The High Court
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(cid:1) (cid:1)(cid:1) THE HIGH COURT OF MEGHALAYA AT SHILLONG. W.P. (C) NO.23/2011 :::: Petitioner Shri. Matap Marak, Nokma of Jamge Akhing, Songsak, East Garo Hills, Meghalaya. -Vs- 1. The State of Meghalaya, represented by the Chief Secretary to the Govt. of Meghalaya, Shillong. 2. The Under Secretary to the Government of Meghalaya, Fisheries Department, Shillong. 3. The Director of Fisheries, Meghalaya, Shillong. 4. The Deputy Commissioner, East Garo Hills, Williamnagar. 5. Secretary, Department of Fisheries, Govt. of Meghalaya, Shillong. :::: Respondents. BEFORE HON’BLE THE CHIEF JUSTICE MR P.C. PANT THE HON’BLE MR. JUSTICE T. NANDAKUMAR SINGH For the Petitioner For the Respondents Date of hearing Date of Judgment & Order : : : : Mr. H.R. Nath, Adv Mr. H. Kharmih, GA 13.11.2013 15.11.2013 (cid:1) (cid:2)(cid:1) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:9)(cid:9)(cid:9)(cid:9) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12) (Justice T. Nandakumar Singh) By this writ petition, the petitioner is praying for a writ of mandamus directing the respondents to pay compensation for the land measuring about 59 bighas purported to have been taken over by the Fisheries Department, Govt. of Meghalaya, Shillong more than 20 years ago by drawing up land acquisition proceeding. There is a considerable delay of
Decision
more than one decade in approaching the court by the writ petitioner for the relief sought for in the present writ petition. 2. Heard Mr. HR Nath, learned counsel for the petitioner and Mr. H Kharmih, learned GA appearing for the State respondents. 3. The succinct fact sufficient for deciding the matter in issue in the present writ petition is recapitulated that the petitioner is the recognized Akhing Nokma of Jamge Akhing and as an Akhing Nokma, he is the owner and manager of the Akhing land including the land in question said to have been taken over by the Govt. of Meghalaya, Fisheries Department. The pleaded case of the petitioner in para 3 of the writ petition is that the respondents had taken possession of 104 bighas of land in Jamge Akhing in the year 1989. Out of the said 104 bighas, 45.12 bighas were acquired with due process under the Land Acquisition Act, 1894. Save and except the said pleadings in the writ petition, there is no material pleadings supported by the documents that in the year 1989 the Akhing land measuring about 104 bighas had been taken over by the Govt. for the Fisheries Department. It is (cid:1) (cid:3)(cid:1) the further case of the petitioner that the Deputy Commissioner handed over the land measuring 45 bighas 12 lessa to the Fishery Department on 19.05.1989 and certificate for taking over of the said land by the Department was also issued i.e. certificate No.EGH/REV 132/83/75 dated Williamnagar 19.05.1989 (Annexure-I to the writ petition). The respondents along with the said 45 bighas 12 lessa of land had possessed the remaining area measuring about 59 bighas i.e. whole 104 bighas without following the due acquisition process and also the respondents did not pay the compensation or rent to the petitioner for the said 59 bighas since they had taken the possession of the whole 104 bighas of land. 4. The petitioner further states that the Deputy Commissioner, East Garo Hills, Meghalaya (respondent No.4) on 08.10.2007 wrote a letter to the Director of Fisheries, Meghalaya, Shillong (respondent No.3) mentioning that after careful examination of the map and original sketch map, the excess land claimed by the petitioner comes to 59 bighas and requested the respondent No.3 to sanction a total amount of Rs.59,35,164.00/- and to pay it to the petitioner. For claiming that after acquiring 45 bighas and 12 lessa out of 104 bighas, the Fisheries Department had possessed the remaining 59 bighas without paying any compensation, the petitioner placed heavy reliance on the said letter of the Deputy Commissioner dated 08.10.2007. Since the petitioner had placed heavy reliance on the said letter of the Deputy Commissioner dated 08.10.2007 for the relief sought for in the present writ petition, it would be more profitable and convenience to reproduce the letter hereunder:- (cid:1) (cid:4)(cid:1) “GOVERNMENT OF MEGHALAYA OFFICE OF THE DEPUTY COMMISSIONER, EAST GARO HILLS DISTRICT ::: WILLIAMNAGAR. No.EGH/REV.132/83/145,dated Williamnagar, the 8th October, 2007. From: To, The Deputy Commissioner, East Garo Hills, Williamnagar. The Director of Fisheries, Meghalaya, Shillong. Sub: Acquisition of land by Fishery Department Govt. of Meghalaya at Songsak (Jamge). Ref: Letter No.MEG/PISC/3102/86-87/98 dt.2.8.2007. Madam, of In this continuation No.EHG/REV.132/83/142 dtd.5.9.2007, joint verification of the acquired area of land could not be conducted on 18.9.2007. As the G.D.C. representative did not turn up without any information to the undersigned. the honour to state I have office letter that the However, basing on the area of map traced out by the G.D.C. itself (copy enclosed) following probable facts are being intimated herewith for your information and necessary action. 1. That as per availability of office records, it is a fact that the physical possession of land of 45.12 bighas only has been done on 19.5.1989 vide letter No.EGH/REV.132/83/75, dtd.19.5.1989 (copy enclosed). Accordingly, the payment of land compensation amounting to Rs.2,82,576/- as sanctioned vide Fishery Department letter No.MEG/PISC/3419/88-89/18 dtd.25.4.1989 has also been made for 45.12 bighas. 2. That on careful examination of above mentioned map and the original sketch map, it can be found that the excess quantum of land as lciamed by the Nokma comes to 59 bighas (i.e.104-45.12-59). Both copy of sketch map enclosed for your ready reference. 3. Based on the above clarifications, the balance amount of land compensation for the excess quantum of land i.e. for 59 bighas come to Rs.59,35,164/- as per latest enhanced rate notified vide G.D.C’s Letter No.GDC- REV/1107/06/2448-60, dtd.26.5.2006. The calculation of the (cid:1) (cid:5)(cid:1) above estimated amount has included all the mandatory provisions under L.A. Act as below:- (a) Cost of land (b) 30% Solatium (c) 12% Interest for three years (d) 10% Contingency & Establishment Charge - - - - 35,40,000.00 10,62,000.00 12,74,400.00 58,764.00 Total - Rs.59,35,164.00 In view of this, I would therefore, request you to kindly examine the matter and sanction the balance amount of compensation for Rs.59,35,164.00 which is supposed to be paid to the petitioner so as to settle the problem at the earliest possible. This is for your information and necessary action. Sd/- Deputy Commissioner, East Garo Hills District, Williamnagar.” 5. On bare perusal of the said letter of the Deputy Commissioner dated 08.10.2007, it is clear that the Deputy Commissioner mentioned only the claim of the petitioner that the Fisheries Department, Govt. of Meghalaya possessed 59 bighas (i.e. 104 – 45.12 – 59) of land and the amount of compensation for the said excess land i.e. 59 bighas. In nowhere of the letter dated 18.10.2007, the Deputy Commissioner made his finding that the said 59 bighas of land had been taken over and possessed by the Fisheries Department. 6. The writ petitioner also annexed the parawise comments of the Director of Fisheries, Govt. of Meghalaya to the claim for the payment of balance amount/compensation by the petitioner to the Govt. of Meghalaya. In (cid:1) (cid:6)(cid:1) that comments, the Director of Fisheries i.e. the Fisheries Department very clearly stated that only 45.12 bighas (15 acres) was duly acquired by the Fisheries Department and the Fisheries Department does not require the excess land of 59 bighas as only 45.12 bighas (15 acres) was actually acquired and the Fisheries Department did not take possession of the said 59 bighas as claimed by the writ petitioner Shri.Matap Marak. That comments of the Director of Fisheries was also forwarded to the Govt. of Meghalaya under his letter being No.MEG/PISC/3102/86-87/160 dated 26.03.2010. The said comments of the Director of Fisheries is also quoted hereunder:- “PARAWISE COMMENTS ON THE PAYMENT OF BALANCE AMOUNT OF LAND COMPENSATION FOR ACQUISITION OF LAND BY THE FISHERIES DEPARTMENT, GOVERNMENT OF MEGHALAYA AT JAMGE AKHING, EAST GARO HILLS. 1. It is to be clarified here that the Departmental had actually taken possession of the plot of land at Jamge on 19.5.1989 for 45.12 bighas (15 acres) and not 59 bighas as claimed by Shri.Matap Marak, Nokma (Photostat copy enclosed). Further, it is to be mentioned here that the land acquisition for 45.12 bighas (15 acres) was done by the then Deputy Commissioner, Williamnagar after observing due process of like Notification during July, 1987 (Photostat copy enclosed). land 2. As explained in para 1. 3. As explained in para 1. 4. No comments. 5. It is to be clarified here that as per point No.2 indicated by letter the Deputy Commissioner, Williamnagar the No.EGH/REV.132/83/145 dt.8.10.2007, addressed Director of Fisheries, Shillong, it clearly states that only 45.12 bighas (15 acres) was duly acquired by the Fisheries Department as explained in Para 1. vide to (cid:1) (cid:7)(cid:1) 6. As explained in Para 5. 7. It is to be clarified that the Department has actually acquired 45.12 bighas and not 104 bighas as indicated by the Deputy Commissioner, Williamnagar vide his letter No.EGH/REV- 132/74 dt.9.5.1989 and Rs.2,82,756/- was also paid as compensation for 45.12 bighas vide Bank Draft No.MLT/A/2 dt.28.3.1989 (Photostat copy enclosed) 8. It is to be clarified here that the Department does not require excess land of 59 bighas as only 45.12 bighas (15 acres) was actually acquired and compensation paid as explained in Para 7. In this connection, a copy of letter No.EGH/REV/132/83/163 dt.27.3.2009, being conduct joint survey and re-demarcation of land for Regional Fishseed Farm, Jamge is enclosed for your ready reference. 9. As explained in Para 8. 10. As explained in Para 1. 11. As explained in Para 1. 12. As explained in Para 1. Sd/ (N.D. Sangma) Director of Fisheries, Meghalaya, Shillong.” 7. The respondent filed joint affidavit-in-opposition stating that initially there was a proposal for taking over of 104 bighas of land for the Fisheries Department but later on finally decided to acquire only 45.12 bighas (15 acres) out of the said 104 bighas of land. Accordingly, only 45.12 bighas of land (15 acres) was taken possession by the Fisheries Department and the amount of Rs.2,82,756.00/- had been paid as compensation for the said land vide letter of the Deputy Commissioner, Williamnagar being No.EGH/REV/132/83/75 dated 19.05.1989. The Fisheries Department does not require the excess land i.e. 59 bighas out of the said 109 bighas of land and accordingly, the Fisheries Department neither took possession of it nor acquisition proceeding was taken up. (cid:1) (cid:8)(cid:1) 8. As the petitioner claims that the Fisheries Department is in possession of the land in excess of 45.12 bighas (15 acres) and claimed for compensation for the excess land, there was re-demarcation and resurvey of the land occupied and possessed by the Fisheries Department in presence of the writ petitioner, his Maharis, Farm Superintendent and Patta Holder of the land already acquired by the Fisheries Department on 22.06.2010. After such re-demarcation and resurvey, the Extra Assistant Commissioner, East Garo Hills, Williamnagar submitted the report dated 08.07.2010, clearly that the Fisheries Department is in possession only 45 bighas and 12 lessa and the actual possession of the land by the Fisheries Department is not 104 bighas as claimed by the petitioner. The Extra Assistant Commissioner, East Garo Hills also obtained the signatures of all the persons in whose presence re-demarcation and resurvey of the land actually occupied by the Fisheries Department was conducted on 23.06.2010. The said report on the re- demarcation and resurvey is reproduced below:- “REPORT ON THE REDEMARCATION AND RESURVEY OF REGIONAL FISH SEED FARM, JAMGE. As the per Deputy order No.EGH/REV.132/83/172, dated 22nd June 2010, re- demarcation and resurvey of the Regional fish Farm, Jamge was conducted jointly by the survey team of GHADC, Tura under my supervision on 23/6/2010 and in the presence of the following parties:- Commissioner’ (attendance recorded at Annexure-A) viz 1.Shri. Matap Marak, Nokma of Jamge and some of his maharis. 2.Shri.Ronithson Marak, the patta holder of the acquired land to whom compensation of land was paid. 3. Shri.George W. Momin, Farm Superintendent, Fish seed Farm, Jamge (representing Fishery Deptt.). (cid:1) (cid:9)(cid:1) During verification of land, the earlier land acquisition papers and map was referred. Since, three plots under Mouza no. IV, P.P. viz Dag no.1, 2 and 3 with the areas of B31-k2-L1: Bill-K1- L17: B2-K1-L14 respectively and had been the acquired land for the Fishery Deptt., physical verification of the said land along with the actual possession under the Fishery Farm was made. As per the land acquisition papers, the total area of B- 45-K-O-L12 or 6.03 hactares was acquired payment made and land taken over by the Fishery Deptt on 19/5/1989. Re-demarcation and re-surveying of the above said plots was done one plot after another. The plots in question was taken measurements again by means of chain survey from all corners. Identification of the boundaries could clearly be made out as posts and pillars can still be seen. Measurements of the resurvey of the actual land in possession of Fishery Deptt. At Jamge gives the following end result. 1. Plot no.1 – total area – B31-K2-L10 2. Plot No.2 – total area – B11-K1-L17 3.Plot No.3 – total area – B2-K1-L1 Total – B 45-K1-L01 It is seen that after a survey, the land in actual possession by the Fishery Deptt. is almost the same (only a negligible increase is seen). It is, therefore be concluded that the actual land in possession by the Fishery Deptt. is not 104 bighas as claimed by the nokma but 45 bighas-01K and 01L. Hence, the question of payment for another 59 bighas does not arise. To this effect, the map has also been plotted by the GHADC, Tura after resurvey of the said land and countersigned by the Senior Assistant Settlement Officer, GHADC, Tura who was also present during the whole survey. (His Written Statement and Map also enclosed for ready reference at Annexure B & C respectively). Map as prepared has also shown the other plots with their total area (Plots of the adjoining areas which were included when initially when 104 bighas was proposed to be acquired i.e. Plot no. 4, 5, 6 & 7). Sd/- S.B. Marak, MCS, Extra Assistant Commissioner, East Garo Hills, Williamnagar.” 9. The clear pleaded case of the respondents in their affidavit-in- opposition is that the Fisheries Department had taken possession of only (cid:1) (cid:1)(cid:10)(cid:1) 45.12 bighas (15 acres) and for that compensation amounting to Rs.2,82,576.00 had already been paid by the Fisheries Department and never took possession of the excess land i.e. 59 bighas (i.e. 104-42.12-59) and therefore, question of payment does not arise. The Govt. of Meghalaya under letter of the O.S.D. to the Govt. of Meghalaya being No. PISC(G)8/89/208 dated 24.08.2010, had already informed the writ petitioner that the land occupied by the Fisheries Department is only 45.12 bighas and the award made by the Collector for compensation of the land possessed by the Fisheries Department is final. The question of reopening after 21 years does not arise. The said letter for convenience is also quoted hereunder:- “GOVERNMENT OF MEGHALAYA FISHERIES DEPARTMENT. No.PISC(G)8/89/208 Dated Shillong, the 24th August, 2010. From : To: Shri. N.D. Sangma, MCS, Officer on Special Duty to the Govt. of Meghalaya, Fisheries Department. Shri. Matap Marak, Nokma of Jamge A’khing East Garo Hills. Subject: Land under the Fisheries Department at Regional Fishseed Farm , Jamge. Reference: Your letter dated 8th June, 2010. Sir, With reference to your letter cited above, I am directed to inform you that we have received a report from the Deputy Commissioner, East Garo Hills District, Williamnagar, regarding the joint re-survey and re- demarcation of the land under the Regional Fishseed Farm at Jamge carried out on the 23-6-2010 by the officers deputed by the Deputy Commissioner and the GHADC. It has been indicated that you, too, were present during the said exercise. (cid:1) (cid:1)(cid:1)(cid:1) According to this report, the land in actual possession of the Fisheries Department at Jamge, measures 45 bighas I Katha and 1 lessa in 3(three) plots, the details of which are indicated below:- 1. Plot no.1 – total area – B31-K2-L10 2. Plot No.2 – total area – B11-K1-L17 3.Plot No.3 – total area – B2-K1-L1 Total –B 45-K1-L01 As such, the controversy regarding the area of land at Jamge in the possession of the Fisheries Department is now finally settled as per the position indicated above. Moreover, legally, the award of the Collector is the final conclusive evidence as per Section 12 of the Land Acquisition Act 1894 and as such the question of reopening this case after 21 years does not arise. You are, therefore, requested to treat this matter as closed and resolved, once for all. This has the approval of the competent authority. Yours faithfully, Sd/- (N.D. Sangma) Officer on Special Duty to the Govt. of Meghalaya Fisheries :::: Shillong.” 10. It is now well settled law that a party has to plead its case and produce sufficient evidence to substantiate the averments made in the writ petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. There is a clear distinction between a pleading under the Code of Civil Procedure and a writ petition or counter affidavit. While in a pleading i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. But in a writ petition or in a counter affidavit not only the facts but also evidence in proof of such facts have to be pleaded and annexed to it. The Apex Court held in the State of Madhya Pradesh v. Narmada Bachao Andolan & anr: (2011) 7 SCC 639, (para 9 of the SCC) that: (cid:1) (cid:1)(cid:2)(cid:1)