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2007 DIGILAW 410 (GAU)

Union of India v. State of Meghalaya

2007-06-08

TINLIANTHANG VAIPHEI

body2007
JUDGMENT Tinlianthang Vaiphei, J. 1. The legality of the order dated 5.6.2006 passed by the learned Additional Deputy Commissioner, East Khasi Hills District, Shillong in MCA No. 2(T) of 2003 directing that the stay order passed by him on 7.5.2003 be continued till otherwise decided by a competent court even after his dismissal of the appeal is called into question in this revision petition. 2. Mr. S.C. Shyam, the learned Central Government Counsel appearing for the petitioner and Mr. N.D. Chullai, the learned senior Government Advocate, representing the State of Meghalaya, have been heard at length. 3. The facts material for disposal of the revision petition may be briefly stated at the very outset. The then Imperial Government of a India in the Ministry of Defence was stated to have acquired a plot of land measuring an area of 119.7399 acres at Kench's Trace, Shi Hong in three phases between 1928 and 1939. Though the land was surveyed and demarcated by posting pillars on the boundary, no fencing or barricade was erected thereon. According to the petitioner, taking advantage of this situation, a portion of such land measuring 6.74 acres was encroached upon by the Home Guard Department of the undivided Government of Assam, which established its office complexes on that land and the same continued to be under the unauthorized occupation of the same Department but under the successor Government of Meghalaya. The Army authorities took up the matter with the concerned Department and thereafter a notice under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was issued against the Home Guard Department. The Estate Officer, after hearing both the parties, issued the notice under Section 5 of the Act against the respondent for vacation of the said land. The eviction process was, however, kept in abeyance for about 5 years and thereafter the notice dated 25.1.2002 under Section 5 of the Act was again issued to the respondent. The Estate Officer, after hearing both the parties, issued the notice under Section 5 of the Act against the respondent for vacation of the said land. The eviction process was, however, kept in abeyance for about 5 years and thereafter the notice dated 25.1.2002 under Section 5 of the Act was again issued to the respondent. Challenging the legality of this notice, the respondent filed WP (C) No. 59(SH) of 2002 before this Court, which disposed of the writ petition on 17.12.2002 with the direction that it will be open to the respondent authorities to complete the proceedings under Section of the Act as initiated by the notice dated 25.1.2002 by complying with all the formalities procedural requirements spelt out by the provisions of the Act and till adjudication is finalized not to interfere with the possession of the writ petitioner over the land. In pursuance of this order, the petitioner herein issued a fresh notice upon the respondent and, after hearing the parties, issued the notice dated 16.4.2003 under Section 5(1) of the Act directing the respondent to vacate the encroached portion of the said defence land. The respondent challenged this notice/order by preferring Civil Appeal No. 2(T) of 2003 before the learned Additional Deputy Commissioner, Shillong. The petitioner contested the appeal and challenged the very jurisdiction of the Addl. Deputy Commissioner to entertain the appeal under Section 99(1) of the Act. The learned Addl. Deputy Commissioner by the impugned order dismissed the appeal holding that he had no jurisdiction to entertain the appeal, but he also in the same breath directed that the interim order passed by him on 7.5.2003 should continue till the matter was decided by a competent court of jurisdiction. It is the latter part of this order, which is under challenge in this revision. 4. It is submitted by Mr. S.C. Shyam, the learned CGC that the Court below committed jurisdictional error by continuing the interim order passed by him even when he dismissed the appeal for want of jurisdiction. It is his submission that once the Court below held that it had no competence to hear the appeal, it also became bereft of the jurisdiction to pass any interim order. On the other hand, Mr. It is his submission that once the Court below held that it had no competence to hear the appeal, it also became bereft of the jurisdiction to pass any interim order. On the other hand, Mr. N.D. Chullai, the learned senior State counsel urges this Court not to interfere with the impugned order, and, instead, may direct the respondent to approach the competent court of jurisdiction to agitate its grievance and within a particular period of time. 5. In my judgment, the whole approach of the learned Addl. Deputy Commissioner is illegal. In the fitness of things, the learned Addl. Deputy Commissioner ought to have directed the respondent to approach the competent court of jurisdiction within thirty days or so and could have continued the stay order till the expiry of such period and then left it to the discretion of the court seizing with the appeal to continue the stay order or not. The statement made by the learned CGC that the respondent has not yet preferred the appeal before the competent court of jurisdiction till date, is not contradicted by the learned State counsel. In view of this, neither the eviction proceeding nor the appeal could be proceeded with, which inevitably enables the respondent to retain possession for years together without the need to establish its right thereto. Undue advantage appears to have been given to the respondent thereby. The learned Addl. Deputy Commissioner completely overlooks the well settled legal position that interim relief can only be granted in aid of and as an ancillary to the main and principal relief, which can be granted by the court at the time of final disposal of the position. If the appellate court refused to entertain the appeal or held that the appeal was not maintainable or was of the opinion that the appellant should approach the appropriate forum in respect of the reliefs claimed in the appeal, such court could not have granted or continued the interim relief by directing the parties to maintain the status quo till the matter was decided by a competent court of jurisdiction. 6. 6. What the Apex Court in State of Orissa vs. Madan Gopal, (1952) 1 SCR 28 had observed, in the context of interim relief granted or continued by the High Court under Article226 of the Constitution even after holding that the writ petition was not maintainable, is, with respect, squarely applicable to an interim relief being passed by an appellate court. This is what the Apex Court says therein: This is not a case where the court before finally disposing of a petition under Article 226 gave directions in the nature of interim relief for the purpose of maintaining the status quo. The question which we have to determine is whether directions in the nature of interim relief only could be granted under Article 226 when the court expressly stated that it refrained from determining the rights of the parties on which a writ of mandamus or directions of a like nature could be issued. In our opinion Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to circumvent the provisions of Section 80, Civil Procedure Code, and in our opinion that is not within the scope of Article 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, issue directions it the nature of temporary injunctions, under Article 226 of the Constitution. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, issue directions it the nature of temporary injunctions, under Article 226 of the Constitution. In our opinion, the language of Article 226 does not permit such an action. 7. That was a case in which the High Court directed the petitioners to approach the Civil Court by filing suits. However, in view of the fact that a statutory notice under Section 80 of the Code of Civil Procedure, 1908 was required to be issued before instituting a suit, interim order restraining the Government mom disturbing the possession of the petitioners for a period of three months was granted to enable the petitioners to obtain appropriate relief from the Civil Court. The Government approached the Apex Court, which, as noted above, set aside the order of the High Court. In view of the law laid down by the Apex Court in the afore-noted case, I have no hesitation to hold that the learned Addl. Deputy Commissioner has no jurisdiction to pass the order continuing the interim stay granted by him earlier, after the dismissal of the appeal for want of jurisdiction. Consequently, the impugned interim relief is hardly sustainable in law and is, accordingly, liable to be set aside. 8. The net result of the foregoing discussion is that this revision petition succeeds. The interim relief passed by the learned Addl. Deputy Commissioner, Shillong continuing the stay order granted by him on 7.5.2003 contained in the order dated 5.6.2006 is hereby set aside. It shall, however, be open to the respondent to move the competent appellate court to ventilate its grievances, and for interim relief, if and when the appeal is filed, subject to the law of limitation. Needless to say, such motion of stay shall be considered by the appellate court strictly on merit. The parties are directed to bear their own costs.