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2018 DIGILAW 307 (GAU)

Thilixu Village v. State of Nagaland

2018-02-19

SONGKHUPCHUNG SERTO

body2018
JUDGMENT : Songkhupchung Serto, J. 1. Heard Mr. Taka Masa, learned senior counsel, appearing on behalf of the petitioner. Also heard Mr. T.B. Jamir, learned Senior Addl. Advocate General, Nagaland, appearing on behalf of the State Respondents No. 1 to 3, and Mr. N.K. Luikham, learned counsel appearing on behalf of private Respondent No. 4. This is an application under Article 226 of the Constitution of India, praying for quashing and setting aside of the impugned: (i) restraining order No. GEN-3/JUD/2016-D/2428-33, dated 01.06.2017, issued by the Deputy Commissioner, Dimapur, (ii) order No. GEN-15/JUD/2016-D/2928-32' dated 14.06.2017, issued by the Deputy Commissioner, Dimapur, (iii) letter No. CNG-181 (K)/2014/1341, dated 13.06.2017, issued by the Commissioner, Nagaland, (iv) letter No. GEN-15/2016-D/2743-47, dated 08.06.2017, issued by the SDO(Civil), Dimapur, and, (v). Issuance of a direction to directing the respondent authorities to confirm boundaries of Thilixu Village on the basis of report submitted by the Deputy Commissioner, Dimapur, vide his letter No. REV-9/2001-D/10034-36, dated 18.12.2009. 2. The facts and circumstances which led to the filing of the present petition, are as follows: On 01.06.2017, vide his order No. GEN-3/JUD/2016-D/2428-33, dated 01.06.2017, the Deputy Commissioner, Dimapur, issued the restraining order stating as follows: "In pursuance to the Home Department Letter No. GAB-8/DMP/76/2012 Dated: Kohima, the 17th September, 2013 and this office letter No. GEN-5/2014-D/Dated: Dimapur, the 19th May, 2014, the Thilixu Village and others at Rangapahar Wildlife Sanctuary are hereby ordered to maintained "Status Quo" till the matter is settled by the State Government. This order is for strict compliance by all concerned parties." The above stated order was conveyed to the petitioner by the Extra-Assistant Commissioner, Chumukedima, vide his letter No. JUD-1/2016-C/152-157 dated 13.06.2017. Thereafter, the petitioner received another order issued by the Deputy Commissioner, Dimapur, being GEN-15/JUD/2016-D/2928-32 dated 14.06.2017, stating as follows: "In pursuance to the Commissioner Office letter No. CNJ/181(K)2014/1341 Dated; 13th June 2017(Enclosed), all parties are hereby directed to stop all the activities on the land in dispute till the matter is settled by the State Government. This is for your compliance and strict compliance." A copy of the same was received by the petitioner since it was endorsed to him also. On 13.06.2017, the Commissioner to the Government of Nagaland vide his letter No. CNG/181(K)/2014/1341 dated 13.06.2017, directed the Deputy Commissioner, Dimapur, as follows: "Sub: Land Dispute between Thilixu Village and Mishikito Village: Matter thereof. This is for your compliance and strict compliance." A copy of the same was received by the petitioner since it was endorsed to him also. On 13.06.2017, the Commissioner to the Government of Nagaland vide his letter No. CNG/181(K)/2014/1341 dated 13.06.2017, directed the Deputy Commissioner, Dimapur, as follows: "Sub: Land Dispute between Thilixu Village and Mishikito Village: Matter thereof. Sir, With reference to the subject above and your letter No. GEN-15/JUD/2016-D/2425-27, dated 13.05.2017, I am to inform you that the case for recognition of Mishikito Village is pending before the Government, until a decision is taken by the government, you are directed to banning all activities on the land in dispute with a view to maintain public peace and tranquility. This is for favour of your information and necessary action." After the said order was issued, on 14.06.2017, the Deputy Commissioner, Dimapur, issued a summon directing Shri Atoshe L. Yeptho, and the Chairman, Village Council, Thilixu Village along with 2(two) members, to report to his Office Chamber on 19.06.2017 at 2PM in connection with the land dispute between Thilixu Village and Mishikito Village. Pursuance to this letter, the Deputy Commissioner, Dimapur, on the same date i.e. 14.06.2017, passed the following order: "In pursuance to the Commissioner Office letter No. CNJ/181(K)2014/1341 Dated; 13th June 2017 (Enclosed), all parties are hereby directed to stop all the activities on the land in dispute till the matter is settled by the State Government. This is for your compliance and strict compliance." Thereafter, the Sub-Divisional Officer (Civil), Dimapur, wrote a letter dated 8.6.17 under Memo. No. GEN-15/JUD/2016-Dimapur, to Commissioner of Police, Dimapur, stating as follows: "Sub: Complaint against illegal construction of Church Building in violation of Restraining Order No. GEN-3/JUD/2016-D Sir, With reference to the subject cited above, I am directed to forwarded herewith the application received from Shri L. Atoshi Yeptho, Chairman, Mishikito Village along with the restraining order issued by this office vide No. GEN-3/JUD/2016-D/2628-33 Dated 1st June 2017(En-closed). Mention may be made that this office had received a complaint letter from Mishikito Village Council Dated: 08.05.2017 and also a report submitted by the Extra-Assistant Commissioner, Chumukedima, vide No. JUD-I/2016-C/2628-33 Dated: 1st June 2017. However, this office is in receipt of another written complain letter on the ongoing illegal construction activities being continued dated 07.06.20 (Enclosed). Mention may be made that this office had received a complaint letter from Mishikito Village Council Dated: 08.05.2017 and also a report submitted by the Extra-Assistant Commissioner, Chumukedima, vide No. JUD-I/2016-C/2628-33 Dated: 1st June 2017. However, this office is in receipt of another written complain letter on the ongoing illegal construction activities being continued dated 07.06.20 (Enclosed). In this regard, you are requested to kindly depute police personnel to the spot to ensure that the restraining order issued on 01.06.2017 is adhered to by all concerned parties and requested to intimate this office at the earliest from your end. This is for favour of your information & the matter may be treated as most urgent please." Aggrieved by the above restraining order (s), the petitioner has come to this Court by filing the instant petition and praying, as stated above. 3. The case of the petitioner as submitted by Mr. Taka Masa, learned senior counsel, is summarized as follows: Firstly, that the so-called Mishikito Village is a name given to Block III of the petitioner's village namely Thilixu Village, which is not yet recognized as a separate village, therefore, it is still part and parcel of Thilixu Village. As such, any person or persons residing in that area of land of Thilixu Village has no locus standi or any right to complain against construction of Church building, etc., by the villagers of Thilixu Village. Secondly, that the impugned order(s) restraining the petitioner and his villagers from constructing the Church Building and carrying-out any developmental works/activities within the boundary of Thilixu Village was issued without issuing notice to him, therefore it is in violation of the principles of natural justice, hence, it is liable to be quashed and set aside. 4. Mr. Taka Masa, learned senior counsel, submitted at length to demonstrate that the name Mishikito is nothing but a name given to Block-UI of Thilixu Village. I do not find it necessary to reproduce all that as they are not be relevant at this stage. 5. Mr. Jamir, learned Senior Addl. Advocate General, submitted that the restraining order (s) under challenge in this writ petition are interim in nature. Therefore, this Court without interfering with the same, may direct the Deputy Commissioner to dispose of the case by giving a chance of being heard to the parties concerned. 5. Mr. Jamir, learned Senior Addl. Advocate General, submitted that the restraining order (s) under challenge in this writ petition are interim in nature. Therefore, this Court without interfering with the same, may direct the Deputy Commissioner to dispose of the case by giving a chance of being heard to the parties concerned. And in case any of the parties is not satisfied, they may always come back to this Court by filing appropriate petition (s). 6. Mr. Jamir, learned Senior Addl. Advocate General, also submitted that regarding the last prayer of the petitioner, there is no whisper in the writ petition that a representation have been submitted to competent authority for consideration and disposal of the prayer given therein which is one of the prerequisites for approaching this Court for issuance of a writ of mandamus. Therefore, the petitioner may be directed to approach the competent authority first and only when his prayer is not either entertained or attended to, may come to this court praying for the same. 7. In support of his submissions, the learned Senior Addl. Advocate General has placed reliance on the following Judgments of the Apex Court (only the relevant paragraphs are given); 1. (1977) 1 SCC 340 : State of Haryana & Anr. v. Chanan Mal & Ors.] "49(3). Any petitioner who applies for a writ or order in the nature of a mandamus should, in compliance with a well known rule of practice, ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to carry it out within a reasonable time before applying to a Court for such an order even where the alleged obligation is established." 2. (1981) 1 SCC 664 : Swadeshi Cotton Mills v. Union of India] "78. The audi alteram partem rule, as already pointed out, is a very flexible, malleable and adaptable concept of natural justice. To adjust and harmonise the need for speed and obligation to act fairly, it can be modified and the measure of its application cut short in reasonable proportion to the exigencies of the situation. Thus, in the ultimate analysis, the question (as to what extent and in what measure), this rule of fair hearing will apply at the pre-decisional stage will depend upon the degree of urgency, if any, evident from the facts and circumstances of the particular case." 3. Thus, in the ultimate analysis, the question (as to what extent and in what measure), this rule of fair hearing will apply at the pre-decisional stage will depend upon the degree of urgency, if any, evident from the facts and circumstances of the particular case." 3. (1984) 3 SCC 465 [Liberty Oil Mills & Ors. v. Union of India & Ors.] "15. Clause 8, we have seen, empowers the Central Government or the Chief Controller of Imports and Exports to debar a person from importing goods or from receiving licences or allotment of imported goods for a specified period if such person is guilty of any of the acts of commission or omission enumerated in the Clause. An order of this immensity cannot obviously be made without due investigation and without giving a reasonable opportunity to the affected party. Clause 8 A and 8B refer to orders which may be made pending investigation into the allegations under Clause 8 and by necessary implication expose the investigative content of Clause 8. Clause 10 expressly stipulates that action under Clause 8 may not be taken unless a reasonable opportunity is given to the party concerned. Neither Clauses 8 nor Clause 10 prescribes the procedure to be followed before a final order under Clause 8 is made. Has a show-cause notice to be issued first, then followed by an investigation and finally concluded by yet another show cause notice? Or is it enough if a show-cause notice is issued after the investigation is concluded and the person concerned is asked to explain the evidence gathered against him? When may investigation be said to have commenced? Should investigation be necessarily preceded by a show-cause notice? We do not mink that the Central Government or the Chief Controller is bound to follow any rigid, hide-bound, pre-determined procedure. The procedure may be different in each case and may be determined by the facts circumstances and exigencies of each case. The authority may design its own procedure to suit the requirements of an individual case. The procedure must be fair and not so designed as to defeat well known principles of justice and thus deny justice. That is all. If the procedure is fair it matters not whether the investigation is preceded, interjected or succeeded by a show cause notice. The authority may design its own procedure to suit the requirements of an individual case. The procedure must be fair and not so designed as to defeat well known principles of justice and thus deny justice. That is all. If the procedure is fair it matters not whether the investigation is preceded, interjected or succeeded by a show cause notice. The word 'Investigation' is not defined but in the content it means no more than the process of collection of evidence or the gathering of material. It is not necessary that it should commence with the communication of an accusation to the person whose affairs are to be investigated. That may follow later. When facts come to the notice of the Government or the Chief Controller of Imports which prima facie disclose an act or omission of the nature mentioned in Clause 8, the authority may straight away communicate the allegations to the person concerned, seek his answer and proceed to further investigate or the authority may consider it more prudent to further satisfy itself by seeking other evidence or material before communicating the allegations to the person concerned. There is no rule of justice or fair play which requires the authority to seek the comments of the person concerned before embarking upon an investigation. Investigation commences as soon as the authority decides to take the first step whether by way of seeking evidence or by way of seeking an explanation from the person concerned. On the initiation of a proceeding under Clause 8 by the commencement of investigation, the authority has to address itself to the Question whether any action of an interim nature to prevent further harm or mischief is warranted pending investigation. Licences may have already been issued and allotment of imported goods may have already been made. The authority may consider it desirable to prevent the person from imported goods pursuant to the licences or to prevent him from obtaining the imported goods allotted to him through the specified agencies. If so, the authority may make an order under Clause 8A suspending the importation of goods, the grant of licences or the allotment of imported goods. But Clause 10 provides that no action under Clause 8A may be taken without giving a reasonable opportunity to the person concerned. If so, the authority may make an order under Clause 8A suspending the importation of goods, the grant of licences or the allotment of imported goods. But Clause 10 provides that no action under Clause 8A may be taken without giving a reasonable opportunity to the person concerned. It is obviously thought that the right such as it may be, to obtain a licence or allotment of goods having become crystalised into a licence or an allotment, an order under Clause 8A may have immediate and grave prejudicial repercussions on the person concerned making it desirable that he should be heard before an order of suspension is made. So it is that Clause 8A contemplates a pre-decisional hearing. On the other hand, licences may not yet have been issued and allotments may yet have to be made. The appropriate authority may be satisfied that it would not be in the public interest to issues licences or make allotments to the person concerned, without ascertaining further details with regard to the allegations against him. In such cases, the authority may make an order of 'abeyance' under Clause 8B. Though the language of Clause 8B is capable of being read as if it applies to both allotments already made and allotments yet to be made, a reference to the marginal head, in the background of what has been provided for in Clause 8A, makes it clear that Clause 8B applies only to allotments yet to be made and licences yet to be issued. That clearly is the contextual construction of Clause 8B. Read in any other manner, there will be a totally unnecessary over-lapping of and a needless conflict between Clauses 8A and 8B, with freedom to the authority to pursue action either under Clause 8A or Clause 8B each providing a different procedure of its own. We do not think that it is permissible for us to read clauses 8A and 8B in a manner as to create needless conflict and confusion when the two classes are capable of existing separately, without encroaching upon each other. Contextual construction demands such a construction and we have no hesitation in adopting it. We do not think that it is permissible for us to read clauses 8A and 8B in a manner as to create needless conflict and confusion when the two classes are capable of existing separately, without encroaching upon each other. Contextual construction demands such a construction and we have no hesitation in adopting it. Clause 10 which provides for a reasonable opportunity before action is taken under clause 8A, does not make similar provision in the case of action under clause 8 A as well as action under clause 8B are both in the nature of interim orders of temporary duration aimed at preventing further harm and mischief pending investigation into the allegations under clause 8. Does it mean that the principle of natural justice of procedural fairness is to be altogether excluded when action is taken under clause 8B? We do not think that it is permissible to interpret any statutory instruments so as to exclude natural justice, unless the language of the instrument leaves no option to the court. Procedural fairness embodying natural justice is to be implied whenever action is taken effecting the rights of parties. It may be that the opportunity to be heard may not be pre-decisional; it may necessarily have to be pre- decisional where the danger to be averted or the act to be prevented is imminent or where the action to be taken can brook no delay. If an area is devastated by flood, one cannot wait to issue show-cause notices for requisitioning vehicles to evacuate population. If there is an out-break of an epidemic, we presume one does not have to issue show- cause notices to requisition beds in hospitals, public or private. In such situations, it may be enough to issue post- decisional notices providing for an opportunity. It may not even be necessary in some situations to issue such notices but it would be sufficient but obligatory to consider any representation that may be made by the aggrieved person and that would satisfy the requirements of procedural fairness and natural justice. There can be no tape-measure of the extent of natural justice. It may and indeed it must vary from statute to statute, situation to situation and case to case. Again, it is necessary to say that pre-decisional natural justice is not usually contemplated when the decisions taken are of an interim nature pending investigation or enquiry. There can be no tape-measure of the extent of natural justice. It may and indeed it must vary from statute to statute, situation to situation and case to case. Again, it is necessary to say that pre-decisional natural justice is not usually contemplated when the decisions taken are of an interim nature pending investigation or enquiry. Ad-interim orders may always be made ex-parte and such orders may themselves provide for an opportunity to the aggrieved party to be heard at a later stage. Even if the interim orders do not make provision for such an opportunity, an aggrieved party has, nevertheless, always the right to make appropriate representation seeking a review of the order and asking the authority to rescind or modify the order. The principles of natural justice would be satisfied if the aggrieved party is given an opportunity at the request. There is no violation of a principle of natural justice if an ex-parte ad-interim order is made unless of course, the statute itself provides for a hearing before the order is made as in clause 8A. Natural justice will be violated if the authority refuses to consider the request of the aggrieved party for an opportunity to make his representation against the ex-parte ad-interim orders." 4. 1993 4 SCC 727 [Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors.] "20. The origins of the law can also be traced to the principles of natural justice, as developed in the following cases: In A.K. Kraipak v. Union of India, (1970) 1 SCR 457 : ( AIR 1970 SC 150 ), it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice." 8. Mr. Luikham, learned counsel for private Respondent No. 4, submitted that from the petition of the writ petitioners, it is clear that there is a land dispute between the petitioner's village and the private Respondent No. 4's village, therefore, the authorities concerned are justified in passing the interim restraining order(s). Learned counsel further submitted that there is no requirement for issuing notice to any party before passing any such interim order. Now, that the interim restraining order(s) have been issued and summons have also been issued, the parties to the dispute, should appear before the Deputy Commissioner concerned and submit their respective cases to enable the Deputy Commissioner to pass his final order. Mr. Luikham also submitted that it is clear from the petition of the petitioner that the boundaries of their village has not been settled, therefore, they would not encroach upon a land and build a Church which is claimed by the other party as their own. The learned counsel, in support of his submission, cited the following judgments of the Apex Court, and the relevant portions are quoted hereunder: 1. (2015) 4 SCC 204 [Swati Ferro Alloys Private Ltd. v. Orissa Industrial Infrastructure Development Corporation Ltd. & Ors.] "16. From the bare pleading of the case and the record, we find that there is disputed question of fact about the ownership of the Plot No. C/9, Industrial Estate, Cuttack. (2015) 4 SCC 204 [Swati Ferro Alloys Private Ltd. v. Orissa Industrial Infrastructure Development Corporation Ltd. & Ors.] "16. From the bare pleading of the case and the record, we find that there is disputed question of fact about the ownership of the Plot No. C/9, Industrial Estate, Cuttack. Therefore, the High Court was justified in dismissing the same and directing the parties to approach the Civil Court for resolving such dispute." "18. We agree with the observation of the High Court that this matter involves disputed question of fact. Despite the same, prima facie it appears that neither original borrower nor the present appellant does any business in the land in question, except for taking loan against the land. In this background while we upheld the impugned judgment dated 18th April, 2012 passed by the Division Bench of High Court of Orissa at Cuttack in WP(C) No. 16790 of 2008, we are of the opinion that the respondent-IDCO should inquire into the matter to find out as to whether the land is properly used by one or other party for the purpose it was open or by opening different firms or companies in different names in same premises, they are availing loan mortgaging the same very land. For such inquiry the respondent-IDCO will issue notice to the 2nd respondent-Orissa State Financial Corporation, appellant-M/s. Swati Ferro Alloys Pvt. Ltd., M/s. Eastern Fan and any other party who may be interested. On such enquiry it will be open for the competent authority to pass an appropriate order." 2. (2015) 5 SCC 321 [State of Assam v. Bhaskar Jyoti Sarma & Ors.] "13. The case of the appellant is that actual physical possession of the land was taken over on 7th December, 1991 no matter unilaterally and without notice to the erstwhile land owner. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. But assuming that any such determination is possible even in proceedings under Article 226 of the constitution, what needs examination is whether the failure of the Government or the authorised officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract Section 3 of the Repeal Act. Our answer to that question is in the negative." "19. In support of the contention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid for the telephone connection that stood in the name of one Mr. Sanatan Baishya. It was contended that said Mr. Sanatan Baishya was none other than the caretaker of the property of the respondents. There is, however, nothing on record to substantiate that assertion. The telephone bills and electricity bills also relate to the period from 2001 onwards only. There is nothing on record before us nor was anything placed before the High Court to suggest that between 7th December, 1991 till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise had continued to be in possession. All that we have is rival claims of the parties based on affidavits in support thereof. We repeatedly asked learned counsel for the parties whether they can, upon remand on the analogy of the decision in the case of Gyanaba Dilavarsinh Jadega (supra), adduce any documentary evidence that would enable the High Court to record a finding in regard to actual possession. They were unable to point out or refer to any such evidence. That being so the question whether actual physical possession was taken over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution no matter the High Court may in its discretion in certain situations upon such determination. That being so the question whether actual physical possession was taken over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution no matter the High Court may in its discretion in certain situations upon such determination. Remand to the High Court to have a finding on the question of dispossession, therefore, does not appear to us to be a viable solution." 3. (2015) 7 SCC 130 [Maharaji Educational Trust v. SGS Construction & Development Private Ltd. & Ors.] "10. The writ petition filed for the aforesaid twin reliefs, was not maintainable before the writ court; firstly, it is not within ken of the High Court in writ jurisdiction to declare any property as unencumbered one. Such rights between private parties cannot be made subject-matter of writ jurisdiction as has been ordered in the impugned judgment and order that out of a total of 63.45 acres of land, 21 acres be demarcated as an unencumbered property and to maintain status quo. Following is the operative portion of the order passed by the Division Bench at Lucknow: "In the premises discussed hereinabove, we are of the considered view that the relief as sought in prayer No. 1 can be granted by directing respondent No. 1 to demarcate 42.45 acres, said to be mortgaged, and 21 acres as unencumbered, out of the total area of 63.45 acres, as mentioned at serial No. 6, in the list of properties as detailed in the foregoing paragraphs. Thus, we allow this petition and direct respondent No. 1 to carry out the aforesaid exercise of demarcation either itself or being an instrumentality of the State, and having statutory duties as extracted and reproduced hereinabove, with the help of revenue authorities concerned. Moreover, in view of the chequered background of the litigation in respect of the lands/properties in question, and the conduct of respondent No. 3, as noticed above, we also deem it expedient in the interest of justice to direct and thus it is ordered that the parties shall maintain status quo qua the lands, namely, 21 acres out of the total area of 63.45 acres as mentioned at serial No. 6. We also direct that the said area of 21 acres of the land at serial No. 6 shall not be alienated and/or transferred in any manner till the exercise of demarcation is fully carried out in accordance with law. Additionally, it is further directed that the area of 42.45 acres, said to be encumbered and 21 acres, as unencumbered shall be clearly identified and segregated in the presence of the parties." "11. Though, there is serious dispute between the parties to the lis whether the said land is unencumbered, finding has been given by the High Court that 21 acres of land is unencumbered. The High Court could not have treated 21 acres of land as unencumbered one out of 63.45 acres. It was not open to the High Court to enter into the aforesaid arena, which of the property is encumbered and to be sold in realization of debt is the outlook of the Recovery Officer, DRT, Delhi, where the recovery proceedings are pending, including the objections preferred by the Builder." "12. In our opinion, it was not open to the Builder to file a writ application for the aforesaid reliefs. Though the second relief had been abandoned at the time of final arguments but the first relief could not have been granted without going into the said question. The High Court in writ jurisdiction has made a declaration that the property 21 acres of land is unencumbered. The High Court could not have adjudicated on the property rights under the guise of directing Avas Evam Vikas Parishad to demarcate the land and give finding that it was unencumbered land. The High Court has erred in law in giving a finding on merits on effect of exchange and that section 70 of TP Act is not applicable. It was not the function of the High Court to decide these questions under writ jurisdiction." 9. Lastly, Mr. Luikham, learned counsel for the private Respondent No. 4, submitted that though the impugned order(s) does not specifically mentioned Section 145 of the Code of Criminal Procedure, 1973, letter and spirit of the order(s) shows that the same was passed in exercise of the powers conferred under the same Section. Under this Section, the District Magistrate or Executive Magistrate especially empowered, can pass such order, therefore, no illegality has been committed while passing such orders. 10. Under this Section, the District Magistrate or Executive Magistrate especially empowered, can pass such order, therefore, no illegality has been committed while passing such orders. 10. From the facts and circumstances submitted by the learned counsels representing the parties and as can be gathered from the documents filed by the parties, it is clear that the restraining order(s) are interim in nature. Therefore, there was no need of issuing notice to the parties before passing such order(s). Further, I am of the opinion that Mr. Luikham, learned counsel for the private Respondent No. 4, was right when he submitted that though Section 145 of Code of Criminal Procedure, 1973, was not mentioned in the impugned orders from the nature of the order, it can be safely assumed that it was passed in exercise of the powers conferred under the same Section. By plain reading of the provisions of Section 145 of Cr.P.C., issuance of notice to the parties before passing such order(s) is not necessary or mandatory. However, notice should be issued, thereafter, to all the parties concerned or interested, to give them a chance of being heard including adducing of evidence in support of their respective case if they so desired before a final order is passed. It is admitted fact that summons have been issued to the parties after the issuance of the restraining order(s) by the Deputy Commissioner, Dimapur. Therefore, the parties should appear before the Deputy Commissioner and submit their respective case. The Deputy Commissioner therefore, shall pass a final and appropriate order, as per law. 11. In view of the above, this writ petition is disposed of with a direction that the Deputy Commissioner, Dimapur, shall give ample opportunity to the parties of being heard and thereafter, dispose of the case at the earliest but not later than 3 (three) months from the date of receipt of a certified copy of this order. To make it clear, the restraining order(s) are not interfered with by this Court. As for the last prayer, the petitioner shall approach the authorities concerned with all supporting documents, on receipt of the same, the respondents shall dispose of the same within a period of 5 (five) months from the date of receipt of such a representation from the petitioner. There shall be no order as to costs.