JUDGMENT & ORDER : 1. This is an application under Article 226 of the Constitution of India praying for quashing the Eviction Order No. REV/KLS/30/72-73 (Pt-11), dated 03.06.2016, passed by the Deputy Commissioner, Kohima directing the petitioners to remove the stair case of their building within a period of 14 days. 2. The facts of the case that has emerged from the submissions of the learned counsels representing the parties are briefly stated as follows: That the petitioners in this case are shareholders/members of Naga Motors Association, formed and established in the year 1946. The Association was allotted a plot of land measuring 1,782 Sq. ft situated at D. Block, Kohima by Government of that time. Due to lack of fund they could not construct a proposed office cum commercial building at the plot allotted. As such, they borrowed some money from one Lt. Mrs. Virhitono. Thereafter, a building was built, however, they could not repay the loan, therefore, in lieu of it a plot of land measuring 630 sq. ft was given to Lt. Mrs. Virhitono, (which the respondent No. 1 inherited). After necessary mutation had taken place the land of the petitioners was recorded as Patta No. 427, Plot No. 271, covering an area 630 Sq.ft. However, the petitioners lost their documents for their land, therefore, a new patta was issued for the same and it was recorded as Patta No. 2408, Plot No. 1927, area 1141 Sq. ft. Since, the old building needed to be replace with a new one permission was sought from the Kohima Town Committee. Accordingly, the construction permit was issued by the Kohima Town Committee vide order No. KTC/REV-6/77/87, dated 02.04.1987. After the permission was obtained a building was constructed and the same remains till today. That while construction of the new building was going on a dispute arose between the petitioners and the respondent No.4, the same reached the Office of the Deputy Commissioner and from there to the Office of the Sub-Divisional Officer (Sadar). The case was registered as Civil Suit No. 4/87. After conducting spot verification, the Sub-Divisional Officer (Sadar), passed an order being No. REV/EX/1/86, dated 22.07.1987, wherein he held that the Naga Motors Association was in possession of an area of 1024 Sq. The case was registered as Civil Suit No. 4/87. After conducting spot verification, the Sub-Divisional Officer (Sadar), passed an order being No. REV/EX/1/86, dated 22.07.1987, wherein he held that the Naga Motors Association was in possession of an area of 1024 Sq. ft., and the respondent No.4 was in possession of an area of 1178 Sq.ft in excess of the areas of lands that was given to them. The Sub-Divisional Officer (Sadar), further ordered that the excess land occupied by them be regularise in their respective names, and also held that the respondent No.4 has no reason to claim the whole land of the petitioners. The respondent being aggrieved went on appeal to the Court of Additional Deputy Commissioner (Judicial) and the same was registered as Civil Appeal No. 3/88. On 28.11.1988, the appeal was disposed by upholding the judgment and order of the Sub-Divisional Officer (Sadar). Five years thereafter, the respondent No.4 made an appeal before the District Magistrate, Kohima, and the District Magistrate on 18.10.1993, passed a judgment and order, wherein the parties were directed as follows; 1. Ketsiu Chucha shall shift the wall along the plinth length facing the road (i.e., in effect widen the passage) by 2(two) feet. This will bring his area to exactly 1222 Sq. ft. and also in effect excess occupation of 3.77 percent. 2. The NMA shall also remove the stair-case. 3. The passage (so widened and/or cleared for a width of 6 ft. shall remain common property. After 23 years thereafter, the Deputy Commissioner, Kohima, passed the impugned order which is reproduced here below:- “GOVERNMENT OF NAGALAND OFFICE OF THE DEPUTY COMMISSIONER, KOHIM, NAGALAND. EVICTION ORDER Dated Kohima, the June, 2016. No. REV/KLS/30/72-73(Pt-11)___________whereas the District Magistrate Court, Kohima in the appeal made by Shri. Ketsiu Chucha that Nagaland Motor’s Association had blocked his passage/right of way to his building and the court has passed an Oder dated 10/10/93 that 1. Ketsiu Chucha shall shift the wall along the plinth wall facing the road by 2(two) feet. 2. The Nagaland Motor’s Association shall remove the staircase. And whereas it is verified and found that Shri. Ketsiu Chucha has complied with the orders of the District Magistrate’s Court while the Nagaland Motors Association has not removed the stair case which is contempt of the Court’s order. 2. The Nagaland Motor’s Association shall remove the staircase. And whereas it is verified and found that Shri. Ketsiu Chucha has complied with the orders of the District Magistrate’s Court while the Nagaland Motors Association has not removed the stair case which is contempt of the Court’s order. Now therefore your are hereby directed to remove the staircase within a period of 14 days (fourteen) days after received of this order after which Eviction shall be carried out without any further notice. To, The Nagaland Motors Association D’Block Kohima SD/- (Rovilatuo Mor) IAS Deputy Commissioner, Kohima.” 3. Aggrieved by the impugned order, the petitioners have come to this Court praying for quashing and setting aside of the same. 4. I have heard Mr. C.T. Jamir, learned Sr. counsel for the petitioners. Also heard Mr. K. Wotsa, learned Sr. Government Advocate who appeared on behalf of the State respondents and Mr. Taka Masa, learned Sr. Advocate who appeared on behalf of the private respondent No. 4. 5. Mr. C.T. Jamir, learned Sr. counsel submitted that the Deputy Commissioner, Kohima can take up eviction proceeding only when a public land is illegally occupied by anybody without any authority that to only after issuing show cause notice to those who are purportedly in illegal occupation of public land. The learned Sr. counsel in support of his submission cited the relevant provisions of Nagaland Eviction of Persons in Unauthorized Occupation of Public Land Act, 1971. The learned Sr. counsel further submitted that since the petitioners and the respondents are occupying their respective lands, the fact of which was confirmed by the judgment and order of the Sub-Divisional Officer (Sadar), and judgment and order of Additional Deputy Commissioner (Judicial), the provisions of Nagaland Eviction of Persons in Unauthorized Occupation of Public Land Act, 1971 is not attracted, therefore, the Deputy Commissioner could not have issued the eviction order under the same Act. 6. The learned Sr. counsel also submitted that the order dated 18.10.1993, passed by the District Magistrate, was passed without jurisdiction as there is no law empowering the District Magistrate to seat on appeal against the judicial order passed by the Additional Deputy Commissioner (Judicial), which had civil jurisdiction at that point of time. The learned Sr. 6. The learned Sr. counsel also submitted that the order dated 18.10.1993, passed by the District Magistrate, was passed without jurisdiction as there is no law empowering the District Magistrate to seat on appeal against the judicial order passed by the Additional Deputy Commissioner (Judicial), which had civil jurisdiction at that point of time. The learned Sr. counsel further submitted that the fact that the respondent No.4 have been continuously living in his own house over the land given by the petitioners shows that his passage had not been block in any way as he is trying to portray and if he feels that he has a grievance he should approach a civil court under Indian Easements Act, 1882 which is applicable in the State of Nagaland. 7. Mr. Taka Masa, learned Sr. counsel for the respondent No.4 submitted that the action of the Deputy Commissioner in issuing the Eviction Order dated 03.06.2016, was in pursuance of or in implementation of the order dated 18.10.1993, passed by the District Magistrate, Kohima and not an action under Nagaland Eviction of Persons in Unauthorized Occupation of Public Land Act, 1971. The learned Sr. counsel also submitted that since the petitioners did not go for an appeal, revision or review against the order, the same has attend its finality. Therefore, they cannot now challenge its legality. The learned Sr. counsel also submitted that the petitioners were parties in that case and also appeared/participated in the proceedings of that case. Therefore, they had submitted to the jurisdiction of the authority. As such, they cannot now say that such authority i.e. the District Magistrate, Kohima has no jurisdiction over the subject matter. In support of his submission, the learned counsel cited paragraphs-6 to 12 of the judgment passed by the Hon’ble Supreme Court in the case of Mandal Panchayat, Hunsagi -versus- North-Eastern Karnataka Road Transport Corporation reported in (2009) 7 SCC 450 . The same is reproduced here below:- “6. The High Court, inter alia, formulated the following substantial questions of law for its consideration: “1. Whether the lower appellate court was justified in reversing the well considered and reasoned judgment and decree of the trial court which appears to have been passed in public interest on the pleadings of the appellant which is a part of the State Road Transport Corporation? 2. Whether the lower appellate court was justified in reversing the well considered and reasoned judgment and decree of the trial court which appears to have been passed in public interest on the pleadings of the appellant which is a part of the State Road Transport Corporation? 2. Whether the lower appellate Court was correct in rejecting the claim made by the plaintiff contending that the right to the path way for the public is an easementary right for the public to pass to the road from the bus stand? 3. Whether the lower appellate Court was correct in holding that the plaintiff has no locus-standi to maintain the suit?� 7. It was held that the plaintiff-respondent had a locus standi to maintain the suit as by reason of the constructions raised by the defendant-appellant, their right of easement of necessity had been affected. Noticing that the distance between boundary wall of the bus stand and the centre of the road is less than 50 feet and the wicket gate unless opened for facilitating the passengers to enter into the bus stand, the entry meant for egress and ingress of the buses, would be blocked and, thus, the Appellate Court committed a serious error in passing its judgment. 8. Mr. Dipak Kumar Jena, learned counsel appearing on behalf of the appellant, would submit: (i) The High Court committed a serious error in interfering with the judgment of the First Appellate Court insofar as it failed to take into consideration the fact that the land in suit being admittedly not belonging to the plaintiff-respondent, it was not entitled to any relief. (ii) The validity of the order passed by the Chief Secretary of the Zilla Parishad dated 2.9.1992 under Section 274 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as 'the 1983 Act') having not been questioned by any of the parties, the same was binding on the plaintiff. 9. Mr. Hegde, learned counsel appearing on behalf of the respondent, on the other hand, would support the impugned judgment. 10. Appellant does not claim any right, title and interest over the suit land. Indisputably, the suit land in a part of the main road belongs to PWD. 9. Mr. Hegde, learned counsel appearing on behalf of the respondent, on the other hand, would support the impugned judgment. 10. Appellant does not claim any right, title and interest over the suit land. Indisputably, the suit land in a part of the main road belongs to PWD. It has not been disputed before any of the courts below that no construction could have been raised within 30 meters from the centre of the road. A finding of fact had been arrived at to that effect by the learned trial Judge. The said finding of fact has not been reversed by the learned First Appellate Court. It is in that view of the matter, the High Court, in our opinion, rightly held that the wicket gate constructed within 50 ft. of the centre of road for facilitating the egress and ingress of the passengers to enter the bus stand could not have been blocked. 11. Section 274 of the 1983 Act reads as under: “274. Revision. - (1) The Zilla Parishad may call for and examine the record of any proceedings under this Act of any subordinate officer of the Zilla Parishad or the Mandal Panchayat and after such inquiry as is deemed fit if the Zilla Parishad is satisfied that the order of such subordinate officer is contrary to law and has resulted in miscarriage of justice, pass such orders thereon as the Zilla Parishad deems just. (2) No order under sub-section (1) shall be made to the prejudice of any party unless he has had an opportunity of being heard.� The Chief Secretary of the Zilla Parishad in his order dated 2.12.1992 has not and could not have entered into the disputed question of title in respect of the suit land. 12. Only because the Zilla Parishad has granted approval for the constructions, the same by itself would not come in the way of the respondent's right to maintain a suit. It was not necessary for it to file a suit in terms of Section 92 of the Code of Civil Procedure. 12. Only because the Zilla Parishad has granted approval for the constructions, the same by itself would not come in the way of the respondent's right to maintain a suit. It was not necessary for it to file a suit in terms of Section 92 of the Code of Civil Procedure. The very fact that the Chief Secretary, Zilla Parishad, Gulbarga himself had directed for opening a passage to the wicket gate which order has not been questioned by the appellants is a clear pointer to show that even the revisional authority did not arrive at a finding that they have a lawful title over the land so as to enable them to raise construction over the suit land in their own right. The constructions raised by the appellant, thus, being illegal, the same should have been directed to be demolished”. 8. The learned Sr. counsel also submitted that the Deputy Commissioner can also take action under section 144 Cr. P.C to remove such structure which causes obstruction and nuisance to the public. Therefore, the Deputy Commissioner, Kohima was only acting within his power when he passed the eviction order. As such, there is no illegality in it. 9. The learned Sr. counsel further submitted that when the District Magistrate, Kohima passed the order dated 18.10.1993, there was no separation of judiciary from the executive, therefore, the District Magistrate, Kohima had all the power of civil court. As such, he had the jurisdiction and authority to pass such order. The learned Sr. counsel also submitted that the passage of the house of the respondent No.4 has been greatly disturbed by the stair case of the petitioners building and that has forced most of his tenants to leave the same reducing the value of it as the time passes. Therefore, remover of the stair case of the petitioners is necessary. Lastly, the learned Sr. counsel, though faintly, mentioned that the passage does not belong to anybody as it is public passage, therefore, the petitioners should remove their stair case which block the same. 10. Mr. K. Wotsa, learned Sr. Government Advocate appearing for the Government respondents submitted that as per the order of the Sub-Divisional Officer (Sadar), the parties were occupying the land more than it was lawfully theirs. 10. Mr. K. Wotsa, learned Sr. Government Advocate appearing for the Government respondents submitted that as per the order of the Sub-Divisional Officer (Sadar), the parties were occupying the land more than it was lawfully theirs. Therefore, they should keep the passage without any obstruction and the Deputy Commissioner had not committed any illegality in having issued the eviction order to the petitioners. 11. Admittedly, there is no dispute between the parties over the lands occupied by them. The only dispute is over the stair case attached to the building of the petitioners which is allegedly blocking the only passage to the house of the respondent No. 4. From the submissions of the learned counsels representing the respondents, it is clear that the eviction order (impugned order) was issued by the Deputy Commissioner in pursuance to the order dated 18.10.1993, of the District Magistrate, Kohima. The question is whether the Deputy Commissioner can seat on appeal over the judgment passed by the Additional Deputy Commissioner (Judicial). Though the same person is given the power and authority of both the Deputy Commissioner and District Magistrate the two office are different entities having different functions and powers, therefore, what one does as Deputy Commissioner cannot be reviewed or overruled by sitting on the seat of the District Magistrate and vice-versa. In those days when judiciary was not separated from executive the Additional Deputy Commissioner (Judicial), was given the power of civil court. The judgment and order dated 28.11.1988, passed in Civil Appeal No.3/88, by the Additional Deputy Commissioner (Judicial), was passed in exercised of the power of the civil court. Therefore, the District Magistrate could not have had the jurisdiction or power to seat on appeal over the judgment and order passed by the Additional Deputy Commissioner (Judicial). As such, the order dated 03.06.2016, passed by the Deputy Commissioner, Kohima, was without jurisdiction and any authority given by law, therefore, the same was void abinitio. And since, it has been submitted by the learned counsels of the respondents that the action of the Deputy Commissioner in issuing the impugned eviction order against the petitioners was in pursuance of or in implementation of the said order of the District Magistrate dated 18.10.1993, the same cannot be a valid action in law, as the same was based on an order which is void abinitio. Further, since it has been admitted by the learned counsels of the respondents that the eviction proceeding of the Deputy Commissioner was not taken up under the Nagaland Eviction of Persons in Unauthorized Occupation of Public Land Act, 1971 and, since there is no other law under which the Deputy Commissioner is re-powered to take up such eviction proceeding, the eviction proceeding under challenge is devoid of any legal sanction, therefore, it cannot be sustained. 12. The submission of the learned Sr. counsel for the respondent No. 4, Mr. Taka Masa that the Deputy Commissioner under section 144 of Cr. P.C has the power to take such proceeding and pass such order appears be out of since it has been already submitted by him that the proceeding was taken up in pursuance of or in implementation of the order of the District Magistrate, dated 18.10.1993. The only option open to the respondent No. 4 perhaps is to go to civil court for redressal of his grievance under appropriate provision or provisions of law. In view of the reasons and observations made above, the impugned order dated 03.06.2016 is quashed and set aside. The parties shall bear their own costs.