Kojam Dada v. The State of Ap and 2 Ors

ORDER Date : 03.06.2024

Heard Mr. G. Riba, learned counsel for the petitioner. Also heard Ms. G. Ete, learned Additional Senior Government Advocate for the State respondent.

¶2This writ petition under Article 226 of the Constitution of India has been filed challenging the impugned Vacation Order No. ESTATE(FPO)-01/2023-24, dated 21.05.2024, issued by the Additional Deputy Commissioner-cum-Estate Officer, Seppa whereby, the petitioner has been directed to vacate from the public premises within 10(ten) days from the issue of the notice dated

21.05.2024 without considering the show cause reply by the petitioners dated

22.02.2024 and 13.05.2024.

¶3It is submitted by Mr. G. Riba, learned counsel for the petitioners, that the petitioner was not given any opportunity of hearing although he has filed his written reply to the show cause notice of the authority concerned. It is further submitted that the plot of land measuring 30 Sq.m., situated outside of the RCC boundary wall of Mini Secretariat, Seppa, was under the occupation of the father of the petitioner for more than 30(thirty) years and after inheriting the said plot of land from his father, the petitioner has constructed one OBT Type commercial building. The petitioner is also paying the requisite revenue on time in terms of electricity bill for the commercial building which is under his possession and the petitioner also obtained the Trade license on 11.04.2012 and also paying the requisite revenue thereof. Thus, the OBT Type Room in the said plot of land, which is constructed in the year 2003, was under the possession of Page No.# 3/6 the petitioner since 1991 and since then it was using for commercial purpose. But on 15.02.2024, the petitioner received a notice from the respondent authorities and in response to that, he also submitted his written reply apprising the respondent authorities pertaining to peaceful possession of the land in question. Moreover, till date the respondent authorities did not issue any legal notice to the petitioner which is mandatorily required under the statutory provision of law. Further it is submitted that despite the submission of written reply dated 22.02.2024 & 13.05.2024 by the petitioner, the respondent No. 3 kept issuing the show cause notice in the form of vacation notice dated

21.05.2024 to the petitioner for vacation of the alleged premises on or before

30.05.2024.

¶4The learned counsel for the petitioner further submitted that the said commercial building lies outside the RCC boundary wall of the Mini Secretariat, Seppa and the same does not create any hinderance to the right of way of the concerned dweller inasmuch as the same is a subject matter of private property of the petitioner.

¶5Moreso, in the facts and circumstances involved in this case, the notice should have been issued under Section 7 of the Arunachal Pradesh Public Premises (Eviction of Unauthorized Occupant) Act, 2003 (hereinafter referred to as 'Act of 2003') instead of Section 5 of the said Act of 2003. Therefore, the entire procedure is hit by jurisdictional and procedural lapses and the same is abuse of the process of law. The authority concerned also did not comply with the proviso of Section 4 (i) (ii) (b) of the Arunachal Pradesh Public Premises (Eviction of Unauthorized Occupants) Act, 2003.

¶6The learned counsel for the petitioner further submitted that in spite of the Page No.# 4/6 response to the show cause notice by the petitioner, he was not given any chance of hearing and the order of vacation has been passed in spite of the fact that the land in question has been in peaceful and absolute possession of the petitioner for more than 30 years and hence, the order of vacation is illegal, arbitrary and lack of procedural mechanism. Hence, the present writ petition has been filed to set aside the order of vacation and further allowing the petitioner to approach the competent Civil Court for final adjudication or redressal of his grievances.

¶7In support of his submissions, the learned counsel for the petitioner also relied on a decision of this Court passed in B. Z. Mara Vs. State of Arunachal Pradesh (2019 4 GLT 50).

¶8In this context, Ms. G. Ete, learned Additional Government Advocate, has submitted that it is not disputed that the land in question is a government land and is also a commercial plot of land which has been occupied by the petitioner forcibly. Prior to the order of the vacation, the show cause notice was issued to the petitioner and in response to the same, he has also filed his written objection and after complying all due procedure, the order of vacation has been passed against the petitioner, who was illegally possessing the government/commercial land which is adjacent to the Mini Secretariat, Seppa. Further it is submitted that as there is no dispute that the land in question is a government land, no formal notice is also required to be issued to the petitioner as he is considered to be the unauthorized occupant of the government land. She further submitted that after exhausting the provision under Section 4 of the Act of 2003, the vacation order was passed by the Estate Officer complying the provision under Section 5 of the said Act of 2003 and thus, there is no illegality Page No.# 5/6 committed by the Estate Officer/respondent authority while issuing vacation notice to the petitioner. Accordingly, she raised objection and submitted that the petition is liable to be dismissed.

¶9I have given my anxious consideration to the rival contentions made by the learned counsels for both sides.

¶10It is seen that the petitioner is claiming his right over the disputed plot of land since 1991 and it is stated that the father of the petitioner was also under the occupation of the said plot of land since 1991 and thus, they are possessing the said land by erecting some commercial structures on the land since 2003. However, the petitioner received a show cause notice and in response to the said show cause notice, he has also filed his written reply. However, without giving any opportunity of hearing, the respondent authority issued the vacation order dated 21.05.2024, which the petitioner has claimed as illegal and arbitrary. But, on the other hand, it is the stand of the government authorities that the notice was duly served on the petitioner and the written reply is also considered and thereafter only, complying the provision of Section 4 of the Act of 2003, the vacation order was passed by the Estate Officer complying Section 5 of the Act of 2003.

¶11It is an admitted fact that the land in question is a government land which is claimed to be under the possession of the petitioner for more than 30 years, though it is seen that till date the petitioner has not applied for allotment of the land in question before the authority concerned.

¶12In view of above and also considering the entire aspects of the case, I hereby dispose of the present writ petition at the motion stage itself by directing Page No.# 6/6 the respondent authorities, more particularly, the respondent No. 3, not to carry out the Vacation Order dated 21.05.2024 till disposal of the allotment proceeding, if any, pending before the authority concerned, and, in the event, if no allotment proceeding is pending before the authority concerned and/or the allotment order goes against the present petitioner, the respondent authorities will be at liberty to carry out the Vacation Order dated 21.05.2024. Further, the authority concerned is also hereby directed to pass the final order on the prayer for allotment, if any, made by the petitioner in accordance with law.

¶13In terms of above, this writ petition stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/6 GAHC040007072024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : WP(C)/219/2024 Kojam Dada Son of Takam Dada, resident of Shantipur Colony, PO and PS Seppa, East Kameng District, Arunachal Pradesh VERSUS The State of AP and 2 Ors represented by the Chief Secretary, Govt of Arunachal Pradesh, Itanagar 2:The Deputy Commissioner Age: 0 Occupation : 3:The Additional Deputy Commissioner cum Estate Officer Age: 0 Occupation Advocate for the Petitioner : G Riba Advocate for the Respondent : GA (AP) Page No.# 2/6 BEFORE HONBLE MRS. JUSTICE MITALI THAKURIA