Lalrivenga & Anr vs State Of Mizoram & Ors

Lalrinvenga (Dead) Through L.Rs. and another ...Appellants

Versus

State of Mizoram and others ...Respondents

J U D G M E N T

G.S. SINGHVI, J.

1. Leave granted.

2. This appeal is directed against the judgment of the Division Bench of the

Gauhati High Court whereby the appeal preferred by the respondents against the

order of the learned Single Judge was allowed and it was declared that Land

Settlement Certificates issued in favour of the appellants after the publication of

declaration issued under Section 6(1) of the Land Acquisition Act, 1894 (for short,

`the Act') and notification dated 14.6.1985 prohibiting allotment of land to any

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private individual will not confer any right upon them to claim compensation in

respect of the acquired land.

3. The appellants purchased land measuring 11.37 bighas from Dangliana to

whom Periodic Patta No. 40/81 is said to have been granted under Rule 6 of the

Mizo District (Agricultural Land) Rules, 1971. They submitted applications to

Director, Land Revenue and Settlement, Mizoram (respondent No.2) who had

issued order dated 18.1.1983 authorising Assistant Settlement Officer-II to decide

such applications for grant of Land Settlement Certificates. After considering the

applications, the Settlement Officer issued certificates bearing Nos.AZ-2279 of

1987 and AZ-2278 of 1987 in favour of the appellants under Section II of the Mizo

District (Land Revenue) Act, 1956.

4. In the meanwhile, the State Government issued notification dated 14.5.1985

under Section 4(1) of the Act for the acquisition of land in villages old Beraw and

Zokhawsang for a public purpose, namely, allotment to the Assam Rifles in lieu of

the site occupied by them in Aizawl town. After one month, the State Government

issued order dated 14.6.1985 and imposed restriction on the allotment of land to

private persons along the main National Highway and the road going to old

Zokhawsang Village.

3 5. Another notification was issued on 13.8.1987 under Section 4(1) for the

acquisition of area between the site allotted to the Church for locating Theological

College and N.H.-54 Aizawl-Lunglei Road at Lokhawsang for allotting the same to

the Assam Rifles. The declaration issued under Section 6 of the Act was published

in Mizoram Gazette dated 20.11.1987. Land Acquisition Collector, Aizawl passed

an award sometime in July/August 1988 for payment of compensation of

Rs.92,59,156/-.

6. As a sequel to initiation of the acquisition proceedings, the State

Government directed respondent No.2 to cancel the Land Settlement Certificates

issued in favour of the appellants and others on the ground that the same were

issued without the approval and sanction of the competent authority and in

violation of Government Notification No. LRR/B-40/84-85/19 dated 14.5.1985 and

Order No. LRR/B-40/84-85/21 dated 14.6.1985. Thereupon, respondent No.2

passed order dated 8.8.1988 and declared that the Land Settlement Certificates

issued in favour of the appellants were invalid.

7. The appellants challenged the acquisition proceedings in a petition under

Article 226 of the Constitution which was registered as Civil Rule No. 3943 of

1994. They also prayed for quashing of order dated 8.8.1988 issued by respondent

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No.2 and for issue of a mandamus to the respondents to pay full compensation with

interest and solatium in lieu of the acquisition of their land. In the counter

affidavit filed on behalf of the respondents, it was pleaded that order dated

14.6.1985 was issued by the State Government because after publication of

notification dated 14.5.1985, the writ petitioners and other similarly situated

persons had connived with some unscrupulous officers and were trying to convert

their agricultural passes into Land Settlement Certificates or get fresh permanent

settlement so that they could claim compensation. It was further pleaded that

declaration issued under Section 6 of the Act was published in the Mizoram

Gazette dated 1.10.1985 and also in the local newspapers. The cancellation of the

Land Settlement Certificates was justified on the premise that the same were issued

without the sanction of the competent authority and in violation of Government

order dated 14.6.1985.

8. The petition filed by the appellants was transferred to Aizawl Bench of the

High Court and was re-numbered as Writ Petition (C) No.114 of 2000. At the

hearing of the petition, learned counsel for the parties agreed that despite

cancellation of the Land Settlement Certificates, the appellants are entitled to

compensation. The learned Single Judge took cognizance of the statement of the

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learned counsel and passed order dated 7.1.2003, the relevant portion of which is

extracted below:

"..................At the time of argument, counsels appearing for

the parties have agreed that although the House Site Settlement

Certificates was cancelled by the order passed No.8.8.88 the

petitioners shall be entitled to a compensation, whatsoever

payable under the law, for the land falling under the Certificates

No.G.274/88 and G./275/86 which are the Agricultural Land

Settlement Certificates, for the acquisition of the land. The

petitioners certificate of Agricultural Land Settlement

Certificate No.G.274/86 and G.275/86 having not been

cancelled they are entitled for grant of compensation for

acquisition of these lands under the Land Acquisition Act as per

law which according to petitioners is not paid to them. The

Certificates which have been cancelled are only the House Site

Settlement Certificates No.AZ-2278/87 and No.AZ-2279/87.

The petitioners are entitled to compensation for acquisition of

right of the petitioner in the land of which they held under

Agricultural Land Settlement Certificate. The respondents are

directed to assess the compensation in accordance with law and

pay the same to the petitioner's."

9. Although, the aforesaid order was passed with the consent of the learned

counsel appearing on their behalf, the respondents challenged the same in Writ

Appeal No.1 of 2005. The Division Bench of the High Court did take

cognizance of the appellants' plea that the Land Settlement Certificates issued

in their favour could not have been cancelled on the premise that the land had

already been acquired because notification dated 14.5.1985 had not been

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published in the Official Gazette, but negatived the same by making the

following observation:

"It appears from the official gazette that the declaration under

Section 6(1) dated 1/10/85 was published in the official gazette on

4/10/85, which presupposes the publication of the notification

under Section 4(1) of the Act. That apart another notification

dated 14/6/85 was also issued which was published in the official

gazette on the same day restricting/freezing the allotment of land

in question to the private individuals and directing all concerned

not to entertain the applications for such allotment within the area

specified in the said notification, which has not been challenged

in the writ proceeding. Once the land acquisition proceeding has

been initiated and notification dated 14/6/85 is issued prohibiting

allotment of land in question in favour of any person, there cannot

be any conversion of the passes into the land settlement certificate

conferring better right on any person."

10. Shri Shourjiyo Mukherjee, learned counsel for the appellants argued that

the finding recorded by the Division Bench of the High Court on the legality of

the Land Settlement Certificates issued in favour of the appellants is ex facie

erroneous and is liable to be set aside because the same is based on an

unfounded assumption that notification dated 14.5.1985 had been published in

the Official Gazette and the order issued by the State Government prohibiting

allotment of land to the private individuals was applicable to their case.

Learned counsel submitted that the respondents had not produced any evidence

to show that the notification issued under Section 4(1) of the Act had been

published in the Official Gazette and argued that in the absence of such

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publication, the Division Bench of the High Court was not justified in relying

upon the publication of declaration issued under Section 6 in the Official

Gazette for recording a finding that Section 4(1) notification must have been

likewise published in the Official Gazette. Learned counsel emphasised that the

Land Settlement Certificates issued in favour of the appellants could not have

been declared invalid on the ground that the same were not sanctioned by the

competent authority because vide order dated 18.1.1983, respondent No.2 had

authorised the Assistant Settlement Officer-II to decide the applications made

for grant of such certificate and the Settlement Officer who issued certificates in

favour of the appellants was senior to the designated officer. Shri Mukherjee

then argued that the prohibition contained in the Government order dated

14.6.1985 could not have been invoked in the appellants' case because they had

purchased land from a private individual, namely, Dangliana in 1984 and no

allotment had been made in their favour by any public authority.

11. Shri R.F. Nariman, learned Solicitor General fairly stated that the Official

Gazette in which notification dated 14.5.1985 was published has not been

produced either before the High Court or this Court, but argued that the

appellants cannot claim compensation in lieu of the acquisition of land in

question because the purchase made by them was contrary to the statutory rules

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and order dated 14.6.1985. Learned Solicitor General further argued that the

Court may not interfere with the impugned judgment because the appellants had

obtained Land Settlement Certificates by manipulations and the same were

rightly cancelled by the State Government.

12. We have considered the respective submissions/arguments and carefully

scrutinized the record. In our view, the reasons assigned by the Division Bench

of the High Court for setting aside the order of the learned Single Judge are

legally unsustainable. Section 4(1) of the Act, which provides for publication

of preliminary notification, reads as under:

"4. Publication of preliminary notification and powers of

officers thereupon.-(1) Whenever it appears to the appropriate

Government that land in any locality is needed or is likely to be

needed for any public purpose or for a company a notification

to that effect shall be published in the Official Gazette and in

two daily newspapers circulating in that locality of which at

least one shall be in the regional language, and the Collector

shall cause public notice of the substance of such notification to

be given at convenient places in the said locality the last of the

dates of such publication and the giving of such public notice,

being hereinafter referred to as the date of the publication of the

notification."

13. A reading of the above reproduced provision makes it clear that the

notification issued by an appropriate Government proposing the acquisition of

land must be published in the Official Gazette and two daily newspapers having

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wide circulation in the locality of which at least one shall be in the regional

language. Not only this, the Collector is under an obligation to ensure that

public notice of the substance of such notification is given at convenient places

in the locality. This Court has repeatedly held that the requirement of

publication of notification in the Official Gazette and two local newspapers is

mandatory. The Division Bench of the High Court upheld the acquisition of

land by assuming that notification dated 14.5.1985 issued under Section 4(1)

must have been published in the Official Gazette because the declaration issued

under Section 6 was published in the Official Gazette. In our view, this

approach of the High Court was clearly erroneous. The question whether the

notification issued under Section 4(1) was published in the Official Gazette is a

question of fact and such question cannot be decided on assumptions and

conjectures or inferences. Whenever the acquisition of land is challenged on

the ground that the notification has not been published as per the mandate of the

statute, the authority defending the acquisition is under an obligation to produce

evidence in the form of documents to prove that the requirement of publication

has been complied. In the absence of such evidence, the Court cannot decide

challenge to the acquisition proceedings by assuming that the particular

notification had been published as per the requirement of law. In the present

case, no material was produced before the High Court and none has been

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produced before this Court to show that notification dated 14.5.1985 issued

under Section 4(1) of the Act had been published in the Official Gazette.

Therefore, the High Court was not justified in declining relief to the appellants

by assuming that the said notification must have been published in the Official

Gazette because other notifications including the one issued under Section 6

was published in the Official Gazette.

14. We also agree with Shri Mukherjee that the Land Settlement Certificates

issued in favour of the appellants could not have been cancelled on the ground

that the same were issued without the sanction or approval of the competent

authority. The respondents have not controverted the appellants' assertion that

vide order dated 18.1.1983, respondent No.2 had authorised the Assistant

Settlement Officer-II to process and decide the applications for grant of the

Land Settlement Certificates. It is also not in dispute that the appellants had

purchased land in 1984 and the Settlement Officer had issued the Land

Settlement Certificates in 1987 after duly scrutinizing the applications made for

that purpose. This action of the concerned officer was not in violation of order

dated 14.6.1985 vide which allotment of land to private individuals was

restricted/freezed along the main National Highway and the road leading to old

Zokhawsang village which was earmarked for shifting of First Assam Rifles.

11 Indeed, it was neither the pleaded case of the respondents before the High Court

nor any evidence was produced to show that the land in question had been

allotted to the appellants by any public authority.

15. In the result, the appeal is allowed, the impugned judgment is set aside

and the order passed by the learned Single Judge is restored. The respondents

are directed to pay the amount of compensation to the appellants in terms of the

order of the learned Single Judge within a period of three months from the date

of receipt/production of copy of this order. The parties are left to bear their

own costs.

.............................J.

(G.S. Singhvi)

....................................J.

(H.L. Dattu)

New Delhi

September 13, 2011.