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2021 DIGILAW 210 (GAU)

Sama Dodum v. Chief Estate Officer

2021-03-05

NELSON SAILO

body2021
JUDGMENT Nelson Sailo, J. - Heard Mr. R. Sonar, learned counsel for the petitioner and Mr. Taba Tokur, learned Standing Counsel for the Chief Estate Officer, who is the sole respondent in this writ petition. 2. Grievance of the petitioner is that he has been directed by the respondent vide communication dated 21.10.2020 (Annexure-P/4) to obtain No Objection Certificate (NOC) from the Department of Wildlife Warden and Public Works Department (PWD) Doimukh Division in response to his letter of intimation dated 11.09.2020 to the Estate Officer informing him that he had decided to do some plantation and other development activities over his land apart from construction of approach road from Itanagar-Jote main road near Ganga Lake towards his land at any appropriate time. 3. It is the case of the petitioner that he is the absolute and lawful owner of the private plot of land measuring about 50,000 Sqmtrs located at Lor-Putung/Ganga Lake, Itanagar and that he possesses a Land Possession Certificate i.e. LPC No. DC/LM/LPC160/05 dated 10.12.2015 and also Non-encumbrance certificate No. DC/LM/LPC-160/05 dated 16.11.2015 issued in his favour by the competent authority. When the petitioner informed the respondent about his intention to develop his land, the respondent authority has redirected him to the Department of Wildlife Warden as well as to the PWD for obtaining NOC from them. 4. Mr. R. Sonar, learned counsel for the petitioner submits that there is no requirement in law for the petitioner to obtain authorisation or NOC before developing his own land which was issued under a valid LPC. However, as per convention, the petitioner intimated the respondent authority informing him about his intention and the respondent authority in turn had asked him to approach the Department of Wildlife Warden and the PWD which was otherwise not at all called for. 5. Mr. R. Sonar, learned counsel for the petitioner by referring to Arunachal Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 2003 (Act of 2003) submits that the State Government by a notification published in Official Gazette appoints an Estate Officer and whose primary duty is to evict un-authorised occupants over Government land. In the present case, the petitioner is not an unauthorised occupant and that he is in lawful occupation of his own land which was issued to him in the form of LPC by the competent authority. In the present case, the petitioner is not an unauthorised occupant and that he is in lawful occupation of his own land which was issued to him in the form of LPC by the competent authority. Therefore, the respondent authority could not have directed the petitioner to obtain NOC from the Department of Wildlife Warden and PWD. Referring to the notification dated 07.01.2020 annexed to the counter affidavit filed by the respondent, the learned counsel submits that the said notification cannot have any legal sanction. He submits that the same being in the form of an instruction, it cannot prevail over the right of the petitioner for peaceful enjoyment of his land which he holds in the form of LPC and which is issued under the Arunachal Pradesh (Land Settlement Records) Act, 2000 and Arunachal Pradesh (Land Settlement Records) Rules, 2012 (herein referred to as the Act of 2000 and Rules of 2012 respectively). 6. The learned counsel for the petitioner submits that the pre-requisites for being issued a LPC is a written consent from the adjacent private land owner and also from the village Head Gaoh Burah. The petitioner upon obtaining such pre-requisites, he was issued the LPC and therefore, no further NOC either from the Department of Wildlife Warden or from the PWD would be required. The learned counsel also submits that the petitioner has every right to peaceful enjoyment of his land since right to property although not a Fundamental Right is a Constitutional and Human Right. In the support of his submissions, the learned counsel has relied upon the following authorities (i) T. Vijayalakshmi and Others Versus Town Planning Member and Another, (2006) 8 SCC 502 , (ii) Chairman, Indore Vikas Pradhikaran Versus Pure Industrial Coke & Chemicals LTD and others, (2007) 8 SCC 705 , (iii) K.T. Plantation Private Limited and Another Versus State of Karnataka, (2011) 9 SCC 1 , (iv) M.C Mehta Versus Union of India and Others,2020 SCCOnLineSC 648. 7. Mr. T. Tokur, learned counsel for the respondent on the other hand referring to the affidavit-in-opposition filed by the respondent on 01.02.2021 submits that the respondent vide notification dated 30.06.2011 as the Chief Estate Officer, Capital Complex was conferred with certain powers and functions. 7. Mr. T. Tokur, learned counsel for the respondent on the other hand referring to the affidavit-in-opposition filed by the respondent on 01.02.2021 submits that the respondent vide notification dated 30.06.2011 as the Chief Estate Officer, Capital Complex was conferred with certain powers and functions. As per the notification, he is required to discharge all the powers and functions within the Capital Complex which has been vested to the Estate Officer under the Act of 2003. He is to represent the Estate Department in connection with prevention and removal of encroachment of Government land and property. The State Government has been empowered to prepare guidelines for adoption by various Government Department at various levels to remove and prevent encroachment/illegal occupation of Government property and also for proper maintenance of Government assets. The Chief Estate Officer is to implement the guidelines under the Chief Secretary of the State. 8. The learned counsel submits that in line with the notification dated 30.06.2011, the office of the Chief Secretary, Government of Arunachal Pradesh came up with a notification dated 07.01.2020 formulating certain guidelines to check reckless earth cutting which resulted into loss of human life and property during the monsoon season. As per the notification, in order to streamline and effectively deal with illegal earth cutting in and around Capital Complex, all private individuals including the Government Departments are required to obtain NOC from the Chief Estate Officer and who is required to exercise his power in terms of the notification dated 30.06.2011. The learned counsel submits that the Chief Estate Officer therefore, is vested with power to issue NOC for earth cutting in exercise of his original powers and function in and around Capital Complex. When the petitioner sent intimation to the respondent about his plan to develop his land which included construction of approach road from Itanagar-Jote main road near Ganga Lake, the respondent asked the petitioner to obtain NOC from the Department of Wildlife Warden and the PWD. The same was necessary in view of the fact that the plot of the petitioner is very near the Ganga Lake and it is a hilly area. 9. Prior to asking the petitioner to obtain NOC from the Department of Wildlife and PWD, the respondent deputed his office staff to visit the petitioner's land wherein he proposed to construct an approach road. 9. Prior to asking the petitioner to obtain NOC from the Department of Wildlife and PWD, the respondent deputed his office staff to visit the petitioner's land wherein he proposed to construct an approach road. On making inspection, the office staff submitted the inspection reported on 26.09.2020 stating that the proposed earth cutting to construct an approach road seems to be in the upper side of the ItanagarJote PWD road and that the petitioner's LPC plot is in the hilly area adjoining to the Ganga Lake. It was further reported that the petitioner did not specify the actual cutting site for the approach road in his LPC plot. Sketch map and photographs were taken by the office staffs which were part of the inspection report. The learned counsel therefore, submits that it was only after such report that the respondent had asked the petitioner to obtain NOC from the Department of Wildlife Warden and the PWD. He however submits that under the circumstance, the petitioner cannot have legitimate grievance and the writ petition should be dismissed. 10. I have heard the submissions of the rival parties. I have also perused the materials available on record. 11. As may be noticed, the grievance of the petitioner is with regard to the communication dated 21.10.2020 wherein, he was asked to obtain NOC from the Department of Wildlife and PWD, Doimukh Division by the respondent before issuing the permission for earth cutting and dumping from the office of the Chief Estate Officer. No doubt the Act of 2003 does not specifically provide that NOC will be issued by the Chief Estate Officer for earth cutting but the fact remains that as per the notification dated 07.01.2020 issued by the Office of Chief Secretary, Government of Arunachal Pradesh, in order to streamline and effectively deal with illegal earth cutting in and around Capital Complex, private individuals including the Government Departments are required to obtain NOC. The notification provides that the same is in terms of the earlier notification dated 30.06.2011 by which the respondent was conferred with certain powers in discharge of his function as Chief Estate Officer. For better appreciation, notification dated 07.01.2020 may be extracted herein below- GOVERNMENT OF ARUNACHAL PRADESH OFFICE OF THE CHIEF SECRETARY :: 2nd BLOCK :: Vth FLOOR CIVIL SECRETARIAT :: ITANAGAR No. CEO/DAD/Judicial-1007/19 DATED ITANAGAR, 7th Jan 2020 Notification 1. For better appreciation, notification dated 07.01.2020 may be extracted herein below- GOVERNMENT OF ARUNACHAL PRADESH OFFICE OF THE CHIEF SECRETARY :: 2nd BLOCK :: Vth FLOOR CIVIL SECRETARIAT :: ITANAGAR No. CEO/DAD/Judicial-1007/19 DATED ITANAGAR, 7th Jan 2020 Notification 1. Whereas, Capital Complex has been witnessing reckless illegal earth cutting resulting into loss of human life and property during the monsoon session. 2. Whereas it has become order of the day that citizens are resorting to such illegal and reckless earth cutting without obtaining necessary permission from the District Administration. 3. Whereas, some citizens, although obtain permission from the District Administration to carry out earth cuttings in and around capital complex, nevertheless, in the absence of proper monitoring and regulation of earth cuttings results into damage of public road/public property and no responsibilities are fixed for such loss and damages of the public properties. 4. Whereas, under section 133 of Code of Criminal Procedure 1973 were promulgated by Executive Magistrate concerned to contain illegal earth cuttings but it could not achieve its desired objectives. Therefore, in order to stream line the same and to effectively deal with illegal earth cuttings in and around Capital Complex, it is hereby notify that all private individuals including the Government Departments should obtain necessary No Objection Certificate containing terms and conditions as prescribed below from the Chief Estate Officer cum Additional District Magistrate in exercise his powers and original jurisdiction in terms of earlier Gazette notification dated 30th June 2011 at Sl. No. 3, 4, 5 & 6:- a) The Chief Estate Officer, GoAP cum Additional District Magistrate, Itanagar is vested with the power to issue NOC for earth cuttings in and around capital in exercise of his original powers and function. b) The Chief Estate Officer, GoAP cum Additional District Magistrate shall not issue NOC to any private individuals for earth cutting without proper land allotment/LPC except Government works. c) That any person (s) including the Government departments while submitting application for obtaining NOC for earth cutting shall submit following documents: i. Photographs with Geo Tag points for earth cutting and dumping area alongwith route of the lifting. ii. Number of T & P to be used with registration numbers. iii. Quantity of earth work with time of lifting & dumping and the distance. iv. Land Allotment/LPC and the purpose of earth cutting. ii. Number of T & P to be used with registration numbers. iii. Quantity of earth work with time of lifting & dumping and the distance. iv. Land Allotment/LPC and the purpose of earth cutting. v. Undertaking to compensate any damage due to earth cutting and dumping. This issues with the approval from the Chief Minister, GoAP, vide U.O No. 3514, dated: 24/12/19. Sd-/(Chief Secretary) Govt. of Arunachal Pradesh Itanagar" 12. From the above abstract, it may be seen that private individuals including Government Departments are required to submit applications for obtaining NOC for earth cutting and that along with such application the required details such as Photographs with Geo Tag points for earth cutting and dumping area along with route of the lifting, quantity of earth work with time of lifting and dumping and the distance etc. amongst others are required to be submitted. The petitioner in his application or intimation dated 11.09.2020 admittedly did not enclose such requirements. Importantly, the petitioner has also not challenged the notification dated 07.01.2020. Therefore, in absence of challenge to the said notification, it will not be feasible for the petitioner to question the requirement stipulated in the said notification. At the same time the respondent authority having been conferred with the power to issue NOC cannot in turn ask the applicant to first get a NOC from the Department of Wildlife Warden and PWD, as was done in the case of the petition. 13. The order dated 09.06.2020 issued by the Deputy Commissioner, Itanagar, Capital region which has been annexed as annexure-3 of the counter affidavit of the respondent provides that the incumbent holding the post of Chief Estate Officer is authorised to act as the Chairman of Ganga Lake Development Committee in the interest of public service. It further provides that he will coordinate with all the line departments such as fisheries, social forestry and tourism and liaise with public and monitor of all round development of the lake. Therefore, the respondent in terms of the notification dated 07.01.2020 and the order dated 09.06.2020 has to consider and issue NOC to the applicants subject to the conditions mentioned in the notification dated 07.01.2020 being fulfilled. Therefore, the respondent in terms of the notification dated 07.01.2020 and the order dated 09.06.2020 has to consider and issue NOC to the applicants subject to the conditions mentioned in the notification dated 07.01.2020 being fulfilled. The petitioner no doubt has the right to peaceful enjoyment of his land but in terms of his intimation letter dated 11.09.2020, he intends to construct an approach road near Ganga Lake which is located at the Capital Complex, he will have to abide by the notification dated 07.01.2020. 14. There can be no disagreement with law laid down by the Apex Court in the cases relied upon by the learned counsel for the petitioner that the right to property is a human right and that no person can be deprived of his property except in accordance with law. However, in the present case, the petitioner is not deprived of his property, he is required to obtain NOC in terms of the notification dated 07.01.2020, which has been prepared for regulating illegal earth cutting in and around the Capital Complex. In absence of any challenge to the same, the petitioner cannot have any legitimate grievance but at the same time, the respondent cannot relegate the matter to others but will have to consider the grant of NOC in terms of the Notification dated 07.01.2020. 15. In view of above, the impugned communication dated 21.10.2020 (AnnexureP/4) is hereby set aside. The petitioner, in order to undertake any earth cutting on his land adjacent to Ganga Lake if so advised shall apply for NOC from the respondent by enclosing all the requisites as stipulated in the notification dated 07.01.2020. The respondent on receiving such application shall consider and dispose of the same in terms of the said notification and in accordance with law. The respondent will also be at the liberty to make verification before issuing NOC, if necessary by consulting the department concerned. 16. With the above observations and directions, the writ petition stands disposed.