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2018 DIGILAW 1250 (GAU)

KALENDOR CHAKMA v. STATE OF MIZORAM

2018-08-24

NELSON SAILO

body2018
JUDGMENT : N. SAILO, J. 1. Heard Mr. S.R Rabha, the learned counsel for the petitioner and Mr. A.K Rokhum, the learned Addl. Advocate General, Mizoram appearing for respondent Nos. 1, 2, 4 & 5. 2. The case is listed for admission today and with the consent of the parties, the same is taken up for final disposal. 3. Brief facts of the case may be narrated at the outset. 4. The petitioner is the Headman of Tuichawng Chhuah village in the District of Lunglei. The said village comprises of 49 families belonging to the Chakma community including that of the petitioner. According to the petitioner, they have been residing at Tuichawng village for more than 40 years and they are officially recognized as revenue village. According to the petitioner, they all possess voter I.D cards and have been exercising their franchise from time to time. However, the respondents all of a sudden issued the impugned Eviction Order on 17.12.2015 (Annexure-II), terming their occupation of Tuichawng Chhuah village as illegal and unauthorized. Therefore, they were asked to vacate the village immediately upon receipt of the Eviction Order. The impugned Order dated 17.12.2015 was issued by the Addl. Deputy Commissioner, Lunglei District, Lunglei. Being highly aggrieved, the petitioner is before this Court. 5. Appearing for the petitioner Mr. S.R Rabha submits that the petitioner and the 49 families have been residing at Tuichawng Chhuah village peacefully for a very long time now and their settlement cannot be termed as illegal or unauthorized. He submits that even if it is presumed for the sake of argument that their settlement is unauthorized or illegal, the respondents are duty bound to follow the relevant provisions prescribed by The Lushai Hills District (Village Councils) Act, 1953 (VC Act). The learned counsel referring the Section 26 (3) of the V.C Act submits that if the Government is of the opinion that a situation had arisen, demanding closure of the settlement including any sub-village, the occupants of such settlement or sub-village can be evicted only after a notice is served to all the persons individually asking them to vacate the place within a period of 3 (three) months from the date of service of the notice. He submits that in the present case, no such notice was served under Section 27 (3) of the VC Act. He submits that in the present case, no such notice was served under Section 27 (3) of the VC Act. He further submits that the requirement under the aforesaid section is that the Government firstly has to form an opinion that a situation has arisen for closure of the settlement. Thereafter, if the Government decides that the occupants of the settlement are to be evicted, notice has to be served to all the persons residing in a settlement individually by giving them a period of 3 (three) months time to vacate the settlement. He submits that a perusal of the impugned Order dated 17.12.2015 not only reveals that no individual notices were served upon the 49 families residing the settlement but the period of 3 (three) months time to vacate the settlement was also not given to them. The respondents after issuing the impugned Order on 17.12.2015 immediately took steps to evict them from the settlement at Tuichawng Chhuah village. Therefore, the action of the respondents being most arbitrary and illegal, the impugned Order dated 17.12.2015 should be set aside and quashed. 6. Mr. S.R Rabha, the learned counsel in support of his submission has placed reliance upon the decision of this Court passed by a co-ordinate Bench in the case of Lalchawivela & Ors Vs. State of Mizoram & Ors, (2014) 2 GauLT 529 . 7. The learned counsel by referring to paragraph 24 to 27 of the said judgment submits that a similar action of the State respondents was put to challenge in the writ petition and this Court came to a clear finding that the provisions provided under Section 26 of the VC Act was not complied with by the respondents. Consequently, the notification impugned therein was set aside. Mr. S.R Rabha thus submits that having regard to the arbitrary and illegal actions of the respondents as well as the decision rendered by this Court in Lalchawivela & Ors, the impugned Order dated 17.12.2015 should also be set aside and quashed. 8. Mr. A.K Rokhum, the learned Addl. Advocate General appearing for the State respondents by referring to the affidavit-in-opposition filed on 20.07.2018 submits that the petitioner including the 49 families have resided at Tuichawng Chhuah village for more than 10 years only. The fact is that Tuichawng Chhuah is not officially recognized as a revenue village as claimed by the petitioner. Mr. A.K Rokhum, the learned Addl. Advocate General appearing for the State respondents by referring to the affidavit-in-opposition filed on 20.07.2018 submits that the petitioner including the 49 families have resided at Tuichawng Chhuah village for more than 10 years only. The fact is that Tuichawng Chhuah is not officially recognized as a revenue village as claimed by the petitioner. The petitioner is the Headman of Tuichawng village and he alongwith the other families have unauthorisedly settled at Tuichawng Chhuah village. The respondent authorities upon detecting such illegal settlement, issued an Order on 01.12.2015, directing 2 (two) officials of the Local Administration Department to make a spot-verification and submit their verification report by 4th of December, 2015. This was because any settlement in order to be recognised as a village or sub-village is required to fulfill the minimum requirements stipulated in the VC Act. Pursuant to the Order dated 01.12.2015, a verification was conducted by the 2 (two) officials and after they submitted their verification report, a meeting was held in the Office Chamber of the Deputy Commissioner of Lunglei on 15.12.2015, wherein it was decided that the Government should issue an order for evicting the settlers at Tuichawng Chhuah village, since their settlement was illegal and unauthorized. Mr. A.K Rokhum submits that the action of the respondents under the circumstances cannot be said to be illegal and arbitrary. He further submits that for establishing a sub-village, the Government by an order can permit any person or persons to settle in a place for temporary settlement with such terms and conditions as may be laid down in the order itself as per Section 26 (1) of the VC Act. Sub-section (2) of Section 26 prohibits the establishment of any sub-village other than the one set up by the Government under Sub-section (1) of Section 26. That in the case of the settlement at Tuichawng Chhuah, no such permission was obtained by the petitioner and the families residing there and therefore, the official respondents are well within their right to evict them from the illegal settlement. Under the given facts and circumstances, the writ petitioner cannot have any grievance and therefore the petition should be dismissed. 9. I have heard the learned counsels for the rival parties and I have perused the materials available on record. 10. Under the given facts and circumstances, the writ petitioner cannot have any grievance and therefore the petition should be dismissed. 9. I have heard the learned counsels for the rival parties and I have perused the materials available on record. 10. This Court on 08.01.2016 while issuing notice on motion stayed the impugned Eviction Notice dated 17.12.2015 till the returnable date and the interim Order continues till date. Coming to the impugned Order dated 17.12.2015, it may be seen that the Order of Eviction was issued to the President, Village Council, Tuichawng, asking him to inform the villagers of Tuichawng Chhuah to vacate the village immediately on receipt of the eviction order. The order also provides that a copy of the eviction order be given to every household family of Tuichawng Chhuah by the Village Council President. No provisions of law has been mentioned in the impugned Eviction Order dated 17.12.2015. Section 26 (3) of the VC Act may be abstracted below for ready perusal:- "If the Government is of the opinion that a situation has arisen demanding a stoppage or closing of any sub-Village or Thlawhbawk or any sort of settlement at any place, including any sub-Village or Thlawhbawk already opened under sub-section (1) it may, by order, evict the occupants of such sub-Village, Thlawhbawk or settlement after service of a notice on such person or persons individually to vacate the place within a period of three months from the date such notice is served upon such person or persons, as the case may be." 11. From what is abstracted above, it can be seen when the Government is of the opinion that a situation has arisen for closure of the sub-village or temporary settlement of any sort in any place which was already opened under Sub-section (1) of Section 26 of VC Act, the occupants of such village can be evicted after serving a notice to each individual asking them to vacate the place within a period of 3 (three) months from the date of the notice. However as may be noticed, in the impugned Notice dated 17.12.2015, the Addl. Deputy Commissioner, Lunglei District pursuant to the decision taken in the Office Chamber of the Deputy Commissioner, Lunglei on 15.12.2015 issued the order of eviction by addressing all the 49 families residing at Tuichawng Chhuah through the President of the Village Council, Tuichawng. However as may be noticed, in the impugned Notice dated 17.12.2015, the Addl. Deputy Commissioner, Lunglei District pursuant to the decision taken in the Office Chamber of the Deputy Commissioner, Lunglei on 15.12.2015 issued the order of eviction by addressing all the 49 families residing at Tuichawng Chhuah through the President of the Village Council, Tuichawng. The Village Council President was further informed to give a copy of the order of every household of family residing in the settlement. Besides this, as pointed out by the learned Addl. Advocate General, a copy of the Order was addressed to all the heads of the family in Tuichawng Chhuah for necessary compliance. However, I am afraid the impugned Order dated 17.12.2015 only speaks for itself and the same cannot be considered to be compliance of the provision under Sub-section (3) of Section 26 of the VC Act. The relevant provisions mandate that each person has to be served individually for vacating the place by giving them a period of 3 (three) months time for the said purpose. The said requirement as can be seen from the impugned Order dated 17.12.2015 has not been complied with. Furthermore, the impugned order speaks about the meeting held in the Office Chamber of the Deputy Commissioner, Lunglei on 15.12.2015. The question therefore is whether the decision taken in such a meeting can be accepted as the opinion on the Government as contemplated by Sub-section (3) of Section 26. Besides this, it may be also be noticed that a verification was conducted by 2 (two) officials of the Local Administration Department in terms of the Order dated 01.12.2015. What was the outcome of such verification and what was the finding of the verification team has not been revealed anywhere in the affidavit-in-opposition filed by the State respondents. Therefore, the decision taken on 15.12.2015 as indicated in the impugned Order dated 17.12.2015 can only be considered to be a unilateral decision taken behind the back of the settlers at Tuichawng Chhuah. As such, the impugned Eviction Order dated 17.12.2015 in my considered opinion cannot be sustained. 12. This Court in the case of Lalchawivela & Ors held that the requirements of Section 26 of the VC Act as amended in the year 1999 clearly envisages that the Government has to form an opinion that a situation has arisen requiring closure of any sub-village or settlement. 12. This Court in the case of Lalchawivela & Ors held that the requirements of Section 26 of the VC Act as amended in the year 1999 clearly envisages that the Government has to form an opinion that a situation has arisen requiring closure of any sub-village or settlement. Thereafter, a notice of eviction giving 3 (three) months time to the person sought to be evicted to vacate the place is to be given. But what can be seen, in the present case is that the mandatory requirements as provided by the VC Act has not been followed before issuing the impugned Order dated 17.12.2015. In that view of the matter and under the facts and circumstances, the impugned Eviction Order dated 17.12.2015 (Annexure-2) is set aside and quashed. The interim order passed on 08.01.2016 is made absolute. 13. The respondents however are not precluded from taking a decision to evict the settlers at Tuichawng Chhuah sub-village. If such action is contemplated, the respondents will be required to scrupulously follow the mandate of the provisions as provided in the VC Act. 14. With the above observation and direction, writ petition stands disposed of.