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2017 DIGILAW 1264 (GAU)

Geni Apang v. State of Arunachal Pradesh

2017-09-08

SONGKHUPCHUNG SERTO

body2017
ORDER : S. Serto, J. Heard Mr. Tony Pertin, learned counsel, assisted by Mr. H.K. Jamoh, learned counsel, appearing on behalf of the writ petitioner. Also heard Mr. Duge Soki, learned Addl. Senior Government Advocate, appearing on behalf of all the respondents. 2. This is a petition preferred by the petitioner under Article 226 of the Contitution of India, challenging the legality and validity of the impugned order, No. DC/LM-26/2003/622/14(Pt)/3 75 dated 03.03.2016 and the Notice, dated 16.03.2016, issued by the Deputy Commissioner, Itanagar, whereby the land allotment order of the petitioner issued by the Deputy Commissioner, Itanagar, allotting a plot of land measuring 1400 sq. mtrs. at 'O' Point, Itanagar, vide order. No. DC/LM-26/2003(VOL. II)/622/14(Pt)/553 dated 07.11.2005 has been cancelled and he has been directed to surrender the land allotment order/Passbook issued to him, immediately. 3. The case of the petitioner, as submitted by Mr. Pertin, learned counsel, is that, the petitioner being a citizen of this Country and a permanent resident of the State of Arunachal Pradesh, applied for allotment of a plot of land measuring 1400 sq. mtrs., for business purpose, at 'O' Point, Itanagar, to the Deputy Commissioner, Papum Pare District, Yupia. In pursuant to his application, the Deputy Commissioner, Yupia, after surveying and making inquiry of the land, in question, as well as examining the possibility of allotting the same, forwarded the matter to the State Government for approval of allotment of the said plot of land in favour of the petitioner. The Directorate of Land Management, Government of Arunachal Pradesh, conveyed approval of the State Government for allotment of the said plot of land to the petitioner, vide letter, dated 07.11.2005. On receipt of the approval of the State Government, the Deputy Commissioner, Yupia, issued formal land allotment order for the land as requested by the petitioner vide land allotment order/Pass-book No. ITA/10/89/2005, bearing land allotment No. LM-26/2003/V61-II/622 dated 07.11.2005. The petitioner, thereafter, paid the annual lease rent and the premium for the same, till 31.12.2016. However, the Deputy Commissioner, Papum Pare District, Yupia, in the year 2006, vide his order, dated 4.1.2008, cancelled the land allotment order allotting the said plot of land to the petitioner without issuing any notice and giving him the opportunity of being heard. The petitioner being aggrieved, approached this Court by way of filing WP(C) No. 08(AP)2008, challenging the impugned order, dated 4.1.2008. The petitioner being aggrieved, approached this Court by way of filing WP(C) No. 08(AP)2008, challenging the impugned order, dated 4.1.2008. This Court, vide order, dated 31.01.2008, disposed of the said writ petition by quashing and setting aside the impugned order, dated 4.1.2008. The operative portion of the judgment & order, dated 31.01.2008, is given below, for ready reference: "........ the impugned order dated 04.01.2008 has been passed in gross violation of the principles of natural justice and the same stands set aside. However, it is made clear that the quashing of the order shall not stand in the way to initiate appropriate action on the part of the authority by providing necessary opportunity of hearing to the petitioner as indicated above." 4. After cancellation order was quashed and set aside by this Court, as stated, above, the petitioner continued to pay the annual lease rent/revenue, etc., to the authority concerned, as required under the law. The petitioner, thereafter, on 25.09.2014, applied before the Deputy Commissioner, Capital Complex, Itanagar, for issuance of non-encumbrance certificate for the land allotted to him. Again on 02.03.2015, he submitted an application requesting for issuance of non-litigation certificate-cum-non-encumbrance certificate in respect of the land allotted to him. Following the submission of the applications, mentioned above, the Deputy Commissioner, Capital Complex, Itanagar, issued a Notification vide Case No. DC/LM-26/2003/622/14(Pt.)/01 dated 20.03.2015, to the Executive Engineer, Division A, Public Works Department, Itanagar, and the petitioner, informing them to appear before him on 06.04.2015 at 11 AM and to produce documents and to testify in support of their respective claims. On 06.04.2015, the Executive Engineer, inspite of the receipt of Notice, neither appeared nor filed any document, as directed. However, the petitioner appeared and produced all the relevant documents in his possession in support of his claim. The Deputy Commissioner, Itanagar, fixed another date i.e. 16.04.2015 for hearing of the matter. On the next date fixed, the matter was not taken-up but the same was fixed on 23.10.15. On 21.1.16, the matter was finally disposed of, by the Deputy Commissioner, Capital Complex, Itanagar, by holding that since the petitioner had been paying the lease rent continually, till date, the earlier cancellation order cannot be Wed as effective. However, he did not issue the non-encumbrance mid non-litigation certificates as prayed for. The operative portions us of the order, dated 21.01.2016. passed hie Deputy Commissioner. However, he did not issue the non-encumbrance mid non-litigation certificates as prayed for. The operative portions us of the order, dated 21.01.2016. passed hie Deputy Commissioner. Itanagar are produced, hereunder, for better appreciation of the matter, at hand: "15. Since land lease rent has been deposited even after cancellation and the Department concerned has not taken any action to discontinue the payment of revenue, the allotment order cancellation cannot be treated as effective. 16. Therefore, it should be re-submitted to lie appropriate authority of the Government for renew of cancellation orders vide No. LR-46/93 0W.-I)dated 15.09.2007 and No. Deputy Commissioner/LM/ITA(A)/430/01 dated 15.09.2008. 17. The non-encumbrance and non-litigation certificate may be processed only if appropriate authority review the cancellation of land allotment order." 5. While the matter rested as such, on 02.03.2016, the petitioner was served with a Notice being No. DC/LM-26/2003/622/M(PtV01/29O dated 29.02.2016 issued by it Deputy Commissioner. Itanagar whereby he was directed to appear before the said Holy Commissioner on 03.03.2016 on the matter relating to non-encumbrance and non-litigation certificates of the land allotted to him. The petitioner accordingly appeared before the Deputy Commissioner, Itanagar, on 03.03.2016 and submitted a representation Wore the said Deputy Commissioner, stating the Case No. DC/LM-26/2003/622/M(Pt) has already been disposed of by the then Deputy Commissioner, Itanagar on 2.01.2016. However, the Deputy Commissioner. Itanagar, on that day itself i.e. 3.2.2016, issued the impugned order stating that the cancellation order, dated 04.01.2008. which was earlier quashed and set aside byte Court in WP(c) 08(AP)2008, is valid because, the land in question, belongs to the Public Works Department. After issuance of such order, the Deputy Commissioner, Itanagar, again issued another Notice being No. DC/LM-26/2003/622/14(Pt)/553 dated 16.03.2016 wherein the petitioner was directed to surrender the land allotment order/Passbook, immediately. The operative portions of the impugned order dated 03.03.2016 and notice dated 16.03.2016, are quoted herein below, for ready reference: "03.03.2016. The case has already been disposed off by the then Deputy Commissioner, but, again the matter has come for hearing when the file has been put up for providing non-encumbrance certificate for 1400 sq. metres. of land allotted on 07.11.2005 and cancelled on 04.01.2008. Since, the said plot belongs to the Public Works Department, it cannot be allotted to private party and the cancellation of land allotment stands...." 16.03.2016 Notice To, Shri Geni Apang S/o Shri Gegong Apang 'O'-Point Tinali, Itanagar Arunachal Pradesh - 791111. metres. of land allotted on 07.11.2005 and cancelled on 04.01.2008. Since, the said plot belongs to the Public Works Department, it cannot be allotted to private party and the cancellation of land allotment stands...." 16.03.2016 Notice To, Shri Geni Apang S/o Shri Gegong Apang 'O'-Point Tinali, Itanagar Arunachal Pradesh - 791111. The land allotted you at 'O'-Point Tinali, Itanagar vide No. DC/LM-26/2003(VOL. II)/622/14(Pt) dated 07.11.2005 stand cancelled, you are hereby directed to surrender the land allotment order/passbook in the office of the Deputy Commissioner's Office, Itanagar Capital Complex, immediately." Being highly aggrieved, the petitioner has approached this Court, once again, challenging the 2(two) judgments, stated above. 6. The case of the petitioner, as projected by Mr. Pert in, learned counsel for the petitioner, is that since the impugned order, dated 03.03.2016, is based on the earlier order, dated 04.01.2008, which was already quashed and set aside by this Court in WP(C) No. 08(AP)2008, the same should be considered non-est, illegal and violative of this Court's order, dated 31.01.2008. Secondly, since the impugned order, quoted above, was issued in a proceeding for issuance of non-encumbrance and non-litigation certificates, the same is improper and illegal. It is also the case of the petitioner that the impugned order, dated 04.01.2008, was not passed in a proceeding as contemplated under the law and the same is, therefore, illegal and cannot be allowed to stand. Another aspect of the case of the petitioner is that since the allotment order was issued in his favour, he has been occupying the said plot of land and paying the lease rent/revenue, regularly, as required under the relevant law, therefore, the cancellation order, dated 04.01.2008, is illegal and mala fide. Hence, the same deserves to be quashed and set aside. Mr. Pertin, learned counsel, supporting the petitioner's case, submitted that though the case before the Deputy Commissioner, Itanagar, was for issuance of non-encumbrance and non-litigation certificates, the said Deputy Commissioner, Itanagar, passed the impugned order, dated 04.01.2008, under Section 4 of the Arunachal Pradesh Public Premises (Eviction of Unauthorized Occupants) Act, 2003. This, according to him, is illegal because the petitioner is occupying the land, in question, which was duly allotted to him and for which he had paid the requisite revenue/lease rent payable under the Act, to the State Government, therefore, on that count alone, the impugned order dated 04.01.2008, is liable to be quashed and set aside. This, according to him, is illegal because the petitioner is occupying the land, in question, which was duly allotted to him and for which he had paid the requisite revenue/lease rent payable under the Act, to the State Government, therefore, on that count alone, the impugned order dated 04.01.2008, is liable to be quashed and set aside. Mr. Pertin, learned counsel went on to submit that if the State Government or the respondent authorities are intended to cancel the land allotment order given in petitioner's favour, they should have proceeded under the provisions of the Arunachal Pradesh (Land Settlement & Records) Act, 2000 which provides for the same. 7. Mr. Soki, learned Addl. Senior Government Advocate, submitted that when this Court had passed the order, dated 31.01.2008, it did not say that the allotment order issued in favour of the petitioner, cannot be cancelled but can be cancelled as per the provisions of law. Therefore, the Deputy Commissioner, Itanagar, after having found that the land, in question, has already been allotted to the Public Works Department, Government of Arunachal Pradesh, and the same has been under the occupation/possession of that Department, all along, deemed it fit to cancel the land allotment order/Pass-book issued to the petitioner, in the public interest. Therefore, the Deputy Commissioner, Itanagar, has rightly issued the cancellation order and the Notice issued to the petitioner, directing him to surrender the land allotment order/Passbook which are impugned herein. Learned Addl. Senior Government Advocate also submitted that if the petitioner is aggrieved, at all, he should have approached the Secretary, Revenue Department, Government of Arunachal Pradesh, on an appeal as for doing so is provided under Section 83(b) of the Arunachal Pradesh (Land Settlement & Records) Act, 2000. The learned Addl. Senior Government Advocate further submitted that since there is a statutory provision providing for an appeal and the petitioner having not availed the same, the instant writ petition ought to have been dismissed by the Court, at the very outset. 8. Mr. Soki, learned Addl. Senior Government Advocate, in support of his arguments, cited the judgment of the Apex Court as rendered in the case of Kanaiyalal Lalchand Sachdev & Ors. v. State of Maharashtra & Ors. as reported in (2011) 2 SCC 782 . The relevant paragraph No. 23, as referred to by him, is quoted here in below: "23. Mr. Soki, learned Addl. Senior Government Advocate, in support of his arguments, cited the judgment of the Apex Court as rendered in the case of Kanaiyalal Lalchand Sachdev & Ors. v. State of Maharashtra & Ors. as reported in (2011) 2 SCC 782 . The relevant paragraph No. 23, as referred to by him, is quoted here in below: "23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles under Article 226 of the Contitution of India/under Article 227 of the Contitution of India of the Constitution of India is not available if an efficacious remedy is available to any aggrieved person." 9. I have considered the facts and circumstances of the case, at hand, minutely, and also taken into consideration, the submissions of the learned counsels appearing for the parties. The most important issue which needs to be considered, in this case, is whether the Deputy Commissioner, Itanagar, could have passed the impugned orders while the order of this Court which quashed and set aside the same kind of order on the same subject-matter, is still subsisting, that too, without strictly following the same. The language and tenor of the this Court's order, dated 31.01.2008, passed in WP(C) No. 08(AP)2008, are very clear. Therefore, there is no difficulty in understanding the meaning of the same. As stated above in the operative portion of the said order dated 31.01.2008, the impugned order which cancelled the land allotment order of the petitioner in respect of the land was passed without giving proper opportunity of being heard to the petitioner. Therefore, the same was quashed and set aside. However, the order also made it clear that the same order shall not stand in the way to initiate appropriate action on the part of the authority by giving necessary opportunity of being heard to the petitioner. This goes to show that the respondents can take appropriate action as deemed fit and proper but they should give appropriate opportunity of being heard to the petitioner. 10. In the present case, the impugned orders were passed in a proceeding not related to the cancellation of the land allotment order. This goes to show that the respondents can take appropriate action as deemed fit and proper but they should give appropriate opportunity of being heard to the petitioner. 10. In the present case, the impugned orders were passed in a proceeding not related to the cancellation of the land allotment order. In fact, they were passed in a proceeding which was initiated to grant or not to grant the non-encumbrance and non-litigation certificates. The two matters are wholly different though it concerns the same plot of land. Therefore, the State Respondents cannot explain the same by saying that the petitioner was heard by the Deputy Commissioner, Itanagar, before passing such impugned orders. Opportunity of being heard would mean being given a fair chance of being heard to the petitioner in an appropriate proceeding initiated for the purpose. Since the proceeding was drawn for an altogether different purpose, one cannot say that the petitioner has been given the opportunity of being heard before the impugned cancellation order in respect of the petitioner's land allotment order, was passed by the Deputy Commissioner, Itanagar. 11. In view of the foregoing reasons, this Court is of the considered opinion that the impugned order dated: (i). 03.03.2016 issued under Memo. No. DC/LM-26/2003/622/14(Pt)/375, and (ii). the notice dated 16.3.16 issued under Memo. No. DC/LM-26/2003 (VOL. II)/622/14(Pt)/553, were passed and issued by the Deputy Commissioner, Capital Complex, Itanagar, in flagrant violation of this Court's order, dated 31.01.2008, passed in WP(C) No. 08(AP)2008. Therefore, the same cannot be allowed to stand. Accordingly, the impugned order and the notice stated above, are hereby quashed and set aside. Needless to say but the State Respondents, if so advised, may initiate a proper proceeding under the relevant law where the petitioner is also given adequate opportunity of being heard. Accordingly, this writ petition stands allowed to the extent indicated above and it stands disposed of. No costs.