Chowtan Gohain vs State of Arunachal Pradesh and Others

J.N. Sarma, J.—This writ application has been filed for quashing the notification No. FOR-79/77 dated 16th August 1978 issued by the Govt. of Arunachal Pradesh declaring khanpoi Anchal Reserve Forest, the order No. AND/49/91/2451-56 dated 19th March 1993 issued by the Divisional Forest Officer, Namsai Forest Division, cancelling the no objection certificate earlier issued in favour of the petitioner and the continuation of the proceeding by the Deputy Commissioner Lohit District towards cancellation of the land possession certificate earlier granted in favour of the petitioner with further prayer for a direction to the state Govt. and the Respondents to forbear from giving effect to the aforesaid notification No. FOR-79/77 dated 16th August 1978 and the order No. AND/49/91/2451-56 dated 19th March. 1993 and not to proceed further in the proceeding towards cancellation of the land possession certificate earlier granted to the petitioner.

The brief facts of the case are as follows :

That the petitioner is a citizen of India and the permanent resident of Village Inju in the District of Lohit, Arunachal Pradesh. He is a local Tribal Agriculturist belonging to Khamti Schedule Tribe Community. The petitioner owns and possesses more than 1956 Hectares of land at village Inju through inheritance from his ancestors who were in continuous possession and enjoyment of it for many generation, the Singphos and Khamtis including the ancestors of this petitioners were the first settlers of the Vast area covering about 140 Sq. Kilometers including above mentioned land now surrendered by Turung Khampoi Anchal Reserve Forest, Tenga Pani Forest Reserve, Lai Reserve Forest and common Lohit-Tirap Boundary, Tea is a favourite beverage for the local Tribe which they use to have from the native plantations they did to meet their household needs. Such Tea bushes are still standing in places here and there in aforesaid land possessed by the petitioner.

Being encouraged by the suitability of the said Soil on scientific analysis, to facilitate commercial growth, the petitioner pioneered a venture to set up an agro-based Industry through two registered companies i.e.. Chow Alung Agro Ltd. and Kunglnju agro Pvt. Ltd. by planting tea on about 1000 Hectares of above said land belonging to the petitioner to boost the economy of the Industrially backward scale of Arunachal Pradesh in the aforesaid 1000 Hectares of land of Arunachal Pradesh. The aforesaid 1000 Hectares of land of the petitioner is bounded by North-Tellai river, East-by tellai village and BTP Road, South-by USF of Inju Village and West-by Inju village of Singpho village area. The said land also falls within area of Wakro Anchal Samity.

In the State of Arunachal Pradesh there is no system of issuing documents of title from the State Govt. therefore the private land owners do not have any land documents to show the title of the land. To obtain financial assistance from the Financial Institutions like nationalised Banks, Tea Boards, Coffee and Rubber Board etc., the Govt. of Arunachal Pradesh has introduced a policy for issue of possession certificate to the owner of Private land and such certificate is considered most essential by the individual for obtaining financial assistance from various financial Institutions. The procedure prescribed for issue of land possession certificate is that the land owners No. 1, certificate from Forest Deptt. mentioning that the land in question does not fall under Reserve Forest area. 2. Certificate from the Village council/village headmen/Vice-President Anchal Samity that the land is actually owned by the applicant, sketch map of the land and on receipt of the above applications, the Administrative authority of the locality shall inspect and measure the land in question with survey team for which he shall issue a notice as per form prescribed with a copy to Gaon Bura (Village headman). Gram Panchayat Member, Anchal Samity member, applicant and persons holding area on North, South, East and West. On completion of the above inspection, the Administrative authority shall arrange to issue a notice for a No objection from the public of the locality, on the completion of the above course of action, if it is established without any doubt that the applicant concerned is the owner of the land, the Administrative authority shall recommend the case to the concerned Deputy Commissioner for issue of Land Possession Certificate and the Deputy Commissioner on receipt of the recommendation from the Administrative authority shall examine the case and if it is found in order he shall recommend the case to the Govt. for approval and after obtaining the approval he shall arrange to issue a Land Possession Certificate. The Govt. policy aforesaid is annexed as Annexure-2 to the writ application.

The petitioner submitted an application before the authority for issue of Land Possession Certificate in respect of aforesaid 1000 hectares of land so that he can obtain financial assistance from the financial Institutions enclosing the required certificates and documents. The petitioner had enclosed the certificate dated 21.3.1989 issued by the Range Forest Officer Medo Range, countersigned by the Divisional Forest Officer Namsai, showing that the aforesaid land is a cultivable land and entirely belong to this petitioners as per record and that the land is not encroached/falls in any Reserve Forest/Annexure-1(a), the certificate dated 2.5.1989 issued by Secretary Revenue and settlement Govt. of Arunachal Pradesh authorising the petitioner to mortgage the said land in his absolute possession to the Tea Board of India and United Bank of India (Annexure-1(b). certificate dated 9,12.1989 issued by Vice President, Wakro Anchal Samity showing that aforesaid land is owned by this petitioner and is free from all encumbrances (Annexure-2). And the certificates from the Gaon Bura''s of the neighbouring villages showing that the petitioner is the owner of the said land (Annexures- 4, 5 and 6). The Govt. of Arunachal Pradesh through the Secretary Revenue vide his Memo No. REV-13/79 dated 25th January, 1990 approved the same and to register the land to enable the petitioner to seek loans from the Tea Board of India and United Bank of India in his venture in Tea plantation. Thereafter the Deputy Commissioner Lohit District issued the land possession certificate in respect of the aforesaid land of the petitioner vide his Memo No. LRE/5548/8936/ 87 dated 6th March, 1990 and the said certificate was also subsequently registered on 29.3.1990 being Registration No. 7/90 as per direction issued by the Govt. of Arunachai Pradesh the Secretary Revenue.

Thereafter the Govt. of Arunachal Pradesh through Secretary (Revenue and Settlement) vide certificate No. REV 15/79 dated 19th April, 1991 authorised the petitioner to mortgage the aforesaid 1000 hectares of land to the Tea Board of India and United Bank of India or any Commercial Bank of India. On the basis of the documents aforesaid, the no objection certificate issued by the Forest Department, the Land Possession Certificate issued by the Govt. of Arunachal Pradesh and the assurances of the co-operation as well as the notification to implement the venture of Tea Cultivation in commercial scale, from the state Govt. the petitioner acted on it and took a huge loan to the tune of Rupees 7.5 Crore from the financial institutions aforesaid and established Tea business thereon after consulting experts from the Tea Board of India and the business progressed smoothly.

The Divisional Forest Officer, all of a sudden had informed the Deputy Commissioner Lohit District vide letter dated 24th June, 1991 that he is cancelling the certificate issued by the Range Officer Medo countersigned by the then Divisional Forest Officer Namsai Forest Division on the alleged ground that the land-falls within the Kaanpoi Anchal Reserve Forest. No such intimation was given to the petitioner who had already invested about 3 Crores for development Tea plantation on the basis of the No objection certificate issued by the Forest Department. On the basis of the aforesaid alleged report of the Divisional Forest Officer, the Deputy Commissioner Lohit District cancelled the Land possession certificate granted to the petitioner vide his order dated 25th June, 1991. Being aggrieved the petitioner submitted a representation before the Deputy Commissioner on 29th July, 1991 expressing his astonishment as to how such an order was passed when on the promise, assurance and sanction of the Govt., the petitioner had already invested a huge capital for implementation of the project. The petitioner categorically pointed out that from the Map of Medo Range (Namsai Forest Division the then Lohit Forest Division) which was duly attested by the Extra Assistant Commissioner Narnsai, it was crystal clear that the area of the Tea Plantation which was duly attested by the Secretary (Revenue and Settlement) is far away from the notified Kamphai Anchal Reserve, Forest under the Lohit District and that if the cancellation order is not withdrawn, the petitioner shall have to incur a great loss which cannot be compensated by money only. The Deputy Commissioner vide his Memo dated 25th August, 1991 informed the petitioner that the matter regarding complain against the cancellation of Land Possession Certificate is being inquired into the progress in the matter will be intimated within due course.

The Director of Land Records the Govt, of Arunachal Pradesh vide his Memo No. REV-13/79 dated 9th October, 1991 had directed the Deputy Commissioner to review the order of cancellation of the Land Possession Certificate of the petitioner. While the petitioner was expecting a favourable reply from the D.C., he was shocked and dismayed on receipt of the Communication from the D.C. on 15/17th January, 1992 directing to stop further activities on the land.

Having failed to get any redress, the petitioner had filed a writ petition to this Hon''ble Court which was registrered and numbered as civil Rule 336/92 and this Hon''ble Court vide order dated 4.9.1992 had quashed all the orders affecting the right of the petitioner of the said land and directed that no action would be taken against the petitioner without giving him an adequate opportunity to show cause and a personal hearing. The ''Hon''ble Court further directed that the entire process shall be completed within a period of 3 months and if the petitioner is aggrieved by any order passed by the Respondent, he may approach this Hon''ble Court again. Thereafter, on 20.10.1992 the show cause notice dated 15.10.1992 was served on the petitioner intending to cancel the No objection certificate issued earlier by the Forest Deptt. and the petitioner submitted his reply against it on 18.11.1992. The Divisional Forest Officer thereafter passed an order on 19.3.1993 cancelling the No Objection Certificate without considering the written representation of the petitioner and without arriving at a finding on the grounds shown by the petitioner in his reply and without considering the supporting documents which is included among others, the map of the Forest Deptt. and the Certificates of the different heads of the concerned village and Anchal Samity and the Singpho Chief.

The aforesaid order of the Divisional Forest Officer dated 19.3.1993 was followed by another show cause notice dated 23.3.1993 issued by the D.C. Lohit Dist, intending to cancel the Land Possession Certificate earlier issued to the petitioner. As the process for the cancellation of the Land Possession Certificate could not be completed within a period of 3 months fixed by this Hon''ble Court, the respondent authority had moved an Miscellaneous Case No, 149/ 93 before this Hon''ble Court for extention of the time to lispose of the proceeding but on the date of the hearing of that Miscellaneous Case, the counsel for the respondents submitted that the matter has already been disposed of on 19.3.1993 and in view of this the said settlement the said Miscellaneous case was closed by this Hon''ble Court vide order dated 30.3.1993, Annexure-24. The petitioner had submitted his reply to the D.C. on 22nd April, 1993 against the aforesaid show cause notice dated 23.3.1993 with a prayer to drop the proceeding. The D.C. however was not inclined to drop the proceeding and informed that the petitioner would hear about the step to be taken very soon. Till to-day the Land Possession Certificate has not been cancelled by the D.C.

After cancellation of the No objection certificate by the Divisional Forest Officer, the petitioner made an inquiry in the forest office and came to know that the Secretary (Forest) Govt. of Arunachal Pradesh signed a notification No. FOR-79/77 dated 16th August, 1978 declaring, the Kamphai Anchal Reserve Forest. The petitioner could not ascertain whether the notification was published in the aforesaid Gazette or not. In the notification the Kamphoi Anchal Reserve Forest was stated to be 13''5 Sq. Kms.

The Khanphoi Anchal Reserve Forest was not declared after following the mandatory provisions of Assam Forest Regulation of 1981 and the Arunachal Pradesh Anchal Forest Reserve (Constitution and Maintanance) Act, 1975. In the Affidavit-in-opposition filed by the respondents, the Khanpol Anchal Reserve Forest was declared as Anchal Forest Reserve u/s 3(i) of the Arunachal Pradesh Anchal Forest Reserve (Constitution and Maintenance) Act, 1975. Section 3(i) of the Act states that the State Govt. may by notification in the Official Gazette constitute any land other than Reserve Forest at the disposal of the Govt. as an Anchal Forest Reserve in the manner provided in chapter II of the Assam Forest Regulation 1891 for the Constitution of Reserve Forest. It means that the land which is not at the disposal of the Govt. and over which the Govt. has no proprietorial right cannot be declared as Anchal Forest Reserve, u/s 4 of the Assam Forest, Regulation also the State Govt. may constitute any land at the disposal of the Govt, a Reserve Forest by following the procedures prescribed therein. The Forest Settlement Officer u/s 6 of the said Regulation, after publication of the notice by the State Govt. about its proposal to constitute any land a Reserve Forest, shall publish in the language of the country at the Head quarters of each district and Sub-Division in which any portion of land comprising such notification is situated and in every town and village in the neighbourhood of such land, a proclamation specifying the situation and limit of the proposed Forest and setting forth the substance of the provisions of the next following Section and also fixing a period requiring every person claiming any right to present to such officer which are to be inquired into by the Forest Settlement Officer before finally declaring the area as Forest Reserve. Section 19 of the said regulation provides that the D.C. of the District in which the Forest is situated shall before the date fixed by the final notification issued u/s 17 of the regulation cause a translation thereof in the language of the country to be published in the manner prescribed for the proclamation u/s 6.

As the aforesaid provisions as has the effect of curtailing the rights of the petitioner over his land, it has civil consequences and therefore the aforesaid provisions are to be mandatorily followed by the Forest Settlement Officer or the D.C. or the Forest authority unless the aforesaid provisions are strictly followed, the declaration any land as Reserve Forest is null and void. The petitioner in para 31 of his writ petition has categorically stated that the provisions of Sections 5, 6, 8, 17 and 19 of the aforesaid regulation were not at all complied with by the respondents authority. And therefore in para 39, 40 and 41 of the writ petition, the petitioner submitted that the declaration of Khanpoi Anchal Reserve Forest has no force in law and liable to be set aside in the affidavit in opposition of respondents has not stated that the provisions of Sections 6, 8, 9 and 19 of the aforesaid regulation were ever been complied by the Forest Official and the D.C. The Record will show that the aforesaid provisions have not at all been complied with by the Forest Settlement Officer and the D.C. A person residing in a remote village of a hill state may not have any knowledge of publication of any notification in the Official Gazette. Therefore to protect the interest of such persons, the provisions was made in Sections 6 and 19 of the aforesaid regulation requiring the Forest Settlement Officer to publish a proclamation in the local language in every town and village in the neighbourhood of the land as well as to publish translation of the final notification in the local language in the town and village in the neighbourhood of such land. So that the interested local people can very well understand the meaning and consequences of such proclamation and final notification declaring any land as Forest land so that they can file their objections effectively against it. The aforesaid provisions having not been complied with, so the declaration of Khanpoi Anchal Reserve Forest is illegal, void and liable to be quashed.

That the State Govt. Forest Deptt. without first satisfying itself about the ownership of the concerned land has declared the Khanpoi Anchal Reserve Forest at the request of Namsai and Choukham Anchal Samity as has been stated in para 28 of the affidavit in opposition. From the Annexure at page 38 of the affidavit in opposition it appears that the said Anchal Samity never requested the Govt. to declare aforesaid land of the petitioner as Anchal Reserve Forest, further the land of the petitioner being within the Jurisdiction of Wakro Anchal Samity, the Namsai and Changlang Anchal Samity has no authority to request the Govt. to declare the land of petitioner as Anchal Reserve Forest. In the affidavit in opposition the respondents have no where stated that the land of the petitioner or the land which has been declared as Khanpoi Anchal Reserve Forest was at the disposal of the Govt. having proprietorial right thereon. As per the Map of the Govt. regarding Medo Range it is crystal clear that the area of Tea Planation land which was duty attested by the Secretary (Revenue and Settlement) is far away from the notified Khanpoi Anchal Reserve Forest. The Divisional Forest Officer will have jurisdiction to cancel the No objection certificate earlier issued only after satisfying himself that the aforesaid land under the possession of the petitioner was at the disposal of the Govt. and the petitioner is an encroacher. The Divisional Forest Officer was required to consult the aforesaid Map mentioned by the petitioner before cancelling the No objection certificate and the State Govt. Forest Deptt. also was required to be considered first that the petitioner is not the owner of the said land and that the said land was at the disposal of the Govt. The petitioner has filed this instant writ petition as an defensive action. As per the Hon''ble Supreme Court as reported in National Textile Corporation (SM) Ltd. Vs. Associated Building Co. Ltd. and Others, in para 13 it was stated as follows :

"When objection was taken regarding the basic facts, one would normally expect the respondents verify the record and than only to proceed further in the matter or to stay their hands and intimate the parties concerned that they will proceed only in accordance with law. This is the appropriate procedure to be adopted by any public or any statutory authority placed in similar circumstances. The respondents totally failed to do so such inaction necessarily led to the filing of the writ petition. We are of the view that the writ petition filed by the petitioners 1 to 5, in the circumstances is really a defensive action. The fact that the petitioner''s in the writ petition, is irrelevant. The burden is on the respondents to prove the Tata Mills Ltd. had any definite and enforceable right in Bombay house which vested in the respondents u/s 3 of the Act and capable of being enforced. This is a basic or jurisdictional fact which should have been proved by the respondents."

The similar view was adopted by the Hon''ble Supreme Court in Raza Textiles Ltd. Vs. Income Tax Officer, Rampur, holding in para 3 that no authority must less a quasi judicial authority, can confer Jurisdiction on itself by deciding a Jurisdictional fact wrongly. The question whether the jurisdictional facts has been rightly decided or not is a question that is open for examination by the High Court in an application for a writ of certiorari. If the High Court comes to the conclusion that the authority had clutched at the jurisdiction by deciding a jurisdictional fact erroneously then the petitioner is entitled for the writ of Certiorari for quashing the same.

Similar view was taken by the Hon''ble Supreme Court in AIR 1968 SC 1186 (The State of Madhya Pradesh and Ors. v. 1. Sardar D.K. Jadav (In C.A. No. 1244 of 1967), 2. Narayan Dutta Mishra (In C.A. No. 1245 of 1967).

In the Administrative law by Wade (Fifth Edition) at page 250 it is stated that "Certain mistakes of fact can carry on Administrative authority or Tribunal outside its jurisdiction. Tribunal, for example, has power to reduce the rent of a dwelling house. If it mistakenly finds that the property is a dwelling house when in fact it is let for business purposes, and then purports to reduce the rent, its order will be ultra vires and void. For its jurisdiction depends upon facts which must exist objectively before the Tribunal has power to act. As to these ''jurisdictional facts'' the Tribunal''s decision cannot be conclusive, for otherwise it could by its own error give itself powers which were never conferred upon it by parliament. The fact that the Tribunal''s order appears good on its face can avail nothing. It will be quashed on certiorari if the applicant can show that the true facts do not justify it. For this purpose, accordingly, any available evidence may be put before the Court." The State Govt. Forest Deptt. having declared the Khanpoi Anchal Reserve Forest without satisfying itself that the land was at the disposal of the State Govt. and within the jurisdiction of the Namsai, Choukham Anchal Samity, the declaration of the Khanpoi Anchal Reserve Forest as well as the cancellation of the Land Possession Certificate of this petitioner is illegal, void and liable to be quashed.

The D.C. having failed to dispose of its proceeding for cancellation of the Land Possession Certificate of the petitioner, within the time fixed by this Hon''ble Court vide order dated 4.9.1992 passed in Civil Rule No. 336 of 92 and Misc.Case No. 149/93 filed by the respondents for extension of time to dispose of the proceeding as per the direction of this Hon''ble Court having been closed on 30.3.1993 without any extension of time, the D.C. has no power and jurisdiction to continue the proceeding for cancellation of the Land Possession Certificate of the petitioner. Therefore, the D.C. is to be directed to drop the proceeding.

That Land Possession Certificate was issued by the D.C. on the approval of the State Govt. as per the Govt. policy vide circular dated 19th December, 1988. Therefore, D.C. has no power and jurisdiction''s without approval from the State Govt. the State Govt. through the Director land record having directed D.C. to review his earlier order of cancellation of land possession certificate, the D.C. is required to drop the proceeding which is pending before him. That on the basis of the No Objection Certificate issued by the Forest Deptt. as well as the land possession certificate issued by the D.C. to the petitioner, the petitioner having obtained huge financial loan from the financial institution and invested the same in his aforesaid venture and thereby acted to his detriment, the Divisional Forest Officer and the Forest Deptt., as well as the D.C. is now estopped from cancelling the aforesaid documents. Therefore, the order of cancellation of the No Objection Certificate by the Divisional Forest Officer and the proceeding now pending before the D.C. towards cancellation of the land possession certificate of the petitioner is liable to be quashed, which I hereby do. No cost.