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2002 DIGILAW 432 (GAU)

Mlitemjen Jamir v. State of Nagaland

2002-10-04

B.LAMARE

body2002
B. LAMARE, J.— Heard Mr. Taka Masa, learned counsel for the petitioners and Mr. I. Jamir, learned Addl. Advocate General for the State respondents. 2. The case in short compass is that, by order No, REV-4/92-0/9968-71 dated 13.1.1995 (Annexure-A to the writ petition) allotment of land was made to the three petitioners and two others in Dimapur. Since, then, the petitioners have been in continuous possession of their respective lands. They also paid land rents and premium regularly. Jamabandi was also issued in favour of the petitioners. However, show cause notice No. REV-4/94-D/959-63 dated 3.5.1995 was issued to the petitioners and two others to submit their show cause within 15 days as to why the allotment made to them should not be cancelled. The petitioners submitted, their show cause and thereafter no action was taken by the Addl. Deputy Commissioner, Dimapur. 3. After the land was allotted to the petitioners they were developing their lands. However, on 18.7.2001, the respondent No. 3 along with some Para Military forces stop the developmental works made by the petitioners over their lands. No notice was issued to the petitioners for such stopping of their works. After their works were stopped by the respondent No. 3, the petitioners approached the respondent No. 3 the Deputy Commissioner, Dimapur on 19.7.2001 to enquire about the said action taken by him, but the petitioners were surprised to know that the respondent No. 3 had already issued the impugned show cause notice and cancellation order dated 17.5.2000 and dated 26.6.2000 respectively. On the request of the petitioners photo copies of the notice and cancellation order was issued to the petitioners on 19.7.2001. Being aggrieved by the said action of the respondent No.3, the petitioners therefore approached this Court by way of this writ petition. 4. The main contention of the petitioners is that, the land allotted to them is a vacant land, and, that it never belong to the Development Authority of Nagaland (DAN). It was a separate plot outside the land allotted to the DAN measuring 110 Bighas. In course of survey by the Land Revenue and Survey Officer, it shows that the Development Authority of Nagaland (DAN) has occupied more land from what they were allotted, i.e. 12OB-3K-04Ls. It was a separate plot outside the land allotted to the DAN measuring 110 Bighas. In course of survey by the Land Revenue and Survey Officer, it shows that the Development Authority of Nagaland (DAN) has occupied more land from what they were allotted, i.e. 12OB-3K-04Ls. It is also the contention of the petitioners that impugned show cause notice was never served on them and the cancellation was made without giving opportunity of being heard. The petitioners were not served with show cause notice nor they were afforded opportunity of being heard. 5. The respondents 1,2 and 3 contested the claim of the petitioners by filing an Affidavit in opposition. In the Affidavit in opposition, the respondents contended that the land was settled in the name of the DAN and since then it was in possession of the DAN. The petitioners have tried to occupy the land forcibly only recently, but they were prevented from doing so by the Vigilance of the DAN. The land revenue paid by the petitioners should be refunded on cancellation of the allotment to them. It is also contended that the land is part of the cadestral area and forms part of the Dimapur town. The show cause notice dated 17.5.2000 was issued to the petitioners but as no reply was received from the petitioners the order of cancellation was issued on 17.5.2000. The respondents further contended that the land was allotted to the petitioners inspite of the ban imposed by the Government by Office Memorandum dated 15.9.1992 and Notification dated 10.11.1993. (Annexures 1 and 2 respectively to the Affida-vit-in-opposition). 6. The respondents 1, 2 and 3 also filed Additional Affidavit stating that a complaint was lodged by Senior Executive Officer of the DAN to the Addl. Deputy Commissioner, Dimapur regarding the allotment of land to the petitioners, and that the petitioners were encroaching into the land which was allotted to DAN on 23.10.1978. Recently, Central Government has also sanctioned for construction of State Museum in the area, but due to this encroachment made by the petitioners and on pendency of this case, construction cannot be carried out. 7. Mr. Taka Masa, learned counsel for the petitioners contended that after the show cause notice was issued on 3.5.1995 and after reply was submitted by the petitioners, the petitioners were not disturbed of their possession and enjoyment of their lands since then. 7. Mr. Taka Masa, learned counsel for the petitioners contended that after the show cause notice was issued on 3.5.1995 and after reply was submitted by the petitioners, the petitioners were not disturbed of their possession and enjoyment of their lands since then. He also contended that the second show cause notice on 17.5.2000 was never served on the petitioners and the cancellation order was issued behind the back of the petitioners without affording opportunity of being heard. In support of this contention, the learned counsel draws the attention of the Court to the Annexure-N to the writ petition, which is an extract of the peon Book in which the notice was served on the petitioners only on 19.7.2001 after the impugned cancellation order was made. 8. Learned counsel also submitted that the land never belongs to DAN and the petitioners were never encroachers into the land. The cancellation of the allotment order without affording opportunity of being heard is a violative of the principle of natural justice, and therefore, the impugned show cause notice and the cancellation order are bad in law and liable to be set aside, contends the learned counsel. 9. It is also contended that the land allotted to the petitioners belongs to Chumukedima Angami village, and that the same was regularised in the name of the petitioners by Regularisation order dated 20.7.2001 issued by the Chairman, Village Council, Chumukedima Village. 10. Mr. I. Jamir, learned Addl. Advocate General contended that the land was already allotted to DAN, and that the petitioners were only encroachers. The land as needed by the DAN immediately for construction of Museum which scheme was already sanctioned by the Central Government. Therefore, cancellation was made after proper enquiry by the Land Records and«Survey Officer who found that the land allotted to the petitioners falls within the area allotted to the DAN. The learned counsel also vehemently urged that the allotment was made inspite of the ban imposed by the State Government regarding allotment of Government land to the private individuals. 11. On perusal of the records, it is seen that the allotment of land to the petitioners was not denied. The payment of premium of land rents and development of the land by the petitioners after it was allotted to them was also not denied. 11. On perusal of the records, it is seen that the allotment of land to the petitioners was not denied. The payment of premium of land rents and development of the land by the petitioners after it was allotted to them was also not denied. The issue of show cause notice on 3.5.1995 to the petitioners and submission of the reply thereto, and thereafter the matter was never raised by the respondents was also not disputed. A perusal of the records produced by the learned Addl. Advocate General, there is nothing to show that the impugned show cause notice and the cancellation order were served on any of the petitioners. The records shows that the lands were allotted to the petitioners and that the petitioners were in possession and enjoyment of their respective lands since the time the land was allotted to them. Therefore, the petitioners have acquired the right which cannot be taken away without following the procedures of law and the rule of natural justice. 12. The Principle of natural justice is one of the foremost product of Civilised Jurisprudence that no action should be taken against a person to affect his right or interest without giving reasonable opportunity to him. The standard of reasonableness of the opportunity of course has no static standard as it varies from case to case, from authority to authority and also in relation to the same authority. The principles are grounded on justice, equity and good, conscience. The principles of natural justice can be divided into two main disciplines, (1) "audi alteram partem" and (2) "Nemo debet esse judex in propria sua causa", no man can be judge in his own cause. A man cannot be deprived of his liberty or property for any wrong, until he has had a fair opportunity of answering the allegations against him. Therefore, the rule of natural justice cast a duty on all public authorities to decide dispute in the exercise of legal power to follow the rule diligently. The rule which is respected the world over cannot be immolated or sacrificed at the altar of administrative celerity. 13. The contention that the land was acquired urgently for construction of Museum, no doubt the contention may deserve genuine consideration, but the requirements of rule of natural justice is applicable in all administrative action to the extent permissible. The rule which is respected the world over cannot be immolated or sacrificed at the altar of administrative celerity. 13. The contention that the land was acquired urgently for construction of Museum, no doubt the contention may deserve genuine consideration, but the requirements of rule of natural justice is applicable in all administrative action to the extent permissible. It should not be an easy casualty in the name of urgency where the order has civil consequence. Civil consequences covers a wide range of infraction, it connotes infraction of property and personal rights, civil liberties, material deprivation and non-pecuniary damages as well and as a matter of fact everything that affects a person in his life. The rule should be applied with vigour until the force of the competing element, namely, the common good or public good, paralyse our hands to apply the rule in a case. Even in such a situation post hearing might be prescribed, if so permissible on the facts and circumstances of the case. 14. In the case in hand, the contention of the learned counsel for the respondents that show cause notice was served on the petitioners and opportunity of being heard was afforded was not supported by the records produced. The further contention of the learned counsel for the respondents that cancellation of the allotment order was made as the land was allotted to the petitioners inspite of the ban imposed by the State Government is also not supported by the records. The impugned cancellation order reads as follows :- "ORDER Dt. Dimapur the 6th June 2000. NO.REV-4/92-D/ /Inpersuance of Govt. order No.LR/ 1 l-6/(PT) dt. 23rd July'98 & No.LR/1 l-6/86(PT) dt. 9th Sept.'98 the allotment of land made to the following person vide order No. REV-4/92-D/ 9968-71 dt. 13th Jan'95 under Block No.2 at Development Authority's land are hereby declared cancelled with immediate effect. Allottee Dag No. Area Block No l.Shri l.Imli Temjen 3 01B-01K-OOLs 2 2.Shri Kawoto Sumi 3 OOB-01K-17.5Ls2 3.Shri I.Lima Kumzuk 3 OOB-03K-09Ls 2 4. Shri Thomas Ngullie 3 OOB-01K-19Ls 2 5.ShriA.Thesakrong 3 OlB-OlK-OOLs 2 The Surveys incharge is therefore hereby directed to rectify the Revenue record accordingly. Sd-AMARDEEP S.BHATIA Deputy Commissioner, Dimapur Dist. Dimapur: Nagaland." 15. On perusal of the above order shows that the same was passed on the basis of two orders issued by the Government, namely, order dated 23.7.1998 and order dated 9.9.1998. Sd-AMARDEEP S.BHATIA Deputy Commissioner, Dimapur Dist. Dimapur: Nagaland." 15. On perusal of the above order shows that the same was passed on the basis of two orders issued by the Government, namely, order dated 23.7.1998 and order dated 9.9.1998. The said orders were produced along with the records. The order dated 23.7.1998 and 9.9.1998 were in fact letters from the Secretary to the Govt. of Nagaland, Land Revenue Department to the Deputy Commissioner asking the Deputy Commissioner Dimapur to take necessary action for the cancellation of the allotment of Land to the five individuals, as the land belongs to the Development Authority of Nagaland. In the said letters it is also mentioned that the land was allotted to DAN for use as Naga Shopping Arcade at Dimapur. 16. From the facts as emerged, it shows that the impugned cancellation order was issued only on the basis of the said orders/letters from the Secretary to the Govt. of Nagaland, Land Revenue Department. The order does not disclose that petitioners were given opportunity of being heard before passing the order. The orders were not issued on the basis of the ban imposed by the State Government for allotment of Government land. 17. It is settled principle of law that after the land was allotted to a person, a right has accrued to him. The right is of civil rights which cannot be taken away without giving an opportunity of being heard and the principle of natural justice having followed. It is no doubt the authority that has the power to allot the land has also the power to cancel the allotment, but such administrative action can be resorted to only after following the principle of natural justice. That has not been done in this case as no notice was served on the petitioners before rendering the impugned order. The right of the petitioners was extinguished by a struck of pen of the administrative authority. The impugned order was therefore patently rendered in violation of the principle of natural justice, and the same must be wiped out. 18. Accordingly, the impugned show cause notice dated 17.5.2000 and cancellation order dated 26.6.2000 (Annexures L & M to the, writ petition) are hereby set aside and quashed. Respondents however might take fresh proceedings against the petitioners. In the result, this writ petition is allowed and the rule made absolute. 18. Accordingly, the impugned show cause notice dated 17.5.2000 and cancellation order dated 26.6.2000 (Annexures L & M to the, writ petition) are hereby set aside and quashed. Respondents however might take fresh proceedings against the petitioners. In the result, this writ petition is allowed and the rule made absolute. In the facts and circumstances of the case, there shall be no order as to costs.