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2018 DIGILAW 1517 (GAU)

STATE OF MIZORAM v. LALHREZUALA

2018-10-08

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mrs. Linda L. Fambawl, learned Government Advocate for the appellants. Also heard Mr. B. Lalramenga, learned counsel for the respondent Nos. 1 and 2. 2. The appellants have prayed for setting aside the Judgment and Decree dated 26.03.2014 passed by the Court of the Senior Civil Judge-I, Lunglei in Civil Suit No. 19/2010, by which the appellants have been directed to pay compensation in respect of the damages caused to the lands of the respondent Nos. 1 and 2 @ Rs. 32 per square feet. Thus, the total amount of compensation payable comes to Rs. 5,07,413.76/-, which was to bear an interest @ 6% per annum. 3. The brief facts of the case is that the Chairman of the Bualte Irrigation Committee had written a letter dated 14.08.2008 to the Joint Director, Minor Irrigation Department, Government of Mizoram, requesting him to revive the Minor Irrigation Project, which had been implemented at Bualte Village and which had fallen into disrepair due to passage of time and theft of various materials used for the Project. The Chairman of the Bualte Irrigation Committee thereafter submitted another letter to the Minor Irrigation Department, Government of Mizoram, on a subsequent date for revival of the Bualte Minor Irrigation Project. The Government of Mizoram thereafter acted upon the representation submitted by the Chairman of the Bualte Irrigation Committee and the Bualte Minor Irrigation Project was revived subsequently. 4. On 08.08.2008, the Bualte Irrigation Committee held a meeting, wherein 25 beneficiaries were selected, who would benefit from the revived Minor Irrigation Project at Bualte. The respondent Nos. 1 and 2 were amongst the selected beneficiaries who were to benefit from the revived Minor Irrigation Project. To implement revival of the Minor Irrigation Project, a road had to be constructed to restart the main water reservoir and other distribution tanks. For this, a road was constructed through the lands of the respondent Nos. 1 and 2. After construction of the road and revival of the Bualte Minor Irrigation Project, the respondent Nos. To implement revival of the Minor Irrigation Project, a road had to be constructed to restart the main water reservoir and other distribution tanks. For this, a road was constructed through the lands of the respondent Nos. 1 and 2. After construction of the road and revival of the Bualte Minor Irrigation Project, the respondent Nos. 1 and 2 filed Civil Suit No. 19/2010 in the Court of the Senior Civil Judge, Lunglei, praying for a decree declaring that the appellants had illegally constructed an agricultural link road measuring a total area of 4640 square metre on their lands, covered by LSC No. 12/G of 1991 and LSC No. 13/G of 1991, which resulted in destruction of their cash crops. The respondent Nos. 1 and 2 also prayed for a decree for being awarded compensation, for the value of their lands measuring 4640 square metre @ Rs. 500 per square metre including a solatium and cost of the cash crops destroyed totaling Rs. 30,74,000/-, alongwith interest. 5. Civil Suit No. 19 of 2010 was disposed of by the Court of the Senior Civil Judge, Lunglei vide Judgment and Order dated 3.08.2012 by holding that the appellants had encroached upon the lands of the respondents covered by LSC No. 12/G of 1991 and LSC No. 13/G of 1991 by constructing the agricultural link road and that the respondents were bound to pay compensation to them in lieu of the destruction caused to the suit lands. To ascertain the amount of compensation to be paid, due to the construction of the road on the respondents' lands, the Deputy Commissioner, Lunglei, was directed to assess the amount of compensation payable to the respondents, keeping in mind the prevailing market value of the land. Consequent to the Judgment and Order dated 03.08.2012 passed in Civil Suit No. 19/2010, the Deputy Commissioner, Lunglei had a spot verification done and he assessed the actual area damaged by the appellants to be 1475.04 square metre. The Deputy Commissioner, Lunglei thereafter assessed the total amount of compensation payable to the respondents at Rs. 8850/-, by taking the rate of compensation to be Rs. 6 per square metre. 6. The respondents being aggrieved by the assessment made by the Deputy Commissioner, Lunglei, they filed RFA No. 2/2013 in the Court of the District & Session Judge, Lunglei. The Deputy Commissioner, Lunglei thereafter assessed the total amount of compensation payable to the respondents at Rs. 8850/-, by taking the rate of compensation to be Rs. 6 per square metre. 6. The respondents being aggrieved by the assessment made by the Deputy Commissioner, Lunglei, they filed RFA No. 2/2013 in the Court of the District & Session Judge, Lunglei. The ground of challenge in the RFA No. 2/2013 to the Judgment and Order dated 3.08.2012 passed in Civil Suit No. 19/2010 was that the learned Trial Court had not drawn up a decree even after delivering judgment. Besides, the assessment made by the Deputy Commissioner, Lunglei was to meagre and not in consonance with the market value of the land. The further stand of the respondents in RFA No. 2/2013 was that the Hon'ble Supreme Court had upheld the acquisition of land of one C. Lalbiakthanga @ Rs. 38 per square feet along the Lunglei to Aizawl road and as such, the rate of Rs. 6 per square metre for the respondents' lands was without any basis. 7. Rfa No. 2 of 2013 was thereafter disposed of vide Judgment and Order dated 29.11.2013 by the First Appellate Court, by remanding the case back to the Court of the Senior Civil Judge, Lunglei, who was to consider the appropriate compensation payable to the respondents and to reconsider the assessment made by the Deputy Commissioner, Lunglei and consider whether it was reasonably assessed as per the prevailing market value of the land. 8. The operative portion of the Judgment and Order dated 29.11.2013 passed in RFA No. 2 of 2013, which is at paragraphs 6 and 7 is reproduced below:- "6. After hearing both parties and after careful considerations of all the materials submitted by both parties it has come to light that the instant suit was filed in the lowered court as civil suit and is not under Land Acquisition Act. The land is not acquired by the Government as per Land Acquisition Act. The agriculture link-road was constructed for the benefit and convenience of the farmers and the instant appellants are also the beneficiaries of the said link road. However, the Ld. lowered Court did not draw up the decree as per Order XX of CPC. The Judgment of the Ld. Lowered Court is not complete without drawing the decree. The agriculture link-road was constructed for the benefit and convenience of the farmers and the instant appellants are also the beneficiaries of the said link road. However, the Ld. lowered Court did not draw up the decree as per Order XX of CPC. The Judgment of the Ld. Lowered Court is not complete without drawing the decree. Whatever is said about the amount assessment of the Deputy Commissioner the Ld. Lower Court could should have drawn up the decree to form part of its judgment. Until and unless the Ld. lowered Court completed its judgment by drawing up the decree as per Order XX of CPC it could not be said it is part of the judgment. 7. Hence, the case is remitted back to the Ld. Lower Court. As the instant suit is civil suit and not under L.A Act Senior Civil Judge Court has the authority to consider the appropriate compensation to the appellant. And he is directed to re-consider the assessment made by the Deputy Commissioner, whether it is reasonable or not and whether it is assessed as prevailing market value of the land and if needed to have spot verification in the presence of both parties and whatever his findings be, to draw up the decree as per Order XX of CPC." 9. Thereafter, the Court of the Senior Civil Judge, Lunglei again took up Civil Suit No. 19/2010 and disposed of the same vide impugned Judgment and Decree dated 26.03.2014. The operative portion of the impugned Judgment and Decree dated 26.03.2014 passed in Civil Suit No. 19/2010 is reproduced below:- "It seems that main grievances of the Plaintiffs is the rate for acquisition of their lands and also is the reason for approaching higher Court. No dissatisfaction is mentioned regarding the measurement for the decree of damages caused to their lands. The Defendants point is also regarding the rate of acquisition and not the area of damages caused within the suit lands. Hence, directing another spot measurement may be unnecessary. The available references for determining the prevailing market value of the suit lands are put before me as Rs. 6 per Sqmt, as per the assessment of the Deputy Commissioner, Lunglei , Rs. Hence, directing another spot measurement may be unnecessary. The available references for determining the prevailing market value of the suit lands are put before me as Rs. 6 per Sqmt, as per the assessment of the Deputy Commissioner, Lunglei , Rs. 32 per Sqft, as per the assessment of the same Deputy Commissioner, Lunglei in Award No. 1 of 2008 in respect of the acquisition for the establishment of BSF Battalion Headquarters at Vanhne Village and Rs. 38 per Sqft, as per the land belonging to Sh. C. Lalbiakthanga, located at the bank of Tlawng river between Lunglei to Aizawl road. The Plaintiffs are highly dissatisfied with the rate at Rs. 6 per Sqmt applied by the Deputy Commissioner, Lunglei while assessing the market value of their lands and the same is meager compared with the rate fixed at Rs. 32 per Sqft by the same Deputy Commissioner, Lunglei in Award No. 1 of 2008. The locations of the two lands are in a way similar as both are located at the outskirt of Lunglei town. Even without considering the market value of the land located at the bank of Tlawng river between Lunglei to Aizawl road at the rate of Rs. 38 per Sqft as the same was not fixed by the Deputy Commissioner, Lunglei but fixed by the Hon'ble Supreme Court, the reliable actual market value of the suit lands could not be lower than Rs. 32 per Sqft and accordingly, the market value of the lands of the Plaintiffs are fixed likewise. DECREE Accordingly, the Defendants are directed to pay compensation in respect of the damages caused to the lands of the Plaintiffs at the rate of Rs. 32 per Sqft. The area of damages caused was already ascertained as 861.80 Sqmt in respect of LSC No. 12/G of 1991 and 513.24 Sqmt in respect of LSC No. 13/G of 1991 totaling an area of 1475.04 Sqmtr which equals 15856.68 Sqft and the total entitlement of the Plaintiffs comes to Rs. 5,07,413.76/- (Rupees five lakhs seven thousand four hundred thirteen and seventy six paise) only (32X15856.76). The Defendants are further directed to pay the compensation amount within a period of two months from the date of this Order failing which the same shall bear an interest @ 6% from the date of default till final payment." 10. 5,07,413.76/- (Rupees five lakhs seven thousand four hundred thirteen and seventy six paise) only (32X15856.76). The Defendants are further directed to pay the compensation amount within a period of two months from the date of this Order failing which the same shall bear an interest @ 6% from the date of default till final payment." 10. The present appeal has been filed against the impugned Judgment and Order dated 26.03.2014 passed in Civil Suit No. 19/2010. 11. The appellants' counsel submits that the appellants do not want to acquire the lands of the respondents and accordingly, the Court's below could not have given compensation for the value of the land as that would amount to paying compensation for acquisition of the lands of the respondents. The appellants' counsel further submits that the road having been made for the beneficiaries of the revived Bualte Minor Irrigation Project, which included the respondents, the respondents did not have any locus standi to file a suit for payment of compensation against the respondents, in respect of the construction of the road, as the same could not have been constructed without their consent. 12. Mr. B. Lalramenga, learned counsel for the respondent Nos. 1 and 2 submits that no permission or consent of the respondents was taken by the appellants, before constructing a road on their lands. He submits that compensation has to be paid by the appellants for the damage caused to the respondents' lands due to the road construction. He also submits that the compensation amount awarded to the respondents by the learned Trial court vide the impugned Judgment and Decree dated 26.03.2014 pertains only to damages and not for acquisition of land. He also submits that the appellants would have to pay the cost for damages caused to the lands, if they are not intending to acquire the lands in question. 13. The counsel for the respondents also submits that he does not wish to press his Cross Objection No. 3/2014. 14. I have heard the learned counsels for the parties. 15. The issue that has to be decided is basically (i) whether the compensation awarded to the respondents by the learned Trial Court is on the value of the lands, which would amount to acquisition of the lands, or (ii) whether the compensation has been assessed for damages caused to the lands. 16. 15. The issue that has to be decided is basically (i) whether the compensation awarded to the respondents by the learned Trial Court is on the value of the lands, which would amount to acquisition of the lands, or (ii) whether the compensation has been assessed for damages caused to the lands. 16. The stand of the appellants is to the effect that they had made the road on the lands of the respondents, which was for the benefit of the respondents and the other beneficiaries of the Minor Irrigation Project. They have no use for the road and they do not want to acquire the land where the said road was built. In view of the above stand taken by the appellants, there can be no direction by the Court to acquire the lands of the respondents or the damaged portion of lands, on which the road has been constructed. Further, the learned Trial Court could not have made an assessment of the value of the land in the absence of acquisition of the same. It could only have made an assessment of compensation for damages, by taking into account the actual damage caused, i.e. damage to crops, trees etc. However, even though the road has been constructed by the appellants for the benefit of the respondents, the fact remains that the road had been constructed on the respondents' lands, allegedly without their consent and permission. Thus, if the appellants are not going to acquire the lands of the respondents, they are anyway bound to pay compensation for damage caused to the lands of the respondents. Though the impugned Judgment and Decree dated 26.03.2014 passed in Civil Suit No. 19/2010 has directed payment of compensation on account of damages to the respondents @ Rs. 32 per square feet, the compensation given is not on account of damages caused to the lands but on the value of the lands in question. If the learned Trial Court had awarded compensation on account of damages caused to the lands, then it would have had to take into account the damage caused to the lands, as had been claimed by the respondents in paragraph 9 of the examination-in-chief in affidavit of the respondent Nos. 1 and 2, which is to the following effect:- "9. If the learned Trial Court had awarded compensation on account of damages caused to the lands, then it would have had to take into account the damage caused to the lands, as had been claimed by the respondents in paragraph 9 of the examination-in-chief in affidavit of the respondent Nos. 1 and 2, which is to the following effect:- "9. That a large portion of our lands are already destroyed beyond repair due to the deposition of loose soils and debris resulted from the said construction of Agricultural Link road and as such we have suffered an irreparable loss. In this regard mention may be made of the actual destruction caused to our lands which are as below: Illegal construction of an Agricultural Link Road within LSC No. 12/G of 1991 and 13/G of 1991 are 334m X 10 m wide and 130 m X 10m wide respectively causing destructions to a total area of 4640 Sq.m. Destruction of cash crops are as follows: (i) Fully grown Orange tree 15 Nos. @ Rs. 1,000/- (ii) Fully grown Teak tree 10 Nos. @ Rs. 1,500/- (iii) Fully grown Thlanvawng tree 20 Nos. @ Rs. 600/- (iv) Fully grown bamboo 2000 Nos. @Rs. 5/- (v) Fully grown Nimbu 10 Nos. @ 600/-" 17. The learned Trial Court has directed payment of compensation @ Rs. 32 per square feet by taking into account the fact that the land for establishment of the BSF Battalion Headquarters at Vanhne Village had been acquired @ Rs. 32 per square feet. There is nothing in the evidence adduced by the parties to show that damaged was caused to the lands of the respondents @Rs. 32 per square feet. 18. The impugned Judgment and Decree dated 26.03.2014 passed in Civil Suit No. 19/2010 states that the counsel for the respondents had submitted that the rate for acquisition for the establishment of BSF Battalion Headquarters at Vanhne Village, which was further away from the respondents' lands from Lunglei town, was @Rs. 32 per square feet as per Award No. 1/2008. 18. The impugned Judgment and Decree dated 26.03.2014 passed in Civil Suit No. 19/2010 states that the counsel for the respondents had submitted that the rate for acquisition for the establishment of BSF Battalion Headquarters at Vanhne Village, which was further away from the respondents' lands from Lunglei town, was @Rs. 32 per square feet as per Award No. 1/2008. The submission made by the respondents' counsel before the learned Trial Court, which is reflected in the impugned Judgment and Decree dated 26.03.2014, and the fact that the said amount has been awarded as compensation by the learned Trial Court to the respondents goes to show that the compensation awarded by the learned Trial Court is on the value of the lands, by deeming the same to be the rate fixed for acquired land and not for damages. The claim for damages having been specifically made by the respondents in their "examination-in-chief on affidavit" and there being no claim made by them for damages @ Rs. 32 per square feet in their evidence, the award of compensation to the respondents by the learned Trial Court @Rs. 32 per square feet is not proper, as it is not based on evidence. Further, as stated earlier, the learned Trial Court could have granted compensation only for damages and not on the alleged value of the land, which would have been done only in case of acquisition of land. Further, the compensation awarded by the learned Trial Court has been made on the basis of alleged market value of the land, which implies that it is the rate for acquisition of the land. 19. Further, the Cross Objection filed by the respondents at paragraphs 2 and 3 stated as follows:- "2. That the Respondent Nos. 1 & 2 beg to state that while passing the said Judgment and Order dated 26.03.2014 by the Ld. Senior Civil Judge, Lunglei, she has not awarded 30% solatium on the said amount of Rs. 5,07,413.76 as per Section 23 of the Land Acquisition Act, 1894 since their Land has been taken for the constructing Agriculture Link Road at Bualte and hence the said solatium of 30% over the said amount to be awarded and given to the Respondent Nos. 1 & 2. 3. 5,07,413.76 as per Section 23 of the Land Acquisition Act, 1894 since their Land has been taken for the constructing Agriculture Link Road at Bualte and hence the said solatium of 30% over the said amount to be awarded and given to the Respondent Nos. 1 & 2. 3. That the Respondents beg to submit the interest at the rate of 9% per annum for the first year and 15% per annum in the subsequent years with effect from March, 2009 as per section 34 of the Land Acquisition Act, 1894 on the said whole amount including solatium amount has not been awarded till final payment is made to the Respondents by the Ld. Senior Civil Judge, Lunglei Court and hence the said rate of interest be allowed to be given by this Hon'ble Court instead of 6% per annum to the Respondents for the ends of justice till the final payment is made by the appellants to the Respondent." The above averments made in the Cross Objection clearly goes to show that even the respondents are aware that the learned Trial Court has awarded them compensation on the basis of the land value, which relates to acquisition of land under the Land Acquisition Act, 1894. 20. In view of the reasons stated above, this Court is of the view that the impugned Judgment and Decree dated 26.03.2014 passed by the Senior Civil Judge-I, Lunglei in Civil Suit No. 19/2010 is not based on evidence and no compensation could have been given for value of the land. The impugned Judgment and Decree dated 26.03.2014 passed in Civil Suit No. 19/2010 is accordingly set aside. 21. The case is remanded to the learned Trial Court, to come to a finding as to the actual damage caused to the lands of the respondents due to construction of the road. The learned Trial Court shall thereafter assess the compensation amount payable to the respondents for damages only and not for the value of the land. 22. The appeal is accordingly disposed of while the Cross Objection stands dismissed as not pressed. Send back the LCR.