State Of Meghalaya & Ors vs . Umsaw Khwan Village Durbar & Anr
2022 Latest Caselaw 8 Meg

       Serial No.02
       Supplementary List
                        HIGH COURT OF MEGHALAYA
                            AT SHILLONG
WA No.20/2021
                                                     Date of Order: 09.02.2022
State of Meghalaya & ors          Vs.     Umsaw Khwan Village Durbar & anr
Coram:
          Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
          Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s)         : Mr. K Paul, Sr.Adv
For the Respondent(s)                   : Mr. VGK Kynta, Sr.Adv with

Ms. M Kynta, Adv

i) Whether approved for reporting in Yes/No Law journals etc.:

ii) Whether approved for publication in press: Yes/No

JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral) The appeal is directed against a judgment and order of February

17, 2014 passed on a writ petition instituted in the year 2012.

2. The appeal was filed after a colossal delay of 861 days and it

appears that the application for condonation of delay was not pursued with

due diligence despite such application being filed in 2016. The relevant

application under Section 5 of the Limitation Act, 1963 came to be allowed

by an order of November 24, 2021. It is necessary to notice the two material

paragraphs of the relevant order:-

"The primary ground made out is that the appellant acted on erroneous advice. However, a serious objection is put up by the respondent, including the ground that the appellant had already acted in terms of the order and, thus, can no longer prefer an appeal thereagainst.

Without prejudice to the respondent's contention that the conduct of the appellant precludes the appellant from filing or proceeding with the appeal, in view of the sufficient cause shown, the delay in preferring the appeal is condoned. Let the appeal appear for appropriate consideration a week hence."

3. Courts are, by and large, reluctant to shut out a litigant on the

ground of limitation. Even though the State is not a favoured litigant, when

delay is cited on behalf of the Government, Courts frequently take a lenient

view. In this case the Court was more than charitable in taking on board an

appeal of the year 2016 against an order of the year 2014 that was sought to

be effectively assailed only towards the end of the year 2021. As will be

evident from the order of November 24, 2021, the respondents seriously

objected to the condonation of delay, but primarily on the ground that the

order had worked itself out and that the appellants had acted in terms of the

order. Since such ground of opposition was, strictly speaking, not

pertaining to the cause cited for the delay in preferring the appeal, but had

more to do with the right of the appellants to question the propriety of an

order that the appellants may have already accepted or acted upon, the issue

was left open to be urged in the course of the appeal.

4. It is necessary at this stage to indicate the case sought to be made

out by the appellants. According to the appellants, the first of which is the

State of Meghalaya, no less, a parcel of land at Umsaw Khwan village was

absolutely owned by the State of Assam and, upon, the bifurcation of the

State and the creation of Meghalaya in 1972, the ownership of such parcel

of land passed on to the newly constituted State and it was in the possession

of the Soil and Conservation Department. For reasons that are unclear and

in respect whereof no explanation is forthcoming, the State of Meghalaya,

through its Forest Department, apparently proceeded to acquire the land

that the appellants now claim was owned by the State.

5. The acquisition proceedings were instituted under the Land

Acquisition Act, 1894. Section 17 of the Act was invoked on the ground of

urgency and the parties - the acquirer at the behest of the department

requiring the land on the one hand and the perceived land-owners on the

other hand - agreed that a compensation of Rs.10 crore would be just in

respect of the acquisition. A sum of Rs.8 crore was promptly paid and the

possession of land was apparently made over to the State. Again, it is not

clear as to whether physical possession was actually made over to the State

or, the land being rather huge, only a letter of possession was made over as

a token of physical possession being surrendered by the perceived land-

owners to the State.

6. At a time when the further sum of Rs.2 crore remained

outstanding, it apparently dawned on the State that though the Forest

Department had prompted the State to acquire the land, such land was,

indeed, a government land under the possession of the Soil and

Conservation Department of the State. Upon such realisation, a letter dated

October 8, 2012 came to be addressed by the Deputy Commissioner of Ri

Bhoi District to the respondents to the following effect:-

"With reference to the subject cited above, it has been reported by the Forest Department, that the plantation in Mawplai is still in possession of Soil & Water Conservation Department and they were maintaining it for the last 40-52 years. Therefore, the land acquisition proceedings for the said plantation has to be quashed and payment made to you amounting to Rs.8 Crores needs to be recovered immediately.

Therefore, you are requested to refund the above mentioned amount failing which action may be taken as per Bengal Public demand and Recovery Act for recovery of the amount."

7. A reminder followed on October 15, 2012 to the effect that the

erstwhile land-owners should appear before the Extra Assistant

Commissioner (Rev) "so that necessary steps may be taken to annul the

land acquisition proceedings for the above." It may do well to notice that

the initial letter alluded only to possession and not to ownership, though the

case made out by the appellant is founded on the State having exclusive

title to the land in question.

8. These letters were challenged by way of WP (C) No.299 of 2012

culminating in the judgment and order under appeal being rendered on

February 17, 2014. In the course of allowing the writ petition, the writ court

referred to Section 48 of the Act of 1894 that permits the acquirer to

withdraw the acquisition proceedings prior to possession of the land being

taken over. The writ court observed that since the possession of the land

had already been taken over under the acquisition proceedings, such

provision could not be resorted to. The writ court also expressed the view

that since the acquisition proceedings were conducted under the orders and

at the behest of the Collector, the letters issued by the Deputy

Commissioner to annul such proceedings where without jurisdiction.

9. However, since the Court noticed that the case sought to be made

out by the State was that the State had been induced to purchase its own

land, the writ court gave the State the liberty to institute appropriate

proceedings for recovery of the money. The Court also required the

outstanding amount of Rs.2 crore to be paid, without reference to any action

that could be instituted by the State, and provided for interest for the

delayed payment.

10. Pursuant to the order dated February 17, 2014, the State

proceeded to institute Title Suit No.8 of 2014 before a Court at Nongpoh,

primarily for recovery of the money paid to the respondents herein on the

ground that the respondents had no title to the land that was the subject-

matter of the acquisition proceedings. The plaint relating to such suit has

since been rejected on the respondents' application under Order VII Rule

11 of the Code of Civil Procedure, 1908 and the relevant Court discovering

that the plaintiff in such suit had no cause of action, particularly in the light

of the acquisition proceedings not having been appropriately annulled. The

appellants say that an appeal was preferred against the order of rejection of

the plaint, but such appeal has since been dismissed for default. The

appellants claim that an application has been filed for readmission of the

appeal, but it does not appear that the matter has been prosecuted with any

degree of diligence.

11. In 2016, the respondents instituted Title Suit No.4 of 2016 before

the same Court at Nongpoh seeking the balance payment of Rs.2 crore and

interest due from the State in connection with the said acquisition. Such suit

has been decreed on August 8, 2017 and it is the admitted position that the

decree for payment of the relevant amount remains unchallenged till date.

In essence, it is the case of the State that either due to mistake or upon

being induced by certain persons, the Forest Department of the State

proceeded to acquire a parcel of land that already belonged to the State and

in respect whereof the respondents herein had no title at all. And yet, no

meaningful steps have been taken by the State in such regard.

12. It is elementary that in the course of acquisition proceedings

under the Act of 1894 the title of the land-owners is looked into and the

compensation is paid only upon the relevant authority being satisfied as to

the title of the payee. Indeed, disputes as to title and rival claims to the land

sought to be acquired ought to be decided in the course of the acquisition

proceedings as the scheme of the Act of 1894 would indicate. Despite the

obvious seriousness of the matter, it is also disconcerting that the

Collector's authority was not invoked and a Deputy Commissioner issued

administrative letters in an attempt to undo the acquisition proceedings

which ought to be regarded as judicial or quasi-judicial in nature. It is

further distressing that though the State seeks to paint a picture that it has

been defrauded, the manner in which the matter has been conducted on

behalf of the State leaves little doubt as to who may have failed or duped

the State more than the respondents herein. Equally, it is conceivable that

the Soil and Conservation Department was merely in possession of the land

and the State may not have been the owner thereof; and, the exercise

launched by the State is for obvious extraneous considerations of its

officials connected with the matter.

13. It is quite possible that the State may have been the owner of the

land and whether by inducement or by mistake, proceeded to take steps to

acquire its own property. There were legal avenues open to the State to

undo the mistake committed, whether or not any fraud was perpetrated by

any other in course of the acquisition proceedings. It is also not to be lost

sight of that this is not an ordinary party which claims to have been

defrauded; it is the State. If, indeed, the land was owned by the State and it

purchased its own property with public money, all that was done was to

issue two letters by the concerned Deputy Commissioner without taking

any legal steps to annul the acquisition proceedings or undo what had been

done. There is much more to the matter than meets the eye and there is no

doubt that a responsible State Government will get to the bottom of the

matter and book the culprits.

14. As far as the present matter is concerned, it is evident that the

appellants accepted the impugned order and acted in terms thereof, inter

alia, by filing the suit for recovery of the money. It is elementary that no

litigant may approbate or reprobate in the same breath or in respect of the

same cause. Indeed, upon the appellants having accepted the order and

having instituted Title Suit No.8 of 2014 before the relevant Court at

Nongpoh, the appellants herein could not be seen any longer to be persons

aggrieved by the relevant order to be entitled to prefer or pursue any appeal

therefrom. In addition, the appellants herein have accepted the rejection of

the plaint in their suit or, at any rate, such rejection has attained finality

upon the appeal from the order of rejection of the plaint not being pursued

by the appellants. The attempt at readmission of the appeal appears to be

cosmetic.

15. The further conduct of the appellants as evident from the

appellants not preferring any appeal from the decree of August 8, 2017

passed in respondents' money suit for recovery of the balance

compensation pertaining to the acquisition proceedings is the final nail in

the coffin. It may also be noticed that no serious attempt was made in the

writ petition to assert or establish the State's title to the land in question,

whether or not the writ court may have been minded to enter into such

disputed questions.

16. There is no doubt that the entire charade has been enacted with

the deliberate intention of the State seeking to justify that it had tried to take

action but it was the Court which went against the State. It is just as

possible that the entire saga is a red herring. What must be realised at the

end of the day is that the conduct of the State and the manner in which it

pursued the matter has resulted in the adverse orders suffered. There is also

a lurking suspicion that the entire scheme has been designed with ulterior

motive.

17. For the reasons aforesaid and since the appellants cannot be

regarded as persons aggrieved by the order impugned upon having accepted

the same and acted in accordance therewith, WA No.20 of 2021 is

dismissed with costs assessed at Rs.50,000/- to be paid to the respondents

and a further sum of Rs.50, 000/- to be paid to the State Legal Services

Authority within eight weeks from date.

18. MC (WA) No.70 of 2021 is disposed of.

       (W. Diengdoh)                           (Sanjib Banerjee)
           Judge                                  Chief Justice

Meghalaya
09.02.2022
"Lam DR-PS"