Allowed

H. Lalrinzuali and 29 Ors. v. State of Mizoram and 5 Ors.

Gauhati HC12 May 2022WP(C)/47/2022

Case brief

AI extract

What is this about?

The Gauhati High Court held that 15% cess cannot be deducted from compensation awarded for land acquired under the National Highways Act, 1956, as Rule 47(4) applies only to state laws. The court quashed the illegal deduction and directed the State to release the amounts within six months.

What did the court decide?

The State of Mizoram and others were directed to release the deducted 15% cess within six months.

H. Lalrinzuali and 29 Ors. Vs State of Mizoram and 5 Ors. — Land Acquisition | Gauhati HC (2022)

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GAHC030001732022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/47/2022

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H. Lalrinzuali and 29 Ors. Hnahthial, Mizoram

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VERSUS

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State of Mizoram and 5 Ors. Aizawl, Mizoram

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Advocate for the Petitioner : Mr Zoramchhana

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Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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Date : 12-05-2022

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Heard Mr. Zoramchhana, learned counsel for the petitioners. Also heard Mrs. H.

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Lalmalsawmi, learned Government Advocate for respondent Nos. 1, 2 & 3, Ms. Zairemsangpuii, learned CGC for the respondent No. 4 and Mr. Samuel Vanlalhriata Chhangte, learned counsel for the respondent Nos. 5 & 6.

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By filing this writ petition under Article 226 of the Constitution of India, the

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petitioners have sought for a direction to the respondents to return the 15% revenue cess deducted from the total amount of compensation awarded to the petitioners by invoking Rule 47(4) of the Mizoram (Land Revenue) Rules, 2013 due to the petitioners pursuant to the order of acquisition of their lands and assessment made by the Competent Authority, which made an estimate under Section 3G of the National Highways Act, 1956 (‘NH Act’ for short).

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The learned counsel for the petitioners submits that the petitioners’ lands were acquired by the respondent Nos. 4, 5 and 6 for public purpose i.e., for building (widening/two lane with pave shoulder/ four laning etc.), maintenance, management and operation of NH 54 in the stretch of land from KM 166.965 to KM 174.18 (DC Office Lunglei) in the district of Lunglei in the State of Mizoram vide Notification No. S.O 248(E) dated 15/1/2020 under Sub Section (1) of Section 3A of the National Highways Act, 1956. Thereafter, the respondent No. 3 had forwarded the “3G Estimate for acquisition of land with or without structure, falling within NH-54 Aizawl to Tuipang in the stretch of land KM 8 to KM 380 (DC Office Lunglei, Mizoram) in the district of Lunglei in the State of Mizoram” also known as the 3G Estimate/Award in respect of the petitioners’ lands vide letter dated 25.11.2020 to the respondent No. 6. Consequently, the respondents had paid the compensation amount to the petitioners in terms of the 3G Estimate/Award in the month of February, 2021.

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The petitioners’ counsel submits that although the petitioners are legally entitled to receive the entire amount of compensation awarded to them, the

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respondent Nos. 1 to 3 illegally deducted 15% of the petitioners’ compensation

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amount by way of cess, in terms of Rule 47(4) of the Mizoram (Land Revenue) Rules, 2013.

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The petitioners’ counsel also submits that as per Rule 47(4) of the 2013 Rules, 15% cess can be deducted from the compensation amount awarded to a land holder, for acquisition of his land, if the same has been acquired by way of any land acquisition law or Policy of the Government of Mizoram. As the petitioners’ lands have been acquired under the National Highways Act, 1956, the respondents could not have deducted 15% of the compensation amount as cess.

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The learned counsel for the petitioners, therefore, submits that since the present case is covered by this Court’s Order dated 11.11.2021 passed in WP(C) No. 105/2021 and the Order dated 08.09.2021 passed in WP(C) No. 36 of 2021, the present writ petition may also be disposed of in line with the aforesaid writ petitions.

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Mrs. H. Lalmalsawmi, learned Government Advocate appearing for the respondent Nos. 1 to 3 submits that the case of the petitioners is squarely covered by the earlier directions passed by this Court in the said writ petitions as referred to by the learned counsel for the petitioners and as such, the writ petition may be disposed of in the same terms.

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I have considered the above submissions made by the learned counsel of both sides and perused record along with the documents annexed thereto.

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This Court in the Order dated 11.11.2021 passed in WP(C) No. 105 of 2021, at

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paragraph Nos. 8, 9, 10, 11 & 12 has held as follows:

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“8. Rule 47(4) of the 2013 Rules states as follows:-

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‘“47.(4) In case of acquisition of land covered by House Pass or Stall Pass or Shop

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Pass or Periodic Patta or Land Lease under Land Acquisition Act, 1894 as amended from time to time, compensation may be paid as per assessment by the concerned Collector of the District provided that the validity of the tenure of the said land holding has not expired. In addition to crops and building damage compensation, land value may also be assessed and out of the assessed amount, 15 percent of land value shall be remitted to Revenue Department as cess on value of land.”’

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However, Rule 47(4) of the 2013 Rules was amended by way of the Mizoram (Land Revenue)(Amendment) Rules, 2019, hereinafter referred to as the “Amendment Rules, 2019”, wherein the words and figures “Land Acquisition Act, 1894” was substituted by the words “any land acquisition law or policy of the Government of Mizoram for the time being in force”.

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Amendment of Rule 47 by way of the Amendment Rules, 2019 states as follows:- “3. Amendment of Rule 47 : In sub-rule (4) of rule 47 of the Principal Rules, for the words and figures Page 5 of 8 “Land Acquisition Act, 1894”, the words “any land acquisition law or policy of the Government of Mizoram for the time being in force” shall be substituted.”

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A reading of Rule 47(4) of the 2013 Rules and the Amendment Rules, 2019 shows that the provisions of Rule 47(4) would come into play only when land has been acquired under any land acquisition law or policy made by the Government of Mizoram.

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This Court in the Order dated 24.09.2021 passed in WP(C) No. 86/2021, at

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paragraph No. 13, has held as follows:

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““On considering the above issue in WP(C) No. 36/2021, this Court in the Order dated 08.09.2021 passed in WP(C) No. 36/2021, at paragraph No. 14, has held as follows:

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“14. In the present case, the petitioners’ lands have been acquired under the Railways Act, 1989 which has been enacted by the Parliament. Also, the Government of Mizoram, Land Revenue & Settlement Department issued a notification No. K.12011/89/2018- REV dated 14.03.2018, which provides that during the period the Mizoram (Land Acquisition, Rehabilitation & Resettlement) Act, 2016 is sub-judice, lands for the National Highway Page 6 of 8 Projects and Railway Projects in Mizoram shall be acquired under the relevant provisions of the National Highways Act, 1956 and the Railways Act, 1989 respectively. In view of the above, it is clear that as acquisition of the petitioners lands have been made under a Central Act, Rule 47(4) of the 2013 Rules and Amendment Rules, 2019 would not be applicable to the case in hand. Accordingly, the respondent Nos. 1 to 3 could not have invoked the provisions of Rule 47(4) of the 2013 Act for deducting 15% cess from the compensation amount awarded to the petitioners in terms of Award No. 3/2019. Consequently, the deduction of 15% cess by the respondent Nos. 1 to 3 is illegal and not sustainable in law.””

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A perusal of Rule 47(4) of the 2013 Rules and the Amendment Rules, 2019 clearly shows that cess cannot be deducted from the compensation amount awarded for acquisition of lands made under the National Highways Act, 1956. However, it is surprising to note that

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the State Government has thrown caution to the wind and have deducted 15% of the compensation amount awarded to the petitioners, despite knowing that their actions are not sanctioned by law. The action of the State is illegal and arbitrary. Further, in the case of Union of India Vs. Tulsiram Patel, reported in (1985) 3 SCC 398 , the Apex Court has held that the source of power must exist for its exercise. However, the State respondents have not been able to show this Court the source of power to deduct 15% of the compensation amount as cess, in respect of lands acquired under a Central law.

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In view of the above, the invocation of Rule 47 (4) of the “2013 Rules” and the Amendment Rules, 2019, for deducting 15% cess from the compensation amount awarded to the petitioners in terms of Award/Order dt. 10.08.2021 is arbitrary and is accordingly set aside.

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The respondent Nos. 1 to 3 are accordingly directed to immediately release the deducted 15% cess to the petitioners within a period of 1 (one) month from the date of receipt of a copy of this order, by depositing the said amount in the office of the concerned Deputy Commissioner/District Collector, who shall thereafter disburse the amount to the petitioners.”

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In view of the above submissions and observations, the respondent Nos. 1 to 3 are accordingly directed to release the deducted 15% cess of the compensation amount awarded to the petitioners reflected in Column 16 of the said 3G Estimate/Award to the petitioners. The same should be done within a period of 6 months from the date of receipt of a copy of this order by depositing the said amount in the Office of the concerned Deputy Commissioner/ the Competent Authority for Land Acquisition (CALA), who shall thereafter disburse the amount to the petitioners.

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11. The writ petition is accordingly disposed of.

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JUDGE

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Comparing Assistant

H. Lalrinzuali and 29 Ors. v. State of Mizoram and 5 Ors.

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H. Lalrinzuali and 29 Ors. v. State of Mizoram and 5 Ors.

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