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2022 DIGILAW 253 (GAU)

C. Lalniliana S/o Saichhawna v. State of Mizoram

2022-03-11

MARLI VANKUNG

body2022
JUDGMENT : Heard Mr. T.Lalnunsiama learned counsel for the petitioners and also heard Mr. Zoramchhana learned Addl. Advocate General appearing for the state respondents. 2] This is a petition under Article 226 of the Constitution of India for declaring null and void the notifications issued by the Principal Secretary to the Government of Mizoram. Revenue Department, vide No. C.18016/39/2001-REV, dated 30th July, 2013 which in exercise of the power conferred under subsection (1) of section 14 of the Mizoram (Land Revenue) Act, 2013 restricts settlement within a plot of land covering ‘Bawngkawn Brigade Area’ by declaring the same as restricted area for special purposes and for public use, and the subsequent order No.K.15011/141/2018- REV/Vol-I/19 dated 2nd August 2018, which modified the aforesaid Notification dated 30th July 2013, wherein the scope of restriction of the notification dated 30th July 2013 would cover only Phase-I area and lifted the restriction of Phase –II area. That the said notifications were in violation of Article 14 and Article 300A of the Constitution. 3] Having heard both the parties and from perusal of the documents available on record, a brief the background of the events leading to this writ petition is highlighted herein: Previously during the insurgency in the state, certain areas of land were occupied by the security forces and declared as protected area. The petitioners claim is that they are the land owners of such the landed property situated at Bawngkawn Brigade area which was previously occupied by Security Forces in the year 1966 till 09.09.2008. The Security Force/Defence Department, Union of Indian then de-hired the area and handed over the Bawngkawn Brigade Area to the Collector & Deputy Commissioner, Aizawl District. Thereafter, in 2001, a PIL was filed before the Gauhati High Court by the then Village Council of Bawngkawn represented by its President, for the State authorities to enquire into the matter of alleged illegal/irregular allotments of land made in the mentioned Bawngkawn Brigade Area. The PIL was registered as W.P.(C) 52/2001 and the Court in its order dated 14.05.2003 closed the PIL by directing the State Authority in the Land Revenue & Settlement Department to bring the verification process initiated vide a Notification dated 06.03.2000 to its logical conclusion and to take all consequential measures as may be required in the law. Pursuant thereof, the Principal Secretary to the Government of Mizoram. Pursuant thereof, the Principal Secretary to the Government of Mizoram. Revenue Department, issued the impugned Notification vide No. C.18016/39/2001-REV, dated 30th July, 2013 which declared the plot of land covering ‘Bawngkawn Brigade Area’ as assigned for special purposes and for public use such as, establishment of hospital, public utility and other public amenities. Thereafter, the Respondent No. 3 issued a notification vide Memo No.K.15011/141/2014-REV Dated Aizawl, 1stJune, 2015, that in compliance with the Judgment & Order dt.14.05.2003 in W.P.(C) No.52/2001, spot verification was done within the Bawngkawn Brigade area and based on the decision of the Council of Minister in its meeting on 01.12.2011, ordered that (1) the locations of 96 (ninety six) LSCs & House Passes and Residential Land Settlement Certificates within Phase-I area of Bawngkawn Brigade Area should be transferred to other locations as may be deemed suitable by the Government so as to enable the Government to utilize the area so declared as restricted area for public purposes. And, (2) that all Passes issued within the said Bawngkawn Brigade Area (Phase-I) by the Chaltlang ‘S’ Village Council without prior approval of the Executive Committee of the erstwhile Mizo District Council or the Government of Mizoram be declared invalid and all holders of the said category of passes were asked to vacate the land within 45 days from the date of issue of the notification. Aggrieved with the above notification, W.P.(C) No.98 of 2015, W.P.(C) No.105 of 2015, W.P.(C) No.129 of 2015, W.P.(C) No. 155 of 2015 and W.P.(C) No.185 of 2015 were filed by several petitioners wherein this Court by a common Judgment & Order dt.16.09.2016, set aside the order for transfer of lands owned by the petitioners to a different location and the Court was of the opinion that the decision of the State Government to transfer the land of the petitioners covered by the LSCs and House Passes to another area is alien to the concept of the Act 2013 and the Rules of 2013. Thereafter, the State Government issued the impugned Notification No.K.15011/141/2018- REV/Vol-I/19 dt.2nd August, 2018, by deciding with reasons mentioned therein, that continuing the prohibition within Phase-II area was no longer necessary while the continuation of prohibition within Phase-I was still necessary in the public interest. Thereafter, the State Government issued the impugned Notification No.K.15011/141/2018- REV/Vol-I/19 dt.2nd August, 2018, by deciding with reasons mentioned therein, that continuing the prohibition within Phase-II area was no longer necessary while the continuation of prohibition within Phase-I was still necessary in the public interest. Aggrieved by this notification dated 2nd August, 2018 wherein the scope of the Notification dated 30.07.2013 is restricted only to the area within Phase-I of the Bawngkawn Brigade area, the instant writ petition was filed. 4] The learned counsel for the petitioner submits that the land within Bawngkawn Brigade Area were all under the Security Force/Army during insurgency period and the impugned Notification dt.2nd August, 2018 discriminates the petitioners who are owners of the land within Phase-I area from the landowners within the Phase-II area by declaring their land as still restricted without reasons. This is a violation of Article 14 of the Indian Constitution and other laws made thereunder. That this court in it’s common Judgment and order dated 16.09.2016 had mentioned that: “14. Article 300A of the Constitution of India provides that no person shall be deproved of his property save by the authority of law. The right to property is now considered to be not only a constitutional or statutory right but also a human right and is considered to be in the realm of individual rights such as the right to health, the right to livelihood, the right to shelter and employment etc.” That the petitioners were issued valid Land Settlement Certificates/passes by the State respondents and they have been paying annual tax collected by the revenue department till date. That the petitioners have approached the respondents several times for handing over their peaceful possession of their lands but to no avail whereby the respondents have violated their right to property under article 300A of the constitution which is also a human right violation. 5] The learned counsel for the respondents on the other hand submits that since the present disputed area, Bawngkawn Brigade Area, falls within the landed areas declared as protected area during the insurgency period, the erstwhile Village Councils thereof were barred from allotting land without previous approval of the Executive Committee of the erstwhile Mizo District Council vide Notification No.Ed.7.1444-57 dated 9th June, 1960. Therefore, lands allotted by Village Councils or Land settlement Certificates issued by Revenue Department of the said erstwhile protected area without previous approval of the Executive Committee of the Mizo District Council are invalid, null and void. 6] That the Common Judgment and order dated 16.09.2016 passed by this court in W.P.(C) No.98 of 2015, W.P.(C) No.105 of 2015, W.P.(C) No.129 of 2015, W.P.(C) No. 155 of 2015 andW.P.(C) No.185 of 2015, quashed Point No.(1) of the Notification K.15011/141/2014-REV, dated 01.06.2015 for transferring the locations of 96 LSCs and Passes but has not quashed Point No.(2)of the notification which declares Passes issued by Chaltlang “S” Village Council without prior approval of the Executive Committee of the erstwhile Mizo District Council, or of the Government of Mizoram, and directing holders of the said category of Passes who are occupying or developing their lands on the strength of such invalid Passes were to vacate the land within 45 days of the Notification. It is found that most of the LSCs possessed had no validity and were liable to be cancelled, however, the origins of the LSCs/passes or their exact locations are still being verified and are to be finalised soon. That all steps is being taken by the State Government in pursuant to the direction of the Hon’ble Court dated 14.05.2003 in the W.P.(C) No.52 of 2001, and spot verification is being done under the provisions of section 14 of the Mizoram (Land Revenue) Act, 2013, whereby the Government will soon finalize and come to its logical conclusion as directed by the Hon’ble Court. 7] The Government is taking urgent steps in finalizing which claims on lands within Phase-I area would be valid or invalid as per law and also as to what step should be taken in respect of valid land holdings falling within the assigned lands of Phase-I area. That there is no provision in any of the land laws in force, conferring land rights to anyone on the ground of having paid annual land taxes regularly, unless the lands concerned were recorded as held by such persons in the records of the Government The learned counsel relied on the Apex Court’s decision in Jitendra Singh vs The State of Madhya Pradesh, reported in (2021) SCC SC 802, Suraj Bhan v. Financial Commissioner, reported in (2007) 6 SCC 186 . That similar view has been expressed in up teem number of cases by the Apex Court, Suman Verma v. Union of India, reported in (2004) 12 SCC 58 ; Faqruddin v. Tajuddin reported in (2008) 8 SCC 12 ; to mention a few. 8] The learned Counsel further submits that the circumstances giving rise to the Notification dated 02.08.2018 for lifting of the prohibition under the Notification vide memo No.C.18016/39/2001-REV, dated 30th July, 2013 for Phase-II excluding Phase-I area cannot be taken as denying petitioners the Right to Equality or equality before law. The reason why the restrictions was lifted from the area within Phase-II of the Bawngkawn Brigade area was that the land within Phase –I comprised of Block –I to Black-VII and Phase –II area comprised of Block- VIII and Block –IX and the Council of Ministers in its meeting on 4th June, 2018 decided to lift the restriction of the land area under the said phase-II area of Bawngkawn Brigade, as Block- VIII been allotted to the Bawngkawn Local Council for Public Playground vide Land Lease certificate No.1022/01.08/34 dated 25th July 2017 and no further prohibition is require. The land within Block IX has also not been assigned for any specific project till date and that despite the standing prohibition there are several claims on the lands within the said area which are overlapping each other and need to be settled, thus continuation of the notified prohibition was no longer found purposeful in the interest of the public. That this is a policy decision of the State Government and it may not be appropriate for the court to interfere in such policy matters. The Learned Counsel has place reliance upon the Apex Court’s decision in Union of India and Others -Vs- J.D. Suryavanshi reported in (2011) 13 SCC 167 , In Directorate of Film Festivals v. GauravAshwin Jain reported in (2007) 4 SCC 737 etc. 9] Submissions made by both the parties is considered. It is a settled proposition of law that the Right to equality guaranteed under Article 14 of the Constitution of India is a vested right in favour of the person who claims equality and parity however, mere inequality is not enough to violate article 14 of the Constitution, equal protection is denied only when there is no reasonable basis for differentiation. The Apex Court in A.P. Dairy Development Corpn. The Apex Court in A.P. Dairy Development Corpn. reported in (2011) 9 SCC 286 , 303 reiterated the legal proposition as follows: “It is a settled legal proposition that Article 14 of the Constitution strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. This doctrine of arbitrariness is not restricted only to executive actions, but also applies to the legislature. Thus, a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate determining principle, rational, and has been done according to reason or judgment, and certainly does not depend on the will alone. However, the action of the legislature, violative of Article 14 of the Constitution, should ordinarily be manifestly arbitrary. There must be a case of substantive unreasonableness in the statute itself for declaring the act ultra vires Article 14 of the Constitution.” 10] In the present case the notification itself clearly elucidates the reason for lifting the restrictions within Phase-II area within the Bawngkawn Brigade area The notification No. order no.K.15011/141/2018- REV /Vol-I/19 dated 2ndAugust 2018 in itself provides that the Council of Ministers in its meeting on 4thJune ,2018 decided to lift the restriction of the land area under the said phase-II area of Bawngkawn Brigade, as Block- VIII been allotted to the Bawngkawn Local Council for Public Playground vide Land Lease certificate No.1022/01.08/34 dated 25th July 2017 and no further prohibition is require. The land within Block IX has not been assigned for any specific project till date. Because of the above reason, in the interest of the public, the scope of the notification dated 30.07.2013 is restricted within Phase–I area of the Bawnkawn Brigade Area and the reservation of land within Phase-II area was cancelled with immediate effect. There is nothing in the submissions made that shows that the land within Phase–I of the Bawngkawn Brigade area is similarly situated to that of the land within Phase-II of the Bawngkawn Brigade area. 11] For the above reasons, I am of the considered view that a reasonable reason has been made out for lifting the restrictions within the Phase II area within the Bawngkawn Brigade area. 11] For the above reasons, I am of the considered view that a reasonable reason has been made out for lifting the restrictions within the Phase II area within the Bawngkawn Brigade area. Thus, I find that the claim made by the petitioners that there is a violation of article 14 has not been substantiated, and hence, this court is of the considered view that there is no violation of Article 14 of the Constitution in issuing the notification No. order no.K.15011/141/2018- REV/Vol-I/19 dated 2ndAugust 2018. 12] The Apex Court in Union of India and Others -Vs- J.D. Suryavanshi (supra) reiterated the view taken in Directorate of Film Festivals v. Gaurav Ashwin Jain (supra) where it was held that : “16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review..” 13] Thus, in light of the above this court finds no reason to interfere with the decision of the Government in issuing the notification vide No. C.18016/39/2001-REV, dated 30th July, 2013 which, in exercise of the power conferred under sub-section (1) of section 14 of the Mizoram (Land Revenue) Act,2013 restricts settlement within a plot of land covering ‘Bawngkawn Brigade Area’ by declaring the same as restricted area for special purposes and for public use, and the subsequent order No.K.15011/141/2018- REV /Vol15 I/19 dated 2ndAugust 2018 , which modified the aforesaid Notification dated 30th July 2013, whereby the scope of restriction of the notification would cover only Phase-I area and lifted the restriction of Phase –II area. 14] I also find that the claim of the petitioners that the passes/land Settlement certificates possessed by them within the Phase-I of the Bawngkawn brigade area are valid passes since they have been paying revenue tax till date and that their right under Article 300A has been violated not sustainable. The Apex court in the case of Suraj Bhan v. Financial Commissioner (supra) observed that “an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose”, i.e., payment of land revenue, and no ownership is conferred on the basis of such entries.” This view is found aptly applicable in the instant case wherein at this stage the validity of the passes/LSC of the petitioners is yet to be determined by the respondents. 15] Further, there is the order of this Court dated 14.05.2003 in the W.P.(C) No.52 of 2001 wherein the court closed the PIL by directing the State Authority in the Land Revenue & Settlement Department to bring the verification process initiated vide Notification dated 06.03.2000 to its logical conclusion and to take all consequential measures as may be required in the law. It is seen that the respondents have yet to complete the verification process to verify whether the passes/land settlement certificates possessed by the petitioners are valid or not, in terms of the notification dated 06.03.2000. 16] The respondents are hereby directed to take prompt action to come to a logical conclusion regarding whether the petitioners are holders of valid Passes/Land Settlement Certificate within the Phase-I area of the Bawngkawn Brigade area and thereafter the respondents are to do the needful as per the law. The whole process/proceeding is to be completed within 6 (six) months from the date of this order. Thereafter, if the petitioners are aggrieved by the decision or action of the respondents they may in turn take the necessary course of action. 17] This court also find it fit to pass an order that the petitioners shall continue their peaceful occupation of the land within Phase-I area of the Bawngkawn Brigade area till verification is completed and appropriate steps are taken by the respondents as per law. 18] W.P.(C) No. 91 of 2018 accordingly stands disposed.