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2005 DIGILAW 280 (GAU)

Tater Mite v. State of Arunachal Pradesh

2005-04-01

H.N.SARMA

body2005
JUDGMENT H.N. Sarma, J. 1. The necessary fact leading to the institution of this writ petition inter alia is that the Petitioner is a permanent resident of Daporijo near Petrol Pump in the District of Upper Subansiri Arunachal Pradesh. The Petitioner inherited a plot of land measuring 220 sq. meters from his father, which is bounded by on the North Private residence, on the South-Road, on the East - PWD Store and on the West Private residence. The Petitioner constructed his dwelling house and is residing there with his family. The Petitioner is residing in the suit land by inheriting the same from his father in the year 1989. While the Petitioner was so enjoying the aforesaid land, the Deputy Commissioner, Daporijo issued an eviction order being No. LM/DRJ-18/03-04 (VOL-V) dated 21.05.04 (26.05.04) directing the Petitioner to evict from the illegal OBT construction made by him which is inside the PWD Govt. quarter, opposite to Petrol Pump with the help of police on 02.06.04. It is also stated in the said order that, Sri N. Makcha, EAC (Estt.) has been designated as the Estate Officer to carry out the verification/removal of any illegal/unauthorized construction on govt. Land by private individual till further order. The contention of the Petitioner is that the said land over which the Petitioner has the OBT structure in front of the Petrol Pump is purely private land and at no point of time the same was acquired by the Government or it pertained the character of government land in any manner and accordingly, the aforesaid notice is totally unauthorized, illegal and arbitrary. The further case of Petitioner is that, he has applied for a land possession certificate to the Government in respect of the said land which was also in the process. In the aforesaid premises, the Petitioner has filed the present writ petition praying for quashing of the impugned eviction order dated 21.05.04 (26.05.04). 2. An affidavit-in-opposition has been filed on behalf of the Respondent Nos. 1 & 2 denying the contentions raised by the Petitioner. In the aforesaid premises, the Petitioner has filed the present writ petition praying for quashing of the impugned eviction order dated 21.05.04 (26.05.04). 2. An affidavit-in-opposition has been filed on behalf of the Respondent Nos. 1 & 2 denying the contentions raised by the Petitioner. In the said affidavit-in-opposition it is inter alia stated that the land in question is just in the vicinity of the government PWD Quarter at Daporijo and the Petitioner encroached the same in connivance with the occupants of the nearby quarter and the Petitioner has illegally constructed the OBT house within the said public premises from which he is liable to be evicted. It is further stated therein that, the Petitioner is not entitled to get any land possession certificate in as much as the land in question being the Government land, no such certificate can be issued in favour of a private individual. 3. I have heard Mr. T. Michi, learned Counsel for the Petitioner and also heard Mr. B.L. Singh, learned Senior Government Advocate, Arunachal Pradesh on behalf of the Respondents and considered the rival contentions made by the parties. From the pleadings of the parties, two different sets of factual situation emerge in this case. One is that the Petitioner claims the land in question to be his ancestral property, whereas the Respondents claimed it to be the government land. There is lack of sufficient materials before the Court to come to a concrete finding as to the status of the land in question i.e. whether it is a private land or government land. Without going into that matter, it is now necessary to consider the legality and validity of the action of the Respondents challenged in this writ petition. 4. The impugned order dated 21.05.04 (26.05.04) validity of which is challenged in this writ petition, is quoted herein below: Memo No. LM/DRJ-18/03-04 (Vol-V) Dated. Daporijo, the 26.5.2004. ORDER Shri N Makcha, EAC (Estt) DCs Office is hereby designated as an Estate Officer to carry out the verification/removal of any illegal/unauthorized construction on govt. Land by private individual till further order. Thereafter, Shri N. Makacha, EAC/designated Estate Officer of this Office is hereby ordered to evict the illegal OBT constructed by Shri Later Mite inside the PWD govt. quarter compound opposite to petrol pump area, Daporijo and others with the help of Police and Alps on 2nd June/2004 at 10:00 hrs positively. Land by private individual till further order. Thereafter, Shri N. Makacha, EAC/designated Estate Officer of this Office is hereby ordered to evict the illegal OBT constructed by Shri Later Mite inside the PWD govt. quarter compound opposite to petrol pump area, Daporijo and others with the help of Police and Alps on 2nd June/2004 at 10:00 hrs positively. Report be submitted on action taken. Sd/- Goken Basar Deputy Commissioner Daporijo 5. A careful consideration of the aforesaid order discloses two vital aspects. By the first part of the order, the Deputy Commissioners has designated Shri N Makcha, EAC (Estt) as Estate Officer to carry out removal of any unauthorized construction on government land by private individual. By the second part, the said EAC is directed to evict the illegal OBT construction made by the Petitioner with the help of Police and ALCs on 2nd of June, 2004 at 10:00 A.M. positively with instruction to submit a report of the action taken. With a view to provide a law for checking any unauthorized occupation and encroachment of public premises of the government land of Arunachal Pradesh and the matter connected therewith, the Govt. of Arunachal Pradesh enacted the Arunachal Pradesh Public Premises (Eviction of Unauthorzied Occupants) Act, 2003. Section 2(ii) of the said Act defines Estate Officer which means an Officer appointed as such by the State Government under Section 3. Section 2(iv) defines public premises, which means any land or structure belonging to: (a) The State Government and (b) Any other Corporation or Public Sector undertakings owned or sponsored and controlled by the state Government. Section 4 of the Act provides for prior notice to the unauthorized occupant and Section5 provides for passing of an order of eviction. Section 12 provides that, an appeal shall lie form any order of the Estate Officer made in respect of any public premises under Section 5 or Section 7 or Section 8 or Section 10 to an appellate Officer who shall be the Deputy Commissioner of the District in which the public premises are situated. Section 21 of the Act provides the power of delegation. 6. A close scrutiny of the provisions of the Act, it discloses that the said Act is a self contained code relating to eviction of unauthorized occupants from public premises which provides necessary remedies to an alleged unauthorized occupant available to him. Section 21 of the Act provides the power of delegation. 6. A close scrutiny of the provisions of the Act, it discloses that the said Act is a self contained code relating to eviction of unauthorized occupants from public premises which provides necessary remedies to an alleged unauthorized occupant available to him. The said Act provides certain valuable rights upon such unauthorized occupant, as contained in Sections 4, 5, 11 & 12 of the Act, which are quoted below: Section 4: (Issue of notice to show cause against order of eviction): (i) If the Estate Officer is of opinion that any person is an unauthorized occupation on any public premises and that he should be evicted, the Estate Officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction shout not be made. (ii) The notice shall- (a) Specify the grounds on which the order of eviction is proposed to be made. (b) Require all persons Concerned, that is to say, all persons who are or may be in occupation of, or claim interest in, the public premises- (i) To show cause, if nay, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days form the date issued thereof. (ii) To appear before the Estate Officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown and also for personal hearing, if such hearing is desired. (iii) The Estate Officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon, the notice shall be deemed to have been duly given to all persons concerned. (iv) Where the Estate Officer known or has reasons to believe that any person is in occupation of the Public Premises, then without prejudice to the provisions of Sub-section (iii) he shall cause a copy of the notice to be served on very such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed. Section 5: (Eviction of unauthorized occupants): (i) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under Clause (b) of Sub-section (ii) of Section 4, the Estate Officer is satisfied that the public premises are in unauthorized occupation, the Estate Officer may make an order of eviction, for reasons to be recorded therein, direction that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. (ii) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days of its publication under Sub-section (i) whichever is later, the Estate Officer or any other officer duly authroized by the Estate Officer in his behalf may evict that person from, and take possession of, the public premises and, may for that purpose, use such force as may be necessary. Section 11: (Power of Estate Officers): An Estate Officer shall, for the purpose of holding any inquiry under this Act, have the same power as are vested in a Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters namely- (i) Summoning and enforcing the attendance of any person and examining him on oath. (ii) Requiring the discovery and production of documents. (iii) Any other matter which may be prescribed. Section 12: (Appeals): (i) An appeal shall lie from every order of the Estate Officer made in respect of any public premises under Section 5 or Section 7 or Section 8 or Section 10 to an appellate Officer who shall be the Deputy Commissioner of the District in which the public premises are situated. (ii) An appeal under Sub-section (i) shall be preferred. (a) In the case of an appeal form an order under Section 5 within thirty days from the date of publication of the order under Sub-section (i) of that section. (ii) An appeal under Sub-section (i) shall be preferred. (a) In the case of an appeal form an order under Section 5 within thirty days from the date of publication of the order under Sub-section (i) of that section. (b) In the case of an appeal from an order under Section 7 or Section 10 within thirty days from the date on which the order is communicated to the Appellant, provided that the appellate officer may entertain the appear after the expiry of the said period, if he is satisfied that the Appellant was prevented by sufficient cause from filing the appeal in time. (c) In the case of an appeal form and order under Section 8 within thirty days from the date of such order. (iii) Where an appeal is preferred from an order of the Estate Officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit; Provided that where the construction or erection of any building or other structure or fixture or execution of any other work was not completed on the day on which an order was made under Section 7 for the demolition or removal of such building or other structure or fixture, the appellate officer shall not make any order for the stay of enforcement of such order, unless such security, as may be sufficient in the opinion of the appellate officer, has been given by the Appellant for not proceeding with such construction, erection or work pending the disposal of the appeal. (iv) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible. (v) The costs of any appeal under this section shall be in the discretion of the appellate officer. 7. These powers are provided under the Act to check the concerned authority form arbitrary exercise of power and to balance their actions under the said Act providing statutory rights and remedies to the person concerned. 8. Before issuance of an order of eviction of unauthorized occupant form a public premise, a notice to show cause is to be provided to such person by the Estate Officer in writing calling upon such person to show cause as to why an order of eviction should not be made. 8. Before issuance of an order of eviction of unauthorized occupant form a public premise, a notice to show cause is to be provided to such person by the Estate Officer in writing calling upon such person to show cause as to why an order of eviction should not be made. Prior to issuance of said notice, a subjective satisfaction of the Estate Officer is also necessary to the effect that such a person is an unauthorized occupant and he should be evicted. On receipt of the reply in pursuance to the aforesaid notice under Section 4, it is the duty and obligation of the Estate Officer to consider the same and if he is not satisfied with the reason stated, then an order for eviction under Section 5 can be passed. 9. In order to act as an Estate Officer, it is essential that such officer should be a Gazetted Officer of the State Government and he should be appointed as such officer by the state Government by issuing notification in the official gazette. Section 21 of the Act empowers the State Government to delegate the power exercisable under the Act to an officer of the State Government. In the said section it is clearly provided that such delegation can be made by the State Government by issuance of a notification in the official gazette. Section 21 is quoted herein below Delegation of powers: The State Government may, by notification in the official Gazette, direct that any power exercisable by it under this Act shall, subject to such conditions, if any, as may be specified in the notification, be exercisable also by an officer of the State Government. 10. On scrutiny of the impugned order, I find that Shri N. Makcha, EAC (Estt) of the Deputy Commissioner has been designated as Estate Officer by the Deputy Commissioner, Daporijo. If we take the said power conferred upon Shri N Makcha, EAC (Estt) as a delegated one, the same is clearly in violation of the provisions of Section 21 of the Act, in as much as, the Act nowhere empowers the Deputy Commissioner to delegate such a power. It is the prerogative of the State Government, that too by issuing a notification in the official gazette to make such a delegation. Accordingly, the first part of the impugned order is absolutely without jurisdiction and the same is unauthorized. 11. It is the prerogative of the State Government, that too by issuing a notification in the official gazette to make such a delegation. Accordingly, the first part of the impugned order is absolutely without jurisdiction and the same is unauthorized. 11. So far the other part of the impugned order is concerned, it is not understandable as to how the Deputy Commissioner, Daporijo having rightly or wrongly delegated the power to Shri N Makcha, EAC (Estt), directed the Estate Officer to evict the Petitioner with the help of Police. Once a power is delegated, then the delegator abdicates himself from exercising such power and the same is vested with the delegatee. But in the instant case, the delegator having directed the delegatee to evict the Petitioner, the discretion and subjective satisfaction required to be arrived at by the delegatee is done away with, which cannot be permitted under the law. That apart, the whole action of delegation itself is without jurisdiction as discussed here-in-above. 12. As per provisions of Section 4 & 5 of the Act, no order of eviction should be passed against an unauthorized occupant without first giving him a notice, providing an opportunity to show cause as to why he should not be evicted form the public premises in question. The purpose of giving such a notice is that, the concerned person is to given an opportunity to state his case in his defence. The Act does not provide for straight way eviction without giving such prior notice to show cause to the Petitioner. Any deviation there from would characterize such action as unauthorized one. 13. Issuance of such a prior notice is the statutory recognition of the principle of Natural Justice by the Act itself, having a golden purpose behind it. In this connection, we may gainfully refer the decision of the Apex Court rendered in Canara Bank v. Depasis Das reported in (2003) 4 SCC 557 . At para 15, the Apex Court held as follows: The adherence to principles of natural justice as recognized by all civilized States is of Supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinately of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic documents was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the Magna Carta. The classic exposition of Sir Edward Coke of natural justice requires to Vocate, interrogate and adjusdicate. In the celebrated case of Cooper v. Wardsworth Board of Works the principle was thus stated: (EF p, 420) (E) Ven God himself did not pass sentence upon Adam before he was called upon to make his defence. Adam (says God), where art thou? Has thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat? Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond. 14. As discussed above, the impugned order dated 21.05.04 cannot be saved on any count. The impugned order is without jurisdiction and is ultra vires to the provisions of the Arunachal Pradesh Public Premises (Eviction of Unanuthroized Occupants) Act, 2003. Accordingly, the same is liable to be quashed and accordingly, same is hereby quashed. 15. It is made clear that, in spite of the quashing of the impugned order, the authority is not precluded to take necessary action in consonance in the provisions of law, if it is so advised. 16. In view of the aforesaid discussions and decisions, the writ petition is allowed, making, however, no order as to costs. Petition allowed.