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2005 DIGILAW 676 (GAU)

Naga Hindi Vidyapith v. State of Manipur and Ors.

2005-09-13

T.NANDA KUMAR SINGH

body2005
By this writ petition, the petitioner is assailing the order of Government of Manipur being No. 21/66/74-R, Imphal 25.2.2004 for canceling the allotment order being No. 21/66/74-R, dated 21.1.1993 for allotting a piece of land, specifically mentioned, in the allotment order itself, covered by CS Dag No. 1680 of Suit No. 12, Imphal Municipality, Imphal East in favour of the petitioner. [2] Heard Mr. Kh.Chonjon, learned counsel for the petitioner, Shri Kh.Binoy, learned counsel for respondent nos,3, 4, 5 and 6 as well as Mr. R.S.Reisang, learned Government Advocate for respondent nos.1 and 2. [3] The factual panorama of the present case is that the petitioner/society is a registered society constituted for propagation of Rashtra Bhasa Hindi and also for imparting education in Hindi among the tribal populace throughout the State. It is, said that, various Hindi Schools established by the Tribal people of the State of Manipur had affiliated with the petitioner/society and it has been conducting Hindi examination periodically for various standards equivalent to Ratna/B.A. [4] It is also the directive of the Constitution of India under Article 351 to promote the spirit of Hindi language, to develop its style and that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interference with its genius, the forms, style and expression used in Hindustani and in other languages of India specified in the 8th Schecule. The petitioner/society, it is said, has been occupying a piece of Government khas land measuring about 1.054 acres under CS Dag No. 1680 Seat No. 12, Imphal Municipality by constructing its own School building, office, staff quarter and press (Adimjati Hindi Press). It is said that the petitioner/society reclaimed the said government khas land covered by CS Dag No. 1680 of Seat No. 12, Imphal Municipality when the said land was 4th Assam Rifles' cantonment area with the knowledge and consent of one Anil Chandra Dutta was Head Assistant of the 4th Assam Rifles. It is said that the petitioner/society reclaimed the said government khas land covered by CS Dag No. 1680 of Seat No. 12, Imphal Municipality when the said land was 4th Assam Rifles' cantonment area with the knowledge and consent of one Anil Chandra Dutta was Head Assistant of the 4th Assam Rifles. Admittedly, one late N.Paoheu, Ex MLA, who is the husband of private respondent No. 3, Smt.N.Amaileu was the Chairman of the petitioner/society for a number of years during his life time; and respondent No. 5, Shri D.Juije Zeme, member of the petitioner/society who was also employed as a Chowkidar of the petitioner/society as appointed by the petitioner/society and respondent No. 6, Shri D.Azim Zeme is the son of respondent No. 5, Shri D.Kuije Zeme. Again, admittedly, respondent No. 4, Shri H.Pamei Ningthou alias Ningthou Pamei was also the former Chairman/Secretary of the Executive Council of the petitioner/society for a number of years. After the said government land covered by CS Dag No. 1680 of Seat No. 12, Imphal Municipality was reclaimed by the petitioner by improving the same by earth filling and cutting marshy plant and shrubs thereby expending huge amount of money. As per resolution of the Executive Council, the then office bearer of the society, namely Shri N.Paoheu, the then Chairman/husband of the present private respondent No. 3, the present Chairman of the petitioner/society, Shri Khangmeidun Kabui, respondent No. 5 himself - Shri D.Kuije Zeme and two others had filed an application dated 29.8.1977 to the then Revenue Minister, Government of Manipur for allotment of the same piece of land which has already reclaimed by the petitioner/society and another application dated 21.9.1977 was also filed for allotment of the said land to the Director of Land Records, Government of Manipur. [5] As stated above, after the reclamation of the said land by the petitioner/society, the petitioner/society had constructed its school building, Adimjati Hindi Press, Staff quarters and others for the purposes mentioned above and also to promote the spirit of Hindi language and also to develop it. [5] As stated above, after the reclamation of the said land by the petitioner/society, the petitioner/society had constructed its school building, Adimjati Hindi Press, Staff quarters and others for the purposes mentioned above and also to promote the spirit of Hindi language and also to develop it. When the matter for allotment of the said land under CS Dag No. 1680 of Seat No. 12, Imphal Municipality was under active process, it is said, that some portion thereof which have all along been under the possession/occupation of the petitioner/society measuring about .10 acres, each have been allotted by the State Government to two individuals, namely Shri N.Prabin Kumar Singh and Mrs Fazilatum Nesha. Against the said allotment order of the Government of Maniur for a portion of the land under CS Dag No. 1680 Seat No. 12, Imphal Municipality, the petitioner/society filed a Civil Suit being Original Suit No. 1/90 in the Court of Civil Judge (Jr.Divn) Imphal seeking relief for cancellation of allotment of the said land to the said two individuals and also for declaring that the plaintiff/society entitled to get allotment of the said land. The suit was ultimately decreed only on 6.1.2004 declaring that the petitioner/society be in possession of the said portion of the land, to be entitled to continue its possession of the land till it is to be evicted with due process of law. [6] It is also said that the allotment order for allotting the said portion of land to the said two individuals were also cancelled by the Government under order No. 40/96/92-R dated 30.3.2001. During the pendency of the said Civil Suit, the government of Manipur in exercise of its power under Section 14(2) of the Manipur Land Revenue & Land Reforms Act, 1960 read with Rule 18 of the Manipur Land Revenue & Land Reforms (Allotment of land) Rules, 1962 allotted land measuring an area of .793 acres covered by CS Dag No. 1680 of Seat No. 12, Imphal Municipality to the petitioner/society for establishment of the school under order of the Government of Manipur being No. 21/66/74-R Imphal the 21.1.1993. The condition of allotment under the said order of the Government of Manipur dated 21.1.1993 are: (1) The allottee shall pay such premium as may be fixed by the Deputy Commissioner, Imphal under the rules which shall be credited to Major Head 0029 - Land Revenue on behalf of the Deputy Commissioner, Imphal within 6 (six) months of the issue of this order. (2) The allottee shall be liable to pay such land revenue as assessed by the competent authority. (3) The allotted land shall be liable to be resumed by the Government; (i) if used for the purpose other than that for which it has been allotted or if the allottee has committed a breach of any of the condition. (ii) if not put to use for the purpose for which it has been allotted within 2(two) years from the date of allotment. [7] Against the said allotment order of the Government of Manipur dated 21.1.1993 was subject to payment of such premium as may be fixed by the Deputy Commissioner Imphal, the husband of respondent No. 3, Smt.Amaileu, in the capacity of the Chairman of the petitioner/society had filed an application dated 21.8.1993 to the then Deputy Commissioner, Imphal requesting him for exempting the payment of premium in respect of the said allotted land or in the alternative to assess the premium to the lowest rate in the interest of the public utility. The husband of respondent No. 3, Shri N.Peoheu, in the capacity of Chairman of the petitioner/society also filed application dated 25.1.1993 to the then Deputy Commissioner, Imphal for the simple prayer i.e. for exemption from payment of premium or in the alternative to assess the premium to the lowest rate in the interest of public utility. [8] The petitioner/society has been using the said allotted land for the purposes mentioned in the allotment order dated 21.1.1993, but it is specifically expected by the petitioner/society that because of non fixation of the premium by the Deputy Commissioner in compliance of the allotment order dated 21.1.1993, the petitioner/society could not pay the necessary premium. It is also the specific case of the petitioner that the concerned Deputy Commissioner, at any point of time had fixed the premium for the said allotted land in strict compliance with the said allotment order of the Government of Manipur dated 21.1.1993 and as such, the petitioner/society could not ay the premium. It is also the specific case of the petitioner that the concerned Deputy Commissioner, at any point of time had fixed the premium for the said allotted land in strict compliance with the said allotment order of the Government of Manipur dated 21.1.1993 and as such, the petitioner/society could not ay the premium. It is also the case of the petitioner that had the concerned Deputy Commissioner fixed the premium of the allotted land in compliance with the condition of the said allotment order dated 21.1.1993, the petitioner would have paid the premium readily even if the concerned Deputy Commissioner had rejected the said application filed by the Chairman of the society dated 25.1.1993 and 21.8.1993 for exemption from payment of premium or in the alternative for assessing the premium at the lowest rate. It is an admitted case of both the parties that the normal procedure after the allotment of the land by the Government of Manipur are that Deed of Allotment is to be executed after the payment of necessary premium and unless and until the premium is paid, Deed of Allotment is not executed. The Deed of Allotment between the petitioner/society and competent authority of the Revenue Department of the Government of Manipur could not be executed as the concerned Deputy Commissioner had not fixed the premium in compliance with the said allotment order dated 21.1.1993, the Deed of Allotment have not been executed. But with the knowledge of the State Government and concerned Deputy Commissioner, the petitioner/society has been using the allotted land for the purpose for which it was allotted by the Government under the said allotment order dated 21.1.1993. [9] It is, said that, private respondents, i.e. respondent No. 3 to 6 had been seriously intimating to the petitioner/society to act according to their desires and if not, necessary action will be taken up for cancellation of the said allotment order dated 21.1.1993. The petitioner/society, it is, said that, private respondent No. 3, Smt.N.Amaileu issued a threat letter dated 1.4.2000 to the Secretary of the petitioner/society by enclosing a show cause notice that she should be enrolled as a member of the petitioner/society and if not, she will appeal to the Hon'ble Chief Minister, Government of Manipur to cancel the allotment order dated 21.1.1993. Copies of the said letter and show cause notice are available at Annexure-A/11, A/11(i) and A/11(2) to the memo of present writ petition. [10] It is, said that, after the cancellation of the allotment order to the said two individuals, i.e. Shri N.Prabin Kumar Singh and Mrs Fajilatun Nesha by the Government of Manipur, had approached this court by filing writ petition being C.R.No.1162/1992 and the same had been disposed of vide order of this court dated 4.8.1999 and operative portion of the same is reproduced below: “ Considering the aspect of the matter, I am of the view that all these circumstances the ends of justice will serve, if the respondents are directed to provide the respondents to give a proper hearing to the petitioner on the matter enabling her to place all the relevant materials before Authority. It will also be open to the Authority to hear the other party viz. Naga Hindi Vidhyapith on this matter to consider the respective cases of the parties, so that the authority can take a final decision on the subject. The Com/Secy.(Revenue) Govt of Manipur is accordingly decide the matter after upon hearing the parties concerned. The entire subject of allotment of land in question made open for a fresh decision by the Government. The Respondents shall go into the question as to whether before allotment of land any sort of enquiry was made as to the question and also as to whether any application for alotmen5t of land was made by the Naga Hidi Vidyapith and thereafter take a decision on the matter as per law of possession of land. It will also open for the parties to raise any objection before the authority to enable the authority to reach to an appropriate decision. Accordingly the matter is remitted to the Com./Secy(Revenue) Govt of Manipur to decide the matter as early as possible, preferably within a period of 3 (three) months from today. Till aforesaid exercise is completed, the impugned order dated 26.8.1992 remain suspended. Parties are ordered to main status-quo.” [11] In pursuance of the said judgment and order of this court dated 4.8.1999 passed in CR No. 1162/92, the case of the petitioners of CR No. 1162/92 was considered by the Government and issued an order being No. 40/96/92-R dated 30.3.2001 for canceling the said allotment order. Parties are ordered to main status-quo.” [11] In pursuance of the said judgment and order of this court dated 4.8.1999 passed in CR No. 1162/92, the case of the petitioners of CR No. 1162/92 was considered by the Government and issued an order being No. 40/96/92-R dated 30.3.2001 for canceling the said allotment order. While passing the said order of the Government of Manipur dated 30.3.2001 the Government of Manipur had made a specific finding that the petitioner/society has all along been in possession of the land under CS Dag No. 1680 Seat No. 12, Imphal Municipality and there was a mistake on the part of the authority of the Government of Manipur to overlook the representation filed by the petitioner/society who had already possessed the land and its right over the land had been perfected by adverse possession. The finding portion of the Government of Manipur dated 30.3.2001 reads as follows: “FINDINGS 8.(a) Regarding whether any application was made by the Naga Hindi Vidyapith, this Society filed application dated 29.8.77 and 21.9.77 much earlier than the application filed by Mrs.Fazilatun Nesha on 28.11.78 as stated in para (1) and (2) hereinabove. (b) And in connection with the factum of possession it is evident from case of the Special Officer (Eviction) in his Misc.Case No. 71/SOE/89 and Eviction Appeal No. 1 of 1990 preferred by the Naga Hindi Vidyapith against the order dated 19.1.90, that the Society possess the land as submitted by the Mrs Fazilatun Nesha. This Eviction Appeal No. 1 of 1990 was disposed of on 20.7.91 with the direction that “4 (four) months time be allowed from today for disposal of the appellant's (i.e. Naga Hindi Vidyapith) representation and if no decision is received in this period, the Special Officer (Eviction) may take up eviction of the appellant who is an encroacher on the disputed land”. Eviction proceeding becomes when there is some occupier, i.e. that actual possessor. This shows that the Naga Hindi Vidyapith is occupying the said land. (c) On perusal of file bearing No. 21/66/74-R as per noted (206) dated 6.11.92 of the then Commissioner (Revenue) it is found, stated that according to the cabinet decision the land can be allotted to the encroachers subject to the getting clearance from PDA. This shows that the Naga Hindi Vidyapith is occupying the said land. (c) On perusal of file bearing No. 21/66/74-R as per noted (206) dated 6.11.92 of the then Commissioner (Revenue) it is found, stated that according to the cabinet decision the land can be allotted to the encroachers subject to the getting clearance from PDA. The present proposal for allotment of land in favour of Naga Hindi Vidyapith earlier, is based on the availability ofland in the said CS Dag No. 1680 and as per note (207) allotment in favour of Naga Hind Vidyapith is approved. Thereafter the then the Commissioner (Revenue) issued allotment order No. 21/66/74-R, dated 21.1.93 in favour of Naga Hindi Vidyapith, Imphal for establishment of the School for an area of 0.793 acre covered by C.S.Dag No. 1680 of Sheet No. 12, Imphal Municipality excluding of the lands allotted to other persons aforementioned at para (7) above. (d) The undisputed fact is that allotment of land was issued in favour of Mrs.Fazilatun Mesha vide order No. 21/10/97-R dated 9.11.1979. The premium thereof was not paid till the show cause notice has issued to her for resumption/cancellation of aforementioned allotment order, i.e. about 12(twelve) years from the date of allotment. However, the then Deputy Commissioner, Imphal accepted the premium in the year 1992 without any approval of this government which is irregular. (e) The specific fact as submitted by the Naga Hindi Vidyapith that the said Mrs. Fazilatun Nesha resided at Foreign Country (i.e. London) for more than 20(twenty) years has not been denied by the Majibur Rahman Shah, said to have been power of attorney holder of Mrs.Fazilatun Nesha. The settled position of norms/laws are that when a person pleaded a particular fact and if that fact is not denied then that fact is admitted fact which needs not to be proved. In the instant case, since 25.11.91 all the correspondence was done through her power of attorney, it shows that she is still residing at London since after the allotment application was filed in the year 1978 November, if that be so, she may be either a non-resident Indian or not ordinarily resident Indian. In the instant case, since 25.11.91 all the correspondence was done through her power of attorney, it shows that she is still residing at London since after the allotment application was filed in the year 1978 November, if that be so, she may be either a non-resident Indian or not ordinarily resident Indian. It is based on common prudence that it is particularly impossible to fulfill the purpose of allotment for any public utility, as well as anathema to the provision of Section 14 of MLR and LR Act and the Rules framed thereunder. (f) It is also undisputed that Naga Hindi Vidyapith is a Registered Society which has preferential entitlement under the principle as provided under Rule 8(ii) of the MLR & LR Act (Allotment of land) Rules, 1962, than any individual persons for seeking allotment of land. There was a mistake on the part of the authority to over look the representation filed by the Naga Hindi Vidyapith which already possessed the land by way of adverse possession, much earlier than the representation filed by mrs.Fazilatun which needs to be reviewed in the interest of public at large. (g) It is also fact that Mrs Fazilatun was not in possession of the land for 12 (twelve) long years and initial allotment made to her was already infructuous and inoperative, when the payment of premium by her for the land in question was accepted. In view of the above facts and circumstances of the case as per factum of possession of land, I, in the name of Governor of Manipur, do hereby quash Government Order No. 21/10/79-R, dated 9.11.79 and Order No. DC(1)/8/IE/93/Rev/91, dated 18.1.92 in compliance with the Hon'ble High Court's order aforementioned.” [12] It is, said that while the petitioner/society has been in possession of the land allotted under the said allotment order dated 21.1.93 for the purpose for which it was allotted, on the instigation of the interested person, Commissioner, Revenue, Government of Manipur issued show cause notice dated 25.11.2003 stating that as the petitioner/society still failed to observe necessary formalities of the allotment, i.e. payment of premium, execution of deed and delivery of possession for the last 10 (ten) years, why the allotment order dated 21.1.93 should not be cancelled. In reply to the said show cause notice dated 25.11.2003, the petitioner/society has submitted show cause statement dated 5.12.2003 to the Commissioner, Revenue, Government of Manipur stating, interalia, that the concerned Deputy Commissioner, did not fix premium in respect of the land allotted, the petitioner/society could not pay the necessary premium and also that in respect of the said application mentioned above for exemption of payment of premium or in the alternative to fix premium at the lowest rate, the petitioner/society did not receive any reply till date. It is, said that, the Commissioner, Revenue, Government of Manipur without application of its mind and also without following the fair procedures had issued the impugned order being No. 21/66/74-R dated Imphal the 25.2.2004 for canceling the said allotment order dated 21.1.1993 stating that the petitioner applied for exemption of the premium or fixation of premium at the lower rate beyond time schedule of 6 months etc. and the said application has no reasonable ground. Hence, the present writ petition. [13] The State respondents, i.e. respondent No. 1, State of Manipur represented by the Commissioner, Revenue to the Government of Manipur and respondent No. 2, Deputy Commissioner, Imphal East filed their affidavitin- opposition in the present writ petition. In the affidavit-in-opposition, respondent nos.1 and 2 are not denying that the petitioner/society has been using the land allotted under the allotment order dated 21.1.1993 for the purposes for which it was allotted. But in their affidavit-in-opposition, they had strenuously stated that cancellation of the allotment order dated 21.1.1993 under the impugned order of the Government of Manipur dated 25.2.2004 was on the failure of the petitioner/society to pay the necessary premium and also failure of the petitioner/society to execute Deed of allotment and the petitioner has been trying to escape payment of premium as per the term of the allotment order. As stated above, the clear cut case of the petitioner/society in the present writ petition is that the failure to pay premium in pursuance of the said allotment order dated 21.1.1993 by the petitioner/society was on the failure of the concerned authority to fix premium for the allotted land. As stated above, the clear cut case of the petitioner/society in the present writ petition is that the failure to pay premium in pursuance of the said allotment order dated 21.1.1993 by the petitioner/society was on the failure of the concerned authority to fix premium for the allotted land. This fact is not denied by the respondent nos.1 and 2 in their affidavit-in-opposition and nowhere in the affidavit-in- opposition, they state that such and such amount had been fixed as premium for the said allotted land in compliance with the allotment order dated 21.1.1993. But the petitioner/society has failed to pay the premium fixed by them. [14] The private respondent nos.3-6 also filed their affidavit-inopposition. The only ground taken in their affidavit-in-opposition are that they had been in possession of the part of the land covered by CS Dag No. 1680 Seat No. 12, Imphal Municipality by constructing dwelling house and residing thereat. But they are not denying in their affidavit-in-opposition that husband of private respondent No. 3 was Chairman of the petitioner/society for a number of years and he was residing in the building of the petitioner/society constructed inside the said allotted land and similarly respondent No. 4, Shri N.Pamei Ningthou alias Ningthou Pamei was also the Chairman/Secretary of the petitioner/society for a number of years and also he was similarly residing as a member of the petitioner/society in the allotted land. Further, respondent nos.5 and 6 are also not denying that respondent No. 5 was the member/employee of the petitioner/society and he was also residing in the said allotted land as member of the petitioner/society and also that respondent No. 6 Shri D.Azim Zeme is son of respondent No. 5, Shri D.Kuije Zeme. [15] We, may recalled the decision of the Apex Court in Roshan Deen Vs Preet Lal: (2002) 1 SCC 100 that purpose of power conferred in High Court under Articles 226 and 227 of the Constitution of India is to advance justice, not to thwart it. Even when justice is the byproduct of an erroneous interpretation of law, High Court ought not to wipe out such injustice in the name of correcting the error of law. Even when justice is the byproduct of an erroneous interpretation of law, High Court ought not to wipe out such injustice in the name of correcting the error of law. Apex Court in Air India Statutory Corporation Vs United Labour Union & Ors : 1997 (2) Supreme 165 held that the founding fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self imposed limitation. The arm of the Court is long enough to reach injustice whenever it is found. In State of Maharashtra Vs Digambar : (1995) 4 SCC 683 , the Apex Court held that the power of the High Court to be exercised under Article 226 of the Constitution if it is discretionary, its exercise must be judicious and reasonable admits of no controversy. [16] We may here also recall that the principle of “legitimate expectation” applies where a person having no enforceable right, yet affected or likely to be affected by order passed by public authority, we may gainfully refer to the decision of the Apex Court (CB) in U.P.Awasevam Vikas Parishad Vs Gyan Devi: (1995) 2 SCC 326 wherein the Apex Court held that fair procedure and just treatment is the core of jurisprudence. No one should suffer for omission of law or technicalities in rules. In such situation, where even though a person has no enforceable right yet he is affected or likely to be affected by the order passed by the authority, the court could invoke the principle of legitimate expectation. In the case in hand, this court is of the considered view that by invoking the principle of legitimate expectation, the petitioner/society would have expected that the competent authority i.e. the concerned Deputy Commissioner would have fixed the amount of premium to be paid for the land allotted to the petitioner/society under the said allotment order dated 21.1.1993. But as discussed above, the concerned Deputy Commissioner, at any point of time had fixed the amount of premium to be paid by the petitioner in pursuance of the said allotment order dated 21.1.1993. [17] We may also gainfully recall the decision of the Apex Court in Amrik Singh & Ors Vs Union of India : AIR 1980 SC 1447 that, if there be any administrative lapse the concerned employee/citizen could not be victimized. [17] We may also gainfully recall the decision of the Apex Court in Amrik Singh & Ors Vs Union of India : AIR 1980 SC 1447 that, if there be any administrative lapse the concerned employee/citizen could not be victimized. In the case in hand, because of the administrative lapse on the part of the concerned Deputy Commissioner to fix the necessary premium in pursuance of the allotment order dated 21.1.1993 the petitioner/society should not suffer. In this regard, we may recall the decision of the Apex Court in Bhavnagar university Vs Palitana Sugar Mills P Ltd : (2003) 2 SCC 111 that it does not and cannot be the intention of the legislator that what has been given by one hand should not be taken away by the another hand. It is also well settled principle of law that law is made not to be broken but to be obeyed and respect for law is not retained by administration of strength but by better appreciation of reasons, better understanding of its reality and implicit obedience. Reference may be made to the decision of the Apex Court (CB) in Kartar Singh Vs State of Punjab : (1994) 3 SCC 569 . The portion of the allotment order dated 21.1.1993 to the effect that allottee shall pay such premium as may be fixed by the Deputy Commissioner has created a legal friction to the effect that in the absence of the fixation of premium by the concerned Deputy Commissioner, the petitioner/society cannot be blamed for non payment of premium. In this regard, reference may be made to Bhavnagar university Vs Palitana Sugar Mills P Ltd (supra) and Gajraj Singh & Ors Vs State Transport Appellate Tribunal & Ors : (1997) 1 SCC 650 . [18] In the peculiar facts and circumstances of the present case in totality, by keeping in view of the law laid down by the Apex Court, cited above, this court is of the considered view that interference to the impugned order dated 25.2.2004 is called for, for the limited purpose. Accordingly, the impugned order dated 25.2.2004 is hereby quashed for the purpose of giving one more chance to the petitioner/society to pay the premium fixed by the concerned Deputy Commissioner in compliance with the allotment order dated 21.1.1993. Writ petition is allowed. No order as to costs.