Mumtak Pertin vs State of Arunachal Pradesh and Others

J.N. Sarma, J.—Civil Rule No. 1970/9.6 was filed questioning the legality and validity of notice dated 31.1.96 issued by Respondent No. 3. The notice, Annexure-B is quoted below:

ANNEXURE-B.

To Smti. Mumtak Pertin C/o. Sh. M. Pertin, DI.

Whereas, I the undersigned, am of the opinion on the grounds specified below, that the structure erected on the public premises mentioned in the Schedule below is/are in contravention of the provisions of Sub-section (1) of Section A and that the said structure erected on the said public premises should be removed from the said premises.

(D) Sector, NLG. Land of High Court Bench.

GROUNDS:

Now, therefore, in pursuance of Sub-section (2) of Section 5 (sic) of the Act, I hereby call upon you to remove the said structures erected on the public premises mentioned in the Schedule below on or before the 7.2.96 or to show cause why this should not be removed on or before the above mentioned date. In the event of your refusal or failure to comply with this notice within the period specified above, the said works etc. shall be removed by the Estate Officer or Officer authorised by him and the cost of such removal shall be recovered from you.

Schedule

Sd/- 31.1.96. Signature and Seal of the Estate Officer.

Date....

That was a notice u/s 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. In this Civil Rule it is contended that the Petitioner can not be deemed to unauthorized occupant inasmuch as this land was allotted to the Petitioner in the year 1990 and once it is allotted, the question of treating the Petitioner as an unauthorized occupant does not arise. When the stay order was passed the authority filed an application for vacating the stay and in that application for vacating the stay it was stated that the order of allotment was subsequently cancelled by the authority. So the contention of the Petitioner that she should not be treated as an unauthorized occupant can not hold good. No doubt the learned Advocate for the Respondents is absolutely correct, that an allotment is cancelled by the authority, such a person without the allotment shall naturally be deemed to be unauthorized occupant of the land, but he submits the cancellation is violative of principal of natural justice. Having faced with the situation of the subsequent order, the Petitioner filed another petition being Civil Rule No. 2325 of 1996. Rule was issued on 22.4.96 and the allotment which was subsequently cancelled by the authority on 29.12.95 vide Annexure-E is challenged in this writ application, mat is quoted below:

ANNEXURE-E

ORDER

Whereas a piece of land measuring 500 sq. metre bounded by AIR Centre from North side, link road from South side, A.I.R, office from East side and Link Road/AG Office from West side situated at D/Section, Naharlagun was allotted to one Smti Mumtak Pertin of East Siang District Pasighat by the order of Chief Project Officer, Itanagar bearing No. CP/L-4/83-85/90 dated 20.9.90.

And whereas it has been made to appear to me that said allotted land of Smti Mumtak Pertin comes within the areas earmarked to establish/construct building of Circuit Bench of Gauhati High Court.

So considering larger public interest and as per terms and condition of allotment order dated 20.9.90. I do hereby order that the aforesaid land allotted to Smti Numtak Pertin by Chief Project Officer, Itanagar vide his order bearing No. CP/L-4/83-85/90 dated 20.9.90 stands cancelled.

The order bears prior approval of Govt.

No separate affidavit-in-opposition has been filed, but Sri R.P. Sharma, learned Advocate appearing for the Respondents wants to rely the application for vacation of the stay order and that application for vacating the stay is based on three grounds. Regarding cancellation of allotment he submits (I) that the allotment was obtained by the Petitioner fraudulently and by manipulation.

(II) That the Petitioner was not entitled to have an allotment of Government land as the Petitioner is not a landless person but she has a number of plots of land in her possession.

(III) That the allotment order was not passed by a competent officer. The relevant record has been produced and the record shows that the Petitioner has a number of plots of land in her possession before passing of the particular allotment order in her favour. The application filed by the Petitioner on 12.2.87 is also available. That application will show that she made two statements slating there that she does not have any land in any district, sub-division circle of the Union Territory under her possession. But the record shows that a number of plot of land stands in the name of the members of her family and as many as 11 plots are in the capital complex itself and all these plots were allotted to the Petitioner for business purpose and it will appear that the orders of allotment are passed on these dates, i.e., 22.1.91, 13.3.93, 4.5.92, 4.1.93, 29.9.1984, 4.5.92. Further the record does not show that the application which was filed by the Petitioner and was received was duly enquired into by the authority. The order of allotment was passed with undue haste. Accordingly the order of cancellation which was passed by the authority, appears to be justified. But I give another chance to the Petitioner to controvert the allegations made by the authority, inasmuch as when a right of a person is sought to be snatched by the authority on the ground of fraud and manipulation, mis-representation and the order is alleged to be passed by an incompetent officer, it is the requirement of law that the person should be informed about the matter so that the person can get an opportunity to controvert the allegations brought against that person. That was not done in this case. Accordingly the impugned order dated 29.12.95 Annexure-E which was passed behind the back of the Petitioner without giving any opportunity to the Petitioner shall stand quashed. The authority shall now issue necessary notice to the Petitioner not only for cancellation of this plot of land but also for the land which was allotted as available in the record and the authority may take appropriate steps for alleged manipulation and fraud alleged to be done by the Petitioner. Accordingly the Annexure-C in Civil Rule No. 2325/96 and Annexure-B in Civil Rule No. 1970 of 1996 shall stand quashed till final order is made by the authority as indicated above. But I make it clear that the law is a person can not be allowed to make a gain from fraud. Fraud means actual dishonesty. It means deceit, Some statement or suppression of fact in word or deed with intent to deceit. It means active concealment of facts by one having knowledge or belief of the fact. It is act fitted to deceive.

It is made clear that the Petitioner shall not make any further construction on the land on the strength of this order. Shri Sarma, relied on a decision reported in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, and submits in this case the legality and validity of two orders are to be judged on the basis of the grounds/reasons as mentioned in the order and this Court is not competent to look to the records to find out new grounds for justification of the order. It is also submitted that the Respondents can not take up additional grounds in support of the order. He relies on paragraph-8 of the judgment which is quoted below:

8 The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, is validity must be judged by the reasons so mentioned and can not 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 observation of Bose, J. in Gordhan Das Bhanji;

Public orders, publicly made, in exercise of a statutory authority can not 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 he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting�s 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.

This case does not help the Petitioner. Because what it prohibits is the creation of subsequent grounds, but if the grounds are already available in record, the Court can look to.

The facts of the present case shall not help the Petitioner to draw support from the case cited above. It is settled law that whenever any injustice or illegality comes to the notice of the Writ Court the Court can direct the authority to wipe out/remove the injustice which is present on the face of the record, that is, what 1 am doing in the instant case. The mailer may be looked at from another angle. A writ Court shall grant relief to a person whose action/conduct is righteous and just, it must not help a person to derive benefits out of an action whose foundation is unjust and questionable in nature. Otherwise that will tantamount to perpetration of illegality and pulling a premium on wrong. It is not the law that a man having derived some benefit by some backdoor method can come for enforcement of his alleged right springing from it, when the wrongful state of things are sought to be wiped of. The Writ Court can and should protect only an honest action and not a dishonest deed. After all it is an equitable jurisdiction and equity must not make a compromise with dishonesty. The authority may complete the entire proceeding within a period of two months by issuing necessary notice. The observations made here shall cause no prejudice to the parties in deciding the matter. The authority shall decide the matter independently on the face of the record.

This disposes of this writ application.