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2024 DIGILAW 1716 (GAU)

Watsulhiu W/o Lt. Wekhate Kapfo v. State Of Nagaland

2024-12-05

DEVASHIS BARUAH

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JUDGMENT : Heard Ms. V. Therie, the learned counsel appearing on behalf of the Petitioners and Mr. V. Zhimomi, the learned Government Advocate appearing on behalf of the Respondent Nos. 1 to 4. 2. The instant proceedings have been initiated by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India challenging the order dated 07.10.2020 passed by the Deputy Commissioner, Dimapur, Nagaland whereby the Petitioners were directed to vacate the possession over the land as specifically described in the Schedule to the order (for the sake of convenience ‘the land in question’) within a period of 15 days from the date of receipt of the said order and further observing that in the case, the Petitioners fail to comply with the directions, it would entail physical eviction by using necessary force. 3. The legality of the said order dated 07.10.2020 (hereinafter referred to as ‘the impugned order’) had been questioned by the Petitioners on the ground that the impugned order suffers from non-application of mind, violation of the principles of natural justice as well as the impugned order was unreasonable and arbitrary and consequently in violation of Article 14 of the Constitution of India. 4. For appreciating the dispute involved in the instant proceedings, it is relevant to take note of the facts leading to the filing of the instant writ petition. 5. The Petitioners herein claim to be the absolute owners of a plot of land admeasuring 0 Bigha 1 Katha 10 Lechas covered by Dag No.1259/1602 under Patta No. 1309 at Dimapur under Block No. 6 and Mouza No. 1. The Petitioners claimed that the ownership over the land in question was obtained on the basis of a Registered Deed of Sale executed by one Shri Phushika Awomi dated 10.10.2011 in favour of the Petitioner No.2. It is the further case of the Petitioners that pursuant thereto, the Petitioner No.2 was issued a Patta by the Revenue-cum-Settlement Officer, Office of the Deputy Commissioner, Dimapur as well as also given a Land Revenue Clearance Certificate in respect to the land in question. The Petitioners avers that neither the Patta nor the Land Clearance Certificate were cancelled as they are still in force. 6. The Petitioners avers that neither the Patta nor the Land Clearance Certificate were cancelled as they are still in force. 6. Be that as it may, the Respondent No.2 had issued a notice under Section 5(1) of the Nagaland Eviction of Persons in Unauthorized Occupation of Public Land Act, 1971 (for short ‘the Act the 1971’) on 21.05.2012 asking the Petitioner No.1 to show cause as to why she should not be evicted in view of the fact that the Petitioner No.1 was occupying a public land belonging to the Medical Department of the Government of Nagaland. 7. Upon receipt of the said notice, the Petitioner No.1 submitted a detailed reply on 04.06.2012 stating inter alia that the land was purchased by the Petitioner No.2 on the basis of a registered Deed of Sale dated 10.10.2011 from Mr. Phushika Awomi and thereupon, the Petitioner No.2 had been issued the patta as well as the Land Revenue Clearance Certificate. It was further mentioned that the proceedings so initiated under the Act of 1971 was totally misconceived inasmuch as the land in question was not a public land within the meaning of the Act of 1971 and accordingly requested the Respondent No.2 to drop the said proceedings. 8. Pursuant to the said reply so submitted, after 2 years therefrom, an order was passed on 07.11.2014 by the Respondent No.2 in exercise of the powers under Section 6 of the Act of 1971 read with Rule 165 of the Assam Land and Revenue Regulation, 1886 (for short ‘the Regulation’) thereby directing the Petitioner No.1 to vacate the said plot of land after removing all structures or properties thereof within 15 days from the date of publication of the said order. 9. The Petitioners upon receipt of the said order dated 07.11.2014 submitted a reply dated 17.11.2014 again reiterating their contentions as stated in the earlier reply dated 04.06.2012. Subsequent thereto, after a lapse of 6 years, on 07.10.2020, the impugned order was passed thereby observing that the Petitioners were not required to submit a reply to the order passed under Section 6 of the Act of 1971 inasmuch as vide the order dated 07.11.2014, the Petitioners were already directed to vacate the public land. Subsequent thereto, after a lapse of 6 years, on 07.10.2020, the impugned order was passed thereby observing that the Petitioners were not required to submit a reply to the order passed under Section 6 of the Act of 1971 inasmuch as vide the order dated 07.11.2014, the Petitioners were already directed to vacate the public land. However, vide the impugned order, the Petitioners were given an additional period of 15 days to vacate, failing which action would be taken for carrying out physical eviction with the use of necessary force. It is under such circumstances, the Petitioners have approached this Court by filing the instant writ petition. 10. This Court vide an order dated 29.10.2020 issued notice and further directed that till the next date, the Petitioners be not evicted from the land in question. The interim order thereupon has been extended from time to time. 11. The Respondents thereupon filed a detailed affidavit-in-opposition. From the said affidavit-in-opposition, the Respondents have questioned the maintainability of the writ petition on the ground that an appellate remedy was available under Section 12(i) of the Act of 1971. Further to that, it was mentioned that the land in question is a part of Dag No. 416, which belonged to the Medical Department of the Government of Nagaland. It was further mentioned that after a perusal of the reply so submitted by the Petitioners along with the documents, it transpired that the vendor of the Petitioner No.2 did not have a title over the land in question inasmuch as the then Deputy Commissioner had illegally regularized the title of the vendor of the Petitioners namely Shri Veto Awomi vide an order dated 06.11.2004. It is also mentioned that at that relevant point of time, the Deputy Commissioner had no authority or jurisdiction to recommend or grant allotment inasmuch as, there was a complete ban by the Government of Nagaland. It was also mentioned that the said issue have also been settled vide a judgment dated 23.05.2022 passed by the learned Division Bench of this Court in the case of State of Nagaland and Another Vs. Avio Naleo and others reported in (2022) 5 GLR 420. It was also mentioned that the said issue have also been settled vide a judgment dated 23.05.2022 passed by the learned Division Bench of this Court in the case of State of Nagaland and Another Vs. Avio Naleo and others reported in (2022) 5 GLR 420. It was therefore mentioned that when the vendor of the Petitioners did not have a title and it was wrongly regularized by the Deputy Commissioner who has no authority to do so and the land in question was a public land and as such the exercise of jurisdiction by the Respondent No.2 was in accordance with the provisions of the Act of 1971 for which the instant writ petition ought to be dismissed. 12. It is further seen that an affidavit-in-reply was also filed denying to the statements and allegations made in the affidavit-in-opposition and reiterating the statements so made in the writ petition. 13. In the backdrop of the above pleadings, this Court has also heard the learned counsels appearing on behalf of the parties. 14. Ms. V. Therie, the learned counsel appearing on behalf of the Petitioners submitted that the question of writ petition being not maintainable does not arise in view of the fact that it is a settled principle of law when the order assailed is in violation to the mandate of Part-III of the Constitution of India, a writ petition is maintainable. She therefore submitted that the alternative appellate remedy though available, this Court can exercise its jurisdiction under Article 226 of the Constitution. The learned counsel further submitted that as the Petitioners had title over the land, the land in question could not have been a public land falling within the ambit of the Act of 1971 and as such the exercise of jurisdiction under the said Act of 1971 was without authority and jurisdiction. The learned counsel therefore submitted that when an authority exercises jurisdiction not conferred upon it by law, the invocation of the writ proceedings is permissible. 15. Ms. V. Therie, the learned counsel for the Petitioners further submitted that it is a well settled principle of law as settled by the Supreme Court in the case of Commissioner of Police, Bombay Vs. 15. Ms. V. Therie, the learned counsel for the Petitioners further submitted that it is a well settled principle of law as settled by the Supreme Court in the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji reported in AIR 1952 SC 16 that public order so made has to be tested on the basis of the contents of the said order and that cannot be supplemented subsequently by adding reasons by way of an affidavit. The learned counsel further submitted that this position of law have been further explained by the Constitution Bench of the Supreme Court in the case of Vs. The Chief Election Commissioner, New Delhi and Others reported in (1978) 1 SCC 405 and in that regard, referred to Paragraph No.8 of the said judgment. 16. The learned counsel for the Petitioners further submitted that a perusal of the orders dated 07.11.2014 as well as 07.10.2020 would show that what the Petitioners have submitted is a detailed reply along with all necessary documents. However, the order dated 07.11.2014 is bereft of any reasons as to why the Petitioners’ contentions were not taken into consideration. The learned counsel further submitted that in the subsequent order dated 07.10.2020 also no reasons were assigned as now sought to be explained by way of the affidavit. In fact, at that relevant point of time, when both the orders dated 07.11.2014 and 07.10.2020 were passed, the judgment in the case of Avio Naleo (supra) was not even passed. She therefore submitted that the affidavit cannot be read into to explain the reasons why the impugned orders dated 07.11.2014 and 07.10.2020 were passed. 17. Per contra, Mr. V. Zhimomi, the learned Government Advocate appearing on behalf of the Respondent Nos. 1 to 4 submitted that the land in question is a part of Dag No.416 which was specifically allotted land to the Medical Department of the Government of Nagaland. He submitted that in spite of there being a total ban on granting any regularization by the Deputy Commissioners/Additional Deputy Commissioners/Sub-Divisional Deputy Commissioners, the Deputy Commissioner in the instant case vide the order dated 06.11.2004 had regularized the patta in favour of the vendor of the Petitioners which was not at all permissible. He submitted that in spite of there being a total ban on granting any regularization by the Deputy Commissioners/Additional Deputy Commissioners/Sub-Divisional Deputy Commissioners, the Deputy Commissioner in the instant case vide the order dated 06.11.2004 had regularized the patta in favour of the vendor of the Petitioners which was not at all permissible. The learned counsel submitted that similar issues arose as to whether the Deputy Commissioner had the right to recommend or grant allotment in spite of existence of a total ban being imposed was dealt with by the learned Division Bench of this Court. He submitted that the learned Division Bench in the case of Avio Naleo (supra) had categorically observed that the Deputy Commissioner could not have exercised such power. In that regard, the learned Government Advocate referred to the judgment of the Division Bench in the case of 18. The learned Government Advocate therefore submitted that as the Petitioners in the instant case had no title and the land in question was a public land within the meaning of Section 2(h) of the Act of 1971 and as such, the exercise of the jurisdiction by the Authority was in accordance with law for which no interference is required. He further submitted that the Petitioners had an alternative remedy which the Petitioners failed to exercise and as such, this Court ought not to exercise its jurisdiction under Article 226 of the Constitution of India. 19. This Court has heard the learned counsels for the parties and given anxious consideration to their respective submissions. 20. The question which therefore arises for consideration is as to whether the Respondent No.2 was justified in passing the impugned order dated 07.11.2014 as well as the order dated 07.10.2020. This Court has duly perused the notice which was issued to the Petitioner No.1 on 21.05.2012 asking the Petitioner to show cause. The Petitioner No.1 had duly submitted her show cause reply giving various details on the basis of which the initiation under the provisions of the Act of 1971 was totally misconceived. To the said reply, the Petitioners have also enclosed various documents on the basis of which the Petitioners claimed title over the land in question. However, from the order dated 07.11.2014, it is seen that no reasons have been assigned in the said order as to why the Petitioners’ reply was not taken into consideration. To the said reply, the Petitioners have also enclosed various documents on the basis of which the Petitioners claimed title over the land in question. However, from the order dated 07.11.2014, it is seen that no reasons have been assigned in the said order as to why the Petitioners’ reply was not taken into consideration. It is a well settled principle of law that when public authorities exercise quasi-judicial jurisdiction, reasons have to be assigned and failure to do so, renders the said decision unreasonable and arbitrary and consequently, in violation of Article 14 of the Constitution of India. 21. It is further noticed that subsequently in the affidavit, reasons have been assigned as to why the Petitioners’ reply did not merit consideration. However, it is a settled principle of law as held in the case of Mohinder Singh Gill (supra) to the effect that the public order(s) so made have to be adjudged on the basis of the reasons assigned in the order and not subsequently by way of an affidavit. In the opinion of this Court, the said reasons so assigned in the affidavit cannot therefore be taken into consideration. In this regard, this Court finds it relevant to reproduce paragraph No.8 of the judgment in the case of Mohinder Singh Gill (supra) which is as herein under: “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji: Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what be intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.” 22. This Court further finds it relevant to observe that the reasons assigned in the affidavit could not have been taken as the reasons for which the order dated 07.11.2014 and 07.10.2020 could be attributed inasmuch the reasons refers to a decision of the learned Division Bench in the case of Avio Naleo (supra) which was rendered only on 23.05.2022 and the impugned orders were passed on 07.11.2014 and 07.10.2020 much prior to the said date. 23. This Court further finds it relevant to observe that the Respondent No.2 did not take into consideration that the Petitioner No.2 was issued a Patta and Land Revenue Clearance Certificate on the basis of the Deed of Sale. The Patta as submitted by the learned counsel for the Petitioners still subsists and without cancellation of the same, whether the land in question can be said to be a public land within the meaning of the Act of 1971. 24. The consequential effect of the determination so made hereinabove is that the order dated 07.11.2014 is unreasonable and arbitrary and thereby violates Article 14 of the Constitution of India. It is the settled principle of law that if an order is in violation of Article 14 of the Constitution of India, this Court can exercise jurisdiction under Article 226 of the Constitution in spite of availability of an alternative and an efficacious remedy. 25. This Court further takes note of that subsequently, basing on the order dated 07.11.2014, the impugned order dated 07.10.2020 was passed. It is the opinion of this Court that if the order dated 07.11.2014 cannot survive, the consequential order basing on the order dated 07.11.2014 cannot also survive. 26. Accordingly, this Court therefore disposes of the instant writ petition with the following observations and directions: 27. IN Re: Directions in the matter of (i) The order dated 07.11.2014 is set aside and quashed. (ii) In view of the setting aside of the order dated 07.11.2014, the consequential order dated 07.10.2020 also cannot survive for which the same is also set aside and quashed. IN Re: Directions in the matter of (i) The order dated 07.11.2014 is set aside and quashed. (ii) In view of the setting aside of the order dated 07.11.2014, the consequential order dated 07.10.2020 also cannot survive for which the same is also set aside and quashed. (iii) The setting aside and quashing of the order dated 07.11.2014 as well as the order dated 07.10.2020 shall not preclude the Respondent Authorities to adjudicate on the basis of the notice issued on 21.05.2012 by taking into consideration the replies submitted by the Petitioners abovementioned. In addition to that, the Respondents are still at liberty to initiate fresh actions if deem fit under the Act of 1971 if permissible under law. It is however observed that if the Authorities takes such action under the Act of 1971 or on the basis of the notice dated 21.05.2012, the Petitioners be given an opportunity of hearing. (iv) It is the requirement of law that the order so passed by the Respondent No.2 in exercise of the powers under the Act of 1971 has to be a speaking order. (v) This Court further takes note of the recent judgment of the Supreme Court in the case of Demolition of structures reported in 2024 SCC OnLine SC 3291 wherein the Supreme Court observed that upon passing of an order of eviction, some reasonable time is to be afforded to the person concerned so that the person can avail the remedies available under law. In this case, it is seen that an Appeal lies under Section 12 of the Act of 1971 against an order of eviction. The said appeal has to be filed within a period of 15 days from the date of service of the order on the person concerned. This Court therefore observes and directs that in the circumstances, an order of eviction is passed under Section 6 of the Act of 1971 against the Petitioners, the Respondent Authorities shall not take coercive action against the Petitioners for a period of 15 days from the date of the service of the order of eviction upon the Petitioners.