C.Lalremtluanga and 103 Ors v. The State of Mizoram and 5 Ors

ORDER

16.11.2023 (Nelson Sailo, J)

Heard Mr. Lalsawirema, learned counsel for the appellants, Mr. C. Zoramchhana, learned Addl. Advocate General for the State respondents and Ms. Zairemsangpui, learned CGC for the respondent Union of India. [2.] By filing this writ appeal, the appellants have challenged the Order dated

08.08.2023 passed by the learned Single Judge in WP(C) No. 98/2023 whereby, the claim of the petitioners for payment of interest under Section 28 of the Land Acquisition Act, 1894 (L.A Act) was rejected. The claim of the petitioners in the writ petition are for payment of interest under Section 28 of the LA Act as well as under Section 34 of the LA Act. Mr. Lalsawirema, learned counsel for the appellants submits that the claim for payment of interest under Section 28 of the L.A Act could not have been rejected by the learned Single Judge in view of the fact that it is the statutory Page No.# 9/16 right of the appellants as land owners to get appropriate compensation in terms of the LA Act which includes not only the land value, compensation towards crops etc., but also all the interests payable as provided under the said Act. The learned counsel submits that no doubt the appellants did not make a specific prayer or claim for payment of interest under Section 28 in the earlier two proceedings filed by them which, in fact, was due to non consideration of their representation filed before the District Collector concerned claiming the benefit as entitled to them under Section 28A and Section 34 of the LA Act. The same, however, cannot be a bar for them to claim interest under Section 28 of the L.A Act. The learned counsel submits that the case of the appellants is squarely covered by a Judgment & Order of this Court rendered in Writ Appeal No. 2/2018 wherein, the Appellate Court upon relying the decisions of the Apex Court in Sundar vs. Union of India, (2001) 7 SCC 211 and Union of India & Anr. vs. Pushpavathi & Ors., (2018) 3 SCC 28 besides others had held that the appellants therein were entitled to get payment of interest under Section 28 of the L.A Act. He submits that the appellants in that case were also covered under Award No. 1/2012 (Kawnpui Part 'B') which is similar to the present case. As such, the appellants cannot be deprived of similar benefit of being paid interest under Section 28 of the L.A Act. The learned counsel submits that IF such relief is granted to the appellants, no third party rights are affected, and therefore, a technical approach that the claim is belated or the appellants have waived their rights cannot be grounds for rejecting their claim. He, therefore, submits that the impugned Order dated 08.08.2023, insofar as the Page No.# 10/16 rejection of the claim of the appellants under Section 28 of the L.A Act is concerned may be interfered with. [3.] Mr. C Zoramchhana, learned Addl. Advocate General appearing for the State respondents submits that the learned Single Judge had rightly passed the Order dated 08.08.2023 by observing that the appellants as writ petitioners have waived their right to claim interest under Section 28 of the LA Act. He submits that the learned Single Judge was also correct in observing that there was much delay in making such a claim apart from the application of the principles of waiver. The learned counsel submits that the appellants had approached this Court on two earlier occasions by filing WP(C) No. 80/2015 and WP(C) No. 115/2018. In filing those two writ petitions, the appellants had never raised any claim for payment of interest under Section 28 of the LA Act and therefore, the claim made belatedly has been rightly rejected by the learned Single Judge by observing that there has to be an end to the claim made by the petitioners. The learned Addl. Advocate General, therefore, submits that the writ appeal has no merit and the same should be dismissed. In support of his submission, the learned Addl. Advocate General has relied upon the case of Chairman/Managing Director, Uttar Pradesh Power Corporation Limited & Ors., reported in (2021) 13 SCC 225 (para 11) and Dr. Akshya Bisoi & Anr. vs. All India Institute of Medical Sciences & Ors., reported in (2018) 3 SCC 391 (para 19). [4.] Ms. Zairemsangpui, learned CGC appearing for the respondent Union of Page No.# 11/16 India adopts the argument made by the learned Addl. Advocate General and submits that the claim made by the appellants in the writ petition is only an afterthought in view of the fact that they had adequate opportunities to raise their claim for payment of interest under Section 28 of the L.A Act in the earlier two writ proceedings. Having failed to do so, the learned Single Judge rightly rejected their claim as belated and a claim having suffered from delay and laches. [5.] We have heard the submissions made by the learned counsel for the rival parties and perused the materials available on records. [6.] As may be noticed, grievances projected by the appellants is with regard to the rejection of the claim made by the appellants as writ petitioners for payment of interest under Section 28 of the L.A Act in their writ petition i.e., WP(C) No. 98/2023 while the claim for payment of interest under Section 34 of the same Act has been kept alive. The grounds for rejecting the claim of the appellants for payment of interest under Section 28 of the L.A Act are two folds. Firstly, the learned Single Judge observed that the petitioners have waived their right to make such a claim in view of the fact that no such claim was made in the earlier two rounds of litigation i.e., W(C) No. 80/2015 and WP(C) No. 115/2018. Therefore, according to the learned Single Judge, there has to be an end on the claim made by the petitioners and hence, declined to entertain prayer in this regard. The second ground of rejection is that the award itself having been paid in the year 2017, the claim now made in 2023 for Page No.# 12/16 payment of interest under Section 28 of the L.A Act being belated, the claim cannot be maintained. [7.] We have perused the Judgment & Order dated 06.09.2022 passed by this Court in the Writ Appeal No. 2/2018 wherein, a similar question arose on the entitlement of interest under Section 28 of the L.A Act. This Court in allowing the said writ appeal had relied upon the decision of the Apex Court in Sundar vs. Union of India (supra) and also in Union of India & Anr. vs. Pushpavathi & Ors.(supra). Paragraph Nos. 10, 11 &12 of the Judgment & Order dated 06.09.2022 may be abstracted hereunder: "...[10.] In Sunder (supra), the question referred to the Constitution Bench o f the Apex Court was as to whether the State is liable to pay interest on the amount envisaged under Section 23

(2) of the LA Act and further, in calculating the interest as mentioned in Section 28 of the LA Act, the amount of solatium envisage in Section 23 (2) of the Act should be included in or excluded from the sum on which the interest is liable to be paid. Affirming the question in favor o f the land owner and against the State, the Apex Court by quoting the reasoning given by the Division Bench of Punjab & Haryana High Court in State of Haryana -Vs-Kailashwati AIR 1980 P&H 117 held that person entitled to the compensation awarded is entitled to get interest on the aggregate amount including solatium. Paragraph 10 of the judgment rendered by the Punjab & Haryana High Court in the above referred case is abstracted below for ready perusal:- Page No.# 13/16 "Once it is held as it inevitably must be that the solatium provided for under Section 23(2) of the Act forms an integral and statutory part of the compensation awarded to a landowner, then from the plain terms of section 28 of the act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. Indeed the language of Section 28 does not even remotely refer to market value alone and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 2 8 therefore would include within its ambit both the market value and the statutory solatium. I t would be thus evident that the provisions of Section 28 in terms warrant and authorise the grant of interest on solatium as well." [11.] The Apex Court also relied upon the decision rendered in Sunder (supra) in a subsequent case i.e., Bhanushankar Oghadbhai Mehta (DEAD) By Legal Representatives (supra) by holding that in view of the Constitution Bench judgment in Sunder (supra), the entitlement of land owners to interest and solatium is automatic. The Apex Court in Union of India & Anr. -Vs-Pushpavathi & Ors. (supra) held that the dispute in relation of non award of interest can be raised by an aggrieved person only by taking recourse to Article 226 of the Constitution in a writ petition and that reference under Section 18 or Section 28 A(3) cannot be considered to be an alternative statutory remedy available to the landowner for getting the question of non-award of interest payable under Sections 28 or/and 34 of the Act decided by the Civil Court. Page No.# 14/16 [12.] Applying the above ratio to the instant case, it may be seen that although the appellants may have not raised their specific grievance immediately after the Award was passed but the fact remains that they have claimed for payment of interest under Section 28 of the LA Act by filing a writ petition. As such, the appellants cannot be deprived of the benefits of getting interest under Section 28 of the L.A Act." [8.] As may be noticed, the Apex Court in Sundar vs. Union of India (supra) had also taken into account a reasoning given by the Division Bench of Puniab & Haryana High Court in State of Haryana vs. Smt. Kailashwati & Ors. wherein, it was held that solatium provided under Section 23(2) of the L.A Act forms as an integral and statutory part of the compensation awarded to the land owner. That from the plain reading of Section 28 of the LA. Act, it is evident that the interest payable on the compensation awarded is not only on the market value but also on the statutory solatium. The Apex Court as may be noted in Pushpavathi &Ors., are also held that non award of interest under Section 28 of the L.A Act can be raised by the person aggrieved under Article 26 of the Constitution of India. Therefore, the question is as to whether the statutory rights available to the appellants as land owners for payment of all the interest entitled to them under the LA Act can be curtailed on technical grounds i.e., delay and on the principles of waiver. In order to see whether such a technical view can be adopted, we have perused the claim of the appellants in WP(C) No. 80/2015 which was for a direction to the District Collector to consider their application Page No.# 15/16 filed under Article 28A of the L.A Act. In WP(C) No. 115/2018, the appellants as writ petitioners had approached this Court with the grievance that their application under Section 34 of the L.A Act filed before the District Collector concerned was not considered and disposed. Both the writ petitions were disposed of with a direction to the District Collector concerned to consider the applications/representations submitted by the writ petitioners as per law within a time frame. The appellants may have not made their claim at the relevant point of time but in our considered view that by itself cannot be a ground to debar them from making such a claim at a subsequent stage. In raising such a claim, the question of there being a clash with the rights of a third party is also not to be seen. It may further be noticed that the award itself was made in the year 2012 i.e., Award No. 1/2012 (Kawnpui Part 'B'). Despite the award being made in 2012 the issue regarding payment of compensation was not finally settled in view of the pending applications under Section 28A and under Section 34 filed by various land owners. We have also perused the grounds taken by the appellants in this appeal wherein, due to the medical condition of the counsel for the appellants, timely action could not be taken for seeking appropriate remedy. Such ground in our considered view needs to be also considered particularly, when the claim is made for what is due to the appellants as per the statutory provisions under the LA Act. Therefore, upon due consideration, we are of the considered view that the Order dated 08.08.2023, insofar as depriving the appellants of their right to claim payment of interest under Section 28 of the L.A Act is concerned requires interference. Page No.# 16/16 Accordingly, the impugned Order dated 08.08.2023 insofar as rejecting the claim of the appellants for payment of interest under Section 28 of the LA Act is concerned is hereby set aside The writ petition shall now be considered and decided in respect of all the claims made by the writ petitioners on its own merit. [9.] With the above observation and direction, Appeal stands disposed of as allowed.

JUDGE JUDGE Comparing Assistant

Page No.# 1/16 GAHC030004722023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/7/2023 C.Lalremtluanga and 103 Ors S/o Rallianzuala R/o Kawnpui, Mizoram 2: Chhuanawmi 3: L.H. Hauthuama 4: Lalthakima 5: Vanlalruati 6: R.Lalhmangaihi 7: Lalrohlua 8: Vanlaldiki 9: Lalramchuani 10: Ellen Diki 11: Ellen Diki 12: P.C. Thanliana Page No.# 2/16 13: Vanlaldika 14: P.C. Thanliana 15: F.Laldinpuii 16: M.Zohmingthangi 17: Vanlaldika 18: Lalrinchhani 19: Lalrinawma 20: Vanlalchhuanga 21: Vanlalchhuanga 22: Lalrinawma 23: Lalmalsawmi 24: Lalthansanga 25: Lalmalsawmi 26: Lalengzama 27: Lalchungnunga 28: Lalhmingliana Page No.# 3/16 29: S.K.Sanga 30: Lalduhveli 31: Thanhliri 32: Vanengmawii 33: Lalthansanga 34: Lalmalsawmi 35: Zothanpari 36: P.C.Thanliana 37: Sairengpuii 38: Lalrinawma 39: Mankungi 40: Varziki 41: Zothanpari 42: Varziki 43: F.Vanlalvena 44: Vanlalhriata Page No.# 4/16 45: F.Laldinpuii 46: Lalramchuani 47: Lalthansanga 48: R.Lalruatmawia 49: Vanlalhriata 50: Dobola 51: Malsawmsangi 52: Lalchungnunga 53: T.Remsangpuii 54: J.C.Lalrinmawia 55: Ramdinzaua 56: Lalduhawma 57: Lalenga 58: Lalthanga 59: Lalngaihawmi 60: Lalrinchhana Page No.# 5/16 61: VL Nghaki 62: Lalthazuala 63: Zonunsangi 64: Vincent Zothankima 65: Lalnunmawia 66: Lalringzuali 67: Ramliana 68: Darthanmawii 69: Lalramnghaki 70: Malsawmsangi 71: Malsawmsangi 72: Vanlalthanga 73: Lalthangmawia 74: RK Vanlalliana 75: Rothangliani 76: Lalhmingsanga Page No.# 6/16 77: T.Rohnuna 78: Zohmingsangi 79: H.Lalnghakliana 80: C Lalsangluaia 81: Zonunsanga 82: Joan Lalramngaihsangi 83: Lalrokhumi 84: Samuel Zothantluanga 85: Zosangliana 86: Biaktluangi 87: Laltanpuii 88: Lalngilneii 89: Malsawmi 90: H Laltanpuia 91: Nu-I 92: C. Ramthara Page No.# 7/16 93: Bobby Lalrokima 94: M Darthangpuii 95: Zathangpuia 96: C Lalbiakenga 97: H Lalzawmliana 98: Ralliantawni 99: Lalramdinthara 100: Lalrinawma 101: A Chhuanvawra 102: B Vanlalsiama 103: R Lalthanpari 104: Malsawmsang VERSUS The State of Mizoram and 5 Ors Aizawl2:District Collector/Deputy Commissioner 3:The Union of India R/b The Secretary Railway Board 4:General Manager (Con) Page No.# 8/16 5:Dy. CE Construction 6:The Chief Administrative Officer (Construction-I Advocate for the Petitioner : Mr. Lalsawirema Advocate for the Respondent : Mrs. Linda L Fambawl, G.A., Mizoram for R1 & R2 BEFORE HONOURABLE MR. JUSTICE NELSON SAILO HONOURABLE MR. JUSTICE AJIT BORTHAKUR