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2024 DIGILAW 1753 (GAU)

Lalduhawma v. State of Mizoram

2024-12-10

SANJAY KUMAR MEDHI

body2024
JUDGMENT : (Sanjay Kumar Medhi, J.) The instant appeal has been preferred against the judgment and decree dated 14.12.2021 passed by the learned Senior Civil Judge – IV, Aizawl District in Civil Suit No. 97/2012. By the aforesaid impugned judgment and decree, the suit of the plaintiffs has been dismissed. The present appellants were the plaintiffs in the said suit. 2. The suit was instituted challenging an order of cancellation of land settlement dated 09.03.2012 pertaining to 15 persons including the two appellants / plaintiffs. As per the facts projected in the plaint, the land in question which is at Lawipu was initially sought to be allotted to certain volunteers of the Mizo National Front after the said organization had joined the mainstream in the year 1989. Though the process was on, due to certain technical issues, the land to the said volunteers were re-allotted at Maubawk Village Council instead of Lawipu Village Council where the present subject land is situated. According to the plaintiffs / appellants, since the land at Lawipu remained vacant, there was a decision to allot the land to certain landless people. As per the said decision, 35 nos. of beneficiaries were selected and the present appellants were amongst the said 35 nos. of beneficiaries. 3. It is the case of the appellants / plaintiffs that by following the due procedure, the land was allotted to the landless persons including them and thereafter, house passes were issued on payment of the prescribed fees. Thereafter, the said passes were converted to permanent Land Settlement Certificate (LSC) and accordingly, there was also a publication in the Official Gazette. After such process, the respondent no. 7 claimed that he had Periodic Patta over the plot of land. After making such claim, the matter was sought to be settled by the Revenue authorities and a General Report (Exhibit P-4) was also made. However, the authorities acted on the complaint raised by the respondent no. 7 and accordingly initiated a process for cancellation by issuing a show-cause notice to the appellants on 06.02.2012. Thereafter, the cancellation order was passed on 09.03.2012 which was the subject matter of challenge in the civil suit. 4. The State respondents, who were arrayed as defendant nos. 1 to 6 had filed written statement disputing the claim and similarly the defendant nos. Thereafter, the cancellation order was passed on 09.03.2012 which was the subject matter of challenge in the civil suit. 4. The State respondents, who were arrayed as defendant nos. 1 to 6 had filed written statement disputing the claim and similarly the defendant nos. 7 to 21 had also filed written statement disputing the claim of the appellants / plaintiffs. After such exchange of pleadings, the issues were framed on 03.05.2016 followed by the evidence. The plaintiffs had adduced evidence through 4 nos. of witnesses whereas the State respondents did not adduce any evidence. However, the defendant no. 7 had adduced evidence after consideration of the respective versions of the contesting parties and the materials on record including the evidence, the impugned judgment and decree has been passed on 14.12.2021 dismissing the suit which is the subject matter of challenge in the present appeal. 5. I have heard Shri F. Lalengliana, learned counsel for the appellants. I have also heard Ms. H. Lalthanchama, learned State Counsel for the respondent nos. 1 to 6 and Ms. Lalawmpuii Fanai, learned counsel for the respondent nos. 7 to 21. 6. Shri Lalengliana, learned counsel for the appellants has submitted that the present challenge is mainly on two counts. Firstly, there were no materials to come to a finding that the allotment of the land in favor of the plaintiffs were mistakenly done or that the land of the defendants were affected. Secondly, it is contended that the procedure adopted for cancellation is illegal, unreasonable and liable to be interfered with. 7. Elaborating on his submission, the learned counsel for the appellants has submitted that as a matter of policy, 35 nos. of beneficiaries were selected for allotment of lands including the present appellants at Lawipu. Pursuant to such policy decision, the codal formalities were scrupulously followed whereafter house passes were issued and after payment of prescribed fees, the same were converted to permanent Land Settlement Certificate. He has also submitted that the entire process was done legally which was followed by publication in the Official Gazette. It is submitted that the process for the aforesaid allotment was initiated in the year 2004 and the approval by the Government after the survey and preparation of house site plan was in the year 2006 and at that time, there was no dispute raised by the defendants. It is submitted that the process for the aforesaid allotment was initiated in the year 2004 and the approval by the Government after the survey and preparation of house site plan was in the year 2006 and at that time, there was no dispute raised by the defendants. However, long thereafter, the defendants had raised the issue that the land allotted to the plaintiffs were part of their Periodic Patta land. 8. It is submitted that the defendant no. 8 was himself not possessing title over the entire plot of land and the materials on record would show that the area covered was of 8 Bigha. In this connection, the learned counsel has drawn the attention of this Court to the deposition of the DW (defendant no. 8) wherein there is a categorical assertion that the area covered by the Periodic Patta was 8 Bigha. It is submitted that without any valid reasons, the area was increased to 24 Bigha (approx.) by the defendants which had adversely affected the allotment process in favour of the plaintiffs leading to the impugned action. He submits that there was no reason to increase the area of the Periodic Patta when there is a categorical assertion by the DW that the land under their possession was 8 Bigha. 9. On the aspect of the procedure adopted for cancelling the certificates, the learned counsel for the appellants has submitted that the entire exercise of issuing show-cause notice was a mere formality. It is submitted that on 03.01.2012, the Director of Land Revenue and Settlement, Mizoram had written to the State Government seeking approval to cancel the LSC in favour of the plaintiffs and such approval was granted by the State Government on 24.01.2012. He submits that it is only thereafter on 06.02.2012 that the show-cause notice was issued. He submits that when the decision was already taken and approved by the State Government, issuance of show-cause notice thereafter would not be an effective compliance of the principles of natural justice. 10. The learned counsel for the appellants has also assailed the judgment on the ground that vide order dated 01.12.2021 the judgment was fixed to be delivered on 10.12.2021 but, there was no order passed on 10.12.2021 and the judgment was delivered only on 14.12.2021. It is submitted that the same amounts to gross irregularity requiring interference. 11. 10. The learned counsel for the appellants has also assailed the judgment on the ground that vide order dated 01.12.2021 the judgment was fixed to be delivered on 10.12.2021 but, there was no order passed on 10.12.2021 and the judgment was delivered only on 14.12.2021. It is submitted that the same amounts to gross irregularity requiring interference. 11. The learned counsel for the appellants has also assailed the judgment with regard to the operative part and the decree. It is submitted that there was no counter-claim filed by the defendants, however, there was a Declaration that the LSC in favour of the defendant nos. 7 to 21 was valid. He submits that the relief which has been incorporated in the decree cannot go beyond the pleadings of the parties. 12. The learned counsel for the appellants has also submitted that the only witness on behalf of the defendants (DW) had made an admission that the area of land was 8 Bigha and therefore, the aspect that the land of the defendants was of 24 Bigha (approx.) could not have been gone into. He reiterates that it is only on account of the aforesaid aspect that the impugned order had occasioned. In support of his submission, he has relied upon the judgment of United India Insurance Co. Ltd. and Anr. Vs. Samir Chandra Chaudhary reported in (2005) 5 SCC 784 , wherein, the aspect of admission by way of evidence has been discussed. He has also relied upon the judgment of S. SaidUd-Din Vs. Court of Welfare Commissioner Bhopal Gas Victims Tribunal and Ors. reported in (1997) 11 SCC 460 on the aspect of inadequate evidence. He submits that in the instant case, the official respondents did not adduce any evidence to justify their action and in absence of such evidence, the suit should have been decreed in favour of the plaintiffs. He has also highlighted the aspect that the only evidence from the defendant's side was by the defendant No. 7 which would not adversely affect the case projected by the plaintiffs. 13. He has also submitted that from the deposition of the DW, it transpires that there was no renewal of the Periodic Patta from 1991 to 18.05.1993. He has also drawn the attention of this Court to a show-cause notice dated 10.10.2017 issued to the defendants on the aspect of cancellation of LSC. 14. Per contra, Ms. 13. He has also submitted that from the deposition of the DW, it transpires that there was no renewal of the Periodic Patta from 1991 to 18.05.1993. He has also drawn the attention of this Court to a show-cause notice dated 10.10.2017 issued to the defendants on the aspect of cancellation of LSC. 14. Per contra, Ms. H. Lalthanchama, the learned State Counsel has submitted that the judgment dated 14.12.2021 which is the subject matter of appeal has incorporated all the relevant aspects and has been passed by considering the rival cases projected and the materials on record. Justifying the aforesaid judgment, the learned State Counsel has submitted that the State had filed written statement against the suit in which it was stated that the Periodic Patta to house site conversion was done as per a judgment of the High Court in WP(C)/7/2007 [VL Buki Vs. State of Mizoram & Ors.]. 15. She submits that the show cause notice was duly issued on 06.02.2012 and the cancellation order was passed on 09.03.2012 after giving due opportunity to the plaintiffs. She submits that so far as the deposition of DW is concerned regarding the area of land to be 8 Bigha, the settled principle is that in case of any dispute between area and boundary description, it is the boundary description which will prevail. In this regard, she relies upon a decision of the Hon’ble Supreme Court in the case of Subhaga & Ors. Vs. Sobha & Ors. reported in (2006) 5 SCC 466 . In the said case, it has been laid down that once a plot of land is identified by boundaries, even if there is any discrepancy regarding the area, the boundaries should prevail. 16. The learned State Counsel has also submitted that the allotment of land to the defendant nos. 7 to 21 which was initially a Periodic Patta and later converted to House Site was done by following the due process of law including the codal formalities. She has also submitted that the General Report which was proved as Exhibit P-4 is conclusive in nature and would be a clinching piece of evidence. She submits that the said General Report states that on the investigation made through a Surveyor of the District Revenue Office, it is found that the Periodic Patta of the respondent no. 7 covered a land of 24.30 Bighas instead of 8 Bighas. She submits that the said General Report states that on the investigation made through a Surveyor of the District Revenue Office, it is found that the Periodic Patta of the respondent no. 7 covered a land of 24.30 Bighas instead of 8 Bighas. It also states that other than the 8 Bigha of land, the remaining 16.30 Bigha was in contravention with the Circular of the Department and there was a clear overlapping of the land sought to be allotted to the plaintiffs. She accordingly submits that the cancellation was rightly done and was accordingly upheld. 17. She has also submitted that the plaintiffs have never challenged the Periodic Patta and therefore, the judgment which is passed by taking into consideration the General Report (Exhibit P-4) in which the area under the Periodic Patta has been clarified cannot be termed as erroneous. On the aspect of the submission that there was no counter-claim and therefore, no decree could have been passed on the validity of the possession by the defendants, the learned State Counsel has submitted that there was a specific issue framed being issue no. 4 which was accordingly answered and therefore, there is no illegality. 18. Ms. Fanai, learned counsel for the respondent nos. 7 to 21, while adopting the arguments made by the learned State Counsel has reiterated that the Periodic Patta of the defendants was never the subject matter of challenge. She has also reiterated that the allotment of the land, issuance of Periodic Patta and the subsequent conversion to House Site in their favour were lawfully done. It is also submitted that admittedly, the subsequent allotments sought to be made to the plaintiffs were by mistake and after the issue was raised by her clients, the same was rectified and accordingly, action was taken. It is submitted that the judgment dated 14.12.2021 does not suffer from any infirmity which is liable to be upheld and accordingly, the present appeal be dismissed. 19. The rival contentions advanced by learned counsel for the parties have been duly considered and the materials placed before this Court including the copy of the LCRs have been carefully perused. 20. As indicated above, 9 nos. of issues were formulated by the learned Court which are as follows: “1) Whether the suit is maintainable in its present from and style? 2) Whether the Plaintiff have cause of action or not? 20. As indicated above, 9 nos. of issues were formulated by the learned Court which are as follows: “1) Whether the suit is maintainable in its present from and style? 2) Whether the Plaintiff have cause of action or not? 3) Whether the LSC’s issued in the name of the Plaintiffs and the persons whom they are representing i.e. LSC No.104904/1/1429/2006 in the name of Lalremreata, LSC No. 104904/1/1430/2006 in the name of Thangliankapa, LSC no. 104904/1/1431/2006 in the name of Lalrinmawia Hnamte, LSC No. 104904/1/1432/2006 in the name of Ramthiangi, LSC No. 104904/1/1433/2006 in the name of Tlanchhungi, LSC No. 104904/1/1434/2006 in the name of Lalhmingsanga, LSC No. 104904/1/1435/2006 in the name of lalduhawma, LSC No. 104904/1/1436/2006 in the name of Lalrintluanga, LSC No. 104904/1/1425/2006 in the name of H. Lalhriatpuia, LSC No. 104904/1/1427/2006 in the name of H. Lalremruata, LSC No. 104904/1/1428/2006 in the name of lalramliana, LSC No. 104904/1/1437/2006 in the name of Laldinpuii, LSC No. 104904/1/1438/2006 in the name of Lalchhuanawma, and LSC No. 1084 of 2004 in the name of lalchhandama are valid or not? 4) Whether the Defendants’ LSC are valid or not? 5) Whether the Plaintiffs are entitled to the relief claim? If so, to what extent? 6) Whether the Plaintiffs have locus standi to file the instant suit or any cause of action in their favour and against the Defendants. 7) Whether the Plaintiff can sue in favour of interested persons mentioned in Para No. 1 of the Plaint under Order-I Rule 8 CPC without prior permission of the Court? 8) Whether the suit is bad for non-joinder of necessary parties? 9) Whether the suit is liable to be dismissed for want of sufficient Court fees?” 21. The issue no. 1 on the aspect of maintainability, issue no. 2 on cause of action, issue no. 6 on the aspect of locus standi, issue no. 7 on the aspect of the suit being in a representative capacity, issue no. 8 on the aspect of non-joinder of parties and issue no. 9 were decided in favour of the plaintiffs. However, the crucial two issues namely, issue no. 3 on the aspect of the validity of the LSC allotted to the plaintiffs and issue no. 5 on the aspect of relief were decided against the plaintiffs. As noted above, there was another issue being issue no. 9 were decided in favour of the plaintiffs. However, the crucial two issues namely, issue no. 3 on the aspect of the validity of the LSC allotted to the plaintiffs and issue no. 5 on the aspect of relief were decided against the plaintiffs. As noted above, there was another issue being issue no. 4 on the validity of the LSC of the defendants which was held to be valid. 22. From the contentions advanced by the learned counsel for the rival parties, the following points would arise for determination- (i) Whether the decision to hold the LSC in favour of the plaintiffs as invalid is erroneous in law? (ii) Whether the decree could have covered the aspect of holding the LSC in favour of the defendants as valid? 23. As would be evident from the submissions made by the learned counsel for the appellants, the grounds of challenge so far as issue no. 3 is concerned, are twofold – (i) lack of any basis to even initiate the proceeding for cancellation and (ii) procedural irregularity / illegality. As regards the issue no. 4, as observed above, the challenge is based on the ground that there was no counter-claim by the defendants for declaring the LSC in their behalf to be valid. As noted above, the aspect of non-renewal of the Periodic Patta of the defendants from 1991 to 18.05.1993 and issuance of show-cause notice dated 10.10.2017 were also raised. 24. As regards the point raised on lack of basis, the same is structured mainly on the deposition of DW who had stated that the area of land is 8 Bigha. It is submitted that if the said area is confined to 8 Bigha, the question of cancellation of the LSC in favour of the plaintiffs would not have arisen. To examine this aspect, one has to look into the initiation which led to the impugned cancellation. The initiation was admittedly on the basis of complaints raised by the private defendants, who had stated that the land allotted to the plaintiffs were part of their Periodic Patta land. The matter was accordingly enquired leading to submission of a General Report (Exhibit P-4). Though it appears that the DW had stated the area of the land in question to be 8 Bigha, the aforesaid aspect has been fully clarified in the General Report (Exhibit P-4) in the following manner: “7. The matter was accordingly enquired leading to submission of a General Report (Exhibit P-4). Though it appears that the DW had stated the area of the land in question to be 8 Bigha, the aforesaid aspect has been fully clarified in the General Report (Exhibit P-4) in the following manner: “7. After careful survey and allotment, Shri C. Chawngthankhuma and Shri H. Sapbela made a complaint again. Pu lalmuankima, Surveyor investigated Shri H. Sapbela’s land and reported that his periodic Patta which was converted to House Site plot no. 1-16 and House Site plan plot no. 14-35 is over-lapped. Soon, Shri H. Sapbela’s conversion process was checked and it was found out that Shri P. Zatluanga, Surveyor, Revenue, District Office measured Shri H. Sapbela’s Periodic Patta which is 8 bigha to 24.30 bighas. Other than 8 bigha of the periodic patta, the remaining 16.30 bighas is in contradiction with the Department Office Circular Vide T.18010/1/91-DTE(REV)/54 Point 22 as it was process without taking Technical clearance and was signed by Maubawk V.C.P without the acknowledgment of Lawipu V.C. and therefore, it resulted in over-lapping.” 25. The aforesaid General Report is not the subject matter of challenge and has attained finality. That apart, the decision of Subhaga (supra) relied by the State respondents in this regards clarifies that in case of any discrepancy between the area and the boundaries, the boundary description will prevail. As regards the aspect of non-renewal of Periodic Patta of the defendant nos. 7 to 21 for the period 1991 to 1993 is concerned, the same would not come to any aid of the plaintiffs for more than one reason. Firstly, the same is of a period much before the impugned action which is of the year 2012 and is not intrinsically connected with the present issue. Further, there is nothing on record that any consequential action was taken for such non-renewal. Further, on a specific query raised by this Court, the learned counsel for the appellants had responded that penal action may be taken only when there is a default for a continuous period of five years. 26. As regards the aspect of the show-cause notice issued to the defendant nos. Further, on a specific query raised by this Court, the learned counsel for the appellants had responded that penal action may be taken only when there is a default for a continuous period of five years. 26. As regards the aspect of the show-cause notice issued to the defendant nos. 7 to 21, the same is admittedly of a much subsequent period i.e. of the year 2017 and nothing to do with the issue which was the subject matter of the lis which was instituted in the year 2012. However, to quell any doubts, this Court has look into the said show-cause notice of the year 2017 which is on the aspect of cancellation 16 nos. of LSC on the ground of discrepancy of the area. However, the subsequent investigation done through the Surveyor of the District Revenue Office, as mentioned in the General Report (Exhibit P-4), it has been clarified that the earlier measurement was erroneous and this aspect has been dealt above and the relevant findings have also been extracted. Therefore, the same would not have any relevance in the decision making process of the present case. 27. Coming to the aspect of procedural irregularity / illegality, it is the case of the appellants that the show-cause notice was issued after a decision was already taken. From the perusal of the records, it appears that before the show-cause notice was issued to the plaintiffs / appellants on 06.02.2012, the Director had sought approval on 03.01.2012 and such approval was granted by the Government on 24.01.2012 and therefore, the submission appears to be factually corrected. It is therefore required to be seen as to whether there would have been any substantial difference in the ultimate decision for cancellation of the LSC which was done on 09.03.2012. Admittedly, before such decision was taken pursuant to the approval of the State Government, an investigation was carried out by the Surveyor of the District Revenue Office which finds clear mention in the General Report issued by the Assistant Director of Survey (A). As noted above, the said report which was proved as Exhibit P-4 was not the subject matter of challenge. It therefore, transpires that the fact of taking prior approval from the State Government had not caused any substantial prejudice to the plaintiffs in defending their case. As noted above, the said report which was proved as Exhibit P-4 was not the subject matter of challenge. It therefore, transpires that the fact of taking prior approval from the State Government had not caused any substantial prejudice to the plaintiffs in defending their case. It is further not the case of the plaintiffs / appellants that after issuance of the show-cause notice, their case was not considered at all. 28. On the point that the decree could not have incorporated the aspect of a Declaration towards the validity of the LSC in the name of the defendant nos. 7 to 21, it is true that there was no counter-claim and therefore, there was no requirement to issue such a Declaration. However, it is noticed that a specific issue was framed on the aforesaid aspect being Issue no. 4 which has been extracted above and the Issues were framed on 03.05.2016. Such framing of the Issue was not challenged and therefore, while passing the judgment, the Issue has been answered. From that view of the matter, this Court is of the opinion that incorporating the Declaration regarding the LSC of the defendant nos. 7 to 21 shall not vitiate the judgment. 29. It was argued on behalf of the appellants that the State defendants did not adduce evidence and therefore, could not establish their case and therefore, the suit should have been decreed in favour of the plaintiffs / appellants. The aforesaid contention cannot be countenanced in view of the established legal principles that in a civil suit, the plaintiff has to stand on his legs and cannot depend on the weakness of the stand of the defendants. There is plethora of judgments in this regard and for instance, reference can be made to the case of State of Madhya Pradesh Vs. Nomi Singh and Anr. reported in (2015) 14 SCC 450 wherein it has been laid down that “it is settled principle of law that in respect of relief claimed by a plaintiff, he has to stand on his own legs by proving his case”. In the instant case, the burden was upon the plaintiffs and only upon discharge of the same, the onus would have shifted to the defendants. However, it is seen that the plaintiffs were not able to discharge the initial burden. 30. In the instant case, the burden was upon the plaintiffs and only upon discharge of the same, the onus would have shifted to the defendants. However, it is seen that the plaintiffs were not able to discharge the initial burden. 30. On the aspect of not passing the judgment on 10.12.2021 which was the date fixed, this Court is of the firm opinion that whenever a date is fixed for passing a judgment, it should be done and in case of unavoidable reasons, if the same is not able to be delivered, a proper order should be passed which should be reflected in the order sheet. However, having said that, the aspect of delivering the judgment on a date subsequent to the notified date can be termed as a minor irregularity and cannot be a substantial ground of challenge. This Court has noticed that the impugned judgment is based on the materials on record, namely, the rival pleadings, evidence of the 4 nos. of PWs and one DW. The learned Court has also taken into consideration 44 nos. of Plaintiff Exhibit and 7 nos. of Defendant Exhibit. The conclusion arrived at by the learned Judge is consistent with the aforesaid materials and does not call for any interference. 31. The appeal accordingly stands dismissed. 32. Send back the records.