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2012 DIGILAW 992 (GAU)

Toko Yaro v. State of Arunachal Pradesh

2012-08-22

S.C.DAS

body2012
JUDGMENT S.C. Das, J. 1. All the writ petitions, mentioned above, having involved similar and identical question of law and fact, are heard together as consented by learned counsel of both side and this single judgment shall govern all the cases. The petitioners challenged office order. No. LMZ/Can/LPC 1/2011/197-200, dated 07.09.2011 (Annexure P/3 to the writ petitions) and prayed for quashing the same on the ground that the same has been issued without affording any opportunity to the petitioners of being heard and thereby the principle of natural justice has been violated. Heard learned counsel, Mr. T. Tagum for the petitioners and learned Additional Advocate General, Mr. K. Ete for the State-respondents. 2. The petitioners inter alia stated that they had been in possession of particular area of land (measurement as mentioned in the writ petitions), at Yachuli and they applied to the Deputy Commissioner, Lower Subansiri District in due process for a Land Possession Certificate (for short LPC) in their favour. They also applied to the Forest Department for issuing a "No Objection Certificate" (for short NOC) in their favour, for the land in their respective possession and the respondent No. 3, the Divisional Forest Officer, Hapoli issued NOC in favour of the petitioners of Writ Petition Nos. 93(AP) 2012, 95(AP) 2012, 96(AP) 2012, 97(AP) 2012 and 98(AP) 2012 vide letter No. HFD/DF-14/02/5693-95 dated 14.08.2007 and in favour of the petitioner of WP(C) No. 94(AP) 2012 vide letter No. HFD/DF-14/02/5693- 951 dt. 18.08.2007. It was clearly certified that the land, under possession of the petitioners for which they prayed for NOC, was outside the forest land. The petitioners submitted the NOC along with other papers before the respondent No. 2, for issuing LPC and accordingly, after due inquiry conducted by the respondent No. 2, LPCs in the name of respective petitioners were issued specifying the area and boundary of the land settled in their names. The petitioners annexed copies of LPC with their respective writ petitions and marked as Annexure P/2. For ready reference, one of the LPCs issued in the name of a petitioner of WP(C) 93 (AP) 2012 is noted hereunder which reads thus: GOVERNMENT OF ARUNACHAL PRADESH OFFICE OF THE DEPUTY COMMISSIONER LOWER SUBANSIRI DISTRICT No. LMZ/LPC/1-3/2006/1238 Dated Ziro the 21st August/2007 LAND POSSESSION CERTIFICATE This is to certify that the land/area measuring 2400.00 sq. mtrs of the land described below is in possession of Smti. mtrs of the land described below is in possession of Smti. Toko Yaro wife of Sri Toko Puna of village Yachuli, P.O. Yachuli, P.S. Yazali, Yachuli Circle, Lower Subansiri District Arunachal Pradesh and the said area/plot of land is free from all encumbrances as per the available records on date. This certificate is based on the report of the Circle Officer, Yachuli as communicated vide letter No. YCL/LAND-2/96/5366-67 dt. 13th July/2007 as well as NOC (No Objection Certificate) given by D.F.O. Hapoli on dtd. 14th August 2007. DESCRIPTION OF LAND 1. Name of the area in which the plot is situated AT YACHULLI 2. Total area : 2400.00 sq. mtrs. 3. Boundaries. a) North : Forest/Jungle area b) South : Ziro Kimin Road c) East : Nallah d) West : Plot of Sri Nikh Vikey a) North : Forest/Jungle area b) South : Ziro Kimin Road c) East : Nallah d) West : Plot of Sri NikhVikey Signed by:- Countersigned by:- Sd/- Sd/- (M.R. Chakravarti) (Sadhana Deori) Extra Asstt. Commissioner Deputy Commissioner. The petitioners were in occupation of the land for which the LPC was issued and all on a sudden the petitioners received a copy of impugned order, dated 07.09.2011 (Annexure P/3 to the writ petitions) and were astonished to see that the LPC issued in their names have been cancelled by the Deputy Commissioner i.e. the respondent No. 2. The contents of the Annexure P/3 reads thus: GOVERNMENT OF ARUNACHAL PRADESH OFFICE OF THE DEPUTY COMMISSIONER LOWER SUBANSIRI DISTRICT No. LMZICan/LPC-1/2011 dated Ziro the 7th Sept 2011 ORDER On the basis of call back report of NOC by DFO, Hapoli, vide letter No. HFD/1/08/1586-88 dated 04.09.2009 and the inquiry report of Committee headed by Additional Deputy Commissioner, Yachuli vide No. YCL/LPC-01/2009-2010/520 dated 16.07.2010, the Land Possession Certificate of Smti. Toko Yaro W/o Sri Toko Puna of village-Yachuli bearing LPC No. LMZ/LPC/Y-3/2006/1238 dated 21st August, 2007 measuring 2400.00 sq.mtr located at Yachuli is hereby cancelled with immediate effect. Sd/- (Nila Mohanan) IAS Deputy Commissioner Lower Subansiri District Ziro(A.P) Memo No. LMZ/Can/LPC-1/2011/197-200 Dated Ziro, the 7th Sept 2011 Copy to:- 1. Smti. Toko Yaro for information. 2. The Director, Land Management, Government of Arunachal Pradesh, Itanagar for information. 3. The Divisional Forest officer, Hapoli Forest Division, Hapoli for information. 4. The Addl. Deputy Commissioner, Yachuli for information. 5. File. Sd/-(Nila Mohanan) IAS Deputy Commissioner Lower Subansiri District Ziro (A.P). Smti. Toko Yaro for information. 2. The Director, Land Management, Government of Arunachal Pradesh, Itanagar for information. 3. The Divisional Forest officer, Hapoli Forest Division, Hapoli for information. 4. The Addl. Deputy Commissioner, Yachuli for information. 5. File. Sd/-(Nila Mohanan) IAS Deputy Commissioner Lower Subansiri District Ziro (A.P). It is alleged by the petitioners that no notice was issued to the petitioners before issuing the order, canceling LPC and no inquiry was made to their knowledge and so, the order dated 07.09.2011 is liable to be set aside and quashed. 3. Respondents contended that based on an order issued by RTI Commissioner, an inquiry was conducted by respondent No. 3 and it was found that the NOC in the name of the petitioners and others were issued inadvertently and the area of land fully or partly fall within the plantation area of the Forest Department. Based on a report submitted by respondent No. 3 to respondent No. 2 calling back, the NOC issued by respondent No. 2, an Inquiry Committee was constituted by the Deputy Commissioner consisting of 8 members and that Committee after a detailed inquiry submitted report stating that the land for which the NOC was issued was forest land. Taking into consideration the inquiry report, the impugned order, dated 07.09.2011, was passed by the Deputy Commissioner (respondent No. 2) and there was no illegality or impropriety on the part of the respondents. 4. Learned counsel, Mr. Tagum for the petitioners, submit that the NOC was issued after conducting a thorough and proper inquiry by the competent authority i.e. the respondent No. 3 himself. There is nothing that the petitioners had any role to influence respondent No. 3 for issuing a NOC in their favour. Respondent No. 2, taking into consideration NOC, issued by the respondent No. 3 and having further inquiry through revenue officers and also having found the petitioners in possession of the land peacefully, issued LPC in their favour. The respondents, as alleged, conducted inquiry but admittedly in the absence of the petitioners, without even issuing a notice regarding such inquiry and so, the impugned order is liable to be interfered and quashed. 5. Learned Addl. A.G., Mr. The respondents, as alleged, conducted inquiry but admittedly in the absence of the petitioners, without even issuing a notice regarding such inquiry and so, the impugned order is liable to be interfered and quashed. 5. Learned Addl. A.G., Mr. Ete submits that after the LPC was issued, pursuant to an order issued, by RTI Commissioner, the DFO (respondent No. 3) conducted an inquiry and it was found that the land for which the LPC was issued, was also covering the forest land and therefore, respondent No. 3 submitted a report to the Deputy Commissioner calling back the NOC and based on such report, the Deputy Commissioner also constituted an Inquiry Committee and that committee submitted report after detailed inquiry that the land covers government land and therefore, the LPC was cancelled. Learned Addl. A.G. further submits that the petitioner can in no way be said to have been prejudiced for not giving them a notice before cancellation of LPC since the competent authority after due inquiry was satisfied that the land was government land. In support of his contention learned Addl. A.G. also relied on the judgment of this Court in the case of The Managing Committee, Pub-Barlimari High School Vs. State of Assam & 11 Ors. reported in 1995 (2) GLT 285. In para-6 of this judgment the Court held thus: 6. The principle of natural justice cannot be placed in a water tight compartment. It will vary from case to case. By applying the straightjacket form of natural justice the legality and validity of order cannot be assailed or and order cannot be quashed on the ground. After all the writ Court is exercising equitable jurisdiction and in the exercise of the equitable jurisdiction the writ Court may refuse to interfere with an order if that order does not cause miscarriage of justice or if there is no substantial failure of justice. Mere infraction of principle of natural justice may not be a sufficient ground, and in the facts and circumstances of this case, it may be stated that there was some violation of natural justice, but that itself is not a ground to quash the impugned order and accordingly, there is no merit in this writ application and the same is dismissed. Stay order passed earlier stands vacated. I leave the parties to bear their own costs. Learned Addl. Stay order passed earlier stands vacated. I leave the parties to bear their own costs. Learned Addl. A.G. also relied on the judgment of the Apex Court in the case of Sohan Lal Gupta (dead) Through Lrs. & Ors. Vs. Asha Devi Gupta (Smt.) & Ors. reported in (2003) 7 SCC 492 . In paras 29 and 30 of this judgment the Apex Court held thus: 29. The principles of natural justice, it is trite, cannot be put in a strait jacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby. In Chairman, Board of Mining Examination and Chief Inspector of Mines Vs. Ramjee (1997) 2 SCC 256 : 1977 SCC (L & S) 226 this Court held: (SCC p. 262, para 13) Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt that is the conscience of the matter. (See also Union of India v. Anand Kumar Pandey (1994) 5 SCC 663 :1994 SCC (L & S) 1235 : (1994) 28 ATC 165 and R.S. Dass v. Union of India 1986 Supp SCC 617 : 1987) 2 ATC 628.) 30. In Anand Kumar Pandy case (1994) 5 SCC 663 : 1994 SCC (L & S) 1235 : (1994) this Court again reiterated that the rules of natural justice cannot be put in a strait jacket and applicability thereof would depend upon the facts and circumstances relating to each particular given situation. 6. Admittedly, LPC was issued in the name of the petitioners after conducting an inquiry in due process. NOC was issued by the respondent No. 3 i.e. the DFO and it is to be presumed that it was also issued after proper inquiry. 6. Admittedly, LPC was issued in the name of the petitioners after conducting an inquiry in due process. NOC was issued by the respondent No. 3 i.e. the DFO and it is to be presumed that it was also issued after proper inquiry. There is nothing before us that the LPC was obtained fraudulently or by misrepresentation of the fact. If the respondents subsequently found that the land under LPC or any part thereof was/is forest land and that LPC should be cancelled it was the bound and duty of the respondents to issue a show cause notice to the petitioners and to hear them on the issue. The principle of natural justice in the case at hand was surely violated and the action taken by the respondents, in my considered opinion, definitely come within the purview of the mischief of violation of natural justice. As to whether the principle of natural justice is violated or not is to be decided taking into consideration the particular fact of given case. There cannot be a straitjacket formula for the purpose. The facts of the reported cases, referred by learned Addl. A.G., Mr. Ete and the fact of the case at hand are clearly distinguishable. Here the petitioners have clearly made out a case that their right to property which was allowed by issuing the LPC has been taken away without affording them any opportunity to explain their case and so, the principle of natural justice i.e. "Audi-alteram-partem" has been violated by the respondents and therefore, this Court is constrained to interfere in the impugned order which is liable to be set aside and accordingly, the order dated 07.09.2011 (Annexure P/3 to the writ petition) is set aside and quashed. 7. It is made clear that this order may not stand as a bar for the respondents in proceeding afresh in the matter, affording all opportunities to the petitioners, if so desire. The writ petitions accordingly stands allowed. Parties are to bear their own costs.