can never be entitled to compensation for all the land. The learned Government advocate also referred to the assessment made by the D.C. Aizawl, and submitted that the assessment of the D.C. Aizawl was made for all the trees that were growing in the land and for the whole land of the appellant-plaintiff, therefore, the same cannot be the basis for the compensation to be paid. He also went on to submit that now that the project has been abandoned and the question of acquiring the land does no longer arise, therefore, the appellants are not entitled to compensation as assessed by the D.C. Aizawl. The learned Government advocate further submitted that the fund sanctioned by the Government for payment of compensation based on the assessment made by the D.C. Aizawl has also been relocated for other purposes since the project was abandoned and there was no requirement for acquiring the land of the appellant-plaintiff. The learned Government advocate also referred to the statement of the plaintiff given in his cross-examination, particularly at paras 6, 10 and 11 of the same, which are as follows: “6. The defendant did not damaged/destroy all my land when they carry out the survey. 10. Due to the drilling/digging of pits by the defendant all my crops were not destroyed. 11. All the crops written in Ext. 9(A) and (B) were not destroyed due to the drilling/digging of pits by the defendant.” After referring to the above statements of the plaintiff, the learned Government advocate submitted that it is admitted by the plaintiff that all his land and crops growing in it were not damaged or destroyed by the exploration activities. All the crops written in Ext. 9(A) and (B) were not destroyed due to the drilling/digging of pits by the defendant.” After referring to the above statements of the plaintiff, the learned Government advocate submitted that it is admitted by the plaintiff that all his land and crops growing in it were not damaged or destroyed by the exploration activities. Therefore, his claim is excessive and not based on hard evidence. He also referred to the statement of one of the witness of the plaintiff, namely, Sh. R. Lalchamliana at paras 3, 4 and 8 of the statement in support of his argument. The statements are as follows: “3. The plaintiff doesn't have receipt to show for the sales of his food product. 4. I don't know the number of pits dug in the plaintiff land/garden. 8. The plaintiff land/garden is very huge and its true that digging about 6 pits by the government does not render the land useless.” After referring to the above statements of the witness, the learned Government advocate submitted that from these statements, it can be seen that the witness was not well acquainted with the land of the plaintiff and the annual income claimed by the appellant-plaintiff is without evidential support, and also that by digging of the said pits, the land of the appellant-plaintiff has not been rendered totally useless. The learned Government advocate further drew my attention to the statement of the other witness of the plaintiff, namely, Smt. Remmawii, made in her cross-examination. The statements are as follows: “2. It is true that I have not seen the plaintiff land pass nor do I know the size of the land. 4. I have not calculate his yearly income. 6. When I say that the industries Deptt. Dig pits in the plaintiff land, I have not seen the pits myself.” After referring to the above, the learned Government advocate submitted that this shows that the witness had no knowledge whatsoever about the land of the appellant-plaintiff, therefore, her statement made in the affidavit is not reliable. The learned Government advocate further submitted that the State respondents actually dug only five pits measuring 3 × 5 ft. each and while doing so, no fruit bearing trees were damaged, therefore, no compensation can be granted to the appellant-plaintiff as claimed. The learned Government advocate further submitted that the State respondents actually dug only five pits measuring 3 × 5 ft. each and while doing so, no fruit bearing trees were damaged, therefore, no compensation can be granted to the appellant-plaintiff as claimed. To strengthen his argument, the learned Government advocate also referred to the statement of DW-1 namely, Sh. P. Sanghnuna, Geologist Junior at paras 4, 6 and 7 which are as follows: “4. Geology and Mineral resources was upgraded into a full Directorate on the 1st September, 2010. Earlier we used to function as Geology and Mineral Resources Wing under the Directorate of Industries. 6. I believe that our Deptt. Officials did discuss the claim of relief made by plaintiff's advocate in the Legal Notice, but cannot say if any decision was made or if such decision, if any, was given in writing. 7. Ext. 5 was unknown to me at that stage, however, I was asked to carry out survey by our Jt. Director, Mr. H. Lallenmawia in 2011 and I cannot say if the plaintiff was made aware that. While carrying out the survey I don't know if Mr. Lianthangpuia was present or not. But I did heard one of my labourer saying that Mr. Lianthanpuia too came to the survey.” 7. Mr. B. Lalramenga, learned counsel for the respondent No. 3 submitted that the appellant-plaintiff never claim any compensation against the respondent No. 3 and the judgment and decree challenged herein also did not fixed any liability against the respondent. The learned counsel also submitted that no damage was caused on the land and property of the appellant-plaintiff by the respondent No. 3, therefore, the learned Senior Civil Judge has rightly not fixed any liability on the respondent No. 3. 8. From the submissions of the learned counsels and the evidence available, this court has come to the following conclusions: That the land of the appellants was occupied by the respondents except the respondent No. 3 for at least for the period of six years, i.e. from 1996 till 2002 for the purpose of exploration of shell limestone and during that period the plaintiff could not continue with any agricultural activity which he used to before it was taken over. Further, it can also be safely concluded that because of the intent of the respondents manifested by all their actions like digging of the land for exploration of the shell limestone and assessment of the compensation to be paid, the plaintiff was in a reasonable expectation of his land being acquired, therefore, he could not have been expected to continue with any activity including agricultural activities in the land till he came to know of the fact that the project was abandoned due to the non-viability. In view of the above conclusions the claim of the appellants that they had suffered loss of income from agricultural products which the plaintiff used to get before the land was taken over cannot be ignored or discarded. The argument of the learned Government advocate that only a small portion of the land was occupied for the purpose of exploration, therefore, the plaintiff cannot claim for the loss of income from the whole land does not appear to be reasonable. It would be unreasonable to assumed that the plaintiff could have continued with his agricultural activity while his land was under exploration with such big expectation and under such facts and circumstances. There was no specific agreement and the area to be under exploration was also not defined by the respondents. In view of the facts and circumstances, i.e., the initiation of the project and the actions that followed it is quite reasonable that someone in the position of the plaintiff would have expected that his entire land would be acquired eventually. Further, the learned Government advocate's endeavour to show that there was no sufficient evidence to proof that the plaintiff had some agricultural products from which he was able to earn at least a sum of Rs. 63,840 annually cannot be accepted because in a civil suit it is sufficient if preponderance of probabilities is shown. In this case, the plaintiff had sufficiently done the same. Any reasonable person would not have kept his land barren and empty. A sum of Rs. 63,840 as annual income from such land is not unreasonable even by assumption. It appears from the facts and circumstances that the respondents did not take care to settle things properly regarding the land of the plaintiff-appellants while undertaking the exploration and also did not inform the plaintiff when the project was abandoned. A sum of Rs. 63,840 as annual income from such land is not unreasonable even by assumption. It appears from the facts and circumstances that the respondents did not take care to settle things properly regarding the land of the plaintiff-appellants while undertaking the exploration and also did not inform the plaintiff when the project was abandoned. For their negligent acts of commission and omission they cannot let innocent land owners to suffer loss. To keep a person away from his land for a period of six years and to tell him that he is entitled to compensation only for digging five pits does not only sound unreasonable but unfair and will lead to great injustice. Taking into consideration all the facts and circumstances which have evidential basis and the conclusions arrived at, I am of the view that the ends of justice would be met if the appellants are awarded a sum of Rs. 60,000 per annum for the loss suffered by them during the period of six years with interest at the rate of 6% per annum from the date the impugned judgment was passed. Accordingly, the impugned judgment and decree are set aside and the respondents, except respondent No. 3 are directed to pay the sum of Rs. 60,000 × 6 = Rs. 3,60,000 to the appellants with interest at the rate of 6% p.a. from the date of passing the impugned judgment and decree till the sum is paid. 9. Registry is directed to prepare the decree accordingly. 10. The appeal is disposed. Send back the LCR.