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2019 DIGILAW 715 (GAU)

Anonto Bikash v. State of Mizoram

2019-06-11

NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. A.R. Malhotra, the learned counsel for the petitioners as well as Mr. Priyangshu Goswami, the learned counsel for the respondent No. 5. None appears for the other respondents, although the respondent Nos. 1, 2 and 3 were represented by the State Counsels on earlier Court dates and the respondent Nos. 4 and 6 were also represented by Ms. Zairemsangpuii, the learned CGC. 2. The respondent Nos. 1, 2 and 3 have filed their affidavit-in-opposition through the Under Secretary to the Government of Mizoram, Land Revenue & Settlement Department on 20.03.2018. As for the respondent Nos. 4 and 6, the learned CGC on earlier occasion, submitted that the said respondents will be relying upon the affidavit-in-opposition of the respondent No. 5. As such, the writ petition is taken up for final disposal. 3. By filing this writ petition, the petitioners have claimed payment of interest and solatium in accordance with Section 23 (1A) and 23 (2) of the Land Acquisition Act, 1894 (L.A. Act) for acquisition of their lands by Award No. 3/2008. They also seek further interest under Section 34 of the L.A. Act. For the construction of Indo-Bangla-Border Road-Cum- Fencing, the lands of the petitioners were acquired through the Deputy Commissioner- Cum-District Collector, Lunglei District, Lunglei (respondent No. 3). The work was to be executed by the respondent No. 5 and the fund towards the compensation for the land acquired was to be given by the respondent Nos. 4 and 6. The respondent No. 3 vide Draft Award No. 3/2008, awarded the petitioners a total compensation of Rs. 11,17,100/- along with a sum of Rs. 5000/- towards administrative cost and stationary. The award was pronounced on 24.09.2008 and was approved by the State Government, which was communicated to the respondent No. 3 by the Under Secretary to the Government of Mizoram, Revenue Department on 05.11.2008. 4. After the award was passed, one Smt. Buangthangpuii filed a reference before the respondent No. 3, which was thereafter referred to the Court of the Additional District & Sessions Judge, Lunglei. The reference was registered as L.A. Case No. 1/2009. The reference case covered 4 (four) awards namely, Award Nos. 2 & 3 of 2008 dated 05.11.2008 and Award Nos. 1 & 2 of 2009 dated 08.05.2009. The reference was registered as L.A. Case No. 1/2009. The reference case covered 4 (four) awards namely, Award Nos. 2 & 3 of 2008 dated 05.11.2008 and Award Nos. 1 & 2 of 2009 dated 08.05.2009. The reference for assessment and payment of solatium and interest was allowed by the Reference Court vide Order dated 13.07.2009, by directing the respondent No. 3 to make necessary assessment for payment to the land owners including the petitioners. Aggrieved with the non-payment of the compensation and the solatium and interest for their acquired lands under Award No. 3/2008, the petitioners filed WP (C) No. 4/2015 before this Court. 5. During the pendency of the writ petition, the respondent No. 5 deposited the awarded amount of Rs. 11,22,100/- before the respondent No. 3 vide Demand Draft No. 939723 dated 30.07.2016. Therefore, this Court directed the respondent No. 3 to disburse the compensation amount to the petitioners, within a period of 1 (one) month from the date of receipt of the order. Insofar as the solatium and interest was concerned, since a reference was made to the Division Bench with regard to WP (C) No. 119/2015, this Court granted liberty to the petitioners to file a fresh writ petition, subject to the outcome of the reference made to the Division Bench. The writ petition was accordingly disposed of. 6. Mr. A.R. Malhotra, the learned counsel submits that the reference made to the Division Bench was in WP (C) No. 119/2015 and the same was directed to be registered as Reference Case No. 1/2017 by the Reference Court. Consequently, vide Judgment and Order dated 24.04.2017, the Reference Court held that irrespective of the fact that the awarded amount has already been satisfied and given to the petitioners, they cannot be deprived of the solatium and interest as provided under Section 23 (1A) and Section 23 (2) of the L.A. Act, since the same are statutorily provided. Accordingly, the petitioners were found to be entitled to solatium and interest under Section 23 (1A) and Section 23 (2) of the L.A. Act. Consequent thereto, the petitioners have filed the present writ petition. 7. Mr. A.R. Malhotra, the learned counsel therefore submits that a direction may be given to the respondent No. 3 to make necessary assessment towards the solatim and interest, as entitled to the petitioners. 8. Mr. Consequent thereto, the petitioners have filed the present writ petition. 7. Mr. A.R. Malhotra, the learned counsel therefore submits that a direction may be given to the respondent No. 3 to make necessary assessment towards the solatim and interest, as entitled to the petitioners. 8. Mr. P. Goswami, the learned counsel on the other hand, submits that as per Section 23 of the L.A. Act, solatium and interest is to be calculated on the basis of the market value of the land, at the time of issuance of the notification under Section 4 of the L.A. Act. Referring to the Judgment and Order dated 24.04.2017 passed by the Division Bench in Reference Case No. 1/2017, he submits that solatium and interest has to be granted, once market value is determined. However, in case of the Draft Award No. 3/2008 and the details of the assessment made, the respondent No. 3 did not determine the market value of the land nor did the said authority mention about the area of the land. Compensation was awarded as per the claim of the claimants/petitioners. Therefore, in absence of any determination of the market value, it will be difficult to determine the solatium and interest payable to the petitioners. 9. Replying to the submission of Mr. P. Goswami, Mr. A.R. Malhotra, the learned counsel submits that the respondent No. 5 did not raise any objection to the Draft Award No. 3/2008 at any point of time. Let alone raising such objection, the award has already been satisfied by them. He further submits that even in the earlier round of litigation i.e. in WP (C) No. 4/2015, against the claim made by the present petitioners, the respondent No. 5 did not raise any objection, whatsoever on the award and therefore, they are only estopped from raising objections at this stage. 10. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 11. What is noticed is that LA Case No. 1/2009 covered 4 (four) awards i.e., Award Nos. 2 & 3 of 2008 and Award Nos. 1 & 2 of 2009. 10. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 11. What is noticed is that LA Case No. 1/2009 covered 4 (four) awards i.e., Award Nos. 2 & 3 of 2008 and Award Nos. 1 & 2 of 2009. Although the reference was allowed by the Reference Court vide Judgment & Order dated 13.07.2009, this Court by way of a common order dated 30.09.2015 in WP (C) No. 4/2015 and WP (C) No. 2/2015 set aside the said Judgment and Order dated 13.07.2009 of the Reference Court. The 2 (two) writ petitions were however, not disposed of by the said order. Subsequently, WP (C) No. 4/2015 came to be disposed of vide Order dated 31.08.2016 (Annexure-5) in view of the respondent No. 5 herein having deposited the awarded amount. The petitioners were however given liberty to approach this Court again by way of a fresh petition if the Division Bench allowed payment of solatium and interest on the basis of the writ petition. 12. It is noticed that in both the Orders dated 30.09.2015 and 31.08.2016, the entitlement of solatium and interest to the petitioners was left open and made, subject to the outcome of the related Reference Case No. 1/2017, which was decided by the Division Bench on being referred by the Writ Court in WP (C) No. 119/2015. Therefore, in view of the Judgment and Order dated 24.04.2017 rendered by the Reference Court, the petitioners will only be entitled to solatium and interest as claimed by them. 13. However, another question which arises is with regard to determination of the solatium and interest since the respondent No. 3 through the Draft Award No. 3/2008, admittedly did not determine the market value of the land being acquired. As already noticed, calculation towards the solatium and interest in terms of Section 23 of the LA Act would require determination of the market value of the land. Likewise, as held by the Division Bench of this Court in Reference Case No. 1/2017, the error or mistake committed by the Collector would also include non-awarding of solatium and interest and can be rectified within the ambit of Section 13 (A) of the LA Act. Likewise, as held by the Division Bench of this Court in Reference Case No. 1/2017, the error or mistake committed by the Collector would also include non-awarding of solatium and interest and can be rectified within the ambit of Section 13 (A) of the LA Act. Therefore, having regard to the position in law, it would be necessary for the respondent No. 3 to determine the market value of the land acquired belonging to the petitioners through Draft Award No. 3/2008 by taking into account the date of the notification issued under Section 4 of the LA Act i.e. 06.11.2006. 14. The respondent No. 3 is therefore directed to fix the market value of the land of the petitioners as would have been prevalent on 06.11.2006. Determination of the market value however cannot be hypothetical or imaginary but should have a bearing to the assessment sheet of the Draft Award No. 3 of 2018 where the Pass Nos. and amount claimed by the land owners are given. The respondent No. 3 after arriving at the appropriate market value of land shall compute the solatium and interest as payable to the petitioners under Section 23 (1A) and Section 23 (2) and also Section 34 of the LA Act. Such exercise shall be carried out by the respondent No. 3 as expeditiously as possible and preferably within a period of 2 (two) months from the date of receipt of the certified copy of this order. 15. After making such assessment, the respondent No. 3 shall forward the same to the respondent Nos. 4, 5, 6 for arrangement and sanction of the fund required. The respondent No. 4, 5, 6 shall within a period of 2 (two) months from the date of receipt of the Collector's assessment, get the amount sanctioned and deposited before the respondent No. 3. The respondent No. 3 who shall disburse the amount to the petitioners on proper identification and as per usual formalities. 16. With the above observations and directions, the writ petition stands disposed of.