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2025 DIGILAW 432 (GAU)

Tsering S/o Late Dondup Tsering v. Union of India

2025-03-12

NELSON SAILO

body2025
JUDGMENT : NELSON SAILO, J. Heard Mr. B. Picha, learned counsel for petitioners. Also heard Mr. K. Loya, learned CGC for the respondent Nos. 1 to 4; Mr. D. Kamduk, learned Standing Counsel for the Land Management Department for the respondent No. 5 and Mr. N. Ratan, Additional Advocate General for respondent No. 6. 2. By filing this writ petition, the petitioners have sought for a direction to the respondent authorities to process the evaluation of the rent from the year 1980 till the year 2021 for an area of land belonging to them measuring 481.41 acres located at LGG (Glanggroh), under Bobdir village in Kitpi Circle in the District of Tawang, which according to them was forcefully occupied by the Indian Army. 3. It is the case of the petitioners that they represent all the family members whose land has been occupied unauthorizedly by the Indian Army. According to them they have inherited their land from their ancestors and use it for cultivation purposes and for grazing cattle. While the petitioners were enjoying their land peacefully without any disturbance from any corner, the Indian Army in the year 1980 started entering into their land and later occupied the same without any permission from the petitioners. Although the petitioners raised objections against the occupation of their land, but they were told by the Army personnels that they would be only using certain plots of the land and that also for a few years, purely on a temporary basis. With such assurance, the petitioners had allowed them to use it for a few years, but since the occupation of the land became a continuous process, the petitioners submitted a representation before the Commander, 190 Mountain Brigade, LGG, Tawang, Arunachal Pradesh on 11.08.2010 requesting the payment of adequate compensation for occupation of their land. Despite such request, since no steps were taken by the Army personnel, the petitioner approached the Deputy Commissioner, Tawang and the Deputy Commissioner, vide letter dated 16.08.2011 wrote to the Commander, 190 Mountain Brigade and 40 Mountain Brigade, requesting them to take steps for land acquisition for the areas they have occupied in coordination with the Office of the Defense Estate Officer (DEO) in order to avoid further disputes with the villagers. 4. 4. Accordingly, a joint survey for land acquisition at Lungro GG was th th carried out from 18 to 19 June, 2012, for a total area of 481.41 acres and the map of the surveyed land duly signed by the landowners, Gaon Burahs (GBs) and Circle Officer (CO), Kitpi Circle, were obtained and the same was forwarded to the Circle Officer (CO), Land Management, under the establishment of Deputy Commissioner, Tawang. 5. Thereafter, the Army authorities wrote to the Divisional Forest Officer (DFO), Tawang, informing the latter that a total of 481.41 acres of land was required to be acquired at LGG and that the land had been surveyed and NOC obtained from the landowners and forwarded to the Circle Officer (CO), Kitpi and also to the Deputy Commissioner's Office at Tawang on 10.08.2012. As such, forest clearance for the said area of land was required to the Army authorities to process the case further. 6. Thereafter, pursuant to the Government's Notification No. LR- 152/2010/1811, dated 14.03.2011, a physical verification of the entire project area of LGG (481.43 acres) was carried out by the members of the constituted Committee on 14.06.2014 to verify the extent of the community land, individual land and forest area to be acquired for the purpose of acquisition of the land and the constituted Committee recorded its findings for 481.43 acres of land, wherein, the private land with individual customary holding with forest cover was found to be 160.5 acres and without non-forest cover as 320.93 acres, thereby, totaling to 481.43 acres. Since, further steps was not taken for acquisition of the land, the petitioners approached this court by filing WP(C) No. 390/ (AP)2015, claiming compensation for occupation of their lands by the Indian Army. The writ petition was disposed of vide order dated 02.03.2016 with a direction that the respondent authorities, if they so desire, should acquire the land of the petitioners in terms of the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act , 2013 (Act of 2013) and if they do not want to acquire the land, they should vacate the land on payment of reasonable compensation for their occupation since the year 1980. 7. 7. Pursuant to the disposal of the said writ petition, ‘In Principle approval’ for acquisition of 481.41 acres of community land was given by the Ministry of Defence and the Headquarters Eastern Command was asked to prepare both proceedings and to forward the same to the Army Headquarters for according Government sanction. In the meantime, the DEO, Tezpur Circle, vide communication dated 26.05.2017 wrote to the Deputy Commissioner, Tawang, to provide the revised cost for 481.41 acres of land after giving due consideration of the appropriate class of land as per ground reality. However, by subsequent communication made by the DEO, Tezpur Circle, dated 08.09.2017 to the Deputy Commissioner, Tawang, the area to be acquired was scaled down to 202.56 acres of the community land at LGG and that, the cost of the said area of land along with all the NOC's that is required, was sought from the Office of the Deputy Commissioner, Tawang. It was, thereafter, that a preliminary notification under Section 11 (1) of the Act of 2013 was notified on 05.01.2021 and which was published in the Arunachal Pradesh Gazette, dated 25.01.2021. So, out of the total assessed amount of Rs. Rs. 37,48,27,989/- (Rupees Thirty Seven Crore Forty Eight Lakh Twenty Seven Thousand Nine Hundred Eighty Nine) only, an amount of Rs. 16,68,71,004/- (Rupees Sixteen Crore Sixty Eight Lakh Seventy One Thousand Four only) was sanctioned and deposited before the Deputy Commissioner, Tawang for payment to the landowners. 8. Subsequently, on 27.04.2021, the final notification under Section 19 of the Act of 2013 was notified and the same was published in the Arunachal Pradesh Gazette dated 07.05.2021. Upon issuance of the said notification, the balance amount of the compensation was deposited before the Deputy Commissioner, Tawang and which was then disbursed to the petitioners. Although the petitioners were given compensation for acquisition of their land but as rental compensation was not given to them, they submitted a representation before the respondent authorities on 23.01.2023. Since, no further steps were taken, apart from paying them the compensation for the acquisition of their lands, the petitioners being aggrieved, are before this Court. 9. Mr. Although the petitioners were given compensation for acquisition of their land but as rental compensation was not given to them, they submitted a representation before the respondent authorities on 23.01.2023. Since, no further steps were taken, apart from paying them the compensation for the acquisition of their lands, the petitioners being aggrieved, are before this Court. 9. Mr. B. Picha, learned counsel for the petitioners submits that the petitioners are entitled to be paid the rent for the unauthorized occupation of their land since the year 1980, till the date on which a notification was issued under Section 19 of the Act of 2013 i.e. 27.04.2021. Referring to the order dated 02.03.2016, passed in the earlier round of litigation, the learned counsel submits that the claim of the petitioners that the Army authorities have been occupying their land since the year 1980, without payment of any kind of compensation to the petitioners, was accepted by the Court and therefore, the direction was made to the respondent authorities to either acquire the land or vacate the same, on payment of reasonable compensation for its occupation since the year 1980. The said observation and finding of this Court have attained its finality and that, it was only in the year 2021 that the respondent authorities acting upon the direction of this Court that the land was finally acquired but without paying them any rental compensation. The learned counsel, therefore, submits that the respondent authorities should be directed to assess the rental compensation payable to the petitioners since the year 1980, till the year 2021, in terms of the relevant guidelines in this regard. 10. In support of his submissions, Mr. B. Picha, learned counsel has relied upon the following authorities:- (i). R. L. Jain Vs. DDA & Ors., (2004) 4 SCC 79 . (ii) Radhy Shyam & Ors. Vs. State of Uttar Pradesh & Ors., (2011) 5 SCC 553 . (iii) Hindustan Petroleum Corporation Ltd. Vs. Ashok Ranghba Ambre , (2008) 2 SCC 717 . (iv) Smt. Lalnunthari, D/o Lalthuama Vs. Union of India & Ors., (2023) 0 Supreme (GAU) 1293 . (v) Young Lal Association (YLA) Lawngtlai-III Branch Represented by its President Sh. Aldrin Laltanpuia & Another Vs. State of Mizoram, Represented by the Chief Secretary to the Govt. of Mizoram & Ors., 2017 (4) GLR 134 . (iv) Smt. Lalnunthari, D/o Lalthuama Vs. Union of India & Ors., (2023) 0 Supreme (GAU) 1293 . (v) Young Lal Association (YLA) Lawngtlai-III Branch Represented by its President Sh. Aldrin Laltanpuia & Another Vs. State of Mizoram, Represented by the Chief Secretary to the Govt. of Mizoram & Ors., 2017 (4) GLR 134 . (vi) Judgment & Order dated 21.03.2024 passed in WP(C) No. 258/2023 (Tashi Pujen & Anr. Vs. Union of India & Ors. 11. Mr. K. Loya, learned CGC for the respondent Nos. 1 to 4, on the other hand, submits that there is no provision for payment of lease rent under the Act of 2013 and in fact, the estimate relied upon by the petitioners at Annexure-17, is vague and does not reveal as to how the rent has to be calculated. He submits that it is also questionable as to whether the Government approved rate notified vide notification, dated 18.09.2008, would be applicable to the case of the petitioners, since, the petitioners claim that their lands have been occupied unauthorizedly since the year 1980. 12. The learned CGC, further, submits that the Army authorities had even approached the petitioners, asking them as to whether they would be willing to lease out their land on rent for a period of 99 years and give no objection for the same but such requests were flatly turned down by the petitioners. It was their demand that their land should be acquired permanently instead. Therefore, as their land have now been acquired, no further payment is due to the petitioners. 13. Mr. N. Ratan, learned Additional Advocate General, also submits that the claim of the petitioners for payment of rental compensation by invoking Article 226 of the Constitution of India is not maintainable, since, such a claim is essentially a case of a civil nature, which requires to be adjudicated before a competent Civil Court. 14. In this connection, the learned Additional Advocate General relies upon the case of R. L. Jain (Supra), wherein, the Apex court has held that in order to claim rent, appropriate legal proceeding is to be initiated before a competent Civil Court. He also submits that, since, the claim urged by the petitioners is a private right, writ would not lie. In this connection, he relies upon the case of Ramakrishna Mission & Another Vs. Kago Kunya & Ors. He also submits that, since, the claim urged by the petitioners is a private right, writ would not lie. In this connection, he relies upon the case of Ramakrishna Mission & Another Vs. Kago Kunya & Ors. , reported in (2019) 16 SCC 303 . He, therefore, submits that the petitioners should approach the appropriate forum with their claim for payment of rental compensation. 15. Mr. D. Kamduk, learned Standing Counsel for the Land Management Department, also adopts the argument of Mr. N. Ratan, learned Additional Advocate General and also submits that the claim of the petitioners is mainly between themselves and the Indian Army and that, the State has no role to play at this stage. 16. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. As may be noticed, the case of the petitioners is that their land has been under occupation of the Army authorities since the year 1980, without paying them any compensation, and that it was only after a writ petition was filed by them, i.e. WP(C) No. 390/(AP)2015, that the process for acquiring their lands had been initiated. A preliminary notification came to be issued under Section 11 (1) of the Act of 2013, vide notification dated 05.01.2021, and thereafter, another notification under Section 19 of the Act of 2013 was issued on 27.04.2021. By the issuance of the said two notifications, an area of land measuring 202.563 acres belonging to the petitioners had been acquired. The petitioners were initially paid a sum of Rs. 16,68,71,004/- (Rupees Sixteen Crore Sixty-Eight Lakh Seventy-One Thousand Four) only out of the total award of Rs. 37,48,27,989/- (Rupees Thirty-Seven Crore Forty-Eight Lakh Twenty-Seven Thousand Nine Hundred Eighty-Nine) only. Subsequently, the remaining balance was paid to the petitioners, and there is no dispute in this regard. The fact of occupation of the land of the petitioners since the year 1980 was raised by them in the first writ petition filed by them, i.e. WP(C)No. 390/(AP)/2015. Taking note of the said claim, the writ petition was disposed of, vide order dated 02.03.2016. While such is the consistent stand of the petitioners, there is no dispute in this regard from the respondents, except that a claim for rental compensation will not be maintainable before a Writ Court. 17. Taking note of the said claim, the writ petition was disposed of, vide order dated 02.03.2016. While such is the consistent stand of the petitioners, there is no dispute in this regard from the respondents, except that a claim for rental compensation will not be maintainable before a Writ Court. 17. In the case of R. L. Jain (Supra), the issue before the Apex Court was whether, in a case where possession is taken before the issuance of notification under Section 4 (1) of the Land Acquisition Act, 1894 (LA Act), the owner of the land will be entitled to interest for such anterior period in accordance with Section 34 of the said Act. The Apex Court held that, in a case where the landowner is dispossessed prior to the issuance of preliminary notification under Section 4 (1) of the LA Act, the Government merely takes possession of the land, but the title, thereof, continues to vest with the landowner. It is, therefore, fully open for the landowner to recover the possession of his land by taking recourse to appropriate legal proceedings. The land owner is, therefore, only entitled to get rent for damages for use and occupation for the period the Government retains possession of the property. The Apex Court, therefore, held that, where possession is taken prior to the issuance of the preliminary notification, it will be just and equitable that the collector may also determine the rent or damages for use of the property to which the landowner is entitled while determining the compensation amount payable to the landowner for the acquisition of the property. It may be noted that Section 4 (1) of the LA Act is pari materia to Section 11 of the Act of 2013 and Section 34 of the LA Act is again pari materia to Section 80 of the Act of 2013. 18. The learned Additional Advocate General, by referring to Paragraph 18 of R. L. Jain (Supra) has submitted that in order to claim rental compensation, the landowner requires to initiate appropriate legal proceedings and such legal proceedings, will only be before a Civil Court, since, there is bound to be disputed questions of fact. 18. The learned Additional Advocate General, by referring to Paragraph 18 of R. L. Jain (Supra) has submitted that in order to claim rental compensation, the landowner requires to initiate appropriate legal proceedings and such legal proceedings, will only be before a Civil Court, since, there is bound to be disputed questions of fact. However, a perusal of paragraph 18 of the Judgment under reference, would go to show that, when a landowner is dispossessed prior to the issuance of preliminary notification, under Section 4 (1) of the LA Act (Section 11 of the Act of 2013, insofar as the present case is concerned), the title of the land continues to vest with the landowner despite being dispossessed of the land. Therefore, it is in this context that the landowner can recover the possession of the land by taking recourse to appropriate proceedings. As such, there appears to be no bar for the landowner such as the present petitioners to claim rental compensation by initiating a process other than a civil proceeding. 19. A stand has been taken on behalf of the respondent, Union of India, that the petitioners had initially claimed that their lands measuring about 3 (three) acres at LLG (Glanggroh), Tawang had been encroached by the Army authorities and also, when they were approached for leasing out their land, they had denied the same to the Army authorities and therefore, there being contradictory stands taken by the petitioners, the claim for rental compensation through he instant writ petition cannot be maintainable. 20. On this stand, the learned counsel for the petitioners has submitted that, the petitioners are farmers by profession and are solely dependent on cultivation and rearing of animals for their sustenance and that, they have no means and expertise to measure the area of their land. Therefore, they cannot be prevented from claiming the areas of land occupied by the Army authorities beyond the 3 (three) acres of land which they have mentioned in their representation filed before the Army authorities way back on 11.08.2010. In this connection, it may be seen that initially, survey was done over the land of the petitioners for an area of 481.41 acres. But later on, the Army authorities decided that they only require 202.56 acres of land and for which, compensation was duly paid to the petitioners. 21. The Apex Court in Radhy Shyam and Ors. In this connection, it may be seen that initially, survey was done over the land of the petitioners for an area of 481.41 acres. But later on, the Army authorities decided that they only require 202.56 acres of land and for which, compensation was duly paid to the petitioners. 21. The Apex Court in Radhy Shyam and Ors. (supra) observed that it is too much to expect from the rustic villagers, who are not conversant with the intricacies of law and functioning of the judicial system in our country to first obtain relevant information and records from the concerned State authorities and then present skillfully drafted petition for enforcement of their legal and/or constitutional rights. Therefore, considering the factual aspects in the present case and the observation made by the Apex Court, the argument made on behalf of the respondent, Union of India, cannot be accepted. 22. The admitted position in the given facts and circumstances of this case is that the Army authorities have been in occupation of the land of the petitioners until it was acquired in accordance with law and compensation paid to them. No materials have been placed before this Court to show that the occupation of land by the Army was authorized. Therefore, there cannot be any reason for depriving the petitioners of the rental compensation payable to them and as assessed by the competent authority for the unauthorized occupation of their land before acquisition. 23. Upon perusal of the materials available on record and after hearing the parties, this Court is of the considered view that the petitioners are entitled to the relief they have claimed and accordingly, the writ petition is disposed of, with a direction to the Deputy Commissioner, Tawang, District Tawang (Respondent No. 6) to assess and compute the rental compensation payable to the petitioners for occupation of their land from the year 1980, till the same was acquired in the year 2021, in terms of the relevant provisions and guidelines for fixation of rent. Such exercise should be carried out by the respondent No. 6 within a period of 2 (two) months from the date of receipt of a certified copy of this order. 24. The amount so assessed, shall then be forwarded to the respondent Nos. Such exercise should be carried out by the respondent No. 6 within a period of 2 (two) months from the date of receipt of a certified copy of this order. 24. The amount so assessed, shall then be forwarded to the respondent Nos. 1 to 4, who shall thereafter, obtain appropriate sanction of the fund and deposit the amount before the respondent No. 6, within a period of 2 (two) months from the date of the receipt of the assessment. Once the amount is deposited, the respondent No. 6 shall disburse the same to the petitioners/beneficiaries without delay and as per usual formalities. 25. With the above observation and direction, the writ petition stands disposed of leaving the parties to bear their own cost.