Gauhati High Court
Shri. Lhousakhotuo Vimero vs The State Of Nagaland & Ors on 24 April, 2017
Author: S. Serto
Bench: S. Serto
WP(C) No. 30(K) of 2016
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
KOHIMA BENCH
W.P.(C) No. 30(K) of 2016
Shri. Lhousakhotuo Vimero,
S/o Lhounei-o
R/o Pfuchama Village,
Kohima District, Nagaland.
.............Petitioner
-Versus-
1. The State of Nagaland,
represented by the Chief Secretary to the Government of
Nagaland, Kohima.
2. The Commissioner & Secretary
Department of Transport & Communication
Kohima, Nagaland
3. The General Manager,
Nagaland State Transport,
Dimapur, Nagaland.
4. The Deputy Commissioner,
Kohima, Kohima.
.............Respondents
- BEFORE-
THE HON'BLE MR.JUSTICE S. SERTO
For the Petitioner : Mr. Elivil Zao,
Mr. Keleviho Tsukro,
Mr. Angoto Sophie, Advs.
For the State respondents : Mr. K. Sema, Sr. Addl. Adv. General
Ms. Livika, Govt. Adv
Date of hearing : 24-03-2017
Date of Judgment : 24-04-2017
Page 1 of 8
WP(C) No. 30(K) of 2016
JUDGMENT & ORDER (CAV)
1. This is a application under Article 226 of the Constitution of India, praying for issuance of a writ in the nature of Mandamus or any other appropriate writ of the like nature and/or direction or order quashing and setting aside the impugned Eviction Order No. REV/NST/8/90-91, dated 12.06.2014, passed by the Deputy Commissioner, Kohima and also quashing and setting aside the impugned order No. CNJ/CAA/2010, dated 03.02.2016, passed by the Commissioner, Government of Nagaland an appeal against the first impugned order.
2. Heard Mr. Evil Zao, learned counsel for the petitioner and also heard Mr. K. Sema, Sr. Addl. A.G., assisted by Ms. Livika, learned Government Advocate, on behalf of the State respondents.
3. The genesis of the case is that on 13.05.2014, office of the Deputy Commissioner, Kohima, issued an order restraining the petitioner from under taking any construction inside the land bounded in the east by private land, on the west by approach road, on the north by private land and on the south by private land situated at "Megatse" which is also known as Nagaland State Transport Colony, Kohima. At the same time, the petitioner was also directed to submit documents in support of his claim. Accordingly, the petitioner submitted his reply on 13.05.2014. On 15.05.2014, the Deputy Commissioner, Kohima, after considering the same came to the conclusion that the petitioner has no locus standi in respect of the land, therefore, directed him to vacate the same within a period of 14 days from the date of the order. This is the first impugned order.
4. Being aggrieved the petitioner filed an appeal under section 12 of the Nagaland Eviction of Person in Unauthorized Occupation of Public Land Act, 1971 before the Commissioner to the Government of Nagaland. After hearing the parties the Commissioner passed the second impugned order dated 03.02.2016, rejecting the appeal but upholding the order passed by the Deputy Commissioner. Thereafter, the petitioner came to this Court praying for quashing and setting aside the above stated impugned orders on the following grounds;
That one Lt. Mr. Vilalie Seletsu inherited a land at "Megatse" which is now known as Nagaland State Transport Colony, Kohima, bounded on the north by a streamlet, on Page 2 of 8 WP(C) No. 30(K) of 2016 the south by the land of Lt. Duoselhou and Lt. Khumeza, on the west by the land of Mr. Thewhesielie and on the east by the National Highway. And his ownership on the same was confirmed by the ex-parte judgment and decree dated 14.07.2008 passed in Civil Suit No. 2/2007 by a Civil Court at Kohima. Out of this land owned by Lt. Mr. Vilalie the petitioner bought a piece of land, measuring 6400 Sq. ft. bounded as already mentioned above at the consideration amount of Rs. 1,10,000/-, on 21.02.2008 through a sale deed duly executed on the same day, and since then he has been in peaceful possession of the same.
That in the year 2009, one Mr. Ketsurhielie Kire filed a Civil Suit No. 1/2009 claiming ownership over the land of Lt. Mr. VIlalie Seletsu and at the same time praying for quashing and setting aside the ex-parte order dated 14.07.2008, passed by the same Civil Court in Civil Suit No. 2/2007. In that civil suit the Civil Court, by order dated 23.03.2010, set aside the judgment and decree dated 14.07.2008, passed in the Civil Suit No. 2/2007. Aggrieved by the said order Lt. Mr. Vilalie filed a Civil Appeal No. 2/2010 before the learned District Judge, Kohima. The learned District Judge after hearing the parties passed the order dated 03.05.2012, whereby the impugned order dated 23.03.2010, passed by the Civil Judge in Civil Judge in Civil Suit No. 1/2007 was set aside and the same was remanded to the Civil Court for retrial from the stage of framing of issues. During the pendency of the suit both Mr. Vilalie Selestu and Mr. Ketsurhielie Kire expired but none appeared on behalf of the plaintiff, therefore, the suit was dismissed.
It is submitted by the learned counsel for the petitioner that since the second suit was dismissed the judgment and decree passed in Civil Suit No. 2/2007 by Civil Court in favour of Lt. Mr. Vilalie Seletsu automatically revived. Therefore, his ownership over the suit land therein revived or was sustained. The learned counsel also submitted that in all the two suits the respondents in this writ petition were arrayed as respondents but they did not contest the claim of the plaintiff in the suit, therefore, they cannot now deny ownership and title of the petitioner in this writ petition over the land he owned and possess since the date he purchased. Therefore, the impugned orders are illegal and they deserves to be quashed and set aside.
5. Mr. K. Sema, learned Sr. Addl. A.G. submitted at length but his submission is summarized as follows;
Page 3 of 8WP(C) No. 30(K) of 2016 That Lt. Mr. Vilalie Seletsu or his legal heir or heirs who is or are decree holder or holders in succession is or are necessary party in this case, therefore, it may not be proper to proceed without him or them.
That the judgment and decree on which the petitioner based his claim that Lt. Mr. Vilalie Seletsu was owner of the land out of which he claims to have bought the land in issue is inherently illegal because the learned Chief Judicial Magistrate who passed the same has no jurisdiction to try a civil suit. The learned Sr. Addl. A.G. submitted further that the judgment and decree filed by the petitioner as Annexure-C is not passed by a Civil Court but by the Chief Judicial Magistrate, Kohima bearing his seal and stamp, therefore, the same is to be treated as none est. As such, the respondents did not feel the necessity to file an appeal challenging the same. It was for the plaintiff in the civil suit to bring it up to the notice of the Court so that necessary rectification could have been made. But as it was not done the judgment and decree till today has remained the same and in such form it cannot have any legal validity.
That in Nagaland since the Government has no land the land now occupied by the Nagaland State Transport was acquired from different individuals by paying due compensation to them, and it was only thereafter that the land was taken over by the Nagaland State Transport and, infrastructures were build on it. But among all those land owners who claimed compensation for their lands Lt. Mr. Vilalie Seletsu was not one of them. If he ever had a land he would have claimed compensation for the same at that time when other land owners did. Since he did not do so that shows that he did not have any land at that place. Therefore, the claim of the petitioner over the land in issue is without any basis.
That the sale deed filed by the petitioner is unregistered, therefore, the same is not admissible in law.
The learned Sr. Addl. A.G cited the judgment of Hon'ble Supreme Court passed in the case of Sarup Singh & Another -versus- Union of India & Another reported in (2011) 11 SCC 198 in support of his submission, the relevant paras specifically referred to are para-20, 23 & 24 of the judgment.
"20. In so far as the second issue is concerned, it is true that the executing court cannot go behind the decree and grant interest not granted in the decree as submitted by the counsel appearing for the appellants in the light of the decision rendered by this Court in State of Punjab & Others v. Krishan Dayal Page 4 of 8 WP(C) No. 30(K) of 2016 Sharma reported in AIR 1990 SC 2177. But, if a decree is found to be nullity, the same could be challenged and interfered with at any subsequent stage, say, at the execution stage or even in a collateral proceeding. This is in view of the fact that if a particular Court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such Court would be without jurisdiction and the same is non-est and void ab initio.
23. In Balvant N. Viswamitra & Others v. Yadav Sadashiv Mule (Dead) Through Lrs. & Others reported in (2004) 8 SCC 706 this Court stated thus:
"9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be "null" and "void". In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings."
24. In Chiranjilal Shrilal Goenka (deceased) Through Lrs. v. Jasjit Singh & Others reported in (1993) 2 SCC 507 this Court stated thus:
"18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. ............."
The learned counsel also cited the judgment of the Hon'ble Supreme Court passed in the case of the Rajasthan State Industrial Development & Investment Corporation -versus- Subhash Sindhi Cooperative Society, Jaipur & Others as reported in (2013) 5 SCC 427, particularly, para-15 to 18 of the judgment.
15. In Smt. Kalawati v. Bisheshwar, AIR 1968 SC 261, this Court held: "9......Void means non-existent from its very inception."
Page 5 of 8WP(C) No. 30(K) of 2016
16. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 SC 906, this Court held:
"7........ The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity or the infirmity, as to whether it is, fundamental or otherwise."
17. The word, "void" has been defined as: ineffectual; nugatory; having no legal force or legal effect; unable in law to support the purpose for which it was intended. (Vide: Black's Law Dictionary). It also means merely a nullity, invalid; null; worthless; sipher; useless and ineffectual and may be ignored even in collateral proceeding as if it never were.
18. The word "void" is used in the sense of incapable of ratification. A thing which is found non-est and not required to be set aside though, it is sometimes convenient to do so. There would be no need for an order to quash it. It would be automatically null and void without more ado. The continuation orders would be nullities too, because no one can continue a nullity. (Vide: Behram Khurshid Pesikaka v. State of Bombay, AIR 1955 SC 123; Pankaj Mehra & Anr. v. State of Maharashtra & Ors., AIR 2000 SC 1953; Dhurandhar Prasad Singh v. Jai Prakash University & Ors., AIR 2001 SC 2552; and Government of Orissa v. Ashok Transport Agency & Ors., (2002) 9 SCC 28)".
Lastly, the learned counsel also referred to the judgment passed by the Hon'ble Supreme Court in the case of Balvant N. Viswamitra & Others -versus- Yadav Sadashiv Mule & Others reported in (2004) 8 SCC 706, particularly, para- 9 to 11 of the judgment.
"9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be 'null and 'void'. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.
10. Five decades ago, in Kiran Singh & Ors. v. Chaman Paswan & Ors., [1955] l SCR 117 this Court declared;Page 6 of 8
WP(C) No. 30(K) of 2016 "It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up wherever and whenever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction......strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties. " (emphasis supplied)
11. The said principle was reiterated by this Court in Seth Hiralal Patni v. Sri Kali Nath, [1962] 2 SCR 747. The Court said : "Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is case of inherent lack of jurisdiction."
The learned Sr. Addl. A.G also submitted that there is no infirmity in the impugned orders, therefore, there is no room for interference of this Court under Article 226 of the Constitution of India, in fact the petitioner should have gone to the Civil Court instead of coming to this Court.
6. In reply the learned counsel for the petitioner submitted that the civil suit was filed in the appropriate court, therefore, it was not the fault of the plaintiff that the judgment and decree was passed by the learned Chief Judicial Magistrate, Kohima, therefore, for that mistake committed the petitioner should not be allowed to suffer.
7. After having considered the pleas taken by the parties, this Court is of the considered opinion that to decide the issues in the case both questions of fact and law are involved, therefore, writ court is not the right forum for adjudication of the same.
It is clear from the copy of the judgment, on which the petitioner based his claim of title and ownership over the land in issue that it was passed by the Chief Judicial Magistrate, Kohima who has no civil jurisdiction. But at the same time one cannot just brush aside the claim of the petitioner that the suit was filed before a proper civil court having jurisdiction over the matter though the judgment and decree were passed under the name of Chief Judicial Magistrate. Further, prima facie, it is clear that the land occupied by Nagaland State Transport where the land in question is situated was acquired by the State Government from different land owners after conducting survey, and compensations were paid to them, but, the land owner from whom the petitioner claims he had purchased the land in question was not among them. All these and more facts which are relevant for deciding the dispute over the land in issue in this writ Page 7 of 8 WP(C) No. 30(K) of 2016 petition, will have to be proven with evidence for which the civil court is the right forum. Therefore, without much ado, the writ petition is disposed as follows;
That the petitioner may approach the civil court having jurisdiction for the remedies sought for in this writ petition and to do so he is given 45 days from today. Till then, the respondents are directed not to disturb his possession.
It is made clear that on expiry of the period of 45 days from today i.e. date of judgment, the stay order given herein, shall automatically cease to operate.
JUDGE Kevi Page 8 of 8