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2022 DIGILAW 1283 (GAU)

R. Sopu Angami v. State Of Nagaland

2022-11-23

DEVASHIS BARUAH

body2022
JUDGMENT : 1. Heard Mr. C.T. Zamir, the learned Senior counsel assisted by Mr. I. Imchen the learned counsel appearing on behalf of the petitioner and Mr. V. Zhimomi, the learned Government Advocate appearing on behalf of the respondent Nos. 1, 2, 3, 4, 5, 6 and 7. I have also heard Mr. Taka Masa, the learned Senior counsel assisted by Mr. Arenlong, the learned counsel appearing on behalf of the respondent Nos. 8, 9 and 10. 2. The petitioner herein has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, on the ground of inaction of the Officer-in-charge of Diphupar P.S. Dimapur, the Commissioner of Police, Zone-1, Dimapur, Nagaland as well as the Deputy Commissioner, Dimapur, Nagaland to the FIR, complaint and the representation submitted to the said authorities respectively. 3. The brief facts of the instant case is that the petitioner’s elder brother was allotted a plot of land measuring 20 Acres between 4th and 5th Mile, at Dimapur near Imphal Road vide a Memo No.II-5/VLS/66-67/1688-98 dated 08.05.1967. Subsequently, additional plot of land measuring 11 Acres was also allotted to the elder brother of the petitioner by the Deputy Commissioner, Kohima vide Order No.6/37 dated 12.04.1968. Therefore, as per the petitioner, 31 Acres of land was allotted by the Government to the elder brother of the petitioner. The petitioner further stated in the writ petition that the elder brother of the petitioner has transferred the rights over the land measuring 90 Bighas 3 Kathas 0 Lecha which pertains to Dag No.3 covered by Patta No.6 of Dimapur Mouza, Model Village to the petitioner. It is the further case of the petitioner that one Mr. L. Chohochem Sangtam was in illegal possession in a part of petitioner’s land measuring 12,882 sq. ft. Under such circumstances, the petitioner had instituted a suit being Civil Suit No.74/2016 seeking declaration of right, title and interest over the said land of 12,882 sq. ft. In the said suit, the defendant therein i.e. Mr. L. Chohochem Sangtam had filed his written statement stating inter alia that he did not know that the land belonged to the petitioner and he was under the assumption that he has the right over the land on the basis of the village patta being issued. ft. In the said suit, the defendant therein i.e. Mr. L. Chohochem Sangtam had filed his written statement stating inter alia that he did not know that the land belonged to the petitioner and he was under the assumption that he has the right over the land on the basis of the village patta being issued. The Court of the Civil Judge, (Senior Division) Dimapur vide a judgment and decree dated 27.09.2018 decreed the said suit on admission taking into account the provision of Order XII Rule 6 of the Code of Civil Procedure, 1908 thereby declaring that the plaintiff to be the rightful owner and patta holder of the land in question measuring area of 12,882 sq. ft. covered by Patta No.6, under Dag No.3 of Dimapur, Mouza, Model Village. It would be relevant herein to take note of that the perusal of the said judgment and order passed by the Court of the Civil Judge, (Senior Division) Dimapur dated 27.09.2018 does not in any manner show that any consequential relief as regards recovery of possession or for eviction of the defendant therein from the suit land was granted. The decree so passed is reproduced hereinbelow. “The suit came for final disposal before me on this 01.10.2018 in the presence of the plaintiff’s Learned Counsel and the defendant’s Learned Counsel. It is decreed that the plaintiff is the rightful owner and has the right, title and interest over the land in question measuring an area 12,882 sq. ft. situated at Dimpur Mouza Model Village covered by Patta No.06 under Dag No.03.” 4. The further case of the petitioner is that pursuant to the said decree being passed, the respondent Nos. 8, 9 and 10 herein in the writ proceedings have encroached upon the land of the petitioner which have been declared in favour of the petitioner by the judgment and decree dated 27.09.2018 passed in Civil Suit No.74/2016. Under such circumstances, the petitioner has filed an FIR before the O.C. Diphupar P.S., Dimapur alleging that the respondent Nos. 9 and 10 have illegally sold away a portion of his revenue bearing patta land towards eastern side and adjoining to Government land in Dag No.4 near Referral Hospital to one Mr. Chochem Anar on 09.08.2016 and issued self styled land patta to the said purchaser i.e. Mr. Chochem Anar on 09.08.2015 and 09.08.2016 respectively. 9 and 10 have illegally sold away a portion of his revenue bearing patta land towards eastern side and adjoining to Government land in Dag No.4 near Referral Hospital to one Mr. Chochem Anar on 09.08.2016 and issued self styled land patta to the said purchaser i.e. Mr. Chochem Anar on 09.08.2015 and 09.08.2016 respectively. Under such circumstances, the petitioner requested the Officer-in-charge, Diphupar P.S., Dimapur to take appropriate action against the said respondent Nos. 9 and 10 herein. On a specific query being made to the learned Senior counsel appearing on behalf of the petitioner as to whether the FIR has been registered, he fairly submitted that the FIR has been registered but however, he is not aware of the registration number of the said FIR. 5. Thereupon on 14.12.2018, the petitioner sent a communication to the respondent No.6 i.e. the Commissioner of Police alleging that the O.C. Diphupar P.S., Dimapur before whom an FIR was lodged has not taken any action in pursuance to the FIR. It was also mentioned that the land in question was situated within the Cadastral Surveyed Government land and the same is a revenue bearing land and under such circumstances any unwarranted activities upon the said land by any outsider illegally requires necessary actions for protection of the rights of the owner of the land. The respondent No.6 was therefore requested to look into the matter and to take prompt and suitable actions against the culprits. 6. Further to that, the petitioner had also submitted a representation on 11.02.2019 before the Deputy Commissioner, Dimapur, Nagaland for passing necessary and prompt orders in connection with unwarranted encroachment and illegal construction over a portion of the petitioner’s land under Patta No.6 covered by Dag No.3 of Dimapur, Mouza, Model Village, situated at 4th Mile near Central Jail and to stop such unwarranted illegal construction by passing prompt appropriate orders. It was also mentioned in the said communication that some unwarranted persons have started raising construction by erecting permanent brick wall over a portion of the petitioner’s patta land. The petitioner stated that he could reliably learn that some construction is on the strength of permission issued by the Village Council of Model Village and GB which were highly illegal and condemnable. The petitioner stated that he could reliably learn that some construction is on the strength of permission issued by the Village Council of Model Village and GB which were highly illegal and condemnable. Further to that the petitioner also submitted that in spite of a direction from the concerned authority for demarcation and identification of the land of the Model Village which falls within Dag No.4 of Government land, no demarcation and identification of the Model Village have been yet done. The petitioner also requested the Deputy Commissioner that the timely action be taken for stopping the illegal construction forthwith else the situation would turn from bad to worse in the process of protection in his land. 7. The petitioner further filed another representation to the Deputy Commissioner, Nagaland on 22.02.2019 requesting for urgent and befitting order for protection of his right to his property as guaranteed under Constitution. It also appears that similar prayer was again made on 23.04.2019 before the Deputy Commissioner, Dimapur, Nagaland. It is the case of the petitioner that in view of the inactions of the respondent Nos. 5, 6 and 7, the petitioner is compelled to institute the instant writ proceedings before this Court. 8. When the writ petition was taken up for motion on 27.08.2019, this Court taking into account the grievances of the petitioner had issued notice returnable by 3 (three) weeks and in the meantime directed the Deputy Commissioner and the Commissioner of Police, Dimapur to ensure that no further encroachment into the land of the petitioner is made without any authority of law. 9. The respondent Nos. 1 to 7 have not filed any affidavit-in-opposition however, the learned counsel for the State respondents has produced a bunch of papers. A perusal upon which would go to show that those documents pertained to proceedings initiated by the Deputy Commissioner or his Assistant in pursuance to the order dated 27.08.2019. From the said documents, it appears that the Extra Assistant Commissioner Judicial (JUD) vide an order dated 30.10.2019 forwarded a letter dated 06.09.2019 to the Head of DB, DC Office, Dimapur along with the enclosures received from the Under Secretary to the Government of Nagaland, Kohima regarding the present writ petition whereby this Court had directed to ensure that no further encroachment into the land of the petitioner is made without any authority of law. The Head DB was also requested to verify the matter along with two DBs and submit detailed report at the earliest. It further appears that a spot verification report was submitted on 04.11.2019 wherein it was mentioned that some parties were carrying construction of RCC building with RCC wall under Dag No.3 of Patta No.06 on one side developed and the other side is not developed. 10. Pursuant thereto, the Deputy Commissioner, Dimapur, passed an order dated 18.11.2019. A perusal of the said order reveals that the Office of the Deputy Commissioner was informed by one Mr. R. Sopu Angami that despite the interim order passed by this Court, the respondent Nos. 9 and 10 in the instant proceedings had failed to honour the order passed by this Court and was continuing to illegally encroach upon the land of the petitioner covered by Patta No.6, Dag No.3, Dimapur, Mouza. Taking into account the same, the Deputy Commissioner, vide the said order dated 18.11.2019 restrained the respondent Nos. 8, 9 and 10 herein from carrying out any developmental activities within the suit land till the matter is disposed of by this Court. Further to that, the Commissioner of Police, Dimapur was directed to implement the said order so as to maintain the peace and tranquility over the aforementioned land. 11. Furthermore, the document so placed by the learned counsel for the State respondent shows that the Deputy Commissioner, Dimapur had issued another restraining order on 02.02.2021 thereby restraining the respondent Nos.8, 9 and 10 from encroaching or carrying out any construction work on the land covered by Patta No.6, Dag No.3 of Mouza No.3 which is standing in the name of the petitioner till such time as this Court deems it otherwise. It was also mentioned that failure to honour the said order would entail serious legal consequences and would be dealt strictly in accordance with law. 12. Subsequent thereto, on 30.03.2021, the Additional Deputy Commissioner, Dimapur, Nagaland again issued a communication to the Extra Assistant Commissioner, Chumukedima, Dimapur on the basis of a complaint letter dated 09.03.2021 filed by the petitioner, alleging non-compliance to the order dated 02.02.2021 of the Deputy Commissioner. The Extra Assistant Commissioner, Chumukedima, Dimapur was therefore requested to verify the matter and take necessary action from his end and submit a report for further necessary action. The Extra Assistant Commissioner, Chumukedima, Dimapur was therefore requested to verify the matter and take necessary action from his end and submit a report for further necessary action. The learned counsel for the State respondent submits that he has no further instructions thereafter. The documents so submitted by the learned counsel for the State respondent are kept on record and marked with the letter “X”, “Y”, “Z”, “Z(A)” and “Z(B)” respectively. 13. The respondent Nos. 8, 9 and 10 had filed an affidavit-in-opposition on 10.02.2020. In the said affidavit-in-opposition, a preliminary objection has been taken as regards the maintainability of the writ petition in view of the pendency of a civil suit being Civil Suit No.57/2016 presently pending before the Court of the Civil Judge (Senior Division), Dimapur, Nagaland on the same subject matter and presently sub-judiced. Further to that, a perusal of the affidavit-in-opposition, it reveals that it is the stand of the respondent Nos. 8, 9 and 10 that on 18.01.1967, the Government of Nagaland through SDO (Civil), Dimapur was pleased to allow the establishment of the Model Village adjacent to Jail area, Dimapur and agricultural orchard in between DI Road and Diphu river initially for 100 persons of 4 Bighas each and the rest for village roads, churches, panchayat hall, dispensary, school, etc. It was also mentioned that at the initial period of the establishment of the Model Village, the petitioner had insisted that the plot should be given in the name of his brother Mr. Yakhrielie Razou or else he shall not allow the villagers to work since he deals with the land matters. Accordingly, the petitioner himself demarcated the boundaries and planted banana plants and a plot was allotted to his brother which appears in Serial No.59 of the list of allottees in the letter dated 18.01.1967. The letter dated 18.01.1967 has been enclosed as Annexure-1 to the said affidavit in opposition. A perusal of the said letter alongwith enclosures shows that the said Mr. Yakhrielie Razou was allotted 4 Bighas of land. In that regard a map has also been enclosed to the said affidavit-in-opposition along with a letter dated 25.04.1976 to show which portion of the land Mr. Yakhrielie Razou was allotted. 14. A perusal of the said letter alongwith enclosures shows that the said Mr. Yakhrielie Razou was allotted 4 Bighas of land. In that regard a map has also been enclosed to the said affidavit-in-opposition along with a letter dated 25.04.1976 to show which portion of the land Mr. Yakhrielie Razou was allotted. 14. It is the further case of the respondents that the petitioner has started to claim the present disputed land claiming that the State Government had allotted the land to his brother and later on Jamabandi was purportedly mutated in his name on 12.10.1988 It was stated that the claim of the petitioner is the area of the land already allotted for establishment of Model village as early on 10.01.1967 and where a plot was allotted to the elder brother of the petitioner. Under such circumstances, the petitioner’s claim and attempts to encroach the disputed land has been confronted by the villagers as the petitioner was never in possession of the same. Further to that it has been mentioned that due to resistance of the villagers, the petitioner had instituted a suit being Title Suit No. 1/1995 before the Civil Court at Dimapur praying to set aside and quash the Government Letter No.LR/11-6/85 dated 21.08.1989 as null and void, decree for delivery of possession, perpetual injunction etc. The said suit was initially decreed ex-parte against the present respondents. Thereupon, the respondents had approached this Court by filing a first appeal which was registered and numbered as First Appeal No.3(K)/2011. This Court vide a judgment and order dated 23.03.2011 had set aside the said ex-parte order and directed the Trial Court to proceed and decide the case expeditiously preferably within 4 months. This Court further directed that the status quo order to be maintained till the disposal of the suit. Thereupon, on account of various reasons the disposal of the suit i.e. Title Suit No.1/1995 was delayed considerably. Subsequent thereto, an application dated 19.07.2016 was filed by the petitioner for withdrawing the said suit with liberty on the ground that there were certain formal defects in the said suit. Vide an order dated 22.07.2016, the learned Civil Judge (Senior Division), Dimapur allowed the withdrawal of the suit with liberty and thereupon the status quo order passed by this Court automatically lapsed in view of the suit having been withdrawn. 15. Vide an order dated 22.07.2016, the learned Civil Judge (Senior Division), Dimapur allowed the withdrawal of the suit with liberty and thereupon the status quo order passed by this Court automatically lapsed in view of the suit having been withdrawn. 15. It has been further stated in the said affidavit-in-opposition that pursuant to the liberty taken, a suit was filed before the Court of the Civil Judge (Senior Division), Dimapur which has been registered as Civil Suit No.57/2016 wherein the petitioner as plaintiff has sought for declaration of right, title and interest of the suit land in favour of the plaintiff, perpetual injunction against the defendant, for eviction of the defendant No.1 from the encroached land which is falling under the suit land etc. In the said affidavit-in-opposition, it was also mentioned that the village authorities have been issuing village patta from time to time to the legitimate land owners and also to legitimate owners having developed their lands over the years. The respondent Nos.8, 9 and 10 were surprised and shocked to know that the writ petitioner had filed FIR dated 25.02.2017 before the respondent No.7, representation dated 14.12.2018 before the respondent No.6 as well as the representations dated 11.02.2019, 22.02.2019 and 23.04.2019 before the respondent No.5. It was stated that the said FIR/complaints/representations were without any legal basis which cannot stand the test of law. 16. I have heard the learned counsels for the parties and also perused the materials on record. 17. The learned counsel for the petitioner had submitted that it is necessary to clarify that pursuant to the liberty so taken, the petitioner as plaintiff has filed various suits being Civil Suit No.58/2016, Civil Suit No.59/2019, Civil Suit No.60/2016 and Civil Suit No.61/2016 against the respondent No.8 and some individuals. It was also mentioned that after following all the mandatory provisions of law, the Civil Suits were decreed in favour of the petitioner by judgment and order dated 27.09.2018 and the execution proceedings are presently pending. It was also mentioned that after following all the mandatory provisions of law, the Civil Suits were decreed in favour of the petitioner by judgment and order dated 27.09.2018 and the execution proceedings are presently pending. The learned counsel for the petitioner further submitted that the question of the writ petition being not maintainable in view of the pendency of Title Suit No.57/2016 does not arise taking into account that the allegations made in the writ petition were in respect to inaction of the concerned respondent authorities pursuant to the FIR, communication as well as the representations being submitted to the respondent Nos.7, 6 and 5 respectively. Under such circumstances, the learned Senior counsel submitted that though the right to property may not be fundamental right but it is still a Constitutional right and taking into account the same, the respondent authorities who are in-charge of maintaining the law and order as well as the administration is therefore required to take appropriate action in the matter when there is/are transgression to the rights of the petitioner been reported. He therefore submits that the instant writ petition is simply for the purpose of issuing directions to the said respondent authorities to take action as envisaged under law. 18. On the other hand, Mr. Taka Masa, the learned Senior counsel appearing on behalf of the respondent Nos.8, 9 and 10 has submitted that the judgment and decree dated 27.09.2018 which is the basis made by the petitioner in filing the instant writ petition to show that the petitioner has right over the land, is pending adjudication in an appeal. He has drawn the attention of this Court to the fact that an appeal has been preferred by the defendant in Title Suit No.74/2016 which has been registered and numbered as Civil Appeal No.3/2021. He however submits that there has been delay of 1053 days and presently the said appeal proceedings are pending at the stage of condonation of delay. He further submitted that when a suit pertaining to the rights of the parties are presently pending before the Civil Court, any directions given by this Court in the instant writ petition as sought for would affect the rights of the parties whose rights are presently pending adjudication in the said suit. 19. He further submitted that when a suit pertaining to the rights of the parties are presently pending before the Civil Court, any directions given by this Court in the instant writ petition as sought for would affect the rights of the parties whose rights are presently pending adjudication in the said suit. 19. Upon hearing the learned counsels for the parties, it appears that there has been various litigations amongst the parties as regards the rights over the land measuring 90 Bighas of land included in Dag No.3, Patta No.6 of Dimapur Mouza. When the petitioner claims his rights on the basis of the patta being issued by the Revenue Authorities, the respondents claims rights on the basis of the allotment made on 18.01.1967 and the demarcation so carried out by the Settlement Officer on 01.09.1971 over the said land claiming it to be a part of the Model Village. 20. Before further proceeding, this Court also deems it proper to take note of the preliminary objection raised by the learned counsel for the respondent Nos.8, 9 and 10 wherein it has been mentioned that the instant writ proceedings are not maintainable taking into account that the issue is presently pending before the Court of the Civil Judge (Senior Division) Dimapur as regards the rights of the land of the petitioner over the 90 Bighas included in Dag No.3 of Patta No.6 of Dimapur, Mouza. Upon perusal of the plaint in Title Suit No.57/2016, it transpires that in paragraph No.17 of the said plaint, the cause of action leading to the filing of the suit has been mentioned. Amongst the various dates mentioned as cause of action, one of such date happens to be 22.07.2016 when the Court of the Civil Judge (Senior Division), Dimapur allowed the withdrawal of the suit with liberty to the plaintiff to file afresh. However, a perusal of the writ petition shows that the alleged transgression to the rights of the petitioner has been made some time in the year 2017 and it is on the basis of that the petitioner has filed a FIR before the Officer-in-charge of the Dipupar Police Station on 25.02.2017 which was followed by representation dated 14.12.2018 before the Commissioner of Police, Dimapur and subsequently representations submitted on 11.02.2019, 22.02.2019 and 23.04.2019 before the Deputy Commissioner, Dimapur. These causes of action which have happened are subsequent to the filing of the said suit. Under such circumstances, the question of pendency of the said suit to be a bar for exercising a writ jurisdiction of this Court, in the opinion of this Court is misconceived. 21. Be that as it may, it is relevant to take note of as to whether this Court should exercise the jurisdiction under Article 226 of the Constitution of India in the present facts. The rights of the parties i.e. the petitioner vis-à-vis the respondent Nos.8, 9 and 10 as regards their entitlement over the disputed land is presently in dispute before the Civil Court. This can very well be seen from a perusal of the Civil Suit No.57/2016. It is also relevant to take note of that the claims over the particular plot of land of 90 Bighas was initially a subject matter in Title Suit No.1/1995. On account of some formal defects, the said suit was withdrawn with liberty to file afresh. The plaint of Civil Suit No.58/2016, Civil Suit No.59/2019, Civil Suit No.60/2016, Civil Suit No.61/2016 or the judgment and decree passed therein however have not been enclosed to the writ petition. But from paragraph No.17 of the plaint in Civil Suit No.57/2016, it transpires that the said suit was being filed pursuant to the liberty so given in Title Suit No.1/1995. Therefore, the dispute between the petitioner and the respondent Nos. 8, 9 and 10 in the opinion of this Court still subsists as regards the entitlement of the disputed land. Taking into account that the same would require adjudication of the conflicting claims by way of evidence, it would be the Civil Court which would be the appropriate forum to decide such conflicting claims. It cannot also be loss sight of that in Civil Suit No.57/2016, the allegation is not only against the respondent Nos.8, 9 and 10 but also against one Shri. Mehopi who is the defendant No.1 therein and there is a categorical statement that the said defendant No.1 has encroached a portion of the land belonging to the petitioner. In the above perspective, therefore this Court is of the opinion that the dispute between the petitioner and the respondent Nos. 8, 9 and 10 requires to be resolved only through the Civil Court. In the above perspective, therefore this Court is of the opinion that the dispute between the petitioner and the respondent Nos. 8, 9 and 10 requires to be resolved only through the Civil Court. Being purely a civil dispute therefore, it would not be proper for this Court to issue any writ directing the respondent Nos. 5, 6 and 7 to take appropriate action in as much as such writ so issued may affect the rights of the parties which is pending before the Civil Court. 22. Accordingly the instant writ petition therefore stands disposed of by giving liberty to the petitioner to either amend Title Suit No.57/2016 by inserting the subsequent cause of action or file a separate suit challenging the cause of action which led to the filing of the writ petition. The liberty so given is not restricted to the above but the petitioner shall be entitled to raise all such dispute available and permissible under law. The petitioner is also given the liberty to file an injunction application seeking protection of his property. 23. Taking into account that this Court has passed an order dated 27.08.2019 directing that there should not be any further encroachment in the land of the petitioner without authority of law and thereupon there were restraining orders dated 18.11.2019 and 02.02.2021 passed by the Deputy Commissioner, Dimapur, this Court directs that the said restraining orders dated 18.11.2019 as well as 02.02.2021 shall hold the field for a period of 45 days from the date of the instant judgment and order. Thereupon, it shall be on the basis of such order(s) that may be passed by the Civil Court. 24. Before concluding, this Court would also observe that the observations made herein are limited to deciding the instant writ proceedings and the same shall not influence the Civil Court in deciding the dispute(s) between the petitioner and the respondent Nos. 8, 9 and 10 or anyone claiming under them. 25. With the above observations and directions, the instant writ petition stands disposed off.