WEKUPE LOMI AND ANR v. THE STATE OF NAGALAND AND 2 ORS

stated by the learned counsel for the petitioners.

This writ petition has been filed under Article 226 of the Constitution of India by the two writ petitioners who claim that they have not been compensated at all for the land that was acquired by the State respondents in the year 1977 for establishing the Sub- station, permanent building, staff quarters, garage and parking etc. by the Nagaland State Transport Department at Pfutsero Town in the district of Phek, Nagaland.

The undisputed facts of the case is that in 1977 the father of the two petitioners namely, late Mikha Lomi and another person namely Neipelo Kapfo were approached for land measuring 132x82 sq. ft. by the Nagaland State Transport Office for construction of office staff quarter, garage and parking area by the department. Accordingly, the father of the petitioner (since deceased) along with the other land owner had parted with the land measuring an area of 132x82 sq. ft. situated at Ketoupa Colony, Pfutsero town, Phek Page No.# 3/15 district out of the total land measuring 232x149 sq. ft. It is not disputed by the respondents that the office of the Nagaland State Transport Department were thereafter constructed on the said land and it is still exists and are being put to use by the State respondents.

The petitioners contended that the said land was self acquired property of late father of the petitioners and they have inherited right being the sons of late Mikha Lomi as per the Chakeshang Customs and practices. The petitioners contended that there was an oral agreement between the Transport department and the late father of the petitioners that an appointment to Grade-IV post/land compensation or any contract work would be made available for such acquisition of land

The petitioners had issued a notice to the respondent No.2 namely, the General Manager, Nagaland State Transport, informing him that neither the petitioners nor their father as land owner were compensated in any manner for the land which was acquired and the department was in illegal possession of the said land. A request was therefore made that since for almost 30 years, the department had failed to compensate the petitioners or their deceased father in any manner, the department should vacate the said land which was acquired. The petitioners further contended that the department had replied to the said notice by stating that the department had entered into an agreement with Mr. Mikha Lomi and Neipelo Kapfo on 05/03/1992 and therefore, no further action was required to be taken with regard to the said plot of land. On receipt of such reply Page No.# 4/15 from the department, the petitioners sent another notice dated 29/03/2016 contending that no such agreement could have been entered into by the aforesaid persons regarding the self acquired property of the father of the petitioners. The petitioner also pointed out that though the department claimed that the total compensation has been disbursed to the land owner through the Additional Deputy Commissioner, Pfutsero on 30/04/1991, record reveals that the money was actually utilized by the Additional Deputy Commissioner, Pfutsero in the year 1992 for a “VIP visit”. By representation dated 23/11/2016, the petitioners reiterated their claim that they should be adequately compensated for acquisition of land measuring 132x82 sq. ft. and in case, the department failed to give adequate compensation, the department should vacate that portion of land as mentioned above.

When the matters stood thus, it came to the knowledge of the petitioners that one Shri. John Kapfo son of Neipelo Kapfo of Pfutseromi Village was appointed as a Mechanic Helper by an order bearing No. NST/ESTT/P-B/4/10-11, dated 10/03/2011.

The petitioners thereafter served a notice dated 07/06/2017 to the respondent authorities under section 80 of the Civil Procedure Code, 1908 to vacate the petitioner’s land within a period of 2(two) months since no compensation has been paid till date.

Since no reply to the aforesaid notice has been received by the petitioners and the petitioner’s claim that they have not been compensated in any manner, the present writ petition has been initiated. Page No.# 5/15

I have heard the learned counsel for the parties.

Mr. A. Zho, learned counsel for the petitioners has referred to the different annexures annexed to the writ petition to impress that the father of the petitioners, who was the land owner of the portion of land in question, had parted with the plot of land measuring 132x82 sq. ft. to the Nagaland State Transport department to build its office, staff quarter at Ketoupa colony in Pfutsero town. He has referred to the certificate issued by the authorities to assert that there can be no dispute regarding the acquisition of land by the Nagaland State Transport department for setting up the said office and other structures. He has thereafter referred to different annexures from where he asserted, it is clear that the department although has taken steps for grant of compensation in monetary terms, the said compensation did not reach either the deceased father of the petitioners during his life time or to the petitioners till date. He argued that it would be apparent that in fact, the money was used for the purpose for which it was not meant and it was used during a VIP visit. The learned counsel for the petitioners further argued that it is settled position in law that the land cannot be acquired by the State without providing adequate and full compensation as required in law and in such view of the matter, since the land had been acquired by the Government way back in the year 1977 and the original land owner i.e. the father of the petitioners and after him the petitioners have been deprived of legal rights and peaceful possession of land, adequate directions are required to be passed upon the respondent Page No.# 6/15 authorities to adequately compensate/pay the petitioners for the land in accordance with law.

The learned counsel for the petitioners has drawn our attention to the notification dated 05/03/2018, issued by the Land Revenue Department, Government of Nagaland, where it has been laid down that no land can be acquired free of cost and all land shall be acquired on payment of full compensation as determined by law.

The learned counsel for the petitioners has also referred to the judgment & order dated 13/10/2014 passed in W.P(C) No. 115(K)/2012 to emphasize that an appropriate re-course would be to issue a direction to the Government to cause an enquiry regarding the original landownership of land and to ascertain as to whether petitioner deserve to be adequately compensated for the land acquired since it is already admitted fact that the land in question belong to their father and no compensation has been paid for the said land till date. The learned counsel for the petitioners has relied upon the following case law to buttress his argument; i) Vidya Devi -versus- State of Himachal Pradesh & Others, reported in (2020) 2 SCC 569. ii) D.B Basnett-versus- Collector, East District, Gangtok, Sikkim & Another, reported in (2020) 4 SCC 572. iii) Coal India Ltd. & Others-versus- Saroj Kumar Mishra, reported in AIR 2007 SC 1706.

Mr. Moa Imchen, learned Sr. Government Advocate has sought to resist the claim of the petitioners by referring to the affidavit-in- Page No.# 7/15 opposition filed by the Deputy Commissioner, Phek district. The learned Sr. Government Advocate has stated that it was an admitted fact that a total area of 26,136 sq. ft. has been collectively acquired from Shri. Neipelo Kapfo and late Mikha Lomi, payment of Rs. 13,900/- has already been made as compensation for an area of 13,900 sq. ft. He has further stated that a contract work was awarded to the first petitioner herein vide Work order No. NST/B(Pt- II)90-91, dated 21/03/1991 and Shri. NeipeloKapfo was appointed as Mechanic Helper by the office order No. NST/ESTT/P-B/4/10- 11/464, dated 10/03/2011. He further draw the attention of this Court to the Notification dated 05/03/2018, which provided that old cases where Administrative headquarters and Block Headquarters were set up in various part of the State on lands donated freely by individuals, villages or people of that area should not be reopened for compensation or for employment in consonance with the policy brought out O.M No. LR/2-135/76 dated 20/06/1977. He referred to Annexure-3 of the affidavit filed on 25/03/2021 to emphasize that the contract work awarded to Shri. Wekupe Lomi was as per the Government record.

At this juncture, the learned counsel for the petitioners has drawn our attention to the affidavit-in-reply as well as the annexures of the writ petition to assert that compensation of Rs. 13,900/- has not been paid for the area of land measuring 13,900 sq. ft. The learned counsel pointed out that the said amount has been used for a VIP visit in the year 1992 and therefore, no compensation at all has been paid to the petitioners or their predecessor. The learned Page No.# 8/15 counsel has further referred to the additional affidavit to show that the first petitioner was born on 25/05/1975 therefore, on 21/03/1991 he would be aged about 15 years old, a minor, and therefore, he could not have been awarded any Government employment or contract work by executing an agreement as alleged by the respondents.

The learned Sr. Government Advocate has then drawn our attention to the Annexure-A of the additional affidavit filed on 09/08/2024 which according to the respondents is the work order issued to the petitioner No.1 on 21/03/1991 and then to Annexure- B, which allegedly was a request by the petitioner No. 1 for released of T.C deduction from 1st and 2nd running bill for the construction of maintenance shade at Pfutsero.

The learned Sr. Government Advocate has however stated that it is an admitted fact reflected in the affidavit filed by the Deputy Commissioner district of Phek on 07/04/2025 that Shri. John Kapfo, son of Neipelo Kapfo was appointed as Mechanic Helper by the order dated 10/03/2011. The son of Neipelo Kapfo was appointed by the said order and the statement in the affidavit dated 25/03/2021 regarding appointment of Mr. Neipelo Kapfo was a typographical error.

I have considered the submissions on behalf of the learned counsel for the petitioners, Mr. A. Zho and the learned Sr,. Government Advocate, Mr. Moa Imchen.

It is an admitted fact that the father of the petitioners namely, late Mikha Lomi, in the year 1977 had parted with a land measuring Page No.# 9/15 an area of 132x82 sq. ft situated at Ketoupa colony, Pfutsero town, Phek district and it is also not disputed that the Nagaland State Transport department has utilized the said portion of land for the last 48 years. The respondent authorities have not been able to establish that any amount of compensation has been paid to the father of the petitioners or to the petitioners, who claim to be his heirs, and in fact, record primarily show that the amount of Rs. 13,900/- allegedly send for payment of compensation for the land of an area of 13,900 sq. ft never saw proper utilization but was utilized by then Additional Deputy Commissioner, Pfutsero for a VIP visit to the district. It is also not disputed by either of the parties that the son of Mr. Neipelo Kapfo has been accommodated in the Government service in the year 2011.

What now remains to be decided is, as to whether at any point of time, the petitioners or their predecessor was compensated by means of actual value of the land or grant of contract work or offer of appointment to Grade-IV post for the land that was acquired from their predecessor. It is also necessary to decide whether the petitioners, after 48 years of the admitted acquisition of land, would be still entitled to grant of relief from this Court.

In this regard, I find that the judgment of the Apex Court in the case of D.B. Basneet (Dead), through legal representatives-versus- Collector, East District, Gangtok, Sikkim & Another, reported in (2020) 4 SCC 572 squarely covers the case of the petitioners. This judgment in paragraph-17 discussed the aspect of delay and laches which was also the subject Page No.# 10/15 of Vidya Devi (supra). The relevant paragraph is quoted below; “17. There is also a discussion in the judgment on the aspect of delay and laches, which is as under: (vidya Devi case6 ,SCC pp. 574-75, para 12) "12.12. The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case.

16. We find a detailed discussion about the law as it evolved and the rationale for the said purpose in Vidya Devi4 of which the relevant paragraphs read as under: “12.1. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution. Article 31 guaranteed the right to private property (The State of West Bengal v. Subodh Gopal Bose and Ors. AIR 1954 SC 92), which could not be deprived without due process of law and upon just and fair compensation.

12.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right (Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353) in a welfare State, and a Constitutional right under Article 300-A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300A, can be inferred in that Article (K T Plantation Pvt. Ltd. v. State of Karnataka (2011) 9 SCC 1).

12.3. To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300-A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai (2005) 7 SCC 627,wherein this Court held that: (SCC p.6324, para 6)

6. … Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefore must be paid.

12.4. In N. Padmamma v. S. Ramakrishna Reddy3, this Court held that: (SCC p.526, para 21) “21. If the right of property is a human right as also a Page No.# 12/15 constitutional right, the same cannot be taken away except in accordance with law. d the right to property as a basic human right in the following words: Article 300-A of the Constitution protects such right.

The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300-A of the Constitution of India, must be strictly construed.” 12.5. In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P11, this Court recognize the right to property as a basic right in the following words: (SC p. 379, para 30)

30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property. " Property must be secured, else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists.

. 12.6.

In Jilubhai Nanbhai Khachar v. State of Gujarat12, this Court held as follows: (SCC p. 627, para 48)

48. …In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation.

12.7. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.

12.8. The contention of the State that the Appellant or her predecessors had “orally” consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State.

12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi &Ors. v. M.I.D.C. &Ors. (2013) 1 SCC 353 wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. Page No.# 13/15

12.10. This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension.” (emphasis in original)

In the present case, it is noticed that the respondent authorities have constructed permanent structures on the land belonging to the father of the petitioners. Although it was asserted that a part of payment of Rs. 13,900/- has been made, the respondent authorities have not been able to refute the assertion of the petitioners, as also reflected from records, that the said compensation was never paid to the petitioners or their predecessors and in fact had been utilized by the then Additional Deputy Commissioner for a VIP visit. We also notice that although the respondent authorities have asserted that certain contractual work has been issued in the name of the first petitioner, who has expired during the pendency of this case, the respondent authorities have not been able to show that the contract work was indeed offered to the first petitioner who was a minor at that relevant point of time and any actual payment was made to him on completion of the alleged contract work awarded. A similar situation had been considered by the Apex Court in the case of D.B. Basneet (supra), where the Apex Court held that the burden is on the State to prove that the process as envisaged under the relevant Act was followed and that compensation was paid. As in that case, in the present case also no evidence has been laid in respect of any these aspects namely either payment of compensation in terms of money or in Page No.# 14/15 terms of jobs or contract work being awarded to the petitioners.

The respondents have utterly failed to establish that they acquired the land in accordance with law and had paid due compensation in whatever form agreed upon, this Court holds that the petitioners, through their predecessor would be entitled to the compensation for the land that was acquired from their predecessor and had been used by the State respondents for the last more than 48 years.

In the peculiar facts and circumstances of the case, this Court feels that since the land has been occupied by the Government in the year 1977, there would be no point in issuing a direction for reversion of the land to the legal heirs of the original owner, although, as an alternative prayers such reversion have been prayed for by the writ petitioners in the petition. This Court, therefore, directs that respondents to hold an enquiry as to whether the predecessor of the petitioners i.e. late Mikha Lomi or the petitioners namely Shri. Wekupe Lomi (since deceased) or Shri. Medongulo Lomi were compensated at any point of time for the land which was acquired. This enquiry shall be done by the giving adequate opportunity, including opportunity of hearing to the surviving writ petitioner and any surviving heirs of the writ petitioner No.1. On enquiry, if it is found that the predecessor of the petitioners or the petitioner were not compensated in any manner, the State respondents shall take necessary steps for issuing proper notification to acquire land by taking proper recourse in law. The entire exercise shall be completed within a period of 3(three) months from the date Page No.# 15/15 of receipt of a certified copy of this order. The petitioners shall be at liberty to file appropriate claim before jurisdictional Collector along with a certified copy the order of this Court in this regard. However, it is made clear that in case the State decides to surrender the possession of land, it would be open for the owner of the land to claim payment for use and occupation of the land for the last 48 years by approaching appropriate forum.

Writ petition stands disposed. No order as to cost. Comparing Assistant JUDGE