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2021 DIGILAW 537 (GAU)

N. Vanlalnghaka v. State of Mizoram

2021-09-08

MICHAEL ZOTHANKHUMA

body2021
ORDER : 1. Heard Mr. Lalchhanliana Khiangte, learned counsel for the petitioners as well as Mrs. H. Lalmalsawmi for the respondent Nos. 1 to 3. Mr. Ali Hussain appears for the pro foma respondent Nos. 4 and 5. 2. This writ petition under article 226, is for a direction to be issued to the respondent Nos. 1 to 3 to return the 15% cess deducted from the compensation amount awarded to the petitioners in terms of Award No. 3/2019, by which the lands of the petitioners had been acquired under the Railway s Act, 1989. 3. The petitioners’ counsel submits that the petitioners’ lands were acquired in terms of the Award No. 3/2019 passed by the District Collector, Aizawl. The land was acquired for construction of the Bairabi to Sairang New BG Railway Lines Project. At the time the compensation amount was disburs ed to the petitioners between April to June 2020, the respondent Nos. 11 o 3 illegally deducted 15% of the petitioners compensation amount by way of cess, in terms of rule 47(4) of the Mizoram (Land Revenue) Rules, 2013 (‘the 2013 Rules’). 4. The petitioners’ counsel submits that as per rule 47(4) of the 2013 Rules, 15% cess can be deducted from the compensation amount awarded to a land holder, for acquisition of his land, if the same has been acquired by way of any land acquisition law or Policy of the Government of Mizoram. As the petitioners lands have been acquired under the Railways Act, 1989, the respondents could not have deducted 15% of the compensation amount as cess. He accordingly prays that the cess deducted should be returned back to the petitioners. 5. Mrs. H. Lalmalsawmi, learned Government advocate appearing for the respondent Nos. 1 to 3 submits that the petitioners are not holders of Land Settlement Certificates and that they are only house pass holders. She submits that as per section 27 of the Mizoram (Land Revenue) Act, 2013 (‘the 2013 Act’), the holders of house passes have no right over the lands held by them, beyond the right of use and occupancy, for the period and under the terms/conditions specified in the House Pass. She submits that they have no right of transfer, inheritance or sub-letting beyond the period specified. 6. The learned counsel for the respondent Nos. She submits that they have no right of transfer, inheritance or sub-letting beyond the period specified. 6. The learned counsel for the respondent Nos. 1 to 3 submits that out of the total compensation paid to the petitioners for acquisition of their lands covered by house passes, deducting 15% as cess was made in terms of rule 47(4) of the 2013 Rules. She submits that though there is no provision for deduction of 15% as cess in the Railways Act, 1989 and Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, there is a provision for deduction of 15% revenue cess in terms of rule 47(4) of the 2013 Rules. She also submits that though the acquisition of the petitioners lands had been done in terms of the Railways Act, 1989, in pursuance to the Government of Mizoram notification conveyed under Memo No. K.12011/89/2018-REV dated 14.3.2018, there was no illegality in the deduction of cess. As such, the writ petition should be dismissed. 7. Mr. Ali Hussain, learned counsel for the profoma respondent Nos. 4 and 5 submits that the lands of the petitioners were acquired under the Railways Act, 1989 and compensation was also paid under the Railways Act, 1989 in terms of Award No. 3/2019. 8. I have heard the learned counsels for the parties. 9. It is seen that the house passes that have been issued to the petitioners had been issued by the Land Revenue & Settlement Department, Government of Mizoram and the house passes issued to the petitioners states that the Pass Holders have the rights, as laid down in section 26 of the 2013 Act. Sections 26, 27 and 36 of the 2013 Act states as follows “26. Status of a pass-holder.— Every person belonging to any of the following classes shall be called a pass-holder and shall have all the rights as specified in the pass and shall be subject to all the liabilities conferred or imposed upon him by or under this Act, namely:— (a) every person who, at the commencement of the Act, holds any non-agricultural land from the Government under a valid Pass granted by the competent authority, and his successor-in-interest; and (b) every person who acquires the right of a pass-holder under or in accordance with the provisions of this Act and the rules made thereunder. 27. 27. Rights of a pass-holder.— A pass-holder shall have no right in the land held by him beyond the rights of use and occupancy for such period and under such terms and conditions as may be specified in the pass and shall have no right of transfer, inheritance, or of sub-letting beyond the period so specified: Provided that where no period has been specified in the existing pass, the validity of such pass shall, unless renewed, be deemed to have continued as a valid pass for a period not exceeding five years from the date of commencement of this Act. 36. Allotment of Housesites in Urban and notified Town area.— (1) Allotment of house-sites and other plots in the areas declared by the Government as urban and town areas shall be made keeping in view of the provisions as contained in the Mizoram Urban and Regional Development Act, 1990 or in the Aizawl Development Authority Act, 2005 or in the Mizoram Municipalities Act, 2007 as the case may be: Provided that the land document shall contain clear geographical description (including macro and micro mapping), distinguishable boundary description accompanied by boundary pillars and accurate measurement of the area duly recorded. (2) The area of house site per family to be allotted will not exceed 1,337.80 squares metre or 1 bigha. (3) When a plot of land is allotted to a person, in order to obtain Land Settlement Certificate for the plot, a house shall be constructed within a period of 10 years. (4) The allotment of the House Site will also be subject to the restriction that the said land will not be sold or alienated within ten years from the date of allotment even if it is converted into Land Settlement Certificate. The allotment shall be deemed to be automatically cancelled if sale or alienation is made within this period. The land shall be reverted back to the Government: Provided that in case the land is a subject-matter of acquisition proceedings under The Land Acquisition Act, 1894 (as adapted by die Government of Mizoram), the prescribed period of ten years may be relaxed.” 10. The land shall be reverted back to the Government: Provided that in case the land is a subject-matter of acquisition proceedings under The Land Acquisition Act, 1894 (as adapted by die Government of Mizoram), the prescribed period of ten years may be relaxed.” 10. As the period of allotment of the house passes, as given in the house passes shows that it is from 2016 to 2020, the petitioners were pass holders at the time the land was acquired in the year 2019 vide Award No. 3/2019 in terms of the House Pass issued to the petitioners, an undertaking was made by them that they would abide with section 36(3) and (4) of the 2013 Act, wherein it is provided that the House Pass can be converted into a Land Settlement Certificate, if a house is constructed within a period of 10 years from the date of allotment of the House Pass. A reading of section 36(3) and (4) of the 2013 Act also goes to show that while the pass holder has not right to transfer, inherit or sub-let the said land, the said land can be acquired by law. 11. The issue as to whether 15% cess of the compensation amount awarded to the petitioners could be deducted as cess by invoking rule 47(4) of the 2013 Act, while the lands of the petitioners had been acquired under the Railways Act, 1989 is the moot question in issue. Section 132(1) of the 2013 Act states that the State Government may, by notification in the Official Gazette, make Rules for the purpose of carrying out the provisions of the 2013 Act. The preamble to the 2013 Rules states that the Governor of Mizoram has been pleased to make the 2013 Rules in exercise of the powers conferred by section 132 of the 2013 Act. The above preamble makes it clear that the 2013 Rules has been made for the purpose of aiding and carrying out the provisions of the 2013 Act. 12. The above preamble makes it clear that the 2013 Rules has been made for the purpose of aiding and carrying out the provisions of the 2013 Act. 12. Rule 47(4) of the 2013 Rules states as follows “47.(4) In case of acquisition of land covered by house pass or stall pass or shop pass or periodic patta or land lease under Land Acquisition Act, 1894 as amended from time-to-time, compensation may be paid as per assessment by the concerned Collector of the District provided that the validity of the tenure of the said land holding has not expired. In addition to crops and building damage compensation, land value may also be assessed and out of the assessed amount, 15 per cent of land value shall be remitted to Revenue Department as cess on value of land.” 13. However, rule 47(4) of the 2013 Rules was amended by way of the Mizoram (Land Revenue)(Amendment) Rules, 2019 (‘the Amendment Rules, 2019’), wherein the words and figures “Land Acquisition Act, 1894” was substituted by the words “any land acquisition law or policy of the Government of Mizoram for the time being in force”. Amendment of rule 47 by way of the Amendment Rules, 2019 states as follows:— “3. Amendment of rule 47: In sub-rule (4) of rule 47 of the Principal Rules, for the words and figures “Land Acquisition Act, 1894”, the words “any land acquisition law or policy of the Government of Mizoram for the time being in force” shall be substituted.” A reading of rule 47(4) of the 2013 Rules and the Amendment Rules, 2019 shows that the provisions of rule 47(4) would come into play only when land has been acquired under any land acquisition law or policy made by the Government of Mizoram. 14. In the present case, the petitioners’ lands have been acquired under the Railways Act, 1989, which has been enacted by the Parliament. Also, the Government of Mizoram, Land Revenue & Settlement Department issued a notification No. K.12011/89/2018-REV, dated 14.3.2018, which provides that during the period the Mizoram (Land Acquisition, Rehabilitation & Resettlement) Act, 2016 is sub-judice, lands for the National Highway Projects and Railway Projects in Mizoram shall be acquired under the relevant provisions of the National Highways Act, 1956 and the Railways Act, 1989, respectively. In view of the above, it is clear that as acquisition of the petitioners lands have been made under a Central Act, rule 47(4) of the 2013 Rules and Amendment Rules, 2019 would not be applicable to the case in hand. Accordingly, the respondent Nos. 1 to 3 could not have invoked the provisions of rule 47(4) of the 2013 Act for deducting 15% cess from the compensation amount awarded to the petitioners in terms of Award No. 3/2019. Consequently, the deduction of 15% cess by the respondent Nos. 1 to 3 is illegal and not sustainable in law. The respondent Nos. 1 to 3 are accordingly directed to immediately release the deducted 15% cess to the petitioners. The same should be done within a period of 1 (one) month from the date of receipt of a copy of this order by depositing the said amount in the Office of the concerned Deputy Commissioner/District Collector, who shall thereafter disburse the amount to the petitioners. 15. The writ petition is accordingly allowed.