NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7825 OF 2011
(Arising out of SLP(C) No.18850 of 2006)
Lalrinvenga (Dead) Through L.Rs. and another ...Appellants
Versus
State of Mizoram and others ...Respondents
J U D G M E N T
G.S. SINGHVI, J.
1. Leave granted.
2. This appeal is directed against the judgment of the Division Bench of the
Gauhati High Court whereby the appeal preferred by the respondents against the
order of the learned Single Judge was allowed and it was declared that Land
Settlement Certificates issued in favour of the appellants after the publication of
declaration issued under Section 6(1) of the Land Acquisition Act, 1894 (for short,
`the Act') and notification dated 14.6.1985 prohibiting allotment of land to any
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private individual will not confer any right upon them to claim compensation in
respect of the acquired land.
3. The appellants purchased land measuring 11.37 bighas from Dangliana to
whom Periodic Patta No. 40/81 is said to have been granted under Rule 6 of the
Mizo District (Agricultural Land) Rules, 1971. They submitted applications to
Director, Land Revenue and Settlement, Mizoram (respondent No.2) who had
issued order dated 18.1.1983 authorising Assistant Settlement Officer-II to decide
such applications for grant of Land Settlement Certificates. After considering the
applications, the Settlement Officer issued certificates bearing Nos.AZ-2279 of
1987 and AZ-2278 of 1987 in favour of the appellants under Section II of the Mizo
District (Land Revenue) Act, 1956.
4. In the meanwhile, the State Government issued notification dated 14.5.1985
under Section 4(1) of the Act for the acquisition of land in villages old Beraw and
Zokhawsang for a public purpose, namely, allotment to the Assam Rifles in lieu of
the site occupied by them in Aizawl town. After one month, the State Government
issued order dated 14.6.1985 and imposed restriction on the allotment of land to
private persons along the main National Highway and the road going to old
Zokhawsang Village.
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5. Another notification was issued on 13.8.1987 under Section 4(1) for the
acquisition of area between the site allotted to the Church for locating Theological
College and N.H.-54 Aizawl-Lunglei Road at Lokhawsang for allotting the same to
the Assam Rifles. The declaration issued under Section 6 of the Act was published
in Mizoram Gazette dated 20.11.1987. Land Acquisition Collector, Aizawl passed
an award sometime in July/August 1988 for payment of compensation of
Rs.92,59,156/-.
6. As a sequel to initiation of the acquisition proceedings, the State
Government directed respondent No.2 to cancel the Land Settlement Certificates
issued in favour of the appellants and others on the ground that the same were
issued without the approval and sanction of the competent authority and in
violation of Government Notification No. LRR/B-40/84-85/19 dated 14.5.1985 and
Order No. LRR/B-40/84-85/21 dated 14.6.1985. Thereupon, respondent No.2
passed order dated 8.8.1988 and declared that the Land Settlement Certificates
issued in favour of the appellants were invalid.
7. The appellants challenged the acquisition proceedings in a petition under
Article 226 of the Constitution which was registered as Civil Rule No. 3943 of
1994. They also prayed for quashing of order dated 8.8.1988 issued by respondent
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No.2 and for issue of a mandamus to the respondents to pay full compensation with
interest and solatium in lieu of the acquisition of their land. In the counter
affidavit filed on behalf of the respondents, it was pleaded that order dated
14.6.1985 was issued by the State Government because after publication of
notification dated 14.5.1985, the writ petitioners and other similarly situated
persons had connived with some unscrupulous officers and were trying to convert
their agricultural passes into Land Settlement Certificates or get fresh permanent
settlement so that they could claim compensation. It was further pleaded that
declaration issued under Section 6 of the Act was published in the Mizoram
Gazette dated 1.10.1985 and also in the local newspapers. The cancellation of the
Land Settlement Certificates was justified on the premise that the same were issued
without the sanction of the competent authority and in violation of Government
order dated 14.6.1985.
8. The petition filed by the appellants was transferred to Aizawl Bench of the
High Court and was re-numbered as Writ Petition (C) No.114 of 2000. At the
hearing of the petition, learned counsel for the parties agreed that despite
cancellation of the Land Settlement Certificates, the appellants are entitled to
compensation. The learned Single Judge took cognizance of the statement of the
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learned counsel and passed order dated 7.1.2003, the relevant portion of which is
extracted below:
"..................At the time of argument, counsels appearing for
the parties have agreed that although the House Site Settlement
Certificates was cancelled by the order passed No.8.8.88 the
petitioners shall be entitled to a compensation, whatsoever
payable under the law, for the land falling under the Certificates
No.G.274/88 and G./275/86 which are the Agricultural Land
Settlement Certificates, for the acquisition of the land. The
petitioners certificate of Agricultural Land Settlement
Certificate No.G.274/86 and G.275/86 having not been
cancelled they are entitled for grant of compensation for
acquisition of these lands under the Land Acquisition Act as per
law which according to petitioners is not paid to them. The
Certificates which have been cancelled are only the House Site
Settlement Certificates No.AZ-2278/87 and No.AZ-2279/87.
The petitioners are entitled to compensation for acquisition of
right of the petitioner in the land of which they held under
Agricultural Land Settlement Certificate. The respondents are
directed to assess the compensation in accordance with law and
pay the same to the petitioner's."
9. Although, the aforesaid order was passed with the consent of the learned
counsel appearing on their behalf, the respondents challenged the same in Writ
Appeal No.1 of 2005. The Division Bench of the High Court did take
cognizance of the appellants' plea that the Land Settlement Certificates issued
in their favour could not have been cancelled on the premise that the land had
already been acquired because notification dated 14.5.1985 had not been
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published in the Official Gazette, but negatived the same by making the
following observation:
"It appears from the official gazette that the declaration under
Section 6(1) dated 1/10/85 was published in the official gazette on
4/10/85, which presupposes the publication of the notification
under Section 4(1) of the Act. That apart another notification
dated 14/6/85 was also issued which was published in the official
gazette on the same day restricting/freezing the allotment of land
in question to the private individuals and directing all concerned
not to entertain the applications for such allotment within the area
specified in the said notification, which has not been challenged
in the writ proceeding. Once the land acquisition proceeding has
been initiated and notification dated 14/6/85 is issued prohibiting
allotment of land in question in favour of any person, there cannot
be any conversion of the passes into the land settlement certificate
conferring better right on any person."
10. Shri Shourjiyo Mukherjee, learned counsel for the appellants argued that
the finding recorded by the Division Bench of the High Court on the legality of
the Land Settlement Certificates issued in favour of the appellants is ex facie
erroneous and is liable to be set aside because the same is based on an
unfounded assumption that notification dated 14.5.1985 had been published in
the Official Gazette and the order issued by the State Government prohibiting
allotment of land to the private individuals was applicable to their case.
Learned counsel submitted that the respondents had not produced any evidence
to show that the notification issued under Section 4(1) of the Act had been
published in the Official Gazette and argued that in the absence of such
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publication, the Division Bench of the High Court was not justified in relying
upon the publication of declaration issued under Section 6 in the Official
Gazette for recording a finding that Section 4(1) notification must have been
likewise published in the Official Gazette. Learned counsel emphasised that the
Land Settlement Certificates issued in favour of the appellants could not have
been declared invalid on the ground that the same were not sanctioned by the
competent authority because vide order dated 18.1.1983, respondent No.2 had
authorised the Assistant Settlement Officer-II to decide the applications made
for grant of such certificate and the Settlement Officer who issued certificates in
favour of the appellants was senior to the designated officer. Shri Mukherjee
then argued that the prohibition contained in the Government order dated
14.6.1985 could not have been invoked in the appellants' case because they had
purchased land from a private individual, namely, Dangliana in 1984 and no
allotment had been made in their favour by any public authority.
11. Shri R.F. Nariman, learned Solicitor General fairly stated that the Official
Gazette in which notification dated 14.5.1985 was published has not been
produced either before the High Court or this Court, but argued that the
appellants cannot claim compensation in lieu of the acquisition of land in
question because the purchase made by them was contrary to the statutory rules
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and order dated 14.6.1985. Learned Solicitor General further argued that the
Court may not interfere with the impugned judgment because the appellants had
obtained Land Settlement Certificates by manipulations and the same were
rightly cancelled by the State Government.
12. We have considered the respective submissions/arguments and carefully
scrutinized the record. In our view, the reasons assigned by the Division Bench
of the High Court for setting aside the order of the learned Single Judge are
legally unsustainable. Section 4(1) of the Act, which provides for publication
of preliminary notification, reads as under:
"4. Publication of preliminary notification and powers of
officers thereupon.-(1) Whenever it appears to the appropriate
Government that land in any locality is needed or is likely to be
needed for any public purpose or for a company a notification
to that effect shall be published in the Official Gazette and in
two daily newspapers circulating in that locality of which at
least one shall be in the regional language, and the Collector
shall cause public notice of the substance of such notification to
be given at convenient places in the said locality the last of the
dates of such publication and the giving of such public notice,
being hereinafter referred to as the date of the publication of the
notification."
13. A reading of the above reproduced provision makes it clear that the
notification issued by an appropriate Government proposing the acquisition of
land must be published in the Official Gazette and two daily newspapers having
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wide circulation in the locality of which at least one shall be in the regional
language. Not only this, the Collector is under an obligation to ensure that
public notice of the substance of such notification is given at convenient places
in the locality. This Court has repeatedly held that the requirement of
publication of notification in the Official Gazette and two local newspapers is
mandatory. The Division Bench of the High Court upheld the acquisition of
land by assuming that notification dated 14.5.1985 issued under Section 4(1)
must have been published in the Official Gazette because the declaration issued
under Section 6 was published in the Official Gazette. In our view, this
approach of the High Court was clearly erroneous. The question whether the
notification issued under Section 4(1) was published in the Official Gazette is a
question of fact and such question cannot be decided on assumptions and
conjectures or inferences. Whenever the acquisition of land is challenged on
the ground that the notification has not been published as per the mandate of the
statute, the authority defending the acquisition is under an obligation to produce
evidence in the form of documents to prove that the requirement of publication
has been complied. In the absence of such evidence, the Court cannot decide
challenge to the acquisition proceedings by assuming that the particular
notification had been published as per the requirement of law. In the present
case, no material was produced before the High Court and none has been
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produced before this Court to show that notification dated 14.5.1985 issued
under Section 4(1) of the Act had been published in the Official Gazette.
Therefore, the High Court was not justified in declining relief to the appellants
by assuming that the said notification must have been published in the Official
Gazette because other notifications including the one issued under Section 6
was published in the Official Gazette.
14. We also agree with Shri Mukherjee that the Land Settlement Certificates
issued in favour of the appellants could not have been cancelled on the ground
that the same were issued without the sanction or approval of the competent
authority. The respondents have not controverted the appellants' assertion that
vide order dated 18.1.1983, respondent No.2 had authorised the Assistant
Settlement Officer-II to process and decide the applications for grant of the
Land Settlement Certificates. It is also not in dispute that the appellants had
purchased land in 1984 and the Settlement Officer had issued the Land
Settlement Certificates in 1987 after duly scrutinizing the applications made for
that purpose. This action of the concerned officer was not in violation of order
dated 14.6.1985 vide which allotment of land to private individuals was
restricted/freezed along the main National Highway and the road leading to old
Zokhawsang village which was earmarked for shifting of First Assam Rifles.
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Indeed, it was neither the pleaded case of the respondents before the High Court
nor any evidence was produced to show that the land in question had been
allotted to the appellants by any public authority.
15. In the result, the appeal is allowed, the impugned judgment is set aside
and the order passed by the learned Single Judge is restored. The respondents
are directed to pay the amount of compensation to the appellants in terms of the
order of the learned Single Judge within a period of three months from the date
of receipt/production of copy of this order. The parties are left to bear their
own costs.
.............................J.
(G.S. Singhvi)
....................................J.
(H.L. Dattu)
New Delhi
September 13, 2011.
