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2008 DIGILAW 550 (GAU)

Huapliana v. State of Mizoram

2008-07-31

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Heard Mr. M. Zothankhuma, learned Counsel for the Petitioners. Also heard Mr. N. Sailo, learned Addl. Adv. General for the State Respondents. None appears for and on behalf of the private Respondent Nos. 4 to 9. 2. This writ petition under Article 226 of the Constitution of India is filed by the writ Petitioners seeking cancellation of the Notification No. C. 18016/17/2001-REV dated 29.7.2005 and also the consequential Notification No. C. 13016/W-3/92-DISP/DTE (REV) dated 5.12.2005 by which the Permit No. 156 of 1962 allotted to the Petitioner No. 1 herein, covering an area of 6 bighas at Luangmual. (Annexure-2) was cancelled. By resorting to provision of Section 31 of the Lushai Hills District (House Site) Act, 1953, the Executive Department of Mizo District Council issued an order declaring all lands within the jurisdiction of Luangmual, Tanhril and Sawkawrtuichhun as protected area and accordingly decided that no allotment of land for the purpose of residence, trade or agriculture shall be made without previous sanction of the Executive Committee of the Mizoram District Council. In the year 1981 the Petitioners having been granted Permit No. 156 of 1962, applied to the State Government for conversion of the said permit into a Periodic Patta, but their prayer was turned down by the Government on the ground that since their land fall under Aizawl Capital Town Expansion Project, such conversion was not possible due to prohibition imposed by the Government on any settlement operation including alteration, conversion and mutation etc. The writ Petitioners also paid taxes regularly up to year 1990 in respect of land under the Permit No. 156 of 1962. Thereafter, the Petitioners were unable to pay tax for the land under the permit since the appropriate authority did not accept the tax. 3. While the Permit No. 156 of 1962 was continuing in the name of the writ Petitioner No. 1, the State Respondents after receipt of various applications from MLA, Ministers and Ors. for settlement of land to them, issued six numbers of LSC to those applicants including one Zoramthanga, Sport Promotion Officer. The writ Petitioners being aggrieved thereby approached this High Court, Aizawl Bench by filling a Civil Rule No. 94 of 1990. By an order, this Court directed the Deputy Registrar of Gauhati High Court, Aizawl Bench to make a spot verification with information to the learned Adv. The writ Petitioners being aggrieved thereby approached this High Court, Aizawl Bench by filling a Civil Rule No. 94 of 1990. By an order, this Court directed the Deputy Registrar of Gauhati High Court, Aizawl Bench to make a spot verification with information to the learned Adv. General and counsel of the Petitioners to find out whether the land is still vacant. Pursuant to the order dated 7.3.1991, the Deputy Registrar, Gauhati High Court, Aizawl Bench conducted a spot verification of the disputed site and recorded issuance of land settlement certificates by the Director, Land Revenue and Settlement, Aizawl in favour of six persons and accordingly submitted a report (Annexure-10). In the report it is also mentioned that the remaining areas of the disputed site was offered to Gauhati High Court, Aizawl Bench under certificate of Land Lease No. DPL-3 of 1987. The report also confined that except two constructions, the remaining areas remained vacant without any construction. Thereafter, the Gauhati High Court, Aizawl Bench closed the Civil Rule No. 94 of1990 on withdrawal with liberty to file afresh. In spite of putting restrictions by the Government vide order dated 17.11.1988 (Annexure-5) in respect of land settlement certificate operation, mutation, alteration, allotment of land for house site, garden etc. in the areas covered by Aizawl Town Expansion Project at Luangmual, Tanhril, Sawkawtruichhun and Bairabi areas, the Director, Land and Revenue settlement granted land settlement certificates to MLAs, Ministers and Ors. pertaining to land covered by Permit No. 156 of 1962. It is contended further that such allotment of land under LSC to those people, of the land under Permit No. 156 of1962 was made without cancelling the permit in the name of the Petitioner No. 1. The cancellation order came into existence only on 29.7.2005 whereas the Government allotted house sites on 26.9.1990 much before the date of cancellation. The cancellation order dated 29.7.2005 also received approval from the Government communicated vide letter No. C. 18016/17/2001-REV dated 29.7.2005. The ground for cancellation as appended in the order (Annexure-22A) are as follows: 1. That the writ Petitioner No. 1 failed to convert the Permit into Periodic Patta; 2. That tax was not paid up to date. The cancellation order dated 29.7.2005 also received approval from the Government communicated vide letter No. C. 18016/17/2001-REV dated 29.7.2005. The ground for cancellation as appended in the order (Annexure-22A) are as follows: 1. That the writ Petitioner No. 1 failed to convert the Permit into Periodic Patta; 2. That tax was not paid up to date. On 1.9.2005, a show cause notice was issued to the writ Petitioner No. 1 asking why the Permit No. 156 of 1962 should not be cancelled for non conversion of the Permit into the periodic Patta and for non payment of tax up to date. (Annexure-20 A) Pursuant to the show cause notice, the writ Petitioner No. 1 submitted a reply (Annexure-21A) (translated English version) on 16.9.2005 wherein he has incorporated grounds for non conversion of the permit into Periodic Patta and for non-payment of tax after 1990. 4. Under this facts situation the writ Petitioners filed this Writ Petition seeking cancellation of the order dated 29.7.2005 and subsequent order dated 5.12.2005. 5. Mr. M. Zothankhuma, learned Counsel for the Petitioners at the very out set of his argument submits that there was violation of natural justice in the cancellation of the permit vide order dated 29.7.2005 and its approval by letter dated 29.7.2005. The grounds for cancellation which are appended in the order dated 5.12.2005 cannot be accepted since the conversion of the permit was not possible due to restrictions put by the Government vide order dated 17.11.1988. For conversion of the permit, application was submitted in the year 1981 by the writ Petitioner, but the same was rejected by the Respondents on the ground that the lands fall within the Aizawl Capital Town Expansion Project. Regarding non-payment of tax after 1990 it is submitted by Mr. M. Zothankhuma, learned Counsel for the Petitioner that despite offer of the tax, the appropriate authority did not accept the same. While refusing to accept the tax no reason had been explained for doing so. The writ Petitioners, according to Mr. M. Zothankhuma offered tax on several occasions but on each occasion the same was refused. In the issue of violation of natural justice it is submitted by Mr. M. Zothankhuma that the Government-Respondents put the cart before the horse i.e. without issuing a show cause notice prior to cancellation of the permit. The writ Petitioners, according to Mr. M. Zothankhuma offered tax on several occasions but on each occasion the same was refused. In the issue of violation of natural justice it is submitted by Mr. M. Zothankhuma that the Government-Respondents put the cart before the horse i.e. without issuing a show cause notice prior to cancellation of the permit. The Permit No. 156 of 1962 was cancelled without affording an opportunity to Petitioner No. 1 of being heard, therefore, the cancellation order dated 29.7.2005 cannot sustain legally. From the records and annexures it has become apparent that the permit was cancelled vide order dated 29.7.2005 which received approval on the same date and communicated vide letter dated 29.7.2005 (Annexure-22B), whereas show cause notice for cancellation was issued to the Petitioner No. 1 on 1.9.2005 and reply received on 16.9.2005. This goes to show that before issuing a show cause to the Petitioner No. 1, the permit holder for cancellation and receiving reply thereto, the permit was cancelled vide order dated 29.7.2005. 6. Land under Permit No. 156 of 1962 apparently belonged to Petitioner No. 1. The said permit was cancelled by the Respondent authorities without issuing a show cause and receiving reply thereto. Principles of natural justice has been extended to administrative orders where civil rights are affected. This principles of natural justice requires that every person whose civil right-is affected must have a reasonable notice of the case, he has to meet or must be furnished with information upon which the action is based, and must for a reasonable opportunity of being heard in his defence or to meet the case against him. Such opportunity must be reasonable. Therefore, in the face of the records it is found that no such opportunity was given to the writ Petitioners before cancellation of the Permit No. 156 of 1962. By canceling the permit without notice the Respondent authorities caused violation of civil rights of the writ Petitioners. Therefore, before affecting the civil right of the writ Petitioners, the appropriate recourse would have been to issue a notice to the writ Petitioners that the Respondents are going to cancel the permit in respect of the land under Permit No. 156 of 1962. But no opportunity was given to the writ Petitioners. Therefore, the cancellation order dated 29.7.2005 was passed in violation of natural justice which cannot stand legally. 7. Mr. But no opportunity was given to the writ Petitioners. Therefore, the cancellation order dated 29.7.2005 was passed in violation of natural justice which cannot stand legally. 7. Mr. N. Sailo, learned Addl. Advocate General, Mizoram appearing for the State Respondents, in view of the facts situation appearing in the face of the writ petition has not denied that there was no violation of natural justice on the part of the Respondent authorities in the cancellation of the Permit No. 156 of 1962 which was granted in favour of the writ Petitioner No. 1 by Mizo District Council. 8. Ordinarily an opportunity of making a written representation against the proposed action will meet the requirement of natural justice. But before submission of written representation by the writ Petitioners, (writ petition No. 1) the permit was cancelled. According to Mr. M. Zothankhuma the cancellation order was passed by the Respondent authorities in total violation of natural justice since civil right of the writ Petitioners have been affected by such cancellation. 9. Having considered all the matters in its entirety and for ends of justice, this Court is of view that the cancellation order dated 29.7.2005 and subsequent Notification dated 5.12.2005 cannot legally sustain and accordingly the same are set aside and quashed. 10. While issuing the above direction this Court refrain from issuing any writ or order in respect of the other reliefs as sought for. However, writ Petitioners would be at liberty to approach the Respondent authorities to put their grievance, if so advised. This writ petition is accordingly disposed of. No cost.