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GAHC030003822021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/5/2021
State of Mizoram and 3 Ors
Chief Secretary to the Government of Mizoram Aizawl
VERSUS
Sh. Darkunga and 162 Ors
Zohmun, Mizoram
Advocate for the Petitioner : Addl. AG/GA, Mizoram
Advocate for the Respondent : Mr Lalfakawma
Linked Case : WA/12/2022
State of Mizoram and 2 Ors
R/b Chief Secretary to the Govt. of Mizoram
Aizawl
2: Secretary to the Govt. of Mizoram
Land Revenue and Settlement Dept.
Aizawl
3: Deputy Commissioner/District Collector
Govt. of Mizoram
Aizawl District
Aizawl
VERSUS
C.Rochungnunga and 2 Ors.
S/o Zachhinga
Page No.# 2/107
Zohmun
Mizoram
2:C.Laltlanthanga
Zohmun
Mizoram
3:Zachhinga (L) r/b his legal representative C.Rochungnunga
Zohmun
Mizoram
Advocate for the Petitioner : Addl. AG/GA
Mizoram
Advocate for the Respondent : Mr Vanlalnghaka
Linked Case : WA/10/2021
State of Mizoram and 3 Ors
R/b Chief Secretary
Govt. of Mizoram
Aizawl
VERSUS
Sh. Vanlalliana and 70 Ors
Saipum
Mizoram
Advocate for the Petitioner : Addl. AG/GA
Mizoram
Advocate for the Respondent : Mr Lalfakawma
Linked Case : I.A.(Civil)/119/2022
State of Mizoram and 4 Ors
r/b the Chief Secretary to the Govt. of Mizoram
Aizawl
2: Secretary to the Govt
. of Mizoram
Land Revenue and Settlement Dept.
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Aizawl
3: Deputy Commissioner/District Collector
Aizawl District
Aizawl
4: Deputy Commissioner
Aizawl District
Aizawl
5: Secretary to the Govt. of Mizoram
Forest and Environment Dept.
Aizawl
VERSUS
R.Lalhmingsanga and 11 Ors
S/o R.Lalkhawhluna
N.Serzawl
Mizoram
2:R.Lalkhawhluna
N.Serzawl
Mizoram
3:R.Thanchhunga (L) r/b his son and legal representative Sh Vanlalhlua
N.Serzawl
Mizoram
4:Sarah Lalremruati
D/o V.L.Para
Chaltlang
Aizawl
5:V.L.Para
S/o Buaia
Chaltlang
Aizawl
6:L.H.Zuala
S/o Auva
Zemabawk Kawn Veng-II
Aizawl
Advocate for the Petitioner : Mr C Zoramchhana
Advocate for the Respondent :
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Linked Case : WA/7/2021
State of Mizoram and 2 Ors
R/b Chief Secretary
to the Government of Mizoram
Aizawl
VERSUS
Sh. Malsawma and 229 Ors
Mauchar
Mizoram
Advocate for the Petitioner : Addl. AG/GA
Mizoram
Advocate for the Respondent : Mr Lalfakawma
Linked Case : I.A.(Civil)/120/2022
State of Mizoram and 2 Ors.
R/b Chief Secretary to the Govt. of Mizoram
Aizawl
2: Secretary to the Govt. of Mizoram
Land Revenue and Settlement Dept.
Aizawl
3: Deputy Commissioner/District Collector
Govt. of Mizoram
Aizawl District
Mizoram
VERSUS
C.Rochungnunga and 2 Ors.
S/o Zachhinga
Zohmun
Mizoram
2:C.Laltlanthanga
S/o Rochungnunga
Zohmun
Mizoram
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3:Zachhinga (L)
r/b his legal representative C.Rochungnunga
Zohmun
Mizoram
Advocate for the Petitioner : Mr C Zoramchhana
Advocate for the Respondent :
Linked Case : WA/11/2021
State of Mizoram and 3 Ors
R/b Chief Secretary
Aizawl Mizoram
VERSUS
Sh. Mitinpawla and 16 Ors
N. Serzawl
Mizoram
Advocate for the Petitioner : Addl. AG/GA
Mizoram
Advocate for the Respondent : Mr Lalfakawma
Linked Case : WA/6/2021
State of Mizoram and 3 Ors
Chief Secretary
to the Government of Mizoram Aizawl
VERSUS
Sh. Lalthamanga and 53 Ors
Sakawrdai
Mizoram
Advocate for the Petitioner : Addl. AG/GA
Mizoram
Page No.# 6/107
Advocate for the Respondent : Mr Lalfakawma
Linked Case : WA/8/2021
State of Mizoram and 3 Ors
R/b Chief secretary
Government of Mizoram
Aizawl
VERSUS
Sh. Ngurthanmawia and 34 Ors
Khatla
Aizawl
Advocate for the Petitioner : Addl. AG/GA
Mizoram
Advocate for the Respondent : Mr A.R. Malhotra
Linked Case : I.A.(Civil)/176/2024
State of Mizoram and 3 Ors.
Represented by the Chief Secretary
Govt. of Mizoram
Aizawl
VERSUS
Sh Lalthamanga and 53 Ors.
S/o Zaipuia
R/o Sakawrdai
Mizoram
Advocate for the Petitioner : Addl. AG/GA
Mizoram
Advocate for the Respondent : Mr A.R. Malhotra
Page No.# 7/107
Linked Case : WA/13/2021
State of Mizoram and 3 Ors
Chief Secretary
to the Govt. of Mizoram
VERSUS
Sh. Lalremkunga and 21 Ors
Saipum
Mizoram
Advocate for the Petitioner : Addl. AG/GA
Mizoram
Advocate for the Respondent : Mr A.R. Malhotra
Linked Case : WA/12/2021
State of Mizoram and 3 Ors
Chief Secretary
to the Goverment of Mizoram
Aizawl
VERSUS
Sh. C. Zarmawia and 45 Ors
N. Hlimen
AizaWL
Mizoram
Advocate for the Petitioner : Addl. AG/GA
Mizoram
Advocate for the Respondent : Mr Lalfakawma
Linked Case : WA/11/2022
State of Mizoram and 3 Ors
Page No.# 8/107
R/b Chief Secretary to the Govt. of Mizoram
Aizawl
2: Chief Secretary
Govt. of Mizoram
Aizawl
3: Secretary to the Govt. of Mizoram
Land Revenue and Settlement Dept.
Aizawl
4: Deputy Commissioner/ District Collector
Aizawl District
Aizawl
5: Secretary to the Govt. of Mizoram
Forest and Environment Dept.
Aizawl
VERSUS
R.Lalhmingsanga and 11 Ors.
N.Serzawl
Mizoram
2:R.Lalkhawhluna
N.Serzawl
Mizoram
3:R.Thanchhunga (L)
R/b his son and legal representative Sh Vanlalhlua
N.Serzawl
Mizoram
4:Sarah Lalremruati
D/o V.L.Para
Chaltlang
Aizawl
5:V.L.Para
S/o Buaia
Chaltlang
Aizawl
Advocate for the Petitioner : Addl. AG/GA
Mizoram
Advocate for the Respondent : Mr J C Lalnunsanga for R1 - R11
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Linked Case : WA/9/2021
State of Mizoram and 3 Ors
R/b Chief Secretary
To the Government of Mizoram
Aizawl
VERSUS
Sh. Manglianthanga and 33 Ors
N. Hlimen
Aizawl
Mizoram
Advocate for the Petitioner : Addl. AG/GA
Mizoram
Advocate for the Respondent : Mr Lalfakawma
- BEFORE -
HON'BLE MR. JUSTICE DEVASHIS BARUAH
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
Date of Hearing : 28.10.2024.
Date of Judgment : 29.11.2024.
JUDGMENT AND ORDER (CAV)
(D. Baruah, J.)
Heard Mr. B. Deb, the learned Advocate General assisted by
Ms. Lalnunhlui, the learned Government Advocate appearing on
behalf of the State of Mizoram. We have also heard Mr. C.
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Lalramzauva, the learned Senior counsel assisted by Mr. A. R.
Malhotra, the learned counsel appearing on behalf of the
Respondents in Writ Appeal Nos. 8, 11 and 13 of 2021 as well as Mr.
Lalfakawma, the learned counsel appearing on behalf of the private
Respondents in Writ Appeal Nos. 5, 6, 7, 9, 10 and 12 of 2021 as
well as Mr. J. C. Lalnunsanga for the Respondents Writ Appeal Nos.
11/2022 and 12/2022. We have also heard Mr. V. K. Jindal, the
learned Senior counsel assisted by Mr. R. Subedi, the learned
counsel appearing on behalf of the NEEPCO.
2. This instant batch of Writ appeals are directed against the
common judgment and order dated 27.01.2021 passed in 11
(eleven) writ petitions whereby the learned Single Judge had -
(a) Set aside the impugned order dated 05.08.2016 passed
by the Chief Secretary to the Government of Mizoram;
(b) Set aside the notification dated 28.01.1965 made
under Section 14 read with Section 21 of the Mizo District
(Forest) Act, 1955;
(c) The Petitioners in the batch of writ petitions were given
the liberty to seek alternative remedy for execution of the
Awards in accordance with the procedure prescribed in the
Land Acquisition Act, 1894 (for short ‘the Act of 1894’); and
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(d) The State of Mizoram was given the liberty to pay
compensation amounts to the writ petitioners.
3. At the outset, it is very pertinent to mention that by this
impugned judgment and order, the learned Single Judge decided
three different grievances raised in the writ petitions. Out of the
eleven writ petitions, nine of them were grievances of non-payment
of the entitlement as per Awards passed by the Collector in terms
with the Act of 1894. Two writ petitions which were filed
subsequently in the year 2017, raised two grievances. The first
grievance was non-satisfaction of the Awards and thereby seeking
directions. Secondly, the Petitioners in these two writ petitions were
aggrieved by order dated 05.08.2016 and the Notification dated
28.01.1965 and accordingly challenged the order dated 05.08.2016
issued by the Chief Secretary to the Government of Mizoram as well
as the notification dated 28.01.1965 made under Section 14 read
with Section 21 of the Mizo District (Forest) Act, 1955 (for short ‘the
Act of 1955’) whereby half mile on either side of 16 rivers were
made Council Reserve Forests.
4. To decide the legality of the impugned judgment and order,
we find it appropriate first to deal with the facts which led to the
filing of the various writ petitions and the passing of the impugned
judgment and order.
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5. The Government of Mizoram had taken a policy decision to
set up 60 MW Hydro Electric Project over the River Tuirial in the
year 1996. The project was to be set up with the help of the North
East Electric Power Corporation Limited (NEEPCO), a Government of
India Undertaking having its registered Office at Shillong. In that
regard, an agreement was entered into by and between the
Government of Mizoram and NEEPCO for execution of the Tuirial (60
MW) Hydro Electric Project on 29.05.1996. The said Agreement
contained various clauses. Amongst the said clauses, Clause-8 of
the said agreement stipulated that the total land required for the
construction and completion of the project shall be acquired by the
State Government and handed over to NEEPCO on payment of the
necessary fee to the State Government as assessed by the State
Government.
6. It is pertinent herein to mention that a communication was
issued on 10.08.1990 much prior to entering into the Agreement
dated 29.05.1996. In the said letter, the Conservator of the Forests,
Government of Mizoram reported that the land which would be
required for the Tuirial Hydro Electric Project and more particularly,
the whole submergent area would fall inside the Riverine Reserved
Forest of Tuirial. It was also mentioned that since the area was a
Riverine Reserve Forest Area, issuance of LSC or periodic patta for
WRC and garden were completely illegal. It is also seen from the
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records and more particularly the communication dated 15.10.1993
that a request was made for approval of diversion of 53.80 Hectares
of forest land for clearance of the Tuirial Hydro Electric Project.
Additionally, it is also seen from a communication issued by the
Secretary, Ministry of Power, Government of India to the Chief
Secretary, Government of Mizoram dated 19.09.2003 wherein there
was a mention that budgetary provision of only Rs.431.97 lakhs was
made for preliminary and land acquisition and there was no
provision made towards crop compensation. The said budgetary
provision was on the basis that the submergent area was part of the
Reserved Forest Area.
7. In spite of the above, the Agreement executed on
29.05.1996 contained Clause-8 wherein the question of land
acquisition and payment thereof was mentioned. It is further
apparent from the records that the Secretary to the Government of
Mizoram, Land Revenue and Settlement Department had issued a
notification bearing No.K.12011/1/96-REV dated 03.03.1997 under
Section 4(1) of the Act of 1894 whereby it was notified that the land
specified in the Schedule thereto was likely to be needed for public
purposes viz. acquisition of land for Tuirial Hydro Electric Project.
The Schedule as mentioned in the said notification pertained to the
area wherein the boundary extended from the river bank
approximately 75 meters towards the hillside on both sides of the
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river Tuirial towards the hill for a distance of 85 kms from the dam
Axis towards upstream side of the river. It was also mentioned that
in the case of tributaries – Hachelui, Maitailui and Tuiawn the
boundaries extend from the river banks 50 meters towards the hill
for a distance of 8.5 Km, 6 Km and 6 Km respectively from their
confluence towards upstream side. The submergence area was
mentioned in the Schedule to be 5210.50 Hectares. It further
appears that the initiation of the land acquisition proceedings was
keeping in mind the Agreement dated 29.05.1996.
8. Thereupon the Respondents in the Revenue Department of
the Government of Mizoram conducted demarcation as well as
survey of the land from 07.11.1997 to 12.12.1997 and identified the
lands to be acquired for Tuirial Hydro Electric Project. The lands
claimed to belong to the Petitioners in all the writ petitions were
within the submergence area of the said project and it was to be
acquired for the said public purpose. Subsequent thereto, a joint
inspection/assessment of the land/crops within the project area
were conducted with effect from 06.01.1998 to 16.01.1998 by
NEEPCO as well as the officials of the Government of Mizoram and
the land compensation bill was prepared by the Deputy
Commissioner/District Collector Aizawl and sent to NEEPCO through
the Government of Mizoram.
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9. It is pertinent herein to mention about a communication
which was issued by the Executive Director of NEEPCO on
22.03.1999 wherein it was mentioned that as per Clause-8 of the
MoU, the NEEPCO was yet to be served any compensation bill from
the Government of Mizoram. It was further mentioned that the
payment can be released by NEEPCO against land compensation
only after receipt of the land compensation proposal and bill from
the Government of Mizoram. Under such circumstances, the
Executive Director of NEEPCO requested the Chief Secretary,
Government of Mizoram to pass necessary instructions to the
concerned authorities so that the land compensation for the project
area is settled at the earliest and to enable NEEPCO to release
certain payments within the financial year. This communication is
enclosed as Annexure-2 to WP(C) No.45/2017.
10. It is further seen from the records that in the year 1998-99,
NEEPCO released an amount of Rs.34,00,000/- for 515.21 Hectares
of land out of 5380 Hectares towards crop compensation of 33
listed individuals. The formalities of handing over and taking over of
the land had also been completed. The records further reveals that
although initially the acquisition proceedings was initiated for
5210.50 Hectares, but in the said land acquisition proceedings being
Award No.2/1998, only 515.21 Hectares of land was acquired. This
aspect of the matter would be seen from the affidavit filed by the
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Chief Secretary, Government of Mizoram dated 05.04.2018 in the
writ proceedings. It is also seen from the said affidavit that out of
515.21 Hectares, 47.43 Hectares were private lands and 467.77
Hectares were Government lands.
11. Resultantly, on 20.08.2001 another notification was issued
by the Secretary to the Government of Mizoram, Revenue
Department under Section 4 of the Act of 1894 in respect to plots of
land admeasuring 4850 Hectares (approx.). The Schedule to the
said notification only mentioned “Submergent area of Tuirial Hydro
Electric Project” – 4850 Hectares (approx.)
12. It is seen from the records that pursuant thereto, thirty-five
(35) persons approached this Court by filing three writ petitions
being WP(C) No.90/2002, WP(C) No.91/2002 and WP(C)
No.92/2002. These writ petitioners claimed that they were issued
Land Settlement Certificate (LSC) by the Revenue Authorities of the
Government of Mizoram. The said writ petitions were disposed of
vide an order dated 01.08.2002 by the learned Single Judge with a
direction that the writ petitioners in those writ petitions shall file
applications showing their interest in the land which was sought to
be acquisitioned by the State Government and claim compensation,
within a period of one month from the date of the said order.
Thereupon, the Deputy Commissioner/Collector Aizawl, who was the
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Respondent No.3 therein was directed to expeditiously and not later
than a period of four months dispose of, in accordance with law, the
claim applications which the petitioners might have already filed or
are likely to file in pursuance to the said order. This Court further
directed that if the land or any part or portion thereof is not
required to be acquisitioned, the petitioners concerned may be
informed accordingly by the Deputy Commissioner/Collector, Aizawl.
It was further observed that if in any part or portion thereof
possession had already been taken by the Respondents, they shall
vacate within a period of four months. In addition to that, the
petitioners in those writ petitions were also given the liberty to claim
rents or mesne profits in respect to such possession, if permissible
under law.
13. Subsequent to the said order dated 01.08.2002 passed in
the above mentioned 3 (three) writ petitions, the Deputy
Commissioner, Aizawl issued a communication to the Secretary to
the Government of Mizoram, Revenue Department, Mizoram dated
13.03.2003 wherein it was mentioned that out of the 35 writ
petitioners in the three writ petitions, the land belonging to 34 writ
petitioners were found to have been located within the proposed
submergent area of the Tuirial Hydro Electric Project which falls
under N. Serzawl and Ratu Village Council area. In the said
communication, it was categorically stated that the land of those 34
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writ petitioners in total admeasured 697.27 Bighas. It was also
mentioned that the remaining private land holdings other than of
those petitioners in the three writ petitions within the area covered
under the Third Phase Compensation Assessment Survey, were also
verified and crops were counted. Under such circumstances, various
details were forwarded to enable the State Government for issuance
of the declaration under Section 6 of the Act of 1894.
14. Subsequent to the said communication dated 08.04.2003,
the Government of Mizoram through its Commissioner and
Secretary, Revenue Department published the notification under
Section 6 of the Act of 1894 thereby declaring that the lands
admeasuring 697.27 Bighas were required for acquisition for public
purpose. The names of the 34 persons as well as the areas against
their names were mentioned in the declaration.
15. In the meanwhile, it is also pertinent to mention that the
District Collector, Aizawl upon the directions of the State of Mizoram
also initiated acquisition proceedings for the balance amount i.e.
4849 Hectares in phase manner. The entire exercise carried out
resulted in passing of four Awards, the details of which are herein
under:
(A) Award No.4/2002 :
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This Award was made and published by the District Collector on
18.06.2002 for an amount of Rs.8,04,90,627/- towards the payment
of compensation to 352 awardees for trees, crops, plants etc. in
respect of an area admeasuring 9310.39 Bighas of land to be
acquired for submergence area (Phase-I). The lands which fell
within the purview of the Award were within the village council area
of Mauchar, Saipum and North Hlimen. Under Section 4, notification
was issued on 20.08.2001 and the declaration was made on
11.04.2002. In respect to the said award, the total temporary
private holdings were 352 in numbers against 5508 Bighas and the
remaining being 3802.39 Bighas were Government Free Land. No
compensation was determined in respect to land value on the
ground that the land held were under temporary passes.
(B) Award No.5/2002 :
This Award was made and published by the District Collector for an
amount of Rs. 68,52,716/- to be paid to 74 numbers of awardees as
compensation for trees, crops, plants etc. in respect of 857.84
Bighas of land acquired for submergence area (Phase-II) of the
Tuirial Hydro Electric Project. It is pertinent to mention that land in
respect to this award fell within the area of the Village Council of
Saipum and Mauchar. Section 4 notification was issued on
18.01.2002 and the declaration under Section 6 was made on
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10.07.2002. Out of the total land of 857.84 Bighas, 635 Bighas were
in respect of temporary private land holdings - 74 numbers and the
remaining 222.84 Bighas were Government free lands. No
compensation was determined towards land value as the lands were
held under temporary passes.
(C) Award No.5/2003 :
This Award was made and published on 16.07.2003 for an amount
of Rs.5,58,60,928/- for payment to 348 numbers of awardees as
compensation for trees, crops, plants etc. in respect of 16468.77
Bighas of land acquired for submergence area (Phase-II) of the
Tuirial Hydro Electric Project. The land in respect of this award fell
within the Village Council area of Mauchar, Zohmun, Falsang, North
Hlimen and North Khawdungsei. The notification under Section 4
was issued on 20.08.2001 and the declaration under Section 6 was
issued on 18.11.2002. Out of the total area admeasuring 16468.77
Bighas, 5535.5 Bighas were pertaining to temporary private land
holdings of 366 awardees and the remaining 10933.27 Bighas were
Government free lands. No compensation was determined towards
land value as the lands were held under temporary passes.
(D) Award No.6/2003:
This Award was made and published on 25.09.2003. In respect to
the instant Award, the area fell within the Village Councils of North
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Serzawl, Ratu, Sunhluchhit, North Hlimen, and Bookpui. As already
stated above, the notification was issued under Section 4 on
20.08.2001 and the declaration was made on 09.05.2003. The
award was for an amount of Rs.8,85,50,461/- for payment to
various awardees in respect of 9189.94 Bighas of land (Phase-III).
Out of the total 9189 Bighas of land, 5553.51 Bighas pertained to
Government free lands and 3636.43 Bighas were in respect to
temporary private holdings of 196 awardees. It is further relevant to
mention that in respect to 1,35,25,344 sq. ft. of area, where 48
awardees had LSC, the compensation was determined on the value
of the land at Rs.2/- per sq. ft. In this award, interest in terms
which Section 23(1-A) of the Act of 1894 was awarded and further
damage compensation for standing crops was awarded to the tune
of Rs. 5,53,36,663/-. In total, the amount was determined at
Rs.8,85,50,461/-. The calculation so worked out in respect to this
Award being relevant is mentioned herein under:
1 Cost of land covered by LSC Rs.2,70,50,688/-
measuring 1,35,25,344 sq. ft. -
2 12% interest w.e.f. 20.08.2001 to Rs.61,63,110/-
14.07.2003 i.e. 693 days
3 Damage compensation for 5,53,36,663/-
standing crops etc. -
Total Rs.8,85,50,461/-
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It is very relevant herein to note that except the 48 awardees
pertaining to Award No.6/2003, no compensation was determined
to the other awardees in connection with the four Awards for the
value of land. All the four awards above mentioned were made and
published with due approval of the Government of Mizoram as
would be seen from the materials record.
16. The materials on record further show that the 34 writ
petitioners in the three writ petitions i.e. WP(C) No.90/2002, WP(C)
No.91/2002 and WP(C) No.92/2002 who were the awardees in
Award No.6/2003, filed a writ petition being WP(C) No.82/2004
seeking directions for payment of the compensation awarded by the
Collector vide Award No.6/2003 and further seeking directions for
calculation of interest in terms with the provisions of the Act of 1894
with effect from 03.03.1997, i.e. the date when the initial
notification under Section 4(1) of the Act of 1894 was issued by the
authority. In the meantime, while the said writ petition was pending,
these very petitioners had also sought for a reference to the Court
under Section 18 of the Act of 1894 objecting to the quantum of
compensation. On the basis of the said objection, a reference
proceedings being LA(C) No.1/2004 was instituted. The learned
Single Judge vide an order dated 07.06.2005 disposed of WP(C)
No.82/2004 holding inter alia that no relief can be granted as the
Petitioners of the said writ petition had already approached the
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learned Land Acquisition Judge. Accordingly, the said writ petition
was closed observing that the petitioners therein may pursue the
reference proceedings before the learned Land Acquisition Judge for
early disposal.
17. It is further seen that in the proceedings being LA(C)
No.1/2004, an order was passed on 26.09.2005 whereby the District
Collector was directed to pay 30% solatium with interest @12% per
annum from the date of the first notification. Subsequent thereto, a
supplementary award was made being Supplementary Award
No.6/2003 amounting to 4,66,06,436/- and the same was duly
Rs.
approved by the Government of Mizoram on 05.01.2006.
Admittedly, there is no challenge to the said award passed by the
learned Land Acquisition Judge and consequently, the same attained
finality. On the other hand, the passing of the Supplementary Award
and it’s approval being granted shows that the State of Mizoram
accepted the said decision of the learned Land Acquisition Judge.
18. The records further reveal that a communication was issued
by the Deputy Commissioner, Aizawl District to the Chairman and
Managing Director, NEEPCO for payment of compensation under the
Tuirial Hydro Electric Project whereby informations were sought as
to whether NEEPCO would clear the outstanding liabilities of
compensation as per the Award No.4/2002, Award No.5/2003 and
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Award No.6/2003 before resuming the project work and further
when would the fourth and final phase of compensation assessment
be conducted under the Tuirial Hydro Electric Project.
19. The records also reveal that the Petitioners in WP(C)
No.82/2004 yet again approached this Court by filing another writ
petition being WP(C) No.77/2006 seeking appropriate writ,
direction(s) and order(s) so that the awarded amount as per the
Award No.6/2003 and the and the Supplementary Award No.6/2003
be paid to the Petitioners. The learned Single judge vide an order
dated 04.12.2007 disposed of the said writ petition whereby it was
observed that the petitioners therein may initiate appropriate
execution proceedings before the appropriate forum to ventilate the
grievances. The learned Single Judge further in deciding the said
writ petition made observations to the effect that the stand of the
NEEPCO about its non-liability was not sustainable and runs counter
to their earlier stand. It was further observed that the NEEPCO in
whose favour the acquisition was made would naturally be liable to
deposit the awarded amount if not done in the meantime. At this
stage, it is also relevant to observe from the contents of judgment
and order dated 04.12.2007 that the counsel appearing for NEEPCO
in the said proceedings made specific submissions as would appear
at paragraph No.5 of the said judgment and order dated 04.12.2007
to the effect that NEEPCO was not liable to pay on account of
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certain understanding culminating in MoU/Agreement between the
State Respondents and NEEPCO. This aspect assumes importance
as would be seen upon a further elaboration of the facts.
20. Being aggrieved by the said directions passed by the
learned Single Judge in its judgment and order dated 04.12.2007 in
WP(C) No.77/2006, NEEPCO preferred a Writ Appeal before the
Coordinate Bench of this Court which was registered and numbered
as Writ Appeal No.426/2007. Vide an order dated 21.04.2010, the
Coordinate Bench of this Court disposed of the said Writ Appeal
observing inter alia that taking into account the scope of the writ
petition, the High Court could either interfere in the matter by
directing the State Government to pay the money or as observed by
the learned Single Judge, could ask the petitioners to approach the
Land Acquisition Officer or the Court. It was further observed that in
such matters as there was very little scope of interference, the
learned Single Judge ought not to have made observations as made
in paragraphs 6 and 8 of the judgment dated 04.12.2007.
Accordingly, the observations made in paragraphs 6 and 8 of the
said judgment were set aside and it was categorically observed that
the parties would be free to settle their scores before the
appropriate forum. The above observations to the effect that the
parties shall settle their scores before the appropriate forum would
mean that the Coordinate Bench of this Court did not decide as to
Page No.# 26/107
whether the State of Mizoram or NEEPCO would be liable to pay the
compensation. The said aspect was left open to be decided in the
appropriate forum. We further find it very appropriate herein to
observe that these observations were made only in respect to the
proceedings initiated by the 34 awardees in Award No.6/2003 and
Supplementary Award No.6/2003. There is nothing on record to
show that similar observations and findings in judicial proceedings
insofar as the other three Awards or even in respect to the other
Awardees of Award No.6/2003 other than those 34 Awardees.
21. Contemporaneously, another development took place while
these litigations were going on. A Public Interest Litigation was filed
in the year 2008 being PIL No.15/2008 alleging inter alia that in the
matter of land acquisition for installation of the project by NEEPCO,
certain lands were offered by the State of Mizoram and the said
lands were forest lands. But, however, certain persons exercising
and utilizing their influence, politically or otherwise, lodged their
claims before the Land Acquisition Officer. It was also alleged that
such persons in connivance with the Government Officials had led to
passing of awards in favour of such persons. On the basis of the
said PIL being filed, the Co-ordinate Bench of this Court vide an
order dated 21.04.2010 directed that the matter be investigated by
the Central Bureau of Investigation.
Page No.# 27/107
22. It is relevant to mention that the Central Bureau of
Investigation submitted the charge sheet in the month of May, 2012
before the learned Special Judge, Mizoram. In the said charge
sheet, it was inter alia opined that out of 352 cultivators, 303
cultivators were the genuine cultivators of the three villages namely
Saipum, Mauchar and North Hlimen. However, the remaining 49
persons were neither villagers of the village Saipum nor had been
allotted any land as cultivator by the President, Village Council/ of
Saipum village. It is however very pertinent to mention that the
allegations so made in the charge sheet against those 49 persons
are not petitioners before this Court. It is also very pertinent to
observe that as per the allegations made in the charge sheet, these
49 persons were purportedly issued passes in the year 1983 by a
person who had no authority to do so. The charge sheet only
referred to the Award No.4/2002 and not other Awards.
23. In the meantime, the 34 writ petitioners in WP(C)
No.77/2006 filed an execution proceedings being registered as
Execution Case No.13/2010 before the Court of the learned
Additional District and Session Judge No.1, Aizawl. An order was
passed on 10.12.2010 whereby the learned Additional District and
Sessions Judge opined that once the Award/Supplementary Award
had been made and approved by the appropriate Government, the
private land owners cannot be made to suffer due to inaction on the
Page No.# 28/107
part of the authorities concerned. It was observed that the State of
Mizoram had a legal obligation to make payment of the said
awarded amount of compensation with effect from 15.07.2003 till
full and final payment of the said Award by procuring the same from
NEEPCO and thereupon depositing the same in the Court for
payment to the Awardees within a period of two months from the
date of the said order. These directions so passed, resulted in filing
of another proceedings by NEEPCO being CRP No.2/2011. The said
revision application under Article 227 of the Constitution was
disposed of vide judgment and order dated 02.07.2012.
24. It is pertinent to mention that the said revision application
arose out of a proceedings being Execution Case No.13/2010 filed
by the 34 writ petitioners in WP(C) No.77/2006. The learned Single
Judge vide the said judgment observed that as the State had
acquired the land under the provisions of the Act of 1894 and as
such was liable to pay compensation to the land owners. It was
observed that the question as to whether the State Government
should recover the amount from NEEPCO or whether NEEPCO
should pay the said amount to the State Government is a matter to
be decided by and between the said two authorities and nowhere
concerns the land owners. The learned Single Judge further directed
that the State Government had to satisfy the Award and therefore it
had to deposit the awarded amount of compensation with the
Page No.# 29/107
learned Executing Court. In view of such observations, the learned
Single Judge modified the order dated 10.12.2010 passed by the
learned Executing Court by setting aside the direction to the effect
“by procuring the same from NEEPCO”. The learned Single Judge
further before parting with the records observed that in view of the
CBI investigation and the stand taken by the Forest Department,
Mizoram, the Chief Secretary to the Government of Mizoram was at
liberty to look into the matter and take a conscious decision keeping
in view the public interest involved.
25. It is further pertinent to mention that pursuant to the above
mentioned judgment and order dated 02.07.2012, as there was no
deposit by the State of Mizoram, the amount of compensation
before the learned Executing Court, a contempt application was filed
by the 34 petitioners alleging non-compliance to the judgment and
order dated 02.07.2012 passed in CRP No.2/2011. The said
contempt proceedings were registered and numbered as Contempt
Case No.9/2014. However, the said contempt application was
dismissed vide an order dated 08.05.2015 on the ground that there
was no specific directions as regards the time frame for compliance
with the order dated 02.07.2012 in CRP No.2/2011.
26. The records further reveal that the dispute as regards
payment of the compensation in respect to the awardees of the
Page No.# 30/107
awards being Award No.4/2002, Award No.5/2002, Award
No.5/2003 and Award No.6/2003 were the subject matter of
discussions amongst the various officials and there were various
departmental and inter-departmental correspondences including
Cabinet Meetings. However, nothing further progressed as regards
payment of the compensation. Resultantly, WP(C) No.130/2013,
WP(C) No.16/2014 and WP(C) No.118/2015 were filed by the
awardees of Award No.04/2002.
27. At this stage, it is very relevant to mention that an
association in the name and style of “Tuirial Compensation
Claimants Association, Mizoram Phase-I” served an ultimatum to
NEEPCO on 14.07.2003 to pay up the assessed awarded amount of
Rs.8.05 crores falling which the said association would resort to
road blocking and stoppage of work at the project. The said
Association thereupon resorted to blockade with effect from
01.08.2003. Ultimately, after protracted discussions amongst the
representatives of the Tuirial Compensation Claimants Association,
Mizoram Phase-I; NEEPCO and the State of Mizoram, an amount of
Rs. 4.02 Crores was agreed to be released by NEEPCO by
10.09.2003. It was also agreed during the discussion that the
remaining amount would be released upon availability of funds. It
was under such circumstances, the agitation was called off and
project work resumed from 14.01.2011. However, the remaining
Page No.# 31/107
50% of the amount in respect to the Award No.4/2002 was not
released. Under such circumstances, the writ petitioners in WP(C)
No.130/2013, WP(C) No.16/2014 and WP(C) No.118/2015 sought a
writ in the nature of mandamus directing the Respondent
Authorities including the State of Mizoram to pay the remaining
50% of the dues along with other consequential amounts.
28. The awardees of Award No.5/2002 filed one writ petition
being WP(C) No. 131/2013 seeking directions for payment of the
awarded sum to them as per the provisions of the Act of 1894
thereby including solatium and interest.
29. The awardees of Award No.5/2003 filed four writ petitions
being WP(C) No.132/2013, WP(C) No.135/2013, WP(C)
No.116/2015 and WP(C) No.22/2014 whereby they sought
directions upon the State Respondents, including NEEPCO that the
said authorities be directed to make payment of the awarded sum
along with Solatium and interest as per the Act of 1894.
30. It is noteworthy to mention that the awardees in respect to
the Award No.4/2002, Award No.5/2002 and Award No.5/2003 and
most of the awardees in Award No.6/2003 did not file any objection
under Section 18 of the Act of 1894. Therefore, there was no award
by any Land Acquisition Court within the meaning of Section 26 of
the Act of 1894 in respect to such awardees. Under such
Page No.# 32/107
circumstances, the understanding to the grievances raised in the
writ petitions concerning these awards ought to be that they were
seeking a writ in the nature of mandamus for a direction upon the
Respondents for payment of their entitlement as per the awards and
further that the compensation towards solatium and interest be
added to the awarded amounts.
31. Fifteen (15) awardees of Award No.6/2003 who had not
sought for any reference under Section 18 of the Land Acquisition
Act, 1894 filed a writ petition which was registered and numbered
as WP(C) No.117/2015 seeking directions that the Respondents
should pay their entitlement.
32. While the aforementioned writ petitions were pending, the
Chief Secretary to the Government of Mizoram passed an order on
05.08.2016 holding inter alia that the LSCs so issued to those 34
writ petitioners were illegal as the same could not have been issued
within such Riverine Reserve Forest. Further to that, as per the said
order, these LSCs were issued directly by the then Assistant
Settlement Officer without approval of the Government. Accordingly,
the Revenue Department was directed to formally cancel all the
LSCs of the land owners concerned thereof; the District Collector
was directed to take appropriate steps for cancellation of the Award
No.6/2003 and the Supplementary Award No.6/2003 and the
Page No.# 33/107
concerned Government Advocate was directed to take appropriate
steps before the Executing Court.
33. The records further reveal that after passing of the order
dated 05.08.2016, show cause notices were issued to submit
explanations as to why their LSCs should not be cancelled. This
order dated 05.08.2016 and the basis on which the order was
passed i.e. the notification dated 21.06.1965 were the subject
matter of challenge in two writ petitions being WP(C) No.45/2017
and WP(C) No.51/2017.
34. It is pertinent at this stage to mention that none of the
Awards being Award No.4/2002; Award No.5/2002; Award
No.5/2003; Award No.6/2003 and the Supplementary Award
No.6/2003 have been cancelled or set aside in any proceedings
including judicial proceedings. Various pleadings were filed by both
the State Respondents as well as the NEEPCO justifying reasons for
non-payment of the awarded sum to the petitioners in all the writ
petitions as well as also justifying their stand as regards the
issuance of the order dated 05.08.2016. In addition to that, the
manner in which the notification dated 21.06.1965 was issued was
brought on record.
35. The learned Single Judge after hearing all the parties
passed the impugned judgment and order holding inter alia that the
Page No.# 34/107
notification dated 28.01.1965 was not made in accordance with the
provisions of Section 14 to 21 of the Mizo District (Forest) Act, 1955
(for short ‘the Forest Act of 1955’) and accordingly the same was
set aside and quashed. The learned Single Judge further opined
that the grounds of delay and laches to challenge the gazetted
notification dated 19.05.1965 notifying the Notification dated
28.01.1965 cannot come on the way of the Petitioners’ right to seek
relief of compensation under the Awards as the cause of action for
challenge of the said notification dated 28.01.1965 by the
Petitioners arose only from the date of knowledge of the impugned
order dated 05.08.2016. It was also observed by the learned Single
Judge that in terms of Section 22 of the Act of 1955, the Executive
Committee of the then Mizo District Council or the Government of
Mizoram (after amendment) had the power and authority to make
allotment of lands to any individual or community granting rights of
any nature to such individuals of a community as the case may be
and therefore the land allotments made by issuing LSCs in favour of
the Petitioners could not have been cancelled without following the
procedure prescribed under the Mizoram (Land Revenue) Act, 2013
and the Rules made therein under. The learned Single Judge further
observed that as these lands have been included in the final awards
made under the Act of 1894, the question whether those were valid
or not cannot be gone into at the belated stage. In addition to that,
Page No.# 35/107
the learned Single Judge also held that the claims of the
Respondent Government being Riverine Reserve Forests were not
raised literally in course of the acquisition proceedings leading to
the said Awards which have attained finality on receiving the
Government approval and as such the same cannot be raised at the
belated stage to defeat the rights of the petitioners to compensation
in terms of the award.
36. It was further observed that a land acquisition award
undoubtedly had the sanctity of a decree, and as such, in the
complicated backdrop of the claims and counterclaims of the
parties, the awards in questions cannot be executed by resorting to
the extraordinary jurisdiction under Article 226 of the Constitution
by way of issuance of a writ of mandamus or a certiorari as a
shortcut method to compel the Government which had not bothered
to pay the compensation to the awarded person whose landed
properties had been acquisitioned more than 18 years ago for public
purpose. It was observed that the petitioners apparently have an
alternative and efficacious remedy in the Act of 1894 to compel the
Government to pay the compensation due to them and in view of
the complicated nature of facts involved, the claims and
counterclaims of the State Government, the writ jurisdiction cannot
be the appropriate remedy to enforce their rights. With those above
observations, the learned Single Judge passed the impugned
Page No.# 36/107
judgment and order with the various observations and directions,
the details of which have already been referred to in Paragraph No.2
of the instant judgment.
37. Pursuant to the impugned judgment and order passed by
the learned Single Judge, the instant eleven Writ Appeals were filed
by the State of Mizoram. However, these Writ Appeals were
withdrawn on 09.11.2022 with liberty to file afresh. It is relevant to
take note of that the Supreme Court in I.A. Nos. 66542, 66546,
66548 of 2024 in WP(C) No.202/1995
(In Re T.N. Godavarman
taking into consideration
Thirumulpad Vs. Union of India and Others)
the submissions made by different parties, including the State of
Mizoram as well as the National Highway and Infrastructure
Development Corporation Limited to the effect that the impugned
judgment passed by the learned Single Judge was causing various
problems, vide an order dated 18.09.2024 restored the instant
batch of Writ Appeals. It is pertinent to take note of that the
Supreme Court while restoring the appeals observed that restoration
of the appeals were necessary in view of the huge ramifications
caused by the impugned judgment and order passed by the learned
Single Judge and also the cascading effect that it may have on
various issues including construction of highways or rights of
citizens. The Supreme Court further requested this Court to decide
these appeals as expeditiously as possible and in any case, within a
Page No.# 37/107
period of three months from the date of the said order. It is under
such circumstances, the Writ Appeals have been listed for hearing
before us.
38. Before moving forward, we would like to take note of that
the Tuirial Hydro Electric Project is presently in operation after the
inauguration done by the Prime Minister of India on 16.12.2017.
CONTENTIONS OF THE LEARNED COUNSELS FOR THE PARTIES:
SUBMISSION ON BEHALF OF THE APPELLANTS:
39. The learned Advocate General appearing on behalf of the
State of Mizoram submitted that the learned Single Judge while
passing the impugned judgment and order dated 27.01.2021
committed gross legal error by not considering several important
judgments of the Supreme Court pertaining to reserve forest areas.
He submitted that the non-consideration had resulted in setting
aside of the notification dated 28.01.1965. He further submitted
that the learned Single Judge also failed to take note of the
notification dated 28.01.1965 published in the Assam Gazette
pertaining to the Riverine Reserve Forest in its proper perspective.
40. The learned Advocate General further submitted that upon
the enactment of the Forest (Conservation) Act, 1980 (for short ‘the
Act of 1980’) no State Government or other authority, without the
Page No.# 38/107
prior approval of the Central Government can make any order
directing that any reserve forest (within the meaning of the
expression “reserved forest” in any law for the time being in force
in that State) or any portion thereof shall cease to be reserved and
that any forest land or any portion thereof may be used for any
non-forest purpose. The learned Advocate General submitted that in
view of the non-obstinate Clause in Section 2 of the Act of 1980,
the said provision overrides all other laws for the time being in force
in the State of Mizoram.
41. He submitted that the declaration/notification of the
Riverine Reserve Forest (RRF) has to be understood to have started
only from the issue of the preliminary notification dated 16.04.1956
followed by the final notification dated 28.01.1965. Drawing
reference to the various old records available in the Mizoram State
Archives, the learned Advocate General submitted that the actual
history of the Riverine Reserve Forest dates back to the year 1897,
which was not taken into consideration by the learned Single Judge
while passing the impugned judgment and order dated 27.01.2021.
The learned Advocate General further submitted that the learned
Single Judge had committed a gross legal error while quashing the
notification published in the Assam Gazette dated 19.05.1965 on the
ground that as per the learned Single Judge, it was inconceivable
that the preliminary notification of the Riverine Reserve Forest could
Page No.# 39/107
be dated 16.04.1956 when it was published in the “Zoram
Hriattirna” in it’s issue dated 29.02.1956 which was much prior to
the date of the notification. In that regard the learned Advocate
General has drawn the reference to the true copies of the “Zoram
Hriattirna” of the issues dated 15.01.1956, 31.01.1956, 15.02.1956
and 15.03.1956 which shows that the dates of the
notification/orders mentioned is after the date of issue of “Zoram
Hriattirna”. He therefore submitted that it was a general practice of
publishing a notification in “Zoram Hriattirna” which was published
at a date prior to the issue of the notification.
42. The learned Advocate General further submitted that the
learned Single Judge while passing the impugned judgment and
order whereby the notification dated 28.01.1965 was set aside and
quashed, failed to take note of the ramifications it would cause as
well as the environmental degradation. He submitted that in terms
with the notification dated 28.01.1965, the total area which was
reserved as Riverine Reserve Forest was 1832.50 Sq. Kms. and
setting aside of the said notifications would result in reduction in
1930 Sq. Kms which was quite significant and there is every
likelihood of environmental damage, ecological imbalance resulting
in illegal felling of forest trees, illegal sand mining, etc. He therefore
submitted that this aspect of the matter was duly considered by the
Supreme Court and it is under such circumstances, the Writ Appeals
Page No.# 40/107
were restored.
43. The learned Advocate General further submitted that at the
time when the acquisition proceedings was initiated, the notification
dated 28.01.1965 was holding the field. That being so, the entire
land acquisition proceedings and subsequent awards based on such
proceedings could not have been made and therefore the question
of directions for enforcement of the awards in question do not arise.
44. He submitted that the order dated 05.08.2016 passed by
the Chief Secretary were based on the factors with respect to the
declaration of the land as a forest area and the non-validity of the
land passes, land settlement certificates and pattas given in the
forest area and as such the impugned order dated 05.08.2016
ought not to have been interfered with by the learned Single Judge.
45. The learned Advocate General further submitted that the
learned Single Judge completely erred in law in not taking into
consideration the aspect of delay and laches in challenging the
notification dated 28.01.1965. He submitted that the writ petitions
were filed after 52 years from the date of the issuance of the
notification dated 28.01.1965. The learned Advocate General
submitted that the learned Single Judge failed to appreciate that the
cause of action for challenging the notification would have been in
the year 1965 or immediately thereupon and not when the LSCs
Page No.# 41/107
were cancelled vide an order dated 05.08.2016. He submitted that
creation of a right is always subject to the law and as such the LSCs
were subject to the Act of 1955 and the Notification dated
28.01.1965.
SUBMISSION MADE BY THE LEARNED COUNSELS FOR THE PRIVATE
RESPONDENTS:
46. Per contra, Mr. C. Lalramzauva, the learned Senior counsel
appearing on behalf of the private respondents in WA No.8/2021,
WA No.11/2021 and WA No.13/2021 submitted that the impugned
notification dated 19.06.1965 was void, invalid and nonest in the
eye of law inasmuch as the same was not made in accordance with
law. He submitted that the statutory provisions under Section 15 to
21 of the Act of 1955 were not complied with as there was no
preliminary notification before issuance of the final notification.
Referring to the issue dated 29.02.1956 of the “Zoram Hriattirna”,
wherein the Notification dated 15.04.1956 was published, he
submitted that a reading of the same would show that it was a final
notification under Section 14 and 21 of the Act of 1955 declaring
the Council Reserve Forest with effect from 01.03.1956. He,
therefore, submitted if the notification dated 15.04.1956 cannot be
construed to be a preliminary notification, the final notification so
issued on 28.01.1965 is bad in law. Additionally, the learned Senior
Page No.# 42/107
counsel further submitted that it is quite strange and surprising as
to how a notification dated 16.04.1956 could have been published
in the “Zoram Hriattirna” dated 29.02.1956. In that regard, the
learned Senior counsel submitted that it is a well settled principle of
law that when a power is given to do a certain thing in a certain
way, the same must be done in that way or not at all.
47. The learned Senior counsel further submitted that the right
to challenge the notification only arose when the said notification
dated 28.01.1965 was used as an instrument for passing the
impugned order dated 05.08.2016 by the Chief Secretary to the
Government of Mizoram by which the LSCs of the petitioners were
directed to be cancelled. He submitted that all throughout the
acquisition proceedings as well as till the impugned order dated
05.08.2016 was passed, the Government of Mizoram had all along
supported the case of the Petitioners to the effect that the
petitioners who were the awardees were entitled to the
compensation. The State of Mizoram never raised the issue of
reserved forest or the notification dated 28.01.1965 and this aspect
of the matter can be seen from a perusal of the judgment dated
02.07.2012 passed by the learned Single Judge in CRP No.2/2011
which had attained finality.
48. Further referring to the various orders being passed by the
Page No.# 43/107
learned Single Judge as well as the Co-ordinate Bench of this Court
in the various proceedings, the learned Senior counsel submitted
that the State of Mizoram had all along supported the case of the
awardees to be entitled to the compensation. He therefore
submitted that at this stage the State Government cannot be
permitted to take a different stand. In that regard, the learned
Senior counsel submitted that a litigant cannot be permitted to
approbate as well as reprobate at the same time.
49. The learned Senior counsel also submitted that the Awards
having attained finality, the rights of the awardees to be entitled to
compensation cannot be nullified, as it would amount to violation of
provisions of the Act of 1894 as well as Article 300A of the
Constitution. He submitted that the right of restitution through fair
compensation have been recognized as an integral part of the
process of acquisition. In addition to that, the learned Senior
counsel further submitted that the order dated 05.08.2016 violates
the mandate of Article 166(1) of the Constitution.
50. Mr. Lalfakawma, the learned counsel appearing on behalf of
the Respondents in WA No.5/2021, WA No.6/2021, WA No.7/2021,
WA No.9/2021, WA No.10/2021, WA No.11/2021 and WA
No.12/2021 made similar submissions to what Mr. C. Lalramzauva,
the learned Senior counsel made and in order to avoid repetition,
Page No.# 44/107
the same are not again reiterated in the instant judgment. Be it as it
may, the learned counsel further submitted that this Court in
exercise of the jurisdiction conferred under Clause 15 of the Letter
Patent is sitting as a Court of Correction and has the authority to
correct its own order in exercise of the same jurisdiction vested in
the Single Bench. This submission has been made in view of the
fact that we during the course of hearing made a specific query
upon the learned counsels appearing on behalf of the various writ
petitioners who are the private respondents in the present appeals
as to what alternative and efficacious remedy, the Petitioners who
have not sought any reference in terms with Section 18 of the Act
of 1894 had inasmuch as prima facie it transpired that the Executing
Court cannot execute an award passed by the District Collector
inasmuch as such award(s) would not come within the meaning of
‘decree’ in terms of Section 26(2) of the Act of 1894.
SUBMISSION ON BEHALF OF THE LEARNED COUNSEL FOR NEEPCO:
51. Mr. V. K. Jindal, the learned Senior Counsel appearing on
behalf of the NEEPCO submitted that the Petitioners are not entitled
to any amount from NEEPCO. He submitted that vide the
communication dated 10.08.1990, the Forest Department of the
Government of Mizoram informed that the entire submerged area
would fall inside the Riverine Reserve Forest of Tuirial. It was also
Page No.# 45/107
mentioned in the said communication that since the area fell within
the Riverine Reserve Forest, issuance of either LSCs or Periodic
Patta for WRC and garden was completely illegal. He submitted that
based upon such report, NEEPCO entered into a Memorandum of
Understanding dated 29.05.1996 with the State Government of
Mizoram. Subsequent thereto, the Secretary (Forest), Government
of Mizoram took up the matter with the Government of India,
Ministry of Environment and Forest vide various communications
dated 10.04.1992, 15.10.1993 and 05.11.1999 for seeking approval
of the Central Government in accordance with the provisions of
Section 2 of the Act of 1980 for diversion of the entire 5,380
Hectares of forest land for Tuirial Hydro Electric project. The
Government of India vide a communication dated 16.03.2000
conveyed its approval to the Secretary (Forest) Government of
Mizoram, subject to fulfillment of the conditions contained therein
which also included the condition relating to payment of
compensatory afforestation over equal area of non-forest land which
was fixed by the State Government to the tune of Rs.24.46 crores.
The said amount of Rs.24.46 crores have already been paid to the
Forest Department of the Government of Mizoram and as such
NEEPCO is not liable to pay any compensation.
52. In addition to that, the learned Senior Counsel also drew
the attention of this Court to the MoU dated 29.05.1996 entered
Page No.# 46/107
into between the Government of Mizoram and NEEPCO and referred
to Clause-8 of the said MOU which provided that the land required
for the project would be acquired by the State Government and
handed over to NEEPCO on payment of necessary fee to the State
Government as assessed by the State Government. The learned
Senior Counsel submitted that as the acquired land according to the
Forest Department of the State Government was a forest land, the
amount paid for compensatory afforestation was the necessary fee
i.e. Rs.24.46 Crores which have been duly paid to the Government
of Mizoram. He further submitted that in various proceedings, this
Court had categorically held that the NEEPCO was not liable for
payment of the compensation. In that regard, he made reference to
the order dated 21.04.2010 passed in Writ Appeal No. 426/2007 as
well as the order dated 02.07.2012 passed in CRP No.2/2011.
53. The learned Senior Counsel further submitted that the
Tuirial Hydro Electrict Project work which commenced had to be
suspended with effect from 09.06.2004 because of an agitation
program initiated by the land owners association. He submitted that
the said project work only recommenced with effect from
14.01.2011 after an undertaking given by the Chief Secretary to the
Government of Mizoram to the Secretary, Ministry of Power,
Government of India dated 29.06.2010 that the State Government
would maintain the law and order in and around the project area
Page No.# 47/107
and also would do its best to settle the rehabilitation and
resettlement issues including the crop compensation which would
be subject to the outcome of the PIL pending in the Gauhati High
Court. It is therefore the submission of the learned Senior Counsel
appearing for NEEPCO that taking into account the above aspects of
the matter, the learned Single Judge in the impugned judgment and
order did not issue any directions upon the NEEPCO for payment of
any amount, rather, it was only the State Government who was
given the liberty to make payment.
POINTS THAT ARISE FOR CONSIDERATION:
54. From the materials on record as well as the submissions so
made by the learned counsels, the following points for
determination arise for consideration.
(i) Whether the learned Single Judge was justified in setting
aside the notification dated 28.01.1965 made under Section 14 read
with Section 21 of the Act of 1955?
(ii) Whether the learned Single Judge was justified in setting
aside the impugned order dated 05.08.2016 passed by the Chief
Secretary to the Government of Mizoram?
(iii) What is the effect on Award No.6/2003, Supplementary
Award No.6/2003 as well as Award No.4/2002, Award No.5/2002
Page No.# 48/107
and Award No.5/2003 if the points for determination Nos.(i) and/or
(ii) are decided in favour of the Appellants?
(iv) Whether the learned Single Judge was justified in relegating
the Petitioners in the batch of writ petitions to seek alternative
remedy for execution of the awards in accordance with the
procedure prescribed in the Act of 1894?
(v) What relief or reliefs the parties before us are entitled to?
IN Re : THE FIRST POINT FOR DETERMINATION:-
55. Let us first take up the first point of determination. The
learned Single Judge in the impugned judgment and order had set
aside the notification dated 28.01.1965 published in the Assam
Gazette dated 19.05.1965 on the ground that while making the final
notification under Section 21 of the Act of 1955, no preliminary
notification as required under Section 15 of the Act of 1955 was
ever published in the official bulletin of the Council “Zoram
Hriattirna”. The learned Single Judge further held that there was no
delay in the challenge to the said notification dated 28.01.1965
inasmuch as the cause of action to challenge the said notification to
the petitioners arose only on and from the date of the order dated
05.08.2016 passed by the Chief Secretary to the Government of
Mizoram. In addition to that, the learned Single Judge also held that
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the notification dated 16.04.1956 under Section 14 read with
Section 21 of the Act of 1955 was published by the Executive
Committee of the Mizo District Council which the State Respondents
claimed to be the preliminary notification in the “Zoram Hriattirna”
in its issue dated 29.02.1956 i.e. before the date of the notification
without any explanation and as both the dates could not be
reconciled the said Notification was contradictory. It was also
observed that there was an unexplained delay of 10 years from the
preliminary notification in publishing of the final notification in the
Assam Gazette dated 19.05.1965 by the State Government. It is on
the basis of above, the learned Single Judge came to an opinion
that the impugned notification dated 28.01.1965 which was
published in the Assam Gazette dated 19.05.1965 was contrary to
the Act of 1955 and accordingly was set aside and quashed.
56. The Mizo District (Forest) Act, 1955 (Act of 1955) was
enacted by the Mizo District Council to provide for management of
forest in the Mizo Autonomous District which are not reserved
forests. The said Act came into force w.e.f. 1st of January, 1956.
(A) Section 2(4) of the Act of 1955 defines “Council Reserve
Forest” to mean any forest constituted as such by or under the
orders of the Mizo District Council. In Section 2(13) of the Act of
1955, “reserved forest” has been defined to have the same meaning
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as assigned to it by sub-paragraph (2) of paragraph 3 of the Sixth
Schedule to the Constitution.
(B) Section 14 to Section 21 of the Act of 1955 deals with the
procedure for constituting a Council Reserve Forest. It starts with a
notification of proposal to constitute a Council Reserve Forest as
stipulated in Section 15 which is required to be published by way of
a notification in “Zoram Hriattirna” stipulating (a) declaring that the
Executive Committee proposed to constitute such land a reserve
forest; (b) specifying as nearly as possible the situation and limits of
such land; and (c) inviting claims of rights and objections.
(C) Subsequent to issuance of such notification, the Executive
Committee which is defined in Section 2(8) of the said Act of 1955
shall cause the area to be surveyed and demarcated by one or more
of the Council Forest Officers not below the rank of a Forester and
who shall enquire into any right of any person in the area and shall
also submit report to the Executive Committee which shall deal with
all points including compensation involved or alteration of the area
recommended.
(D) Section 17 of the Act of 1955 stipulates the manner in
which claims of right(s) on the land and when, to whom and how
objections against the proposed Council Reserve Forest is required
to be submitted i.e. in writing to the Executive Committee within
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120 days from the date of publication of the notification under
Section 15 of the Act of 1955.
(E) Section 18 stipulates that there shall be a Council Forest
Tribunal who shall decide all claims of rights on land, as well as all
objections against the proposed reserve forest. The orders of the
Forest Tribunal shall be published forthwith in the Assam Gazette.
(F) In terms with Section 19 of the Act of 1955, a provision
for Appeal is provided whereby an Appeal could be filed before the
Executive Committee within 30 days of the order issued by the
Council Forest Tribunal.
(G) Section 21 stipulates the issuance of the final notification
constituting the Council Reserve Forest. In terms of the said
Section, the Executive Committee shall, after disposal of all appeals,
publish in the Assam Gazette, the final notifications specifying the
limits of the Council Reserve Forest incorporating therein any
changes and modifications made from the preliminary notifications
under Section 15 of the Act of 1955 and declaring the same to be a
Council Reserve Forest from the date fixed by such notification.
(H) It is also very appropriate herein to take note of Section 22
of the Act of 1955 which stipulates that no person shall have any
right of any nature in or over the land within the area of the Council
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Reserve Forest except those that may have been conceded in the
final notification referred to in Section 21 of the Act of 1955. Be that
as it may, the said provision also empowered the Executive
Committee or any other officer empowered in that behalf to permit
or grant rights of any nature to an individual or community for the
benefit of community or communities.
57. It is seen from the materials so placed by way of an
additional affidavit filed by the State on 21.10.2024 that even prior
to the Act of 1955 was enacted, there were certain
interdepartmental communications as far back as on in the year
1951 from which it appears that there existed a Riverine Reserve
Order which led to difficulties for the Chakma Community to live in
Lushai Hills as there would be no jhooming land for them. It is also
seen from the extracts placed on record that as per the Riverine
Reserve Order which was then holding the field, an area of 1 mile
radius on both sides of the banks of the river that can be used for
plying boats were reserved by the Forest Department and the
people were not allowed to start jhooming cultivation. There was
also a penalty for contravention of such order inasmuch as such
persons who contravened the Order were to be prosecuted. Be that
as it may, there is nothing on record on what basis the said Riverine
Reserve Order was made. Additionally, the Appellants failed to show
the source of power to make the Riverine Reserve Order prior to the
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enactment of the Act of 1955.
58. The records further reveals that on 16.04.1956, a
notification was issued by the Chief Executive Member, Mizo District
Council which was published in the 29.02.1956 edition of the
“Zoram Hriattirna” wherein it was mentioned that the Executive
Committee of the Mizo District Council was pleased to declare that
forest within 1 (one) mile on either side of 16 navigable rivers would
be Council Reserve Forest. The publication of the Notification dated
16.04.1956 in the edition of 29.02.1956 of the “Zoram Hriattirna”
assumes relevance taking into account that the learned Single
Judge in setting aside the notification dated 28.01.1965 was of the
opinion as to how a notification of a subsequent date could have
been published in a prior dated edition of the “Zoram Hriattirna”.
59. The learned Advocate General while referring to the various
editions of the “Zoram Hriattirna” enclosed to the additional affidavit
filed on 21.10.2024 submitted that it was the general practice
followed then of publishing of notifications in an earlier edition of
“Zoram Hriattirna”. This aspect appears to be true inasmuch as a
perusal of Annexure-7 series to the said Affidavit shows that the
Executive Order No.3/1956 dated 01.02.1956 was published in the
edition of 15.01.1956. Similarly, the notification dated 18.02.1956
was published in the Edition of 31.01.1956 and so on. Be that as it
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may, a question arises as to whether the Preliminary Notification
being not published in a future edition of the “Zoram Hriattirna”
would nullify the final notification that too after a period of 52 years
when such final Notification was holding the field.
60. We have also perused the final Notification dated
28.01.1965 published in the Assam Gazzette dated 19.05.1965
whereby the area within half a mile on either side of 16 rivers
mentioned therein was constituted as Council Reserve Forest with
effect from the date of the notifications dated 16.04.1956 and
16.09.1957. There is no material on record to show that there was
any challenge to the issuance of both the Preliminary Notification or
the final Notification till the filing of the Writ Petitions i.e. WP(C)
No.45/2017 and WP(C) No.51/2017. At this stage, we find it
apropos to observe that though the Preliminary Notification dated
16.04.1956 appears at the first blush to be a final Notification but
the manner in which the said Notification issued i.e. made by the
Executive Committee and published in the “Zoram Hriattirna” would
show that the said Notification was in fact a Preliminary Notification
and not the Final Notification.
61. At this stage, we find a judgment of the Supreme Court in
the case of
B.K. Srinivasan and Others Vs. State of Karnataka and
reported in which is apt to rely upon
Others (1987) 1 SCC 658
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wherein the Supreme Court was dealing with the publication or
promulgation of the notification and how and when the notification
becomes effective. Paragraph 15 of the said judgment being
relevant is reproduced herein below.
“15. There can be no doubt about the proposition that where a law, whether
parliamentary or subordinate, demands compliance, those that are governed must
be notified directly and reliably of the law and all changes and additions made to it
by various processes. Whether law is viewed from the standpoint of the
“conscientious good man” seeking to abide by the law or from the standpoint of
Justice Holmes’s “unconscientious bad man” seeking to avoid the law, law must be
known, that is to say, it must be so made that it can be known. We know that
delegated or subordinate legislation is all-pervasive and that there is hardly any field
of activity where governance by delegated or subordinate legislative powers is not
as important if not more important, than governance by parliamentary legislation.
But unlike parliamentary legislation which is publicly made, delegated or
subordinate legislation is often made unobtrusively in the chambers of a Minister, a
Secretary to the Government or other official dignitary. It is, therefore, necessary
that subordinate legislation, in order to take effect, must be published or
promulgated in some suitable manner, whether such publication or promulgation is
prescribed by the parent statute or not. It will then take effect from the date of
such publication or promulgation. Where the parent statute prescribes the mode of
publication or promulgation that mode must be followed. Where the parent statute
is silent, but the subordinate legislation itself prescribes the manner of publication,
such a mode of publication may be sufficient, if reasonable. If the subordinate
legislation does not prescribe the mode of publication or if the subordinate
legislation prescribes a plainly unreasonable mode of publication, it will take effect
only when it is published through the customarily recognised official channel,
namely, the Official Gazette or some other reasonable mode of publication. There
may be subordinate legislation which is concerned with a few individuals or is
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confined to small local areas. In such cases publication or promulgation by other
means may be sufficient.”
(emphasis supplied to the underlined portion)
62. From a perusal of the above quoted paragraph, it would be
seen that the Supreme Court observed that in order that a
subordinate legislation, as in the instant case the notification dated
28.01.1965, is required to be published in the manner in which
parent statute or the subordinate legislation prescribes and if there
is no prescription, then in the customarily recognized official channel
i.e. the Official Gazette. A perusal of Section 21 of the Act of 1955
would show that the manner of publication have been categorically
mentioned to be the Assam Gazette. It was further observed by the
Supreme Court that the said notification would take effect from the
date of such publication or promulgation.
63. Therefore, from the above, it would be seen that with the
publication of the notification dated 28.01.1965 in Assam Gazette
on 19.05.1965, the notification dated 28.01.1965 had become
operational and taking into account the language of Section 21 of
the Act of 1955, the said notification dates back to 16.04.1956.
Under such circumstances, the notification dated 28.01.1965 had
come into operation and was holding the field. The cause of action
for challenge to the said notification would therefore arise upon the
issuance of the said notification if the Notification was not made in
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accordance with the prescription of law and in this case, the Act of
1955.
64. We further find it very apt to observe that the effect of the
Notification dated 28.01.1965 was that the area within half a mile of
the banks of the 16 rivers were made “Council Reserve Forest”.
Therefore, any rights or claims accrued subsequent to the
Notification was subject to the said Notification and by virtue
thereof, Section 22 of the Act of 1955 that too w.e.f. 16.04.1956
which was date as per the Notification dated 28.01.1965. In other
words, the effect of the Notification had been statutorily imposed by
Section 22 of the Act of 1955 and as such all rights, liabilities,
claims etc. in the areas which fell within the Notification were
subject to the said Notification. Accordingly, the rights of the
Petitioners over the land were also subject to the Notification dated
28.01.1965. The question of having no knowledge of the
Notification or the notification was not applied till 05.08.2016 is
totally misconceived. We are therefore of the opinion that the
learned Single Judge erred in law in arriving at his findings that the
date of the knowledge of the Notification should be the order dated
05.08.2016 passed by the Chief Secretary.
65. In that perspective, the question arises as to whether the
learned Single Judge decided the aspect of delay and laches as per
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the settled principles. The learned Single Judge held that the date
of the knowledge of the notification dated 28.01.1965 should be
attributed to the date of the order dated 05.08.2016 and as such,
the writ petitions challenging the notification dated 28.01.1965 did
not suffer from any delay or laches. We have already opined supra
that such a view was legally not sustainable. Be that as it may, we
find it necessary at this stage to deal with the concept of delay and
laches infra.
66. It is the settled principle of law that the Limitation Act, 1963
sets out the maximum period within which suits, appeals, and
applications must be filed before the Court. Cases brought after this
prescribed period are typically barred due to delay unless the Court
condones the delay. However, it is important to take note of that the
Limitation Act, 1963 does not apply to writ proceedings and
therefore there is no prescribed period within which a writ
proceedings needs to be filed. Be that as it may, as held by the
Supreme Court in the case of
Aflatoon vs Lt. Governor of Delhi and
(Paragraph 11), a writ petition
Others reported in (1975) 4 SCC 265
filed belatedly after a considerable delay is barred by the operation
of the doctrine of laches. It was observed that the said doctrine of
laches is a common law principle disallowing a claim because it has
been brought to the Court after an unreasonable lapse of time. It is
based upon the maxim “Vigilantibus non dormientibus jura
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subveniunt” which means that the law assists those who are vigilant
with their rights and not those that sleep thereupon. Hence, even in
absence of the prescription of a statutory time limit for its filing, a
claim that has been filed after a significant delay can be rejected at
the threshold by invoking the doctrine.
67. There are various reasons why the doctrine of laches are
applied to writ proceedings inasmuch as if a claim brought after
considerable delay are entertained, it may affect third party rights
which have been established during the time lapse and it would also
be unjust to prejudice innocent parties due to tardiness of the
claimants. Additionally, considering a delayed claim could be unfair
to the opposite party as they may have lost access to crucial
evidence needed to defend any claim. Reopening a case after a
significant delay could thus place the opposite party at a
disadvantage, potentially resulting in an unjust or an inaccurate
outcome. Moreover, it is essential to put a time limit on proceedings
to provide certainty and prevent confusion from cases being in
perpetual flux.
68. In a recent judgment of the Constitution Bench of the
Supreme Court i.e.
In Re: Section 6A of the Citizenship Act, 1955
reported in , the majority opinion
2024 SCC OnLine SC 2880
authored by His Lordships Surya Kant J. opined that it is a settled
Page No.# 60/107
law that the doctrine of laches is not an inviolable legal rule but a
rule of practice that must be supplemented with sound exercise of
judicial discretion. It was observed that under two circumstances,
the doctrine of laches cannot be applied. First, are those cases
where the claims affect the public at large and secondly, those
cases where the vires of a statute are challenged vis-à-vis the
Constitution. In other words, when cases arise pertaining to
promoting the larger public interest and if such a claim affects the
public at large, the Court should go into the merits of the case. It
was further observed that taking into account the idea of
transformative constitutionalism, where a vires of a statute is
challenged vis-à-vis a Constitution, the doctrine of laches cannot be
applied.
69. The facts above narrated would show that 47 Petitioners
have assailed the Notification dated 28.01.1965 for the reason that
the Chief Secretary, Government of Mizoram had passed the order
dated 05.08.2016 based on the said Notification dated 28.01.1965.
There is no public interest element involved. Moreover, the only
ground taken to challenge the Notification dated 28.01.1965 is that
the Preliminary Notification was published in a prior edition of
“Zoram Hriattirna” and there was a delay of 10 years in publishing
the final notification. The said challenge at best can be attributed as
a challenge to the Preliminary Notification not published in
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accordance with Section 15 of the Act of 1955. The challenge on the
ground of lapse of 10 years in publishing the final Notification has
no legs to stand taking into account that the Act of 1955 do not
mandate within what time the final Notification is required to be
issued. Therefore, as there was no public interest or there being no
challenge to the vires of a statute vis-à-vis the Constitution, the
exceptions for non-application to the doctrine of delay and laches
are not there. On this count alone, we are of the opinion that the
direction so passed by the learned Single Judge to set aside the
notification dated 28.01.1965 which was published in the Assam
Gazette on 19.05.1965 is bad in law for which the impugned
judgment insofar as setting aside the Notification dated 28.01.1965
is required to be interfered with.
70. In addition to that, we are of the opinion that the learned
Single Judge failed to take into account that a writ of certiorari
being a high prerogative writ, should not be issued on a mere
asking. The Court while exercising the extraordinary jurisdiction
under Article 226 of the Constitution, in a given case, even if some
action or order challenged in the writ petition is found to be illegal
or invalid, the High Court can still refuse to upset it with a view to
doing substantial justice between the parties. The learned Single
Judge with due respect, did not take into account that setting aside
of a Notification dated 28.01.1965 constituting a Riverine Reserve
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Forest would have huge ramification as an area admeasuring
1832.50 sq. kms. which was all along a Riverine Reserve Forest with
effect from 16.04.1956 would be rendered a non-forest land thereby
seriously impacting the ecological balance and would result in
environmental damage leading to illegal felling of forest trees, illegal
sand mining, etc. The learned Single Judge also failed to take note
of the Act of 1980 and the reasons for its enactment i.e.
conservation of the forest reserves. Accordingly, we are of the
opinion that the impugned judgment insofar as setting aside the
notification dated 28.01.1965 requires to be interfered with.
IN Re : THE SECOND POINT FOR DETERMINATION:-
71. This bring us to the second point of determination as
regards the legality of the order dated 05.08.2016 which the
learned Single Judge had set aside and quashed. This Court has
duly perused the order dated 05.08.2016 whereby the Chief
Secretary to the Government of Mizoram held that the issuance of
LSCs within Riverine Reserve Forest Area that too by the then
Assistant Settlement Officer without the approval of the Government
was illegal and accordingly issued various directions. The said order
can be bifurcated into two parts. One is the content and second is
the directions.
72. It is pertinent to mention that in the foregoing paragraphs
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of the instant judgment, we have observed that only in respect to
48 awardees concerning Award No.6/2003 and supplementary
Award No.6/2003, the compensation has been determined in
respect to the value of the land admeasuring 1,35,25,344 sq. ft.
Other than that, compensation was determined in respect to the
trees, crops, etc. A perusal of the Award No.6/2003 would show
that the compensation on account of the value of the land have
been awarded in favor of 48 awardees on account of LSCs issued
post 1993. Admittedly, these LSCs were issued by the Assistant
Settlement Officer. There is no material on record to show that the
LSCs were issued on the basis of some pre-existing rights, although
the learned Senior Counsel appearing on behalf of the private
respondents in Writ Appeal Nos. 8/2021, 11/2021 and 11/2022
submitted so. Therefore, the question arises as to whether such
LSCs could have been at all issued more particularly taking into
consideration Section 2 of the Act of 1980.
73. The learned Advocate General, Mizoram referred to a
judgment of the Supreme Court in the case of
Nature Lovers
reported in
Movement Vs. the State of Kerala and Others (2009) 5
wherein the Supreme Court held that in view of the settled
SCC 373
principles of law, the Act of 1980 would be applicable to all forests
irrespective of the ownership or classification thereof and after
25.10.1980, i.e. the date of enforcement of the Act of 1980, no
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State Government or other authority without the approval of the
Central Government can pass an order or give a direction for de-
reservation of the reserve forest or any portion thereof or permit
use of any forest land or any portion thereof for any non-forest
purpose or grant any lease etc. in respect of forest land to any
private person or any authority, corporation, agency or organization
which is not owned, managed or controlled by the Government. It
was also observed that if any forest land or any portion thereof
have been used for non-forest purpose like undertaking of a mining
activity for a particular length of time prior to the enforcement of
the Act of 1980, the tenure of such activity cannot be extended by
way of renewal of lease or otherwise after 25.10.1980 without
obtaining prior approval of the central Government.
74. In the instant cases, it would be seen that the petitioners in
WP(C) No.45/2017 and WP(C) No.51/2017 claim rights on the basis
of the LSCs which were issued after 25.10.1980. Admittedly, there
was no approval taken from the Central Government. Consequently,
the issuance of the said LSCs was contrary to the provisions of the
Act of 1980. These observations of ours are in respect to the first
part of the order dated 05.08.2016.
75. Be that as it may, the second part raises a fundamental
question as to whether the Chief Secretary was right in issuance of
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the directions pursuant to the findings that the LSCs were contrary
to law in his order dated 05.08.2016. The directions so issued by
the Chief Secretary, Mizoram were:
(i) The Revenue Department was directed to formally cancel all
LSCs of the land owners concerned.
(ii) The District Collector was directed to take appropriate steps
for cancellation of the Award No.6/2003 and the Supplementary
Award No.6/2003.
(iii) The Government Advocate concerned was also instructed to
take appropriate steps in the execution proceedings as all the LSCs
concerned in respect to the Award No.6/2003 and the
Supplementary Award No.6/2003 were found to be illegal and
cancelled by the Government.
76. To decide the legality of the directions, we find it very
pertinent to take note of certain provisions of the Act of 1894.
77. The Act of 1894 was enacted for acquisition of land for
public purposes and for companies keeping in tune with the
provisions of Article 300A of the Constitution. Section 4 of the said
Act of 1894 stipulates initiation of proceedings for acquisition. A
reading of the said Section 4 of the Act of 1894 reveals that when it
appears to the Appropriate Government that the land in any locality
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is needed or is likely to be needed for any public purpose or for a
company, a notification would be issued in the manner stipulated
therein. Therefore, upon issuance of a notification under Section 4
of the Act of 1894, the acquisition proceedings are initiated which is
an act of the Appropriate Government. The expression “Appropriate
Government” is defined in Section 3(ee) of the Act of 1894. In the
instant cases, the notifications were issued under Section 4 of the
Act of 1894 by the State of Mizoram through its Secretary,
Department of Revenue.
78. Section 6 of the Act of 1894 stipulates that a declaration
would be issued declaring that the land covered by notification
under Section 4 of the Act of 1894 is needed for public purpose or
for the company. This declaration is to be issued when the
Appropriate Government is satisfied that the particular land is
needed for public purpose or for a company. Admittedly, in the
instant cases, declarations were made by the State of Mizoram
declaring that the lands involved in the notification under Section 4
of the Act of 1894 were needed for public purpose. It is relevant at
this stage to take note of Section 6(3) of the Act of 1894 which
stipulates that when a declaration is made and notified in the
manner prescribed in Section 6 of the Act of 1894, the said
declaration shall be conclusive evidence that the land is needed for
public purpose or for company and after making such declaration,
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the Appropriate Government can acquire the land in the manner
stipulated in Part-II of the Act of 1894.
79. Section 7 of the Act of 1894 is pertinent inasmuch as after
the declaration is made, the Appropriate Government or some
Officer authorized by the Appropriate Government would direct the
Collector to take order for acquisition of the land. This Section is
very important inasmuch as upon the directions issued to the
Collector to take order for the acquisition of land, the Collector acts
as an Agent of the Appropriate Government. The materials on
records shows that the Government of Mizoram directed the
Collector to take order for acquisition of the land and as such, the
Collector therefrom performed his functions as an Agent of the
State of Mizoram.
80. Section 8 of the Act of 1894, stipulates that the Collector
shall thereupon cause the land to be marked out and further make
a plan. Thereupon, in terms with Section 9 of the Act of 1894,
public notice would be issued to persons interested calling upon
them that they may make claims to compensation for the interests
in such lands. The manner in which such notice is required to be
issued is further stipulated in Section 9 of the Act of 1894.
81. Section 11 of the Act of 1894 stipulates about the enquiry
and award of the Collector. It is very pertinent at this stage to take
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note of that the award shall include -
(i) The true area of the land;
(ii) The compensation in the opinion of the
Collector should be allowed for the land; and
(iii) The apportionment of the said compensation
among all the persons known or believed to be interested
in the land, of whom, or of whose claims, the Collector
has information, whether or not they have respectively
appeared before him.
82. A perusal of the awards being Award No.4/2002, Award
No.5/2002, Award No.5/2003, Award No.6/2003 and the
Supplementary Award No.6/2003 categorically shows that these
aspects of the matter have been duly incorporated in the said
awards.
83. It is also very pertinent to mention that the Collector, before
making the Award, has to obtain the previous approval of the
appropriate Government or of such Officer as the appropriate
Government may authorize in their behalf. In the instant case it is
seen from the materials on record that the appropriate Government
i.e. is the State of Mizoram have duly granted the approval to the
Collector so that the Award can be filed in the Collector's office.
Page No.# 69/107
84. Section 12 of the Act of 1894 is very pertinent for the
present dispute inasmuch as in terms with Section 12(1) of the Act
of 1894, when such award is filed in the Collector's Office and save
and except as provided in the other provisions of the Act of 1894, it
shall be final and conclusive evidence as between the Collector and
the person interested whether they have respectively appeared
before the Collector or not, in respect to the true area, the value of
the land and the apportionment of compensation amongst the
persons interested. The finality attached by Section 12 of the Act of
1894 also binds the Appropriate Government as the Collector had
performed his duties as an agent of the Appropriate Government.
85. Section 13A of the Act of 1894 only empowers the Collector
by an order within six months from the date of the Award or where
the Collector has been required under Section 18 of the Act of 1894
to make a reference to the Court, before making of such reference,
correct any clerical or arithmetical mistakes in the Award or errors
arising therefrom either on his own motion or on an application of
any person interested or a local authority.
86. At this stage, this Court finds it very pertinent to take note
of a judgment of the Supreme Court in the case of
Naresh Kumar
reported in
and Others Vs. Government (NCT of Delhi) (2019) 9 SCC
wherein the Supreme Court dealt with the interplay between
416
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Sections 11, 12 and 13A of the Act of 1894. Paragraph Nos.8 to 12
of the said judgment being relevant are reproduced herein under.
“8. There is no provision under the Land Acquisition Act, 1894 for review of the
award once passed under Section 11 of the Act and had attained finality. The only
provision is for correction of clerical errors in the award which is provided for under
Section 13-A of the Act, which was inserted with effect from 24-9-1984. The
relevant Section 13-A of the Act reads as under:
13-A. Correction of clerical errors, etc.—(1) The Collector may, at any time but
not later than six months from the date of the award, or where he has been
required under Section 18 to make a reference to the court, before the making of
such reference, by order, correct any clerical or arithmetical mistakes in the award
or errors arising therein either on his own motion or on the application of any
person interested or a local authority:
Provided that no correction which is likely to affect prejudicially any person shall be
made unless such person has been given a reasonable opportunity of making a
representation in the matter.
(2) The Collector shall give immediate notice of any correction made in the award to
all the persons interested.
(3) Where any excess amount is proved to have been paid to any person as a result
of the correction made under sub-section (1), the excess amount so paid shall be
liable to be refunded and in the case of any default or refusal to pay, the same may
be recovered as an arrear of land revenue.”
(emphasis supplied)
9. A bare reading of the said Section 13-A would make it clear that the same is not
a provision for review of the award but only for correction of clerical or arithmetical
mistakes in the award. It is further provided in sub-section (1) of Section 13-A that
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the said correction can be made at any time, but not later than six months from the
date of award. In the present case, the Land Acquisition Collector has actually not
made any correction of clerical or arithmetical mistake, but has in fact reviewed the
award dated 1-10-2003 by its Review Award No. 16/03-04 dated 14-7-2004, which
was also clearly passed beyond such period of six months.
10. In our considered view, the review award could not have been passed under
Section 13-A of the Act, which is meant only for correction of any clerical or
arithmetical mistake. There is no other provision in the Act under which the said
order dated 14-7-2004 could have been passed.
11. In the present case, the compensation for the structure on the land has been
deducted from the award dated 1-10-2003 by the review award dated 14-7-2004 on
the ground of the same being illegal structure, which actually amounts to review of
the award and cannot be said to be a correction of any clerical or arithmetical
mistake. The question whether the structure on the land of the appellants was legal
or illegal could only be decided after the parties were given opportunity to adduce
evidence, which correction cannot be termed as correction of any clerical or
arithmetical mistake. There being no provision under the Land Acquisition Act, 1894
for review of the award, the passing of the order dated 14-7-2004 in Review Award
No. 16/03-04 cannot be justified in law.
12. Section 12 of the Act clearly provides that the award of the Collector shall
become final on the same being filed in the Collector’s office, of which the Collector
shall give immediate notice to the persons interested. From the facts of this case, it
is clear that the award dated 1-10-2003, of which due notice had been given to the
appellants and part compensation had also been paid to the appellants in pursuance
thereto, had become final and the same could not have been reviewed, and that too
beyond a period of six months, within which period only clerical or arithmetical
mistakes could have been corrected.”
87. A perusal of the above quoted paragraphs would show that
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once the award is final in terms of Section 12 of the Act of 1894,
the same cannot be reviewed that too, beyond a period of six
months. It was further observed that only clerical or arithmetical
mistakes could have been corrected. Taking into account the said
judgment of the Supreme Court in the case of
Naresh Kumar
(supra), we are of the opinion that the Chief Secretary in the order
dated 05.08.2016 could not have directed the District Collector to
take appropriate steps for cancellation of the Award No.6/2003 and
the Supplementary Award No. 6/2003. In addition to that, it is also
very relevant to take note of that both the Award No.6/2003 and
the Supplementary Award No. 6/2003 have attained finality having
not been interfered with in any proceedings.
88. In the foregoing paragraphs of the instant judgment, we
had taken note of Section 12 of the Act of 1894 which stipulates
that the Award so filed in the Collector's Office shall be final except
as provided in the other Sections of the Act of 1894. The reference
to the other Sections pertains to modifications made to the award
by the Reference Court or by the High Court under the provisions of
the Act of 1894. Be that as it may, the permissible modifications by
the Reference Court or the High Court is subject to Section 21 and
Section 25 of the Act of 1894. This aspect of the matter is clear
from the judgment of the Supreme Court rendered in the case of
reported in
Sharda Devi Vs. State of Bihar and Another (2003) 3 SCC
Page No.# 73/107
. Paragraph No.34 of the said judgment being relevant is quoted
128
herein below:
“34. The award made by the Collector is final and conclusive as between the
Collector and the “persons interested”, whether they have appeared before the
Collector or not, on two issues : (i) as to true area i.e. measurement of land
acquired, (ii) as to value of the land i.e. the amount of compensation, and (iii) as to
the apportionment of the compensation among the “persons interested” — again,
between the Collector and the “persons interested” and not as amongst the “persons
interested” inter se. In the event of a reference having been sought for under Section
18, the Collector’s award on these issues, if varied by the civil court, shall stand
superseded to that extent. The scheme of the Act does not attach a similar finality to
the award of the Collector on the issue as to the person to whom compensation is
payable; in spite of the award by the Collector and even on failure to seek reference,
such issue has been left available to be adjudicated upon by any competent forum.”
89. Under such circumstances also, we are of the opinion that
the Chief Secretary could not have directed the District Collector
concerned to take appropriate steps for cancellation of the Award
No.6/2003 and the Supplementary Award No. 6/2003. The power to
cancel an Award by the Collector after it had attained finality is alien
to the Scheme of the Act of 1894.
90. It is also very pertinent to take note of that as per the
Scheme of the Act of 1894, land stands statutorily vested upon the
State when possession is taken under Section 16 of the Act of 1894
or if possession had already been taken under Section 17(1) of the
said Act of 1894. In the Constitution Bench judgment of the
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Supreme Court rendered in the case of
Indore Development
reported in , it
Authority Vs. Manoharlal and Others (2020) 8 SCC 129
had been categorically observed that once an award is passed and
the possession had been taken prior or post the award, the land
absolutely vests in the State. The provisions of the Act of 1894 do
not provide any recourse once land vests upon the State after
possession is taken post or prior to the award.
91. In the instant cases, the possession of the lands have
already been taken pursuant to the passing of the awards in the
year 2003 and much prior to the passing of the order dated
05.08.2016. Therefore, the cancellation of the LSCs so directed to
be done in the year 2016 by the State of Mizoram after getting the
said land vested upon the State is too late in the day that too when
the Award No.6/2003 and the Supplementary Award No.6/2003
have already attained finality. Therefore, we are of the opinion that
though the Chief Secretary to the Government of Mizoram had
rightly opined that the LSCs which were issued to the 48 awardees
in terms with the Award No.6/2003 were not in accordance with law
but in view of the aforesaid observations, the directions in terms
with the order dated 05.08.2016 was not legally permissible.
Therefore, the setting aside of the order dated 05.08.2016 by the
learned Single Judge do not call for any interference, however for
the different reasons assigned herein above.
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IN Re : THE THIRD POINT FOR DETERINATION:-
92. In the backdrop of the above determinations rendered in
respect to points for determination (i) and (ii), let us take the point
for determination No.(iii) as to what is the effect on the Award
No.6/2003, Supplementary Award No. 6/2003 as well as Award
No.4/2002, Award No.5/2002 and Award No.5/2003 if the point for
determination No.(i) and/or (ii) are decided in favour of the
Appellants.
93. It is very pertinent to mention that the State of Mizoram as
well as the NEEPCO have allowed the Award No.4/2002, Award
No.5/2002 and Award No.5/2003 to attain finality. Possession of the
lands included in the said Awards have already been taken and
presently, the said lands fall within the submergent area of Tuirial
Hydro Electric Project which is in operation since 2017. Insofar as
the Award No.6/2003 and Supplementary Award No.6/2003, the
same had also attained finality and the area of lands included in
these Awards are now in the submergent area of the Tuirial Hydro
Electrical Project.
94. Therefore, two questions arise for consideration. The first
question is in respect to whether the awardees of Award No.4/2002,
Award No.5/2002 and Award No.5/2003 as well as the awardees of
Award No.6/2003 other than the LSC holders are entitled to receive
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the compensation in spite of the fact that the lands fell within the
Riverine Reserve Forest. The second question is as to whether the
LSC holders in Award No.6/2003 and the Supplementary Award
No.6/2003 would be entitled to the compensation.
95. Let us take the first question. The Awards i.e. Award
No.4/2002, Award No.5/2002 and Award No.5/2003 as well as the
Award No.6/2003 insofar as the awardees other than the LSC
holders were only determined to be entitled to compensation
towards damage to their crops, trees etc. These awardees were not
awarded any compensation on account of the market value of the
land though they had Village Council Passes, Superintendent Passes,
District council Passes as well as Lal Passes as would be seen from a
perusal of the said Awards. It is further seen from the said Awards
that joint verification was carried out and it was found that different
types of crops/trees like nimbu, teak, orange, hatkora etc. were
there. In addition to that, there were also fish ponds, graveyards
and WRC within the lands in question. Further to that it was also
found that there were a large number of teak, Orange etc.
plantation as was found out during the assessment survey. There is
no material on record which suggests that these verifications were
non-existent or a result of fraud or collusion. It is under such
circumstances, in the Award No.4/2002, Award No.5/2002, Award
No.5/2003 as well as in Award No.6/2003, compensation was
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awarded under the heading of damage compensation for standing
crops etc. At this stage, we find it relevant to take note of Section
23 of the Act of 1894 and more particularly the heading “secondly”
which stipulates that damage sustained by person interested, by
reason of taking of any standing crops or trees which may be on the
land at the time of the Collector’s taking possession to be a relevant
parameter for determination of compensation.
96. We further find it appropriate that a “person interested”
within the meaning of Section 3(b) of the Act of 1894, would
include any person claiming an interest in the compensation to be
made on account of the acquisition of land and even a person shall
be deemed to be interested, if he is interested in an easement
affecting the land. We are therefore of the opinion that as pursuant
to verifications being carried out as mentioned in the Awards, the
awardees were entitled to compensation on account of the damage
caused to the standing crops or trees etc., irrespective of the fact
that the lands fell within the Riverine Reserve Forest. In addition to
that, the awards having attained finality, the provisions of the Act of
1894 read with Article 300A of the Constitution imposes an
obligation upon the State Government to pay the compensation in
terms with the Awards. Refusal to do so would violate the mandate
of Article 300A of the Constitution.
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97. We at this stage also find it apt to take note of CBI charge
sheet, the details of which we have already mentioned with in the
previous segments of the instant judgment. The CBI charge sheet
only mentioned about 49 persons out of the various awardees and
more particularly in respect to Award No.4/2002 they have illegally
obtained Village Passes in the year 1983. There is no finding
whatsoever that the other awardees had committed any illegalities.
In addition to that, it was also opined that upon investigation, these
awardees apart from the 49 awardees were genuine cultivators.
There is also nothing on record to show that the State Government
had alleged that the awards have been fraudulently prepared and
approved by the State Government. At this stage, we find it relevant
to refer to the judgment of the Supreme Court in the case of
Santosh Kumar and Others Vs. Central Warehousing Corporation
reported in . Paragraph Nos.4 and 5 of
and Another (1986) 2 SCC 343
the said judgment are reproduced herein under:
“4. In our view there cannot be any possible doubt that the scheme of the Act is
that, apart from fraud, corruption or collusion, the amount of compensation
awarded by the Collector under Section 11 of the Act may not be questioned in
any proceeding either by the government or by the company or local authority at
whose instance the acquisition is made. Section 50(2) and Section 25 lead to that
inevitable conclusion. Surely what may not be done under the provisions of the Act
may not be permitted to be done by invoking the jurisdiction of the High Court
under Article 226. Article 226 is not meant to avoid or circumvent the processes of
the law and the provisions of the statute. When Section 50(2) expressly bars the
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company or local authority at whose instance the acquisition is made from
demanding a reference under Section 18 of the Act, notwithstanding that such
company or local authority may be allowed to adduce evidence before the
Collector, and when Section 25 expressly prohibits the court from reducing the
amount of compensation while dealing with the reference under Section 18, it is
clearly not permissible for the company or local authority to invoke the jurisdiction
of the High Court under Article 226 to challenge the amount of compensation
awarded by the Collector and to have it reduced.
5. Long ago, it was held in Ezra v. Secy. of State for India, and it has never been
doubted since, “that the “award” in which the enquiry by the Collector results is
merely a decision (binding only on the Collector) as to what sum shall be tendered
to the owners of the lands” and that, “if a judicial ascertainment of value is desired
by the owner, he can obtain it by requiring the matter to be referred by the
Collector to the court”. As pointed out by this Court in Raja Harish Chandra v.
Deputy Land Acquisition Officer, the observations of the Privy Council in Ezra case
indicate that the Collector, in making an award, acts as an agent of the
Government, and that the legal character of the award made by the Collector is
that of a tender or offer by him on behalf of the Government. (See also
Mohammad Hasnuddin v. State of Maharashtra.) If the Collector making an award
was in law making an offer on behalf of the Government, it is difficult to appreciate
how the Government or anyone who could but (sic put) claim through the
Government would be entitled to question the award, apart from fraud, corruption
or collusion.”
98. The observations made in the above quoted paragraphs of
the judgment would therefore show that the State of Mizoram
cannot now challenge the Awards and consequently cannot deny
the payments. The amounts entitled as per the Awards have been
quantified and statutorily the awardees of these Awards are entitled
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to the amounts payable. Therefore, taking into account the
provisions of the Act of 1894 read along with Article 300A of the
Constitution, a duty is cast upon the State of Mizoram to make
payment to the awardees of these Awards and failure to do so
entitles the awardees to writ of mandamus directing the State of
Mizoram to make payment as regards the Awards.
99. Let us now come to the aspect pertaining to the entitlement
of the LSC holders of the Award No.6/2003. In the previous
segments of the instant judgment, we have held that the Award
No.6/2003 as well as the Supplementary Award No.6/2003 were
allowed to attain finality. Apart from that, the entitlement on the
basis of the Awards cannot now be refused by the State of Mizoram
in view of the law laid down by the Supreme Court in
Santosh
as well as and the
Kumar (supra) Naresh Kumar (supra)
observations made herein above.
AN IMPORTANT PERSPECTIVE :-
100. Before concluding in our adjudication on the point for
determination No.(iii), an important aspect touching on the rights of
the awardees cannot be overlooked. The State of Mizoram occupies
a unique place insofar as its topography vis-à-vis the topography of
rest of India. As per the India State Forest Report, 2021, the total
forest cover in India is 21.72% of the geographical area of the
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country. Compared to the said, the total forest cover in the same
report for the State of Mizoram is 84.53% of its geographical area.
The details of the forest in the State of Mizoram is also available in
the additional affidavit filed by the State on 21.10.2024. The State
of Mizoram is inhabited mostly by various tribes who are enlisted as
Scheduled Tribes in terms with the Presidential Order under Article
342 of the Constitution i.e. Constitution (Scheduled Tribes)
Order,1950 as amended. upto date. Around 96% of the population
of Mizoram comprises of Scheduled Tribes.
101. It is further very pertinent to take note of that taking into
account the topography of the State of Mizoram, these tribes used
to live close to and within the forest. Before the advent of the
British rule, these tribes who were forest dwellers used and
managed forest land and resources according to the customary
norms and belief system. However, under the colonial rule, these
community-controlled resource management systems were
dismantled. This aspect of the matter can also be seen in rest of the
parts of India as would appear from the Article of the noted
historian Shri Ramchandra Guha -
Forestry in British and Post
which was published in the
British India, A Historical Analysis
Economic and Political Weekly Volume - 18, No. 45/46 dated
.
05.12.1983
Page No.# 82/107
102. It would also be seen from the historical analysis that the
colonial regime's exclusive power to regulate forests and pastures
were first asserted by enactment of the Indian Forest Act, 1865.
Subsequent thereto, a more authoritative legislation was enacted
i.e. the Indian Forest Act, 1878 whereby for the first time forests
were legally characterized as reserve forests, protected forests and
village forests. In terms with the said Act of 1878, the authorities
were conferred with the power to identify and demarcate valuable
tracts of forest land that they needed, especially for the
development of railways, while retaining the flexibility to revise their
policy from time to time regarding the remaining extent of the
forest land. Subsequent thereto, the Indian Forest Act, 1927 was
enacted. The said Act still governs the field. In terms with the said
Act, it allowed the Forest Department to declare any forest land or
waste land as reserved forest land and prohibit people's access to
these reserve forests without prior approval. It imposed similar
conditions in respect to protected forests and village forests. The
Act of 1927 ensured provisions for materials required for
development of the Railways and the expanding markets for the
British industrial products. It is however very pertinent to mention
that these three enactments made during the British regime
considered nothing about the forest dwellers.
103. Post independence, while the Indian Forest Act, 1927 was
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retained, the National Forest Policy, 1952 was made. A perusal of
the National Forest Policy, 1952 would show that it did not take care
of the rights of the forest dwellers or for regularizing or recognizing
their rights. Rather, the said forest policy encouraged the need for
sustained supply of timber and other forest produce required for
defence, communications and industry. In fact, the said forest policy
emphasized production forestry thereby giving priority to ensuring a
sustained supply of timber and other forest produce to meet the
requirements of defence, communication and industry. It is however
very interesting to take note of that in the National Forest Policy,
1952, it was mentioned that as regards the Part-A States, adequate
forest legislation existed in the form of the Indian Forest Act, 1927
and in Part-B States, there were forest regulations having the force
of law. But there were some Part-C States where forest law did not
exist. It was therefore mentioned that those States without a proper
Forest Act should enact legislation at an early date in the lines of
the Indian Forest Act, 1927 or validate the said Act for their
territory. The Act of 1955 came into force with effect from
01.01.1956 pursuant to the National Forest Policy, 1952. Prior to
that, the rights in respect to the forests of the State of Mizoram
(which was then the Lushai Hills) were mostly regulated by the
Chieftains as well as the village councils who issued passes. Further,
from the materials available on record, it also shows that there was
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a Riverine Forest Order but nothing is on record as to the source of
the power to make such Riverine Reserved Order.
104. In view of the impetus given in the National Forest Policy,
1952 for the purpose of ensuring a sustained supply of timber and
other forest produce to meet the requirements of defence,
communication and industry it led to major depletion of the forestry
in India mostly in other parts of India. This necessitated the
nd
amendment to the Constitution by the Constitution (42
Amendment) Act, 1976 whereby Article 48A, Article 51A as well as
Entry 17A was inserted to the List-III of the Seventh Schedule of
the Constitution. Pursuant thereto, the Act of 1980 was enacted
whereby the Central Government was granted pervasive control
over all forests and without its approval, no rights could be created.
The enactment of the Act of 1980 shows a major shift in the policy
from reservation of forest to conservation of forest.
105. Be that as it may, all these while, the regularization or
recognition of the tribal forest dwellers rights were neither
recognized or regularized or there was no policy made for them. For
the first time, in the National Forest Policy, 1988 the rights of the
forests dwellers and the lives of the tribals and the poor living within
and near the forest were recognized as would be seen from Clauses
4.3.4.2, 4.3.4.3 and 4.3.4.4 of the National Forest Policy, 1988. This
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led the Ministry of Environment and Forest to issue six Circulars on
18.09.1990 whereby taking into account the Act of 1980, the State
Governments were asked to make necessary verifications and
recognize rights of the forest dwellers and tribals prior to
25.10.1980 which is the date of coming into force of the Act of
1980. Be that as it may, it appears that nothing much was done
towards implementation of these circulars in the State of Mizoram.
th
In fact, prior thereto, there was also a publication of the 29 Report
of the National Commission for Scheduled Caste and Scheduled
Tribes, 1989 which recommended a framework to address the rights
of Scheduled Tribes over the forest land and settle disputed claims
across India. In the year 1996, the Panchayat (Extension to
Schedule Areas) Act, 1996 was enacted which empowered the
Schedule Tribes to determine the use and management of common
property resources in the Fifth Schedule Areas. However, the same
had no impact insofar as the State of Mizoram was concerned. It is
also seen from various reports that there were various agitations in
respect to the forest rights of the forest dwellers as well as the
Scheduled Tribes. This resulted in passing of the Scheduled Tribes
(Recognition of Forest Rights) Act, 2006 (for short, ‘the Act of
th
2006’) in the Parliament on 15 of December, 2006 which received
the approval of the President on 29.12.2006. Thereupon, the Rules
were made in December, 2007 and the Act of 2006 came into force
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with effect from 01.01.2008.
106. It is pertinent at this stage to take note of that the
Statements of Objects and Reasons of the said Act of 2006 as well
as its preamble which categorically shows that the legislature had
duly recognized that the forest rights on ancestral lands and their
habitat of the forest dwellings Scheduled Tribes and other traditional
forest dwellers were not adequately recognized in the consolidation
of the State forests during the colonial period as well as in
independent India resulting in historical injustice to the forest
dwelling Schedule Tribes and other traditional forest dwellers who
were integral to the very survival and the sustainability of forest
ecosystem.
107. At this stage, we feel it apt to observe that we are aware
that the Act of 2006 came into operation much after the Awards
were made but taking into account that legislatively, the Parliament
had recognized that historical injustice was inflicted upon the forest
dwelling Scheduled Tribes and other traditional forest dwellers in the
consolidation of the State Forests, we find that the reference to the
Act of 2006 is relevant.
108. Section 2(c) of the Act of 2006 defines who are “forest
dwelling Scheduled Tribes” to mean members or community of the
Schedule Tribe who primarily reside in and who depend on the
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forest or forest lands for bona fide livelihood needs and includes
Schedule Tribe pastoralist communities. Section 2(o) of the Act of
2006 defines “other traditional forest dwellers” to mean any
member or community who has for at least three generations prior
th
to 13 day of December, 2005 primarily resided in and who were
dependent on a forest or forest land for bona fide livelihood needs.
The Explanation to section 2(o) of the Act of 2006 further explained
that the term ‘generation’ in Section 2(o) of the Act of 2006 means
a period comprising of 25 years. A conjoint reading of Section 2(c)
and 2(o) of the Act of 2006 shows that in the case of forest dwelling
Scheduled Tribes, there is neither any requirement of three
generations to be residing in the forest nor there is any cut off date
which otherwise the eligibility of “other traditional forest dwellers.
109. At this stage, it is also pertinent to mention that Section
2(d) of the Act of 2006 defines “forest land” to mean various forms
of forest including reserved forests, sanctuaries and even national
parks. A further perusal of Section 3 of the Act of 2006 would show
that various forms of rights including the right to hold and live in
forest land, ownership, settlement have been duly recognized.
Section 4 of the Act of 2006 statutorily confers the Central
Government recognition to vesting of forest rights upon the forest
dwellings Scheduled Tribes in States or in areas in States where
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they are declared as Scheduled Tribes in respect of all forest rights
mentioned in Section 3 as well as to other traditional forest dwellers
in respect of all forest rights mentioned in Section 3.
110. It is also very pertinent to note that Section 4 of the Act of
2006 starts with a non-obstinate clause thereby the recognition
given to this forest dwelling Scheduled Tribes and other traditional
forest dwellers by the Central Government was without the fetters
imposed by the Act of 1980.
111. It is further pertinent to mention that the State of Mizoram
by virtue of Article 371G of the Constitution adopted the Act of 2006
in the year 2009 and thereafter in 2019 revoked such approval.
Subsequently on 03.08.2024, again adopted the Act of 2006.
112. In the backdrop of the above, if we take note of the
materials on records; the charge sheet submitted by the CBI as well
as the Awards in question, it would show that these awardees were
living in the forest lands by raising crops, plantations etc. The State
of Mizoram through the Collector carried out necessary verifications
and on the basis thereof, the Awards were made. It is also relevant
that the 49 persons who have been alleged to have falsely made
claim for compensation are not Petitioners before this Court.
Coupled with the above, the legislative recognition of the historical
injustice to the forest dwelling Scheduled Tribes in the Statement of
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Objects and Reasons as well as the Preamble to the Act of 2006, it
is our opinion that the Petitioners cannot be deprived of the
compensation determined as per the Award No.4/2002, Award
No.5/2002, Award No.5/2003, Award No.6/2003 and Supplementary
Award No.6/2003 which have attained finality.
113. In addition to that, we further find it relevant to take note of
that in the various proceedings prior to the filing of the batch of writ
petitions, the State Government had always taken a stand that the
awardees are entitled to the compensation. These aspects would be
apparent from a perusal of the judgment and order dated
04.12.2007 in WP(C) No.77/2006, the judgment and order dated
21.04.2010 in WA No.426/2007 as well as the judgment and order
dated 02.07.2012 in CRP No.2/2011. However, it appears that post
the observations made in the order passed by the learned Single
Judge on 02.07.2012 in CRP No.2/2011, the State Government
changed its stance to the effect that the awardees are not entitled
to the compensation on the ground that the land fell within the
reserved forest. This in our opinion if permitted would result in
allowing the State of Mizoram to approbate and reprobate.
114. Moreover, the State of Mizoram having allowed the Awards
to attain finality and as such, the State of Mizoram cannot now be
permitted to resile from the Awards else the very sanctity attached
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to the Awards by the provisions of the Act of 1894 would be lost.
115. Accordingly, we are therefore of the opinion that decision in
favour of the Appellants in respect to the point for determination
No.(i) would not affect the rights of the awardees of Award
No.4/2002, Award No.5/2002, Award No.5/2003, Award No.6/2003
and Supplementary Award No.6/2003 to receive the compensation
as per the Awards.
IN Re : THE FOURTH POINT FOR DETERMINATION:-
116. This leads us to the fourth point for determination i.e.
whether the learned Single Judge was justified in relegating the
Petitioners in the batch of petitions to seek alternative remedies for
execution of the awards in accordance with the procedure
prescribed in the Act of 1894.
117. In the previous segments of the instant judgment, we have
categorically delineated the three types of grievances which were
subject matter of consideration in the batch of writ petitions.
Amongst the three grievances, the grievance in 9 (nine) writ
petitions pertains to non-payment of the amount determined as per
the awards i.e. in WP(C) No.135/2013, WP(C) No.132/2013, WP(C)
No.130/2013, WP(C) No.118/2015, WP(C) No.131/2013, WP(C)
No.117/2015, WP(C) No.116/2015, WP(C) No.16/2014 and WP(C)
Page No.# 91/107
No.22/2014. In addition to the above, in one writ petition being
WP(C) No.51/2017, these petitioners though challenged the order
dated 05.08.2016 but also sought for compensation to be paid in
terms with the Award No.6/2003. These writ petitioners were not a
part of the Reference Court proceedings which led to the passing of
the Supplementary Award No.6/2023. The instant point for
determination therefore primarily relates to the grievances of the
writ petitioners who have not sought any reference against the
Awards.
118. Under such circumstances, the question arises as to
whether the learned Single Judge was justified in relegating them to
avail remedies under the provisions of the Act of 1894?
119. At this stage, we find it very pertinent to observe that
Section 26 of the Act of 1894 only refers to awards made under
Part-III of the Act of 1894 i.e. an award passed by the Reference
Court. Section 26 of the Act of 1894 however, would not cover an
award in terms with Part-II i.e. an award under Section 11 of the
Act of 1894. It is further seen that as per Section 31 of the Act of
1894, the Collector is statutorily obligated to tender payment of the
compensation awarded by him to the persons interested entitled
thereto according to the Award and it is only when the
circumstances exist, as mandated under Section 31(2), the Collector
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has to deposit the amount of compensation before the Reference
Court. As a statutory duty is imposed upon the Collector and as the
Collector as well as the State of Mizoram have failed to comply with
the same, the interest of justice would have been met if appropriate
directions were issued to the State of Mizoram to pay the awarded
compensation to the awardees of Award No.4/2002, Award
No.5/2002 and Award No.5/2003 as well as the awardees of Award
No.6/2003 (who were not a party to LA(C) No.1/2014) to the extent
they are entitled to.
120. There are two facets to the above point for determination.
(a) Whether the learned Single Judge was justified in
relegating these Petitioners to avail remedies under the provisions
of the Act of 1894?
(b) Whether in the present intra Court appeals filed by the
State of Mizoram and not by these writ petitioners, can we pass
appropriate directions to make payment of the dues to these
Petitioners?
121. For deciding the question as to whether the learned Single
Judge was justified in relegating these Petitioners to avail remedies
under the provision of the Act of 1894, we find it relevant to take
note of certain provisions of the Act of 1894. These writ petitioners
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admittedly did not seek any reference in terms with Section 18 of
the Act of 1894. Therefore, the Award made by the Collector, i.e.
Award No.4/2002, Award No.5/2002, Award No.5/2003 as well as
the Award No.6/2003 (other than those who are beneficiaries of
Supplementary Award No.6/2003) have attained finality. It is also
relevant to take note of that even after passing of the order in LA(C)
Case No.1/2004 on 26.09.2005, no steps were taken under Section
28A of the Act of 1894 seeking redetermination of the amount
under Section 28A of the Act of 1894 or had taken any further steps
in terms with Section 28A(3)of the Act of 1894.
122. Therefore, insofar as these writ petitioners or the awardees
in Award No.4/2002, Award No.5/2002, Award No.5/2003 as well as
the Award No.6/2003 (other than those who are beneficiaries of
Supplementary Award No.6/2003) do not have an Award within the
meaning of Section 26 of the Act of 1894. At this stage, we find it
relevant to reproduce Section 26 of the Act of 1894 as the same has
relevance.
“26. Forms of awards. – [(1)] Every award under this part shall be in writing
signed by the Judge, and shall specify the amount awarded under clause first of
sub-section (1) of section 23, and also the amounts (if any) respectively awarded
under each of the other clauses of the same sub-section, together with the grounds
of awarding each of the said amounts.
[(2) Every such award shall be deemed to be a decree and the statement of the
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grounds of every such award a judgment within the meaning of section 2. clause
(2), and section 2, clause (9), respectively of the Code of Civil Procedure 1908 (5 of
1908)].”
123. From a perusal of the above quoted Section, it would be
seen that it only refers to Awards made under Part-III of the Act of
1894 i.e. an award passed by the Reference Court and not by the
Collector. Further to that, Section 26 of the Act of 1894 do not cover
an Award in terms with Part-II i.e. an award made under Section 11
of the Act of 1894. Consequently, Sub-Section (2) of Section 26 of
the Act of 1894 is not attracted in respect to those awards falling
within the ambit of Part-II of the Act of 1894 and as such, it would
not be a decree within the meaning of Section 2(2) and Section 2(9)
of the Code of Civil Procedure, 1908. The effect of the above is that
these Awards cannot be put to execution before a Court of civil
jurisdiction.
124. Be that as it may, Part-V of the Act of 1894 deals with
payment. Section 31 of the Act of 1894 categorically imposes an
obligation upon the Collector, on making an Award under Section 11
of the Act of 1894 to tender payment of the compensation awarded
by him to the persons interested entitled thereto, according to the
Award and shall pay it to them unless prevented by one or more of
the contingencies mentioned in Sub-Section (2) of Section 31 of the
Act of 1894. This statutory obligation cast upon the Collector by
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Section 31(1) of the Act of 1894, in our opinion, entitles the persons
interested who have not received the compensation to approach
this Court under Article 226 of the Constitution. In this regard, we
find it relevant to take note of the judgment of the Supreme Court
in the case of wherein the
Indore Development Authority (supra)
Constitution Bench of the Supreme Court in clear terms observed
that the Collector has to tender payment of compensation awarded
by him to the persons interested entitled thereto according to the
Award and failure to do so, the Collector shall be liable to pay the
amount awarded with interest thereon at the rate of 9% from the
time of taking possession until it had been so paid or deposited and
after one year, from the date on which the possession is taken,
interest payable shall be @15%. It was further observed that a
payment has to be tendered under Section 31(1) of the Act of 1894
unless the Collector is prevented from making payment as provided
in Section 31(2) of the Act of 1894. Paragraph Nos.117, 118, and
120 of the said judgment being relevant are reproduced herein
under:
“117. Payment of compensation under the 1894 Act is provided for by Section 31 of
the Act, which is to be after passing of the award under Section 11. The exception,
is in case of urgency under Section 17, is where it has to be tendered before taking
possession. Once an award has been passed, the Collector is bound to tender the
payment of compensation to the persons interested entitled to it, as found in the
award and shall pay it to them unless “prevented” by the contingencies mentioned
in sub-section (2) of Section 31. Section 31(3) contains a non obstante clause which
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authorises the Collector with the sanction of the appropriate Government, in the
interest of the majority, by the grant of other lands in exchange, the remission of
land revenue on other lands or in such other way as may be equitable.
118. Section 31(1) enacts that the Collector has to tender payment of the
compensation awarded by him to the persons interested entitled thereto according
to the award and shall pay such amount to a person interested in the land, unless
he (the Collector) is prevented from doing so, for any of the three contingencies
provided by sub-section (2). Section 31(2) provides for deposit of compensation in
court in case the State is prevented from making payment in the event of:
(i) refusal to receive it;
(ii) if there be no person competent to alienate the land;
(iii) if there is any dispute as to the title to receive the compensation; or
(iv) if there is dispute as to the apportionment.
In such exigencies, the Collector shall deposit the amount of the compensation in
the court to which a reference under Section 18 would be submitted.
120. It is apparent from the 1894 Act that the payment of compensation is dealt
with in Part V, whereas acquisition is dealt with in Part II. Payment of compensation
is not made precondition for taking possession under Section 16 or under Section
31 read with Section 34. Possession can be taken before tendering the amount
except in the case of urgency, and deposit (of the amount) has to follow in case the
Collector is prevented from making payment in exigencies as provided in Section
31(3). What follows is that in the event of not fulfilling the obligation to pay or to
deposit under Sections 31(1) and 31(2), the 1894 Act did not provide for lapse of
land acquisition proceedings, and only increased interest follows with payment of
compensation.”
125. In addition to that, we also find it relevant to take note of
another recent judgment of the Supreme Court in the case of
Ultra-
reported in
Tech Cement Limited Vs. Mast Ram and Others 2024 SCC
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. In the said judgment, the Supreme Court
Online SC 2598
categorically observed that acquisition of land for public purpose is
undertaken under the power of eminent domain of the Government
and much against the wishes of the owners of the land which gets
acquired. It was observed that when such a power is exercised, it is
coupled with a bounden duty and obligation on the part of the
Government to ensure that the owners whose lands gets acquired
are paid compensation/awarded amount as declared by the
statutory award at the earliest. Paragraph Nos. 44, 45, 46, 47, 48,
49 and 50 of the said judgment being relevant are reproduced
herein under:
“44. In Roy Estate v. State of Jharkhand, (2009) 12 SCC 194; Union of India v.
Mahendra Girji, (2010) 15 SCC 682 and Mansaram v. S.P. Pathak, (1984) 1 SCC 125,
this Court underscored the importance of following timelines prescribed by the
statutes as well as determining and disbursing compensation amount expeditiously
within reasonable time.
45. The subject land came to be acquired by invoking special powers in cases of
urgency under Section 17(4) of the 1894 Act. The invocation of Section 17(4)
extinguishes the statutory avenue for the landowners under Section 5A to raise
objections to the acquisition proceedings. These circumstances impose onerous duty
on the State to facilitate justice to the landowners by providing them with fair and
reasonable compensation expeditiously. The seven sub-rights of the landowners
identified by this Court in Kolkata Municipal Corporation (supra) are corresponding
duties of the State. We regret to note that the amount of Rs. 3,05,31,095/-
determined as compensation under the Supplementary Award has not been paid to
the landowners for a period of more than two years and the State of Himachal
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Pradesh as a welfare State has made no effort to get the same paid at the earliest.
46. This Court has held in Dharnidhar Mishra (D) v. State of Bihar, 2024 SCC OnLine
SC 932 and State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 that the right to
property is now considered to be not only a constitutional or statutory right, but also
a human right. This Court held in Tukaram Kana Joshi thr. Power of Attorney Holder
v. M.I.D.C., (2013) 1 SCC 353 that in a welfare State, the statutory authorities are
legally bound to pay adequate compensation and rehabilitate the persons whose
lands are being acquired. The non-fulfilment of such obligations under the garb of
industrial development, is not permissible for any welfare State as that would
tantamount to uprooting a person and depriving them of their constitutional/human
right.
47. That time is of the essence in determination and payment of compensation is
also evident from this Court's judgment in Kukreja Construction Company v. State of
Maharashtra, 2024 SCC OnLine SC 2547 wherein it has been held that once the
compensation has been determined, the same is payable immediately without any
requirement of a representation or request by the landowners and a duty is cast on
the State to pay such compensation to the land losers, otherwise there would be a
breach of Article 300-A of the Constitution.
48. In the present case, the Government of Himachal Pradesh as a welfare State
ought to have proactively intervened in the matter with a view to ensure that the
requisite amount towards compensation is paid at the earliest. The State cannot
abdicate its constitutional and statutory responsibility of payment of compensation by
arguing that its role was limited to initiating acquisition proceedings under the MOU
signed between the Appellant, JAL and itself. We find that the delay in the payment
of compensation to the landowners after taking away ownership of the subject land
from them is in contravention to the spirit of the constitutional scheme of Article
300A and the idea of a welfare State.
49. Acquisition of land for public purpose is undertaken under the power of eminent
domain of the government much against the wishes of the owners of the land which
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gets acquired. When such a power is exercised, it is coupled with a bounden duty
and obligation on the part of the government body to ensure that the owners whose
lands get acquired are paid compensation/awarded amount as declared by the
statutory award at the earliest.
50. The State Government, in peculiar circumstances, was expected to make the
requisite payment towards compensation to the landowners from its own treasury
and should have thereafter proceeded to recover the same from JAL. Instead of
making the poor landowners to run after the powerful corporate houses, it should
have compelled JAL to make the necessary payment.”
126. From the above quoted paragraphs of the judgment of the
Supreme Court, it is clear that there is a duty conferred upon the
Collector as well as the State of Mizoram to make payment of the
awarded amount. This being the position in our opinion, the learned
Single Judge ought not to have relegated these Petitioners to
approach a forum under the Act of 1894 which in law did not exist
after having categorically arrived at an opinion that four Awards so
passed being Award No.4/2002, Award No.5/2002, Award
No.5/2003 as well as the Award No.6/2003 have attained finality
and the petitioners were entitled to the amount.
127. These observations have also attained finality. Under such
circumstances, the learned Single Judge therefore ought not to have
relegated these Petitioners in connection with Award No.4/2002,
Award No.5/2002, Award No.5/2003 and Award No.6/2003 (other
than those beneficiaries of the Supplementary Award No.6/2003) to
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take steps before the appropriate form under the provisions of the
Act of 1894.
128. Be that as it may, the second aspect which arises for
consideration before us is as to whether we, in exercise of the intra
Court Appellate jurisdiction initiated by the State of Mizoram and not
by those writ petitioners, can exercise the powers which the learned
Single Judge ought to have exercised. To decide this aspect, we find
it very relevant to take note of that a perusal of Article 226(1) of the
Constitution which empowers every High Court throughout the
territories in relation to which it exercises jurisdiction, to issue to
any person or authority, including in appropriate cases, any
Government, within those territories, directions, orders or writs,
including the writ in the nature of habeas corpus, mandamus,
prohibition, qua warranto and certiorari or any of them for the
enforcement of any of the rights conferred by Part-III and for any
other purpose.
129. Clause (14) of Article 366 of the Constitution defines the
term “High Court” to mean any Court which is deemed for the
purpose of the Constitution India to be a High Court for any State
and includes (a) any Court in the Territory of India constituted or
reconstituted under the Constitution of India as a High Court and
(b) any other Court in the Territory of India which may be declared
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by the Parliament by law to be a High Court for all or any of the
purposes of the Constitution of India.
130. It is very pertinent to observe that the powers conferred
upon the High Court under Article 226 of the Constitution become
capable of being exercised in accordance with any general right of
appeal from the decision of the High Court and there is nothing in
Article 226 of the Constitution which requires that the powers
thereunder must be exercised once and for all. In theory, an Appeal
is a continuation of the hearing of the suit or other original
proceedings and ordinarily the Appellate Court has all the powers
which the Court of the first instance can exercise. Therefore, when
a Division Bench entertains an Appeal from a decision of a Single
Judge in exercise of the powers under Article 226 of the
Constitution, the Division Bench, in deciding such Appeal, exercise
the same power under that Article, whether it (the Division Bench)
affirms, reverses or modifies the decision of the Single Judge. The
nature and content of the power conferred by Article 226 of the
Constitution cannot be said to have been interfered with by a mere
provision for an appeal, without anything more, to a Division Bench
from a decision of a Single Judge in exercise of the powers under
Article 226 of the Constitution. The provision for an Appeal as would
appear from Rule 2(2) of Chapter V-A of the Gauhati High Court
Rules merely therefore regulates the exercise of that power by our
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High Court.
131. In this regard, we find it pertinent to observe that in the
present intra Court appeals, which we are dealing, the power can be
traced to Clause (14) of the Letters Patent constituting the High
Court of the Judicature at Bengal dated 14.05.1862 which was
made applicable to our High Court by virtue of the Assam High
Court Order, 1948 dated 01.03.1948. Therefore, while adjudicating
these intra Court appeals, we are sitting as a Court of Correction
and therefore can correct our own orders in exercise of the same
jurisdiction as was vested upon the learned Single Judge. In this
regard, we find it relevant to refer to a judgment of the Supreme
Court in the case of
Baddula Lakshmaiah and Others Vs. Sri
reported in
Anjaneya Swami Temple and Others (1996) 3 SCC 52
and more particularly paragraph No.2 which is reproduced herein
under:
“2. Mr Ram Kumar, learned counsel for the appellants, inter alia contends that the
Letters Patent Bench of the High Court could not have upset a finding of fact
recorded by a learned Single Judge on fresh reconciliation of the two documents,
arriving at different results than those arrived at earlier by the two courts
aforementioned. Though the argument sounds attractive, it does not bear scrutiny.
Against the orders of the trial court, first appeal lay before the High Court, both on
facts as well as law. It is the internal working of the High Court which splits it into
different ‘Benches’ and yet the court remains one. A letters patent appeal, as
permitted under the Letters Patent, is normally an intra-court appeal whereunder
the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in
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exercise of the same jurisdiction as was vested in the Single Bench. Such is not an
appeal against an order of a subordinate court. In such appellate jurisdiction the
High Court exercises the powers of a Court of Error. So understood, the appellate
power under the Letters Patent is quite distinct, in contrast to what is ordinarily
understood in procedural language. That apart the construction of the
aforementioned two documents involved, in the very nature of their import, a mixed
question of law and fact, well within the powers of the Letters Patent Bench to
decide. The Bench was not powerless in that regard.”
(emphasis supplied to the underlined portion)
132. We further find it also relevant to take note of another
judgment of the Supreme Court in the case of
Roma Sonkar Vs.
Madhya Pradesh State Public Service Commission and Another
reported in wherein also the Supreme Court
(2018) 17 SCC 106
categorically observed that the Single Bench as well as the Division
Bench exercises same jurisdiction under Article 226 of the
Constitution. Under such circumstances, the Division Bench in an
intra Court appeal cannot remit the matter to the Single Judge for
moulding the relief. The duty of the intra Court Appellate Forum is
primarily to consider the correctness of the view taken by the Single
Judge. Paragraph No.3 of the said judgment being relevant is
reproduced herein under.
“3. We have very serious reservations whether the Division Bench in an intra-court
appeal could have remitted a writ petition in the matter of moulding the relief. It is
the exercise of jurisdiction of the High Court under Article 226 of the Constitution of
India. The learned Single Judge as well as the Division Bench exercised the same
jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by
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the Division Bench is provided in terms of the power of the High Court but that does
not mean that the Single Judge is subordinate to the Division Bench. Being a writ
proceeding, the Division Bench was called upon, in the intra-court appeal, primarily
and mostly to consider the correctness or otherwise of the view taken by the
learned Single Judge. Hence, in our view, the Division Bench needs to consider the
appeal(s) on merits by deciding on the correctness of the judgment of the learned
Single Judge, instead of remitting the matter to the learned Single Judge.”
(emphasis supplied to the underlined portion)
133. The above propositions of law clearly show that the
jurisdictions so exercised by the learned Single Judge as well as the
jurisdictions so exercised by us in these intra Court appeals are one
and the same jurisdiction i.e. exercising the powers under Article
226 of the Constitution. It is further seen that while exercising the
powers as an intra Court Appellate forum, the Division Bench sits as
a Court of Correction and corrects its own orders in exercise of the
same jurisdiction as was vested in the Single Bench. Further to that,
the lis which was before the Single Judge with an appeal being
preferred is continued before the Division Bench.
134. Taking into account the above, we are of the opinion that
we, while exercising our powers in these Intra Court Appeals, can
grant the relief which the learned Single Judge ought to have
granted in spite of arriving at a categorical finding that the awards
have attained finality and the writ petitioners were entitled to the
amounts. This therefore, answers the fourth point for
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determination.
IN Re : FIFTH POINT FOR DETERMINATION:-
135. The instant point for determination is pertains to what relief
or reliefs the parties before us are entitled to.
136. We accordingly in view of our observations made
hereinabove dispose of these Writ Appeals with the following
observations and directions:
(i) We set aside the observations, findings and directions of the
learned Single Judge in the impugned judgment and order dated
27.01.2021 whereby the notification dated 28.01.1965 which was
published in the Assam Gazette on 19.05.1965 was set aside and
quashed.
(ii) The setting aside of the order dated 05.08.2016 passed by
the Chief Secretary, Government of Mizoram vide the impugned
judgment and order dated 27.01.2021 is not interfered with
however for different reasons as assigned supra.
(iii) We hold that the awardees of Award No.4/2002, Award
No.5/2002, Award No.5/2003, Award No.6/2003 and the
Supplementary Award No.6/2003 are entitled to the amounts as
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made in the said Awards. The State of Mizoram is statutorily
obligated to make payment of the said Awards.
(iv) The State of Mizoram is directed to pay the awardees of
Award No.4/2002, Award No.5/2002, Award No.5/2003, Award
No.6/2003 (other than the beneficiaries of the Supplementary
Award No.6/2003) which would include the Petitioners in WP(C)
No.135/2013, WP(C) No.132/2013, WP(C) No.130/2013, WP(C)
No.118/2015, WP(C) No.131/2013, WP(C) No.117/2015, WP(C)
No.116/2015, WP(C) No.16/2014 and WP(C) No.22/2014 and WP(C)
No.51/2017 their entitlement as per the Awards along with interest
in terms with Section 34 of the Act of 1894 within a period of 3
(three) months from today.
(v) In respect to the awardees of Supplementary Award
No.6/2003 i.e. the writ petitioners in WP(C) No.45/2017, they would
be at liberty to further proceed with the execution proceedings i.e.
Execution Case No.13/2010.
(vi) This Court had not adjudicated as to whether the State of
Mizoram or NEEPCO or any other authority is liable to pay the
compensation. However, taking into account the judgment of the
Supreme Court in the case of , we have directed
Mast Ram (supra)
the State of Mizoram which is a welfare State and being
constitutionally obligated to make the payment as directed above
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within the period stipulated.
(vii) The observations and directions made hereinabove shall not
act as a bar to the State of Mizoram to recover the same from
NEEPCO or any other authority if permissible as per the
Memorandum of Understanding dated 29.05.1996 and other
negotiations entered into between the State of Mizoram and
NEEPCO and other Authorities.
J U D G E J U D G E
Comparing Assistant