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2018 DIGILAW 290 (GAU)

B. LALHMANGAIHII v. STATE OF MIZORAM

2018-02-16

NELSON SAILO

body2018
JUDGMENT/ORDER : 1. Heard Mr. Lalremtluanga, the learned counsel for the petitioner and Mr. A.K. Rokhum, the learned Addl. Advocate General for the respondent Nos. 1 to 4. Mr. J.C. Lalnunsanga, the learned counsel appears for the respondent No. 5. 2. The case of the petitioner in brief is that she is the legally wedded wife of one Shri. F. Rodingliana, in whose name the erstwhile Village Council of South Chaltlang had issued a House Pass No. 41/1970 on 03.04.1970 under Section 3 (1) of the Lushai Hills District (House Site) Act, 1953 by obtaining prior permission of the Executive Committee of the Mizo District Council. The husband of the petitioner, Shri. F. Rodingliana expired on 9.10.2010 and the petitioner as the legal representative and successor in respect of the said V.C Pass has approached this Court. It may be noticed that prior to issuance of the V.C Pass to Shri. F. Rodingliana, the same was allotted to some other person namely, Shri. H. Laltanpuia but however, the V.C Pass was subsequently changed in the name of the petitioners late husband. 3. The petitioner also purchased another plot of land covered by V.C Pass No. 71/1973 issued by the same Village Council in the name of one Shri. K. Thanchhunga on 10.03.2008. As a result, all the rights and interest over the said plot of land stood transferred to the petitioner from Shri. K. Thanchhunga. According to the petitioner, the two plots of land were occupied by the Security Force and for which reason, a spot verification on account of claim for rental compensation by similar land owners, whose lands were occupied by the Armed Force including the petitioners land was done by the Deputy Commissioner. On making such spot verification, the claims were found to be genuine and accordingly, an assessment for rental compensation for the period from 1st April 1966 to 31st August 1986 was made. The assessment was then forwarded to the Director, Government of India, Ministry of Home Affairs, New Delhi by the Secretary to the Government of Mizoram, Revenue Department vide his communication dated 11.03.2002. In the said list of claimants, the name of the petitioners late husband was also included alongwith the previous owner of V.C Pass No. 71/1973 i.e. Shri. Thanchhunga. Therefore, it was clear that the two plots of land belonged to the petitioner. In the said list of claimants, the name of the petitioners late husband was also included alongwith the previous owner of V.C Pass No. 71/1973 i.e. Shri. Thanchhunga. Therefore, it was clear that the two plots of land belonged to the petitioner. The petitioner also claims that she has been regularly paying the house tax as determined by the State Government from time to time. However, to the surprise of the petitioner she received a show cause notice from the respondent No. 2, which was issued on 09.02.2012 informing the petitioner that as there was ownership dispute over the V.C Pass issued, steps were being taken with the approval of the Government for cancellation of the V.C Pass. It was also indicated that the petitioner should submit a written reply to the show cause within 15 days from the date of receipt of the same. The petitioner in response to the show cause notice submitted a written reply stating that the Village Council Pass was validly issued and there was no reason for cancelling the same. The petitioner also requested for conversion of the Village Council Passes to Land Settlement Certificates. 4. The respondent authorities instead of making further response to the reply made by the petitioner against the show cause notice issued a Land Lease Certificate under DLL-01/1022/01/07/44 of 2013 in favour of the respondent No. 5. The Land Lease Certificate was issued on 21.06.2016. Being aggrieved, the petitioner has approached this Court for payment of compensation for occupation and construction undertaken in the land covered by the two Village Council Passes, as it was issued to the respondent No. 5 for public purpose without her permission and consent. 5. Mr. Lalremtluanga appearing for the writ petitioner submits that by allotting the respondent No. 5 the Land Lease Certificate over the Village Council Passes of the petitioner, the respondent authorities have clearly deprived the petitioner of her properties without any process and in violation of Article 300A of the Constitution of India. Therefore, the State respondents are liable to be directed by this Court to acquire the land of the petitioner and to pay her adequate compensation as per law. 6. Mr. A.K. Rokhum, the learned Addl. Therefore, the State respondents are liable to be directed by this Court to acquire the land of the petitioner and to pay her adequate compensation as per law. 6. Mr. A.K. Rokhum, the learned Addl. Advocate General by referring to the affidavit-in-opposition filed by the State respondents on 24.10.2017 submits that the Village Council of Chaltlang South has no authority to issue any plot of land to anyone including the writ petitioner, inasmuch as, the entire area of Chaltlang South alongwith 4 (four) other locations were declared as protected areas vide Notification dated 09.06.1960 issued by the Chief Executive Member of the Mizo District Council. The land in question clearly being located under the protected area, the petitioner cannot make any claim over the land covered by the V.C Pass let alone claim for compensation. 7. Mr. J.C. Lalnunsanga appearing for the respondent No. 5 submits that since the petitioner has claimed monetary compensation from the State respondents and that as no relief is being claimed from the respondent No. 5 by the petitioner, the respondent No. 5 did not file any affidavit-in-opposition. He however submits that pursuant to the allotment of the land through the Land Lease Certificate to the respondent No. 5, the land is being utilized for construction of J. Thankima College and construction is going on in full swing and near completion. He further submits that the petitioner prior to filing the instant writ petition had approached the learned Civil Judge as well as the learned Senior Civil Judge, Aizawl District Aizawl by filing Civil Suit No. 21/2012 and Civil Suit No. 101/2016 respectively. He submits that the prayer made by the petitioner in Civil Suit No. 21/2012 was for declaring the House Site Pass Nos. 41/1970 and 71/1970, which was issued by the erstwhile Chaltlang South, Village Council to be valid House Passes, besides another House Pass No. 43/1970. He submits that the petitioner after filing of the present writ petition, withdrew the Civil Suit from the Court of the learned Civil Judge, Aizawl. Likewise, during the pendency of Civil Suit No. 21/2012, the petitioner also approached the learned Senior Civil Judge-III, Aizawl District Aizawl by filing Civil Suit No. 101/2016 for a declaration that the petitioner was the legal and rightful owner of the Village Council House Pass Nos. 41/1970 and 71/1973. Likewise, during the pendency of Civil Suit No. 21/2012, the petitioner also approached the learned Senior Civil Judge-III, Aizawl District Aizawl by filing Civil Suit No. 101/2016 for a declaration that the petitioner was the legal and rightful owner of the Village Council House Pass Nos. 41/1970 and 71/1973. Besides this, the petitioner also prayed for cancellation of the Land Lease Certificate No. DLL-01/1022/01/07/44 of 2013 issued to the respondent No. 5 on 21.06.2016. He submits that Civil Suit No. 101/2016 was accompanied by an application seeking stay of the issuance of the Land Lease Certificate to the respondent No. 5. He submits that the learned Senior Civil Judge, Aizawl was pleased to pass a stay order in CMA No. 564/2016 and for which, the respondent No. 5 approached the learned District Judge, Aizawl by filing FAO No. 5/2016. The learned District Judge was please to pass an interim order on 15.12.2016, staying the interim order passed by the learned Senior Civil Judge in CMA No. 564/2016. Subsequently, the petitioner withdrew the Civil Suit No. 101/2016 pending before the learned Senior Civil Judge on 28.03.2017 and resultantly, FAO No. 5/2016 has been rendered infructuous. 8. Mr. J.C. Lalnunsanga submits that the petitioner in her writ petition has nowhere mentioned about the filing of the two civil suits and therefore, the petitioner has clearly supressed the facts from this Court. Therefore, the petitioner having not approached this Court with clean hands, the writ petition should be dismissed. 9. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials on record including the Orders dated 09.12.2016 passed in Civil Suit No. 101/2016, Order dated 15.12.2016 passed in FAO No. 5/2016 and Order dated 12.07.2017 passed in Civil Suit No. 21/2012. From the pleaded case of the petitioner what is to be decided is as to whether the Village Council Passes and the V.C Pass Nos. 41/1970 and 71/1973 were validly issued and as to whether the Land Lease Certificate under No. DLL-01/1022/01/07/44 of 2013 has been issued over lapping the V.C Passes. 10. From the pleaded case of the petitioner what is to be decided is as to whether the Village Council Passes and the V.C Pass Nos. 41/1970 and 71/1973 were validly issued and as to whether the Land Lease Certificate under No. DLL-01/1022/01/07/44 of 2013 has been issued over lapping the V.C Passes. 10. The State respondents, have taken the stand that vide Notification dated 9.06.1960 issued by the Chief Executive of the erstwhile Mizo District Council clearly prohibited the Village Council of Chaltlang South to issue any sites within its jurisdiction, without previous approval of the Executive Committee as it was declared to be a protected area. Although the petitioner has annexed a certificate issued by the Village Council President who had issue the V.C Pass No. 41/1970 certifying that before issuance of the pass, the approval of the Executive Committee was obtained, the fact remains that issuance of the V.C Pass as per approval of the authority concerned will have to be proved by leading evidence before a competent Civil Court. A writ Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India cannot adjudicate disputed questions of fact. The petitioner has also approached this Court by filing the writ petition on 31.01.2017, while Civil Suit No. 21/2012 was pending before the learned Civil Judge, Aizawl. This fact can be ascertained from the Order dated 12.07.2017 produced by Mr. J.C. Lalnunsanga whereby, the petitioner withdrew the suit with liberty to file afresh. The petitioner therefore, has approached two forums simultaneously with similar prayer which otherwise is not permissible in law. Be that as it may, from the case projected by the writ petitioner and the response given by the respondents, I find that there are disputed questions of fact involved and for which adjudication by a writ Court will not be possible. Therefore, dwelling upon the authorities relied upon by the parties is found unnecessary. In that view of the matter, the writ petition is dismissed. However, the petitioner is at liberty to approach a Competent Civil Court with her grievance, if the same is permissible in law. 11. The Order dated 12.07.2017 in Civil Suit No. 21/2012, Order dated 09.12.2016 in Civil Suit No. 101/2016 and Order dated 15.12.2016 in FAO No. 5/2016 shall be kept on record and marked as X, Y, Z for identification.