Gauhati High Court
CRP/104/2024 on 27 May, 2025
GAHC010218942024
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Principal Seat at Guwahati
CRP/104/2024
1. The State of Nagaland, represented by the
Secretary to the Government of Nagaland,
Department of Land and Revenue, Nagaland,
Kohima.
2. The Commissioner to the Government of Nagaland,
Kohima, Nagaland.
3. The Deputy Commissioner, Dimapur,
Nagaland.
4. The Revenue Officer, Dimapur,
Nagaland.
5. The Land Record Survey Officer, Dimapur,
Nagaland.
........Petitioners/Defendants
-Versus-
1. Shri Vinoka Chishi,
S/O Shri Vitokhu Chishi,
R/O -Village K-Khel Diphuphar Village,
Page 1 of 80
District - Dimapur, Nagaland.
2. Shri Tokihe Chishi,
S/O Shri Vitokhu Chishi,
R/O Village K-Khel Diphuphar Village,
District - Dimapur, Nagaland.
3. Shri Kughalu Yeptho,
S/O Shri Kughato Yeptho,
R/O Village K-Khel Diphuphar Village,
District- Dimapur, Nagaland.
4. Shri M. Sensotemjen,
S/O Shri Manjem,
R/O Thilixu Village Block-2, H/No. 423,
District- Dimapur, Nagaland.
5. Shri Heito Sema,
S/O Shri Luzhevi Sumi,
R/O Chekiye Village Block 1, H/No. 16,
District- Dimapur, Nagaland.
6. Shri H. Inoto Murru,
S/O Shri Hosheto Murru,
R/O Village K-Khel, Diphuphar Village,
District- Dimapur, Nagaland.
7. Shri Tito Yeptho,
S/O Shri Hokugha Yeptho,
R/O Village K-Khel, Diphuphar Village,
District- Dimapur, Nagaland.
8. Shri Phushito,
S/O Shri Kheniho,
R/O Village K-Khel, Diphuphar Village,
District- Dimapur, Nagaland.
Page 2 of 80
9. Shri Hokashe,
S/O Shri Zenhoto,
R/O Village K-Khel, Diphuphar Village,
District- Dimapur, Nagaland.
10. Smti. Toshili Sumi,
S/O- Shri Tokiho Sumi,
R/O- Village K-Khel, Diphuphar Village,
District- Dimapur, Nagaland.
11. Shri Akaho Zhimo,
S/O Shri Saiche Zhimo,
R/O Thilixu Village Block-III, H/No. 88,
District- Dimapur, Nagaland.
12. Shri Shikai Tuccu,
S/O Shri Toshivi Tuccu,
R/O Satakha Town,
District- Zunheboto, Nagaland.
13. Shri Sheloka Yepth,
S/O Shri Hokato Yeptho,
R/O Ekranipathar Village,
District- Dimapur, Nagaland.
.......Respondents/Plaintiffs
14. Smti. Tohuli, W/O Late V. Atoshe Sumi, Hovukhu Village, Niuland, Nagaland.
15. Airport Authority of India, represented by the Deputy General Manager, Dimapur, Nagaland.
.......Proforma Respondents Page 3 of 80
- B E F O R E-
HON'BLE MR. JUSTICE ROBIN PHUKAN Advocate for the petitioners : Mr. K.N. Balgopal, Advocate General;
Ms. T. Khro, Addl. Advocate General;
Ms. M. Kechi, Addl. Advocate General.
Advocate for the respondents : Mr. S. Dutta, Senior Advocate;
Mr. A. Biswas;
Mr. A. Das;
Ms. P. Chetri.
Date of hearing : 27.02.2025
Date of judgment : 27.05.2025
JUDGMENT & ORDER (CAV)
Heard Mr. K.N. Balgopal, learned Advocate General, Nagaland, assisted by Ms. T. Khro, learned Additional Advocate General and Ms. M. Kechi, learned Additional Advocate General for the petitioners. Also heard Mr. S. Dutta, learned Senior Counsel assisted by Mr. A. Biswas for the respondent Nos. 1 to 13; Mr. A. Das, learned counsel for the proforma respondent No. 14 and Ms. P. Chetri, learned counsel for the proforma respondent No. 15.
Page 4 of 802. This revision petition, under Section 115 of the CPC, read with Article 227 of the Constitution of India, is preferred against the order dated 29.09.2023, passed by the Principal District Judge, Dimapur, in Civil Appeal No. 24/2023.
3. It is to be noted here that vide impugned order dated 29.09.2023, the learned Principal District Judge, Dimapur („Appellate Court‟, for short) had dismissed the Civil Appeal No. 24/2023, preferred by the petitioners herein and hereby upheld the order, dated 22.11.2021, passed by the learned Civil Judge (Senior Division), Dimapur („Trial Court‟, for short) in I.A. (Civil) No. 224/2020, arising out of Civil Suit No. 14/2020, wherein the learned Trial Court had granted temporary injunction in favour of the respondents/plaintiffs, in respect of the land under Dag Nos. 38 and 40 of Diphupar area and restraining the petitioner/defendant No. 3 herein, from executing the eviction order dated 11.12.2020.
4. The background facts, leading to filing of the present petition, are briefly stated as under:
"The respondent Nos. 1 to 13 herein, as plaintiffs, had instituted a civil suit, being Civil Suit No. 14/2020, praying for a decree declaring the orders dated 30.11.2019 and
05.12.2019, as null and void; a decree declaring the eviction order dated 11.12.2020, as null and void and a decree declaring and directing the defendants/petitioners herein to properly and befittingly compensate the plaintiffs/respondent Nos. 1 to 13 herein, if the land of the plaintiffs is required for Page 5 of 80 public interest. Along with the said suit, the respondent Nos. 1 to 13 had also filed an application under Order 39 Rule 2 of the CPC, read with Part-VI, Section 94 of the CPC, upon which I.A.(Civil) No. 224/2020, praying for grant of injunction against the petitioners herein, not to disturb the peaceful possession of the land by the respondent Nos. 1 to 13.
The deceased husband of the proforma respondent No. 14, namely, Late V. Atoshe Sumi @ Hutoshe Sema is the original owner of the land belonging to the respondent Nos. 1 to 13 and they are the rightful owners and possessors of their respective plots of land which they had received by way of gifts and/or sale from proforma respondent No. 14 and are in possession of the same which is claimed by the petitioners herein. The respondent Nos. 1 to 13 have been enjoying the possession of their respective plots of land by way of transferring and mutating their names in the land records maintained by the Office of the Deputy Commissioner, Dimapur, by issuing land pattas in connection with their respective plots of land.
It is the case of the respondent Nos. 1 to 13 that the husband of proforma respondent No. 14 had purchased a plot of land on the banks of the Diphupar river on 10.10.1991, from one Mr. Vizheto Sema, covered by Dag No. 38, Diphupar, measuring an area of 9½ bighas for a sum of Rs. 1,25,000/-. Further, the husband of proforma respondent No. 14 on 09.09.1996, had purchased from Mr. Vizheto Sema, the Page 6 of 80 adjoining plot of land under Dag No. 38, measuring an area of 9 bighas 4 kathas 3 lechas for an amount of Rs. 2,85,000/- and the aforementioned sale was done in presence of the then SDO (Civil), Dhansripar. It is also the case of respondent Nos. 1 to 13 that the husband of proforma respondent No. 14, on 05.03.1995, had purchased a plot of land from one Smti. S. Khehoni, wife of Late Sahoto Yeptho, measuring an area of 5½ bighas, located at Diphupar village for an amount of Rs. 2,85,000/- and as per the sale agreement, the land has never been compensated by the Airport Authority of India (AAI)/proforma respondent No. 15 herein, and is free from all encumbrances. Thereafter, on 05.03.2000, the husband of proforma respondent No. 14 had purchased the remaining adjacent plot of land from Smti. S. Khehoni, measuring an area of 9½ bighas, for an amount of Rs. 2,85,000/- and thereafter, the husband of proforma respondent No. 14 on 07.04.1995, purchased the private plot of land with teak tree plantation, from one Nitovi Yeptho, measuring an area of 1½ bighas located at Diphupar village for an amount of Rs. 57,000/-. Thereafter, on 07.07.1995, the proforma respondent No. 14 had purchased remaining adjacent plot of land from Mr. Nitovi Yeptho, measuring an area of 1½ bighas.
It is also the pleaded case of the respondent Nos. 1 to 13 herein that the Deputy Commissioner, Dimapur, vide order dated 27.10.1993, issued temporary allotment of land measuring an area of 9 bighas 4 kathas 3 lechas, under Dag Page 7 of 80 No. A/40, located at Diphupar, to the husband of proforma respondent No. 14, and as directed by the Additional Deputy Commissioner, Dimapur, a spot verification was conducted by the Office of the Land Record Survey Officer, Dimapur against the allotment of land to the husband of proforma respondent No. 14, under Dag No. 40. The report of Land Record Survey Officer, Dimapur dated 09.07.1996, categorically stated that the land of the husband of proforma respondent No. 14, under Dag No. 40 of Diphupar village, falls outside the fencing of the acquired land for AAI. On receipt of the spot verification report, the Office of the Deputy Commissioner, Dimapur, vide order No. VLS-25/90-D/6444-47, dated 02.09.1996, regularized in the name of the husband of proforma respondent No. 14, the allotment of the plot of land measuring an area of 9 bighas 4 kathas 3 lechas, under part of Dag No. A/40 of Diphupar village, which was earlier temporarily allotted to him. Thereafter, the Deputy Commissioner, Dimapur, vide order No.VLS-31/76-D/Pt/2840- 44, dated 23.05.2007, had issued in the name of the husband of proforma respondent No. 14, a jamabandi and/or patta in respect of the plot of land measuring 9 bighas 4 kathas 3 lechas, under part of Dag No. A/40 at Diphupar village. Thereafter, the land jamabandi/Patta No. 45 for surveyed village, under Diphupar was issued to the husband of proforma respondent No. 14. Thereafter, the Deputy Commissioner, Dimapur, vide order No. VLS/91-D/Pt. file/1502-05, dated 10.08.2009 rectified the Patta No.45, Page 8 of 80 under Dag No. 40/100, a plot of land measuring an area of 23 bighas 3 kathas 10 lechas located at Diphupar village, in respect of the husband of proforma respondent No.14. The said plot of land, located at Diphupar village, which was directed to be rectified, includes the land bought by the husband of proforma respondent No. 14 from erstwhile land owners as described herein above.
Thereafter, the AAI/ proforma respondent No. 15 herein, in the year 2002, encroached upon the private land of the husband of proforma respondent No. 14, and undertaken developmental activities. Then, the husband of proforma respondent No. 14 had filed representations dated 06.08.2002, 11.07.2003 and 12.05.2007 to the Deputy Commissioner, Dimapur against the illegal encroachment of his land by the AAI and against developmental works being carried out without any compensation or negotiation with the land owner.
It is also the pleaded case of the respondent Nos. 1 to 13 that the husband of proforma respondent No. 14, by way of gift and sale transferred to the respondents Nos.1 to 13 their respective plots of land from his registered land located at Diphupar village. Thereafter, the respondent Nos. 1 to 13 had applied before the Office of the Deputy Commissioner, Dimapur for transferring and mutating their respective plots of land in their names. It is stated that the Office of the Deputy Commissioner, Dimapur, had conducted spot verification and Page 9 of 80 advised that for mutation of their respective plots of land from the registered land of the husband of proforma respondent No. 14, the Surveyor from the Office of the Deputy Commissioner, Dimapur asked the respondents to prepare their respective sale deed/gift deed showing their lands situated at Ekranipathar and accordingly, as advised by the Surveyor, the respondent Nos. 1 to 13 had prepared their respective sale/gift deeds showing their lands located at Ekranipathar and the Office of the Deputy Commissioner, Dimapur mutated their lands and issued their respective land jamabandi at Ekranipathar, though their actual possession of land is situated at Diphupar village.
Thereafter, on receipt of complaint by the Office of the Commissioner of Nagaland that the husband of the proforma respondent No. 14 was in illegal occupation of land which was acquired by the State Government for extension of Dimapur Airport, under Dag Nos. 38 and 40 of Diphupar village, had issued summons to the land holders to appear before the Commissioner of Nagaland. Thereafter, the Commissioner, after hearing the parties, vide order No. CNR-5/6/99(Pt- II)/116, dated 30.11.2019, held the deceased husband of the proforma respondent No. 14, Late V. Atoshe Sumi and 22 other transferees to be in illegal possession of public land at Dag Nos. 38 and 40 and were declared as encroachers. The Commissioner, then cancelled the allotment order No. VLS- 5/86-D/1500-02 issued to V. Atoshe for an area of 27 bighas Page 10 of 80 2 kathas 8 lechas, in respect of land covered by Dag No.79 Ekaranipathar, but recorded as Dag No.97 Ekaranipathar for an area of 47 bighas 2 kathas 8 lechas in the chitha and jamabandi records, and by the same order, the Commissioner had directed the Deputy Commissioner, Dimapur to immediately proceed for eviction as per law. Thereafter, the Deputy Commissioner, Dimapur, vide order No. REV-31/2016- D/I/5953-80, dated 05.12.2019, cancelled the mutation order and the pattas issued to the 22 transferees flowing from Atoshe's patta, wherein the allotment order issued to the husband of proforma respondent No. 14 was cancelled.
Thereafter, against the aforesaid order of the Commissioner, Nagaland, dated 30.11.2019 and the order of the Deputy Commissioner, Dimapur, dated 05.12.2019, the respondents Nos. 1 to 13 herein, whose pattas and mutation orders were cancelled, approached this Court by filing WP(C) No. 151/2020, in the Principal Seat, wherein vide order dated 08.01.2020, an order of status quo was passed in respect of possession of the transferees over the land covered by the impugned orders and thereafter, the writ petition was transferred to Kohima Bench and renumbered as WP(C) No. 7(K) of 2020 and vide order dated 09.12.2020, the petitioners were allowed to withdraw the said writ petition with liberty to file afresh one. On the basis of the wrong pleadings in the petition, this Court, while dealing with I.A.(Civil) No. 83 of 2020, filed by the State to modify the interim order dated Page 11 of 80 08.01.2020, had passed the judgment and order dated 04.12.2020, modifying the status quo in respect of the land at Ekranipathar, whereas the respondent Nos. 1 to 13, all are residing and in physical occupation of the land covered by Dag No. 40, Patta No. 45 at Diphupar. Thereafter, the petitioners again instituted WP(C) No. 216(K) of 2020 and vide order dated 11.12.2020, the writ petition was disposed of with a direction that the petitioners may approach the Civil Court.
It is the pleaded case of the petitioners that the Deputy Commissioner, Dimapur not being aware of the order dated 11.12.2020, passed by this Court, had issued order No. REV- 31/2016-D/I/10365, dated 11.12.2020, wherein eviction order was issued and directed the respondents to vacate the land on or before 18.12.2020, and it was the aforesaid eviction order dated 11.12.2020 of the Deputy Commissioner, Dimapur, wherein temporary injunction was granted by the learned Civil Judge (Senior Division), Dimapur, vide the order dated 22.11.2021, restraining the Deputy Commissioner, Dimapur from executing the eviction order and from recovering the suit land pending disposal of the suit.
Being aggrieved, the petitioners herein preferred a civil appeal, being Civil Appeal No. 24/2023, challenging, the jurisdiction of the learned Civil Judge (Senior Division), Dimapur for entertaining the Civil Suit No. 14/2020, which is expressly barred by Section 9 of the CPC, and that the learned Page 12 of 80 Civil Judge has usurped the jurisdiction not vested in it by law and passed the order dated 22.11.2021.
The stand taken in the aforementioned appeal is that the subject matter of suit is with regard to eviction of persons in unauthorized occupation of public land where the Nagaland Eviction of Persons in Unauthorized Occupation of Public Land Act, 1971 („The Act of 1971‟, for short) bars the Civil Courts to entertain such nature of suit and as such, the order dated 22.11.2021, was passed by the learned Civil Judge without jurisdiction and therefore, the temporary injunction in favour of the respondent Nos. 1 to 13 herein is null and void and non-est in the eye of law.
Thereafter, hearing both the parties, the learned Appellate Court, vide impugned order, dated 29.09.2023, dismissed the appeal preferred by the petitioners and thereby, upheld the order dated 22.11.2021, passed by the learned Trial Court in I.A. (Civil) No. 224/2020, arising out of Civil Suit No. 14/2020.
5. Being aggrieved, the petitioners herein preferred this revision petition on the following grounds:
(i) That, the learned Appellate Court without giving his independent observation/finding, had arbitrarily and deliberately reiterated all the findings of the learned Trial Court and dismissed the Civil Appeal No. 24/2023.Page 13 of 80
(ii) That, the learned Appellate Court, though totally agreed to the submission of the petitioners herein that under Section 14 of the Act of 1971, that there is a bar to suits or legal proceedings and that the learned Trial Court acted contrary to the law and usurped the jurisdiction not vested in it by law by granting temporary injunction in favour of the plaintiffs in violation of the provisions of the statutes, however, in the most arbitrary, the learned Appellate Court had came to a perverse conclusion that the civil suit involves issues with regard to right, title and interest and the same must be adjudicated and decided only by the civil courts and the civil suit and the application for temporary injunction were instituted on the basis of the direction of the order of this Court, dated 11.12.2020, and this finding is blatantly false as this Court did not direct the petitioners to approach the Civil Court, but passed an order that the petitioners may approach the Civil Court and this Court did not quash and set aside the Commissioner's orders dated 30.11.2019 and Deputy Commissioner's order dated 01.12.2019 and the eviction order dated 11.12.2020, and therefore, the Civil Court is barred from entertaining any suits pertaining to the matters relating to the Act of 1971, and therefore, the finding of the learned Appellate Court is perverse.
(iii) That, Section 41 (ha) of the Specific Relief Act prohibits the grant of injunction with regard to infrastructure projects like Airport and the grant of temporary injunction in favour of the Page 14 of 80 plaintiffs/respondents is against the statute and the aforesaid proposition of law is laid down in the case of N.G. Projects Limited vs. Vinod Kumar Jain, reported in (2022) 6 SCC 127, and thereby totally ignored the said proposition of law and held that the statutory bar as projected in N.G Projects Ltd. (supra) will not operate in the present case for the reason that the suit preferred by the plaintiffs/respondents is with regard to a decree for declaring the order of eviction against the plaintiffs/respondents as null and void and not for any infrastructure project and this finding is completely perverse as the whole purpose of acquiring the land is for infrastructure project, namely, the development and expansion of the Dimapur Airport.
(iv) That, the learned Appellate Court had recorded a finding that the "The learned Civil Judge while discussing the point for determination No. 4 with regard to fourth dimension and public interest/policy, has observed that the question of acquisition of the suit land by the state appellants is yet to be adjudicated and went on to hold that the plea of the State appellant that it is for public interest that the suit land is required to be vacated cannot be accepted", and this finding is erroneous inasmuch as that the petitioners herein have placed on record sufficient documents to establish the acquisition of the property in Dag Nos. 38 and 40 and also established the Page 15 of 80 vesting of the property in the Government, vide notification dated 23.09.1992 published in the Nagaland Gazette, and therefore, as per Section 6(2) of the Nagaland Land (Requisition and Acquisition) Act 1965, once notice for requisition of land and premises is published in the Official Gazette, the land and premises vest absolutely with the State Government, and the respondents have not established their right and title over the suit land, rather they have filed documents pertaining to sale/gift of property at another locality in Ekranipathar, basing on which they are claiming Dag Nos. 38 and 40. Further, that the respondents/plaintiffs had neither sought the relief of title to the property nor have filed any documents purported to have been executed by Late V. Atoshe in their favour with regard to the area of encroachment and the burden of proving the title to the property is on the person claiming the title and not on the petitioners herein, and the learned Appellate Court had ignored the same.
(v) That, the learned Appellate Court had totally ignored all the material documents available on record while upholding the order of the learned Trial Court and the respondents had failed to disclose any cause of action in Civil Suit No. 14/2020, and when the very foundation of the suit is not in existence, the suit cannot survive. Further, that the respondents could not show any documents of their rights and titles, over Dag Nos. 38 and 40, which they claimed to have purchased from Page 16 of 80 V. Atoshe Sema in the year 2015 on the basis of various sale deed, gift deed, whereas the fact that the allotment of land to Atoshe Sema under Dag No. A/40 was already cancelled on 31.05.2005, by the Deputy Commissioner, Dimapur and the said order attained finality, and that perusal of the sale deeds on record clearly show that V. Atoshe Sumi did not sell any property to the respondents and the sale deeds confirm that the transaction was with Shiloka, pertaining to land at Ekranipathar and not at Diphupar, the Airport land in Dag Nos.
38 & 40.
(vi) That, the respondents pleaded in their plaint that though the land was at Diphuphar, on the instructions of the Survey Officer it was written as Ekranipathar and such pleading is hit by Section 92 of the Indian Evidence Act, and the exclusion of evidence of oral agreements for the purpose of contradicting a written document, and, therefore, it is evident that the respondents are rank trespasser on Airport land, thereby acting in violation of Section 41 (ha) of the Specific Relief Act.
(vii) That, the learned Appellate Court without giving his independent observations/findings had arbitrarily and deliberately reiterated the findings of the learned Trial Court to the effect that a prima facie case is made out in favour of the respondents, and they are in physical occupation of the suit land on the basis of valid pattas issued by the competent authority, which is not only erroneous, but, also contrary to the judgment passed by a Division Bench of this Court in the Page 17 of 80 case of State of Nagaland & Anr vs. Avio Naleo & Ors., reported in (2023) 1 GLT 634, wherein it has been held that the Deputy Commissioner has to take the approval of the Government before issuing land patta and there is no statement in the pleading to the effect that such permission has been granted for the simple reason that the Government did not approve of this transaction which is completely against the law, and despite the same, the learned Appellate Court concluded that there is no infirmity and/or illegality in the order and held that a prima facie case is made out.
(viii) That, the learned Appellate Court without giving his independent observations/findings had arbitrarily and deliberately reiterated the findings of the learned Trial Court that the balance of convenience is in favour of the respondents herein, by holding that- "the respondent Nos. 1 to 13 and the proforma respondent No. 14 are presently housed at the suit premises with their families, wherein there are structures/buildings standing vis-a-vis the urgency of the appellants in ensuring that the land is vacated for carrying out developmental work for expansion of the Airport which is for public interest. Since no development has taken place in the suit land from the end of the petitioners herein as per materials placed on record, less inconvenience will be caused to the petitioners vis-a-vis the respondents if the injunction, as prayed for, is allowed in favour of the plaintiffs and decided in favour of the plaintiffs."
Page 18 of 80(ix) That, on the question of irreparable injury, the learned Appellate Court, without giving his independent observations/ findings, had arbitrarily and deliberately, reiterated the findings of the learned Trial Court to the effect that- "the learned Trial Court held that the present suit has been filed for injunction against an eviction order issued by the Deputy Commissioner, Dimapur. The respondents herein are in actual physical possession of the suit land. The respondents and their families are occupying the suit land and needs to be protected from being dispossessed. If injunction is not allowed, the respondents herein will suffer irreparable loss or injury, which cannot be compensated in terms of money. There is every likelihood that if the petitioners herein are not restrained, the present standing structures will be demolished which ultimately will change the nature of the property and result in multiplicity of proceedings which will prejudiced, the respondents which cannot be compensated in terms of money." Such findings/conclusions without independent observation, is absurd and perverse.
(x) That, regarding the question of the fourth dimension i.e. public interest/policy, the learned Appellate Court, without giving his independent observations/findings, had arbitrarily and deliberately reiterated the findings of the learned Civil Judge that there is no infirmity in the conclusion, so arrived at by the learned Civil Judge on the issue of fourth dimension and on the question of public interest/policy.
Page 19 of 80(xi) That, the learned Appellate Court without giving his independent observations/findings decided for himself on the cases in which temporary injunction can be granted has gone to the extent of stating that the learned Trial Court had correctly applied the golden principles.
(xii) That, there is no prima facie case, balance of convenience and irreparable loss in favour of the respondents herein and the learned Appellate Court had ignored the same and he also failed to consider the fact that the suit land was acquired for extension of existing Dimapur Airport and the same was leased by the State Government to the AAI, and that the respondents herein are trespassers/encroachers, basing their claims to the land pattas at Ekranipathar, and occupying land under Dag Nos. 38 and 40 at Diphupar. But the learned Appellate Court had ignored the same.
(xiii) That, the learned Appellate Court had acknowledged that under the Act of 1971, the Commissioner is the Appellate Authority and despite the Commissioner's order No. CNR- 5/6/99(Pt-II)/116, dated 30.11.2019 and order No. CNR- 5/6/99(Pt-II)/117, dated 30.11.2019, declaring the respondents herein, to be in illegal occupation of public land, the learned Appellate Court had came to a whimsical finding that the respondents cannot take the order of the Deputy Commissioner, Dimapur, dated 05.12.2019, and the eviction order dated 11.12.2020, on appeal to the Commissioner would not be maintainable. Further, that learned Appellate Court Page 20 of 80 held that the two orders dated 30.11.2019, passed by the Commissioner were in his capacity as the appellate authority, but, allegedly on the basis of his original jurisdiction, which he does not possess under the Act of 1971, and such finding is perverse as the learned Appellate Court is neither the appropriate authority nor posses the jurisdiction to give such finding against the Commissioner under the Act of 1971.
(xiv) That, the learned Appellate Court had totally ignored the fact that in WP(C) No. 151/2020 filed before the Principal Seat of this Court which was transferred to Kohima Bench and renumbered as WP(C) No. 7/2020, wherein the respondents conceding to the fact that their land is at Ekaranipathar and not in Dag Nos. 38 and 40, which is evident from para Nos. 3, 5, 7, 8 and 11 of the writ petition, and even at para No. 26 in the prayer clause the respondents had asked for protection of their land at Ekaranipathar, and though WP(C) No. 7/2020 was withdrawn, the law is settled that the admission made in one case can be used in another case between the same parties, and despite the settled law, the learned Appellate Court had ignored the same.
(xv) That, the learned Appellate Court had totally ignored the principle of law, laid down by Bombay High Court in the case of Jai Bholenath Construction vs. The Chief Executive Officer & Ors., in WP No. 14156 of 2021, wherein it has been reiterated that a word of caution ought to be mentioned herein that any contract of public service should Page 21 of 80 not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good.
(xvi) That, the learned Appellate Court had also ignored various decisions passed by this Court in the cases of Avio Naleo (supra); Naga United/Inavi Village & Ors. vs. State of Nagaland & Ors., reported in 2011 SCC Online Gau 121 and State of Nagaland vs. Thilixu 'B', reported in 2014 (2) GLT 829.
(xvii) That, the learned Appellate Court had ignored the fact that Dimapur is the only Airport in Nagaland and Runway-12 was closed up due to NH-29 and heavily inhabited area and therefore, Runway-30 (Chathe/Diphu River side) is the only possible area for further extension of runway, and the learned Appellate Court had ignored the same and upheld the order of the learned Trial Court and took a completely opposite view in flagrant violation of the decisions of Hon‟ble Supreme Court and this Court, and therefore, it is contended to allow this petition.
6. Mr. Balgopal, learned Advocate General, Nagaland, appearing for the petitioners has reiterated the grounds mentioned in this revision petition. He submits that though the husband of the proforma respondent No. 14 claimed to have allotted the land, yet he has not been allotted any land with permission of the Government and the Commissioner of the department has denied Page 22 of 80 the same. Mr. Balgopal also submits that Section 41 (ha) of the Specific Relief Act prohibits granting of injunction against any infrastructure project being undertaken in relation to airport as provided in schedule Clause 1(e). Mr. Balgopal further submits that the land belongs to the State Government and that public interest will always prevail over the individual interest, 6.1. Mr. Balgopal also submits that the respondents herein have also challenged the administrative order passed by the Hon‟ble Chief Justice of this Court transferring the present Civil Revision Petition to the Principal Seat from the Kohima Bench, by filing Writ Petition (Civil) No. 851 of 2024, before the Hon‟ble Supreme Court and the same was dismissed, vide order dated 02.01.2025, and during the hearing of the said petition before the Hon‟ble Supreme Court, the engaged counsel for the respondents had submitted that they had a video of furnishing a copy of the administrative order of Hon‟ble Chief Justice to him (Mr. Balgopal), but said administrative order of Hon‟ble Chief Justice was not furnished to them despite a request being made and such submission is totally false and the respondents herein, can go to such an extent to overreach the order of the Court, and that they had not approached the Court with clean hands. And as such, the case of the plaintiffs/respondents herein ought to have thrown out at the very threshold by the learned courts below. Mr. Balgopal also submits that the suit is not maintainable under Section 9 of the CPC and that the observation made by the learned Appellate Court in respect of maintainability of the suit against the order of eviction passed under the Nagaland Page 23 of 80 Eviction of Persons in Unauthorized Occupation of Public Land Act, 1971, erroneous and the suit land is already acquired for the purpose of extension of Dimapur Airport, and the finding of the learned Trial Court and also the learned Appellate Court in respect of the three golden principles and also about fourth dimension in favour of the respondents are arbitrary and illegal and liable to be interfered with.
7. Per contra, Mr. Dutta, learned Senior Counsel for the respondent Nos. 1 to 13 in his argument highlighted following points: -
(i) The impugned order dated 29.09.2023, passed by the learned first appellate Court in Civil Appeal No. 24/2023 is not maintainable in as much as, the value of the suit was shown as Rs. 10,00,00,000/- and ad valorem court fee amounting to Rs. 11,000/- was paid by the respondent Nos. 1 to 14 and that the Bengal, Agra and Assam Civil Courts Act, 1887, shows that the learned Appellate Court has no jurisdiction to entertain a suit of Rs. 10,00,00,000/-, as in view Sections 96 and 106 of the CPC, an appeal from an order can only be heard by a Court which is authorised to hear the same.
(ii) The right to appeal of the petitioners against the order passed by the learned Trial Court is not at all inherited right conferred upon the petitioners, but a right which is conferred by the statute, which is in the instant case is the provisions contained in Section 96 and 106 of the CPC, and as such, the learned Page 24 of 80 Appellate Court is not the Court to entertain the aforementioned appeal and the impugned order is nullity for being passed by a Court which is not authorized under the statute to hear the same.
7.1. In support of his submission, Mr. Dutta has referred to the following decisions:
(i) Ganga Bai vs. Vijay Kumar and Ors., reported in (1974) 2 SCC 393.
(ii) Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation of the City of Ahmedabad and Ors., reported in (1999) 4 SCC 468.
(iii) State of Haryana vs. Maruti Udyog Ltd. and Ors., reported in (2000) 7 SCC 348.
(iv) Anant Mills Co. Ltd. vs. State of Gujarat and Ors., reported in (1975) 2 SCC 175.
(v) Deonath Missir and Ors. vs. Chandraman Missir and Ors., reported in 1957 SCC OnLine Pat 182.
7.2. Mr. Dutta, further submits that the impugned order passed by the learned first appellate Court is nullity and non-est in law and as such, this revision petition against a non-est order is not maintainable, and therefore, it is contended to dismiss the same.
8. On the other hand, Mr. Das, learned counsel for the proforma respondent No. 14 has also subscribed to the submission of Mr. Page 25 of 80 Dutta, learned Senior Counsel for the respondent Nos. 1 to 13. But, he has also pointed out that as required under Chapter 5A Rule-1 of the Gauhati High Court Rules, the petition is not supported by any affidavit.
9. However, Ms. Chetri, learned counsel for the proforma respondent No. 15 submits that Dimapur Airport at present is having runway length of 2290 meters. The runway has two end which is called Runway-12 end and Runway-30 end and additional land measuring 17.9 acres has been acquired extension of Runway- 30 end which shall be utilized for extension of Runway to (2290+310-211) = 2,389 meters which is essential for safe operation of Airbus & Boeing flights. She also submits that although the State Government has already acquired the additional land, but the same could not be handed over to AAl because of the encroachment over the said land, and since there is encroachment on the additional land, the Runway-30 end could not be extended and the land involved in the present proceedings that is land measuring 17.9 acres situated at Dag Nos. 38 and 40 of Diphupar village are part of acquired land by State Government for extension of Runway-30 end. She further submits at present the Runway End Safety Area (RESA) at RWY30 side measured 90x90 meters. On getting additional land, the low-lying area at the Chathe/Diphu river side shall be earth filled and Runway End Safety Area (RESA) will be shifted further towards the river stream and maintained with dimension 90x 240 meters as per DGCA standards, and at the Ayomti & Hollohon Village side i.e. North of existing Runway, land Page 26 of 80 plot of 52.4 Acres under Dag Nos. 10, 11, 16, 19 & 20 is required to meet the DGCA standards to maintain Basic Strip of 140 mtr. from centrelines of runway on both sides. She also submits that to accommodate operation of larger size of aircraft and to ensure operational safety, the critical length and width of the runway & basic strip as per DGCA standards are essential, and that Dimapur Airport has witnessed a spurt in passenger growth post Covid. The present annual passenger throughput is projected at 3.26 lakhs for FY 2025-26 (extrapolated basis Q3 Dec 2024 figures). For FY 2018- 19 the passenger throughput was 1.96 lakhs at Dimapur Airport. She further submits that as per airport expansion/development plan, the said land is required for extension of runway length by 310 meters to compensate the displacement of 211 meters of Runway- 12 from its threshold. The displacement is due to the presence of vehicular movement on NH-29 and due to above displacement of runway of 211 meters at Runway-12 side, total length of the runway from 2290 is reduced to only 2079 meters for take-off of flights at present, and that the existing runway at Dimapur airport is used as unidirectional due to presence of hilly terrain on Runway-30 side. All landings of the aircraft are from Runway-12 end, and as such, the acquired land is very much required for expansion of the Airport.
10. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record, and also perused the impugned order dated 29.09.2023, passed by the learned first appellate Court, in Civil Page 27 of 80 Appeal No. 24/2023 and the order dated 22.11.2021, passed by the learned trial Court, in I.A. (Civil) No. 224/2020, arising out of Civil Suit No. 14/2020.
The Issue of Jurisdiction:-
11. In the case in hand Mr. S. Dutta, learned Senior counsel for the respondent No. 1 to 13, and Mr. A. Das learned counsel for the respondent No. 14 has taken a categorical stand that the suit value being Rs.10 crore, the learned Appellate Court had no jurisdiction to entertain the appeal and on this count, the order of the learned Appellate Court is liable to be set aside.
11.1. Per contra, Mr. Balgopal, the learned Advocate General, Nagaland submits that the learned counsel for the respondent, for the first time objected to the maintainability of the order passed in appeal by the learned Appellate Court, Dimapur, though the same was in their favour, coupled with the fact that throughout the proceedings in appeal, they did not challenge the proceedings before the learned Appellate Court, either on grounds of jurisdiction including pecuniary jurisdiction. Mr. Balgopal further submits that the law is settled that in such cases, objection on the question of jurisdiction etc. should be taken at the count of first instance and having kept quiet throughout the entire proceedings, they cannot later turn around and challenge the order passed by the Appellate Court on the ground of want of pecuniary jurisdiction more so, in view of the fact that these persons have not suffered Page 28 of 80 any prejudice whatsoever. Mr. Balgopal also submits that the law in this context has been well settled in the case of Kiran Singh & Others Vs. Chaman Paswan & Others, reported in (1954) 1 Supreme Court Cases 710 and the said proposition of law was, later on, followed in the case of Om Prakash Agarwal Vs. Vishal Dayal Rajpoot and Another, reported in (2019) 14 SCC 526.
11.2. It is to be noted here that Section 21(2) CPC deals with objections to pecuniary jurisdiction. It provides that no objection as to the competence of a Court, with reference to the pecuniary limits of its jurisdiction, shall be allowed by an appellate or revisional Court, unless such objection was taken:
1. In the Court of first instance at earliest possible opportunity, and
2. In all cases, where issues are settled, at or before such settlement, and
3. Unless there has been a consequent failure of justice.
11.3. The use of word „and‟ signifies that all three conditions must be fulfilled simultaneously. In the case in hand, and as submitted by Mr. Balgopal, the learned counsel for the respondents, for the first time objected to the maintainability of the order passed in appeal by the learned Appellate Court, in spite of remaining silent throughout the proceedings in appeal. At earliest possible opportunity, they kept quiet and now they cannot turn around and challenge the order passed by the learned Appellate Court on the ground of want of pecuniary jurisdiction. Besides, they could not show that they Page 29 of 80 suffered any prejudice whatsoever, or that there was failure of justice.
11.4. It is true, the question of jurisdiction can be raised at any stage of the proceedings and even in collateral proceedings also as held by the Hon'ble Supreme Court in the case of Kiran Singh & Others (supra). Same proposition of law is laid in the case of Dr. Jagmittar Sain Bhagat vs. Dir., Health Services, Haryana & Others, reported in AIR 2013 SC 3060, wherein it has been held that the issue of jurisdiction can be raised at any stage and doctrine of waiver does not apply. In the case of Kamala & Others vs. K.T.Eshwara SA & Others, reported in AIR 2008 SC 3174, same principle is reiterated.
11.5. But the question remains whether a party, who had appeared before the learned Appellate Court on receipt of notice of the appeal, being filed the respondents herein, and contested the appeal and also got an order in their favour can raise the issue of jurisdiction before this Court in a revision petition. The answer is obvious that a person, who entered appearance upon receipt of a notice from the court he exposes himself to acceptance of jurisdiction of that court, and later on, he cannot make a somersault. The case rests on the simple and universally admitted principle that a litigant, who has voluntarily submitted himself to the jurisdiction of a court by appearing before it, cannot afterwards, dispute its jurisdiction. Where such a litigant, though a defendant rather than a claimant, appears and pleads to the merits without Page 30 of 80 contesting the jurisdiction, there is clearly a voluntary submission.
The same is the case, where he does indeed contest the jurisdiction, but, nevertheless, proceeds further to plead to the merits, or agrees to a consent order dismissing the claims and cross-claims, or where he fails to appear in proceedings at first instance, but appeals on the merits.
11.6. Reference in this context can be made to some overseas decisions also. In the case of Golden Endurance Shipping SA v RMA Watanya SA [2016] EWHC 2110 at para. 28, Phillips J3 (MANU/UKCM/0064/2016), it has been held by England and Wales High Court (Commercial Court) that: ‚a party, who voluntarily appears or participates in proceedings is considered by the common law, to have accepted an offer from the opposing party, who commenced the proceedings to accept the jurisdiction and be bound by its judgment. The touchstone of submission on this basis is therefore consent, although the question of whether consent has been given is to be judged objectively.‛ 11.7. In the case of Williams & Glyn's Bank Plc. v. Astro Dinamico Compania Naviera S.A., [1984] 1 W.L.R. 438 (MANU/UKHL/0018/1984), the House of Lords described the test for implying such consent as being: "in order to establish a waiver, you must show that the party alleged to have waived his objection, has taken some step which is only necessary or only useful if the objection has been Page 31 of 80 actually waived, or if the objection has never been entertained at all."
11.8. In the instant case, the conduct of the parties, in fact, demonstrated a submission to the jurisdiction. However, there remains the question of whether or not there has been a voluntary submission and the same requires wider investigation into the conduct of the parties.
11.9. In the case of Om Prakash Agarwal (supra), while dealing with the issue, Hon‟ble Supreme Court has held as under:-
‚57. The policy underlying Section 21 of Code of Civil Procedure is that when the case has been tried by a court on merits and the judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in failure of justice. The provisions akin to Section 21 are also contained in Section 11 of the Suit Valuation Act, 1887 and Section 99 of the Code of Civil Procedure. This Court had the occasion to consider the principle behind Section 21, Code of Civil Procedure and Section 11 of the Suit Valuation Act, 1887 in Kiran Singh v. Chaman Paswan [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340]. In para 7 of the judgment following was laid down: (AIR p. 342) ‚7. ... The policy underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not Page 32 of 80 be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits.
The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.‛ Thereafter, summing up the discussion, Hon‟ble Supreme Court has held as under:-
‚69. We thus hold that even when the Court of Additional District Judge was not competent to decide the small causes suit in question on the ground that the pecuniary jurisdiction is vested in the Court of Small Causes i.e. Civil Judge, Senior Division w.e.f. 7-12-2015, no interference was called in the judgment of the Additional District Judge in the exercise of revisional jurisdiction by the High Court in view of the provisions of Section 21 of the Civil Procedure Code.‛ 11.10. In the case in hand, the respondents could not show that any prejudice has been caused to them. It is well settled that unless there has been a prejudice on the merits, purely on technical grounds, the impugned judgment of the learned Appellate Court Page 33 of 80 cannot be treated as nullity. Thus, drawing premises from the illuminating discourse, it can safely be concluded that the impugned judgment of the learned Appellate Court in deciding the appeal in question cannot be treated as nullity. Therefore, the objection/contentions, so raised by the respondents, in respect of jurisdiction of the learned Appellate Court, and the submissions of their counsel cannot be acceded to and the same failed to command an acceptance of this Court and accordingly, the same stands repudiated.
11.11. I have also gone through the decisions referred by Mr. Dutta, the learned counsel for the respondent No. 1-13. There is no quarrel at the Bar regarding the proposition of law laid down in the said case. But, the same proceeds their own fact and not applicable in all force to the given facts and circumstances of this case and in that view of the matter, the same would not come into his assistance.
The Three Golden Principles of Granting Injunction:
12. It is no more res-integra that in order to grant temporary injunction, the party applying for the same has to satisfy three golden principles. This aspect has elaborately been dealt with by Hon‟ble Supreme Court in catena of decisions. In the case of Dalpat Kumar vs. Prahlad Singh, reported in (1992) 1 SCC 719, while dealing with Order 39 Rule 1(C) CPC, Hon‟ble Supreme Court has held as under:
Page 34 of 804. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant;
(2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.
5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is ‚a prima facie case‛ in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial.
Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court Page 35 of 80 further has to satisfy that non-interference by the Court would result in ‚irreparable injury‛ to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that ‚the balance of convenience‛ must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus, the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.
12.1. Again, in the case of Seema Arshad Zaheer vs. Municipal Corpn. of Greater Mumbai, reported in (2006) 5 SCC 282, same principles are reiterated as under: -
Page 36 of 80‚30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff:
(i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction;
(ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and
(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.‛ Public Interest, the Fourth Dimension: -
12.2. It is also to be mentioned here that in the case of Mahadeo Savlaram Shelke and Ors. vs. Pune Municipal Corporation and Ors., reported in (1995) 3 SCC 33, Hon‟ble Supreme Court has held additionally that public interest is one of the Page 37 of 80 material and relevant considerations in either exercising or refusing to grant ad interim injunction.
Finding of the Trial Court: -
13. It is to be noted here that while deciding the injunction application being I.A. 224/2020, in the Civil Suit No. 14 of 2020, the learned Trial Court had framed following points for determination: -
1. Whether or not prima facie case has been made out by the plaintiffs/petitioners in their favour?
2. Whether or not Balance of Convenience favours the case of plaintiffs/petitioners?
3. Whether or not plaintiffs/ petitioners are going to suffer irreparable injury?
4. The fourth dimension will also be determined since the suit involves question on public interest /policy.
13.1. Thereafter, the learned Trial Court solely relying on the pleadings, the documents relied upon by the parties and the observations made in the said order, without going into the merits of the case, opined that the respondents herein have succeeded in establishing a prima facie case in their favour and decided the point No.1 in favour of the respondents herein.
13.2. The learned Trial Court had held that - ‚from the pleadings as projected in the plaint by the respondents herein, it appears that, the respondents herein who are fourteen in numbers, are at present housed at the suit Page 38 of 80 premises, with their families which implies that, there are structures/buildings standing thereon on the suit land. Keeping in mind the present status of the respondents herein and also considering the urgency of the petitioners herein in ensuring that the land is vacated for carrying out developmental work for expansion of the airport, which is for public interest if, we are to balance these two aspects of the situations in hand, it appears that, scale of inconvenience leans more towards the side of the respondents herein, as the injunction, as prayed for, if not granted in favour of the respondents herein is going to be felt more by them. It is seen that less inconvenience will be caused to the petitioners herein as the development work has not been initiated, and thereafter, decided point No.2 in affirmative in favour of the respondents.‛ 13.3. Thereafter, the learned Trial Court had decided point No.3 in favour of the respondents observing that - ‚the case in hand pertains to a prayer for injunction against an eviction order issued by the respondents herein. From the pleadings, as projected in the plaint, it appears that, the respondents herein are in actual physical possession of the suit land. It appears that the respondents herein and their families are occupying the suit land. From the discussions made above, it appears that the respondents need to be protected from being Page 39 of 80 dispossessed. It is seen that if injunction, as prayed for is not granted, the respondents will suffer irreparable loss and injury which cannot be compensated in terms of money.‛ 13.4. The learned Trial Court, thereafter, decided the fourth point by holding that - ‚since the suit involves question on public interest/policy, and even presuming the question of acquisition is not under dispute, it is seen that the land in question is required for expansion of the existing Dimapur Airport only. It is seen that the present existing Airport is fully functional and operating on daily basis even now. It is not a case, where the structures had been built on the suit land and the construction work had been kept on hold/ left unfinished because of litigation and the public, as a result of which, are affected and unable to access the service. It is seen that developmental work is yet to be initiated.‛ It had also observed that- ‚once permanent structures are set up on the suit land, it will cause irreparable loss and injury to the respondents herein.‛ Thereafter, it had hold that - ‚the respondents herein had satisfied the three golden principles for granting temporary injunction in their favour.‛ Thereafter, it had allowed the Civil Misc Case No.224/20, arising out of Civil Suit No.14/20, granting temporary injunction in favour of the respondents restraining the petitioner No. 3 herein from executing Page 40 of 80 the aforementioned Eviction order dated 11-12-20, and obtaining possession of the suit land there under, pending disposal of the suit.
Finding of the Appellate Court: -
14. The order dated 22.11.2021, in I.A. No. 224/2020, in Civil Suit No. 14 of 2020, being challenged by the petitioners herein before the learned Appellate Court, in Civil Appeal No. 24 of 2023, and the learned Appellate Court had recorded its finding as under: -
15. Prima facie case: - In respect of prima-facie case, the learned Appellate Court held that- ‚the learned Trial Court first discussed the meaning of 'prima facie' as held by the Hon'ble Supreme Court in Marin Burn Ltd v. R.N. Banerjee, reported in 1958-I LLJ 247; and in Gujurat Electricity Board, Gandhinagar vs. Maheshkumar & Co. Ahmedabad, reported in (1995) 5 SCC 545.‛ 15.1. Thereafter, the learned Appellate Court went on to observe that - ‚the learned Trial Court by holding that injunction being an equitable relief, it is vital that one who seeks relief come before the Court with clean hands and while determining the first golden principle, it is imperative that the same be taken into consideration. The learned Trial Court relied on S.J.S. Business Enterprises (P) Ltd. v. State of Bihar & Ors, reported in (2004) 7 SCC 166; which held that "As a general rule, suppression of material fact by a Page 41 of 80 litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case."
15.2. The learned Appellate Court also proceeded to observe that
- ‚the learned Trial Court held that upon perusal of the records, all the stages, leading to filing of the present suit, had been sequenced and pleaded in the plaint and annexed with all the relevant orders. It was also observed by the learned Trial Court that this Court while passing the interim modification, vide Judgment and Order dated 04.12.2020, had after hearing the actual facts of the case in WP (C) No.216 of 2020, had disposed of the writ petition, vide order dated 11.12.2020, by observing that the party may approach the civil court.‛ 15.3. Thereafter, the learned Appellate Court had observed that ‚with regard to the contention of forgery, false revenue records and fraud being committed by the respondents herein, these are disputed question of facts and law, which are required to be determined at the time of trial and requires mature considerations. Thus, the learned Trial Court did not accept the contention that the respondents herein had not come Page 42 of 80 with clean hands and the case of suppression of material facts is not made out in the instant case. The Court at this stage is not to conduct a mini trial, but to confine to the materials placed before it and decide on the face of it.‛ 15.4. The learned Appellate Court also went on to observe that - ‚as far as the Eviction Order No.REV-31/2016-D/I/10365 dated 11.12.2020 is concerned, it was held by the learned Civil Judge that the same was issued without complying to the procedure laid down under Section 5 of the Act. Considering the aforesaid and further considering the fact that the respondents are in physical occupation of the suit land on the basis of valid pattas issued by the competent authority, the learned Trial Court had held that a prima-facie case has been made out by the respondents herein in their favour and that it is a fit case to go for trial. Accordingly, the learned Trial Court had decided the point for determination No.1 in favour of the respondents.‛ 15.5. Thereafter, the learned Appellate Court had held that- - ‚in view of what had been held and discussed aforesaid, it is in total agreement to the conclusion arrived at by the learned Trial Court, there is neither any infirmity and/or illegality in the impugned order and the point for determination No.1 is accordingly answered in favour of the respondents herein.‛ Page 43 of 80
16. Balance of Convenience: - In respect of balance of convenience the learned Appellate Court went on to observe that - ‚the learned Trial Court first discussed and observed the meaning of balance of convenience as held in Orissa State Commercial Transport Corporation Ltd. vs. Satyanarayan Singh, (1974) 40 Cut LT 336; wherein it was held that:
"Balance of Convenience" means the comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff, if temporary injunction is refused, would be balanced and compared with that to the defendant if it is granted. If the scale of inconvenience leans to the side of the plaintiff, then interlocutory injunction alone should be granted."
16.1. Thereafter, the learned Trial Court had discussed another case law in Bikash Chandra Deb v. Vijaya Minerals Pvt Ltd, 2005 (1) CHN 582; wherein the Calcutta High Court observed as under:-
"Issue of balance of convenience, it is to be noted that the Court shall lean in favour of introduction of the concept of balance of convenience, but does not mean and imply that the balance would be on one side and not in favour of the other. There must be proper balance between the parties and the balance cannot be a one-sided affair."Page 44 of 80
16.2. The learned Appellate Court then observed that - ‚keeping the aforesaid principles in mind, the learned Trial Court went on to observe that from a perusal of the pleadings as projected in the plaint by the respondents in their suit, the respondents, who are fourteen in numbers, are presently housed at the suit premises with their families, which implies that there are structures/buildings standing on the suit land. Keeping in mind the present status of the respondents vis-à-vis the urgency of the appellants in ensuring that the land is vacated for carrying out developmental work for expansion of the Airport which is for public interest, if we are to balance these two aspects of the situation in hand, the scale of inconvenience leans more towards the side of the respondents as, the impact of injunction, as prayed for, if not granted in favour of the respondents is going to be felt more by them. Further, less inconvenience will be caused to the petitioners herein as the development work has not been initiated.‛ 16.3. Further the learned Appellate Court had observed that - ‚thus, the learned Trial Court went on to hold that since no development has taken place in the suit land from the end of the petitioners, as per the materials placed on record, less inconvenience will be caused to the petitioners vis-à-vis the respondents, if the injunction as prayed for is allowed in favour of the Page 45 of 80 respondents and decided the point for determination No.2 in favour of the respondents.‛ 16.4. From the aforesaid, the learned Appellate Court had held that - ‚the learned Trial Court had correctly applied the golden principles with regard to balance of convenience to the facts of the instant case and decided the point for determination No.2 in favour of the respondents and that no infirmity and/or illegality to the conclusion arrived at by the learned Trial Court in deciding the point No.2, so as to take a view contrary to that of the learned Trial Court.
Accordingly, it had recorded concurrence with the finding of the Trial Court.‛
17. Irreparable injury: In respect of „irreparable injury‟, the learned Appellate Court had discussed following decisions: -
(i) Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336;
wherein it was held that:
"Irreparable injury means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused."Page 46 of 80
17.1. The learned Appellate Court had observed that - ‚basing on the above observation, the learned Trial Court observed that the present suit pertains to a prayer for injunction against an eviction order issued by the petitioner No. 3 herein. From the pleadings as projected in the plaint by the respondents in the suit, the respondents are in actual physical possession of the suit land. The respondents and their families are occupying the suit land. From the aforesaid observation, the respondents need to be protected from being dispossessed. In the instant case, if the injunction as prayed for is not allowed, the respondents will suffer irreparable loss and injury, which cannot be compensated in terms of money and decided the point for determination No.3 in affirmative in favour of the respondents.‛ 17.2. Then, the learned Appellate Court had observed that- ‚it is in total agreement to the above view arrived at by the learned Trial Court and thereby deciding the point for determination No.3 in favour of the respondents herein.‛ 17.3. Further, the learned Appellate Court observed that - ‚there is every likelihood that if the appellants are not restrained by way of injunction, the present standing structures on the suit land will be demolished which ultimately will change the nature of the property and Page 47 of 80 also result in multiplicity of proceedings which will prejudiced the respondents, which cannot be compensated in terms of money.‛ The Fourth Dimension i.e. the Public Interest/Policy:
18. In respect of fourth dimension, the learned Appellate Court went on to observe that - ‚it was observed by the learned Trial Court that the question of acquisition of the suit land by the petitioners herein is yet to be adjudicated. Thus, the plea of the petitioners that it is for public interest that the suit land is required to be vacated cannot be accepted. The acquisition of the suit land by the petitioners is denied by the respondents. The petitioners relied upon Acquisition Memo No.REV-29/88-D/ dated 23.09.1992, to show that the suit land has been acquired by the Government and that it is public land. It was observed that a piece of land measuring 253B-02K-12Ls covered by part of Dag No.7, 46, 47, 37, 38, 46, 55, 309 and 16 contiguous to the existing Airport of Dimapur at Ekranipathar, Diphupar and Ekranigoan villages of Dimapur Mouza had been acquired from the land owners under the Nagaland Regulation and Acquisition Act, 1965. However, the learned Trial Court held that the memo relied upon by the petitioners herein finds no mention of Dag No.40.‛ 18.1. The learned Appellate Court also held that - ‚the petitioners also relied upon the Notification No.REV-
Page 48 of 8029/88-D/11162-68 dated 20.12.1990 wherein a piece of land measuring 13B-03K-17Ls covered by Dag No.40 contiguous to the existing Airport of Dimapur, at Diphupar village of Dimapur Mouza has been acquired from Shri K.N. Sekhose. However, the land under Dag No.40 alleged to have been acquired from one Shri K.N. Sekhose finds no mention in the list of landowners compensated. Rather, the name of two persons namely Shri Peleo Angami and Shri Imti Ao appears in the list of compensated landowners under Dag No.40. Both the lease deeds, dated 18.09.1989 and 25.11.1992, relied upon by the petitioners finds no mention of land under Dag No.40. The learned Trial Court then went on to hold that even presuming the question of acquisition is not under dispute, the land in question is required for expansion of the existing Dimapur Airport which at present is fully functional and operating on daily basis. It is not a case where structures has been built on the suit land and the construction work has been kept on hold and/or left unfinished because of litigation as a result of which the public are affected and unable to access the service. It is seen that developmental works are yet to be initiated. From the aforesaid observation arrived at by the learned Trial Court, on the issue of fourth dimension, and on the questions of public interest/policy, the learned Page 49 of 80 Appellate Court had held that there is no infirmity in the conclusion arrived by the learned Trial Court.‛ 18.2. The learned Appellate Court further observed that - ‚besides the above, lengthy submission was advanced by Shri K.N. Balgopal, the learned Advocate General for the state of Nagaland and also relied upon the Judgments of various High Courts and the Supreme Court. It is submitted by the learned Advocate General that the land situated at Diphupar Village, Ekranipathar Village and Ekaranigaon Village were acquired by the state government from various landowners' in a phased manner and compensation for the land was paid between the years 1988 and 2008. The said lands were acquired for extension of the existing Dimapur Airport and the same were leased by the State Government in 1989 to the National Airport Authority, New Delhi. It was further submitted that proforma respondent No. 14 and the transferees were trespassers and encroachers and are basing their claims on the basis of forged and fabricated documents. The proforma respondent No. 14 was temporarily allotted a plot of land subject to approval of the Government. It is also submitted that there is a ban on allotment of Government land to private individuals, since the year 1992, without prior and specific approval of the Government.‛ 18.3. Thereafter, learned Appellate Court observed that - ‚from the aforesaid, it is noticed that the proforma Page 50 of 80 respondent No. 14 and the other respondents are in physical possession of the suit land alleged to have been acquired by the Government for expansion of the Airport. However, it may be noted that the alleged encroachers were in physical possession of the suit land, on the basis of land pattas issued by the competent authority, where structures have been erected and buildings have come up. As such, the very fact that the proforma respondent No. 14 and the other respondents are in possession of the suit land and have erected structures on the basis of land pattas issued by the competent authority, which were later cancelled by the petitioner No. 3 herein, vide order dated 05.12.2019, the instant matter is a fit case for grant of temporary injunction. Further, as pointed out by Shri Akito Zhimomi, the learned counsel for the respondents, that the 8 respondents' were in possession of the land by virtue of sale and gift by proforma respondent No. 14, it may be noted that not all the land of proforma respondent No. 14 was allegedly by way of allotment from the Government but proforma respondent No. 14 had also purchased considerable area of land from the land owners. As such, this aspect of the matter should also be taken into consideration.‛ 18.4. The learned Appellate Court also observed that - ‚one pertinent aspect of the matter is that whether the two Page 51 of 80 orders of the Commissioner of Nagaland dated 30.11.2019, vide Order No.CNR-5/6/99(Pt-II)/1116 and Order No.CNR-5/6/99(Pt-II)/1117 can be sustained in the eyes of law. No doubt, under Section 12 of the Act, the Commissioner of Nagaland is the appellate authority. However, a perusal of the Act obviously shows that the Commissioner, Nagaland do not possess any original jurisdiction. These two orders dated 30.11.2019 were not passed by the Commissioner in his capacity as the appellate authority, but allegedly on the basis of his original jurisdiction which he do not possess under the Act.‛ 18.5. Thereafter, the learned Appellate Court had discussed the following judgments of the Hon'ble Supreme Court and of the High Courts, which were relied upon by the appellants to buttress their arguments:
(i) In Jai Bholenath Construction vs. The Chief Executive Officer & Ors, 923 WP No.14156 of 2021; by Judgment dated 30.03.2022, the Aurangabad Bench of the Bombay High Court, at Para 9, reiterated the view as expressed in N.G. Projects Ltd (supra) that -
"26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good."Page 52 of 80
Thereafter, the learned Appellate Court had observed that - ‚the instant case is not with regard to contract, but for a decree to declare the eviction order dated 11.12.2020, as null and void. The respondents had also in their suit prayed for a decree declaring the orders, dated 30.11.2019 and the order dated 05.12.2019, as null and void.‛
(ii) Thereafter, the learned Appellate Court had discussed the decision of this Court in State of Nagaland & Anr. vs. Avio Naleo & Ors, (2023) 1 GLT 634; wherein it was held at Para 43 that -
"(iv) The directions passed in the order dated 06.12.2005 by the Deputy Commissioner thereby allowing the respondent No.3 to enjoy his rights over the disputed land on the basis of long standing and continued occupation over the disputed land, would merely be a permission being granted by the Deputy Commissioner to remain in occupation of the land pending allotment/settlement made in favour of the respondent No.3. In that view of the matter, the respondent No.3 would have no rights as a proprietor, land holder, settlement holder over the land measuring 40 Bighas, 0 Katha, 0 Lecha which was covered by Dag No.36 of Patta No.19. The rights of the respondent No.3 over the said land to continue in possession would be subject to revocation of such permission by the Deputy Commissioner or by the State Government in accordance with law."Page 53 of 80
Then, the learned Appellate Court had went on to observe that - ‚with regard to the above, there are also various Notifications and Office Memorandums banning the allotment of Government lands to private individuals without prior and specific approval of the Government. Further, the temporary allotment is also subject to approval of the Government.‛
(iii) Thereafter, the learned Appellate Court had discussed the decisions of this Court in Naga United/Inavi Village & Ors v. State of Nagaland & Ors, 2011 SCC OnLine Gau 121; wherein it was held that -
"26. Whichever way we look at the problem, there is no doubt that the Villagers are rank encroachers in Intangki Wild Life Sanctuary and Intangki National Park and the State of Nagaland is fully entitled to evict them therefrom and to ensure that they do not continue with their encroachment in the Intangki Wild Life Sanctuary or the Intangki National Park.
33. .......However, if they continue to remain in occupation, then they will have to pay Rs. 5 lakhs per hectare per month to the State of Nagaland."
Then, the learned Appellate Court went on to observe that - ‚there is no dispute to the above proposition of law.
Once a person is shown and declared to be an encroacher, the state can initiate the process of
eviction against him. However, in the instant case it is the Commissioner, Nagaland who declared the proforma Page 54 of 80 respondent No. 14 and other respondents as encroachers on the basis of his alleged original jurisdiction which he do not possess under the Act.‛
(iv) Thereafter, the learned Appellate Court had discussed another decision of this Court in State of Nagaland v. Thilixu 'B', 2014 (2) GLT 829; wherein it was held that-
"11. Subsequently, the fourth dimension of public interest has been found to be a relevant consideration while deciding claim of injunction in appropriate cases. Obviously, the claimants of injunction here are opposing public Interest. The Government purportedly has been protecting Rangapahar Wildlife Sanctuary from encroachers. Whether the plaintiffs are encroachers or not would be decided in course of trial but undoubtedly the question of public interest appears relevant in the present case. The learned trial court has not considered even the said aspect of the matter. The one-page judgment granting injunction against the Government and that too against purported protection of Wild Life Sanctuary without there being necessary ingredients referred to above cannot be in any way be upheld. The impugned order dated 24.04.2012 lacks necessary ingredients for being a judgment at all. The learned trial court not having framed the point for determination in such an important issue involving public interest and thereafter not having objectively decided the same, the impugned order has been vitiated. On totality of circumstances, the impugned order dated 24.04.2012 is liable to be rejected."Page 55 of 80
18.6. The, the learned Appellate Court went on to hold that- ‚A perusal of the impugned order dated 22.11.2021 shows that the learned Civil Judge had framed the point for determination No.4 to consider the fourth dimension as the suit involves question on public interest/policy and went on to hold that the question of acquisition of the suit land by the state appellants is yet to be adjudicated and as such, the plea of the state appellants that it is for public interest that the suit land is required to be vacated was not accepted.‛ 18.7. Thereafter, the learned first appellate court had arrived at a finding that - ‚In view of the above discussion and the findings arrived at and also considering the matter in its entirety, the instant appeal fails and the impugned order dated 22.11.2021 passed by the learned Civil Judge Senior Division, Dimapur in I.A. (Civil) No.224/2020 arising from Civil Suit No.14/2020 is hereby upheld.‛ Consideration of Submissions of the Parties:-
19. In view of the facts and circumstances discussed herein above, there appears to be force in the submission of Mr. Balgopal, learned Advocate General, Nagaland that the finding, so recorded by the learned Appellate Court, in respect of the three golden principles, in granting injunction is based on erroneous interpretation of law as well as erroneous application of the same to the facts herein this Page 56 of 80 case. It is not in dispute that there is a statutory bar, under Section 41(ha) of the Specific Relief Act, for which no injunction can be granted in infrastructure projects as in view of the inclusion of infrastructure project such as Airports in the Schedule of the said Act.
19.1. The submission of Mr. Balgopal, stands fortified from the various decisions of Hon'ble Supreme Court, including in the case of N.J. Projects Ltd. vs. Vinod Kumar Jain and Ors., reported in (2022) 6 SCC 127 also. Further, as contended by Mr. Balgopal, despite the settled legal position, injunction was granted by the learned Trial Court giving the public interest a complete go- bye. Even it appears that the learned Courts below had gone to the extent of giving a finding that the petitioner State, in the suit, should first establish that they have acquired the land for expansion of Airport and further, it had recorded a finding that these trespassers have valid title. Further, it appears that as contended by Mr. Balgopal, the trespassers relied upon a bunch of documents to establish their title and there is doubt about the genuineness of those documents, which clearly show that the documents do not pertain to the Airport land and these are the documents based on which they had obtained injunction orders restraining the petitioners herein from evicting them and said order being confirmed by the Appellate Court.
19.2. It is worth noting in this context that Section 41 (ha) of the Specific Relief Act prohibits the grant of injunction with regard to infrastructure projects like Airport, being enumerated in the Page 57 of 80 Schedule of Section 41 (ha). This Section 41 (ha) of the Specific Relief Act was introduced by an amendment in 2018 and this amendment was considered by Hon‟ble Supreme Court in the case of N.G Projects Ltd. (supra). In Para 19 to para 21 and para 26 of the said judgment it has been held as under:
"19. The Specific Relief Act, 1963 was amended by Central Act 18 of 2018 when clause (ha) was inserted in Section 41 of the said Act to say:
Injunction cannot be granted in terms of section:
"41 (ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facilities related thereto or services being the subject matter of such project."
20. Such amendment was in pursuance of the report submitted on 20th June 2016 of the Expert Committee. The report is as under:-
"The Expert Committee set on examining Specific Relief Act, 1963 submits its Report to Union Law & Justice Minister Recommends modifications for ensuring ease of doing business The Expert Committee set on examining the Specific Relief Act, 1963 today Submitted its Report to Union Law & Justice Minister Shri D.V.Sadananda Gowda here in New Delhi. In its report the committee has recommended modifications in the Specific Relief Act, 1963 for ensuring the ease of doing business.Page 58 of 80
In the context of tremendous developments which have taken place since 1963 and the present changed scenario involving contract- based infrastructure developments, public private partnerships and other public projects, involving huge investments; and changes required in the present scheme of the Act so that Specific performance is granted as a general rule and grant of compensation or damages for non-performance remains as an exception, the committee decided i. To change the approach, from damages being the rule and Specific performance being the exception, to Specific performance being the rule, and damages being the alternate remedy.
ii. To provide guidelines for reducing the discretion granted to Courts and tribunals while granting performance and injunctive Reliefs.
iii. To introduce provisions for rights of third parties (other than for Government contracts).
iv. To consider addressing unconscionable contracts, unfair contracts, reciprocity in contracts etc., and implied terms.
The committee observed that there is a need to classify diverse public utility Contracts as a distinct class recognising the inherent public interest/importance to be addressed in the Act. Any public work must progress without interruption. This requires consideration whether a court's intervention in Page 59 of 80 public works should be minimal. Smooth functioning of public works projects can be effectively managed through a monitoring system and regulatory mechanism. The role of courts in this exercise is to interfere to the minimum extent so that public works projects will not be impeded or stalled."
21. Since the construction of the road is an infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the Writ Court while exercising its jurisdiction under Article 226 of the Constitution of India."
19.3. Thereafter, in paragraph No. 26, it has been held as under:-
"26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone."
19.4. In the instant case, a cursory perusal of the order of the learned Trial Court dated 22.11.2021, in I.A. (Civil) No. 224/2020, arising out of Civil Suit No. 14/2020, indicates that this amendment Page 60 of 80 was totally ignored by the learned Trial Court and though a discussion was directed to that effect, but no finding was recorded in this regard. Instead, it had granted injunction despite statutory prohibition. Further, from a perusal of the impugned judgment of the learned Appellate Court indicates that it had held that the statutory bar as projected by the appellant, will not operate in the instant case, as the suit was preferred by the respondents for a decree for declaring the order of eviction against the respondents as null and void and not for any infrastructure project. It also appears that the learned Appellate Court had further held that the learned Trial Court, while discussing the point for determination No. 4 with regard to fourth dimension i.e. public interest/policy, has observed that the question of acquisition of the suit land by the petitioners is yet to be adjudicated and went on to hold that the plea of the petitioners that it is for „public interest‟ that the suit land is required to be vacated cannot be accepted.
19.5. The finding, so recorded by the learned Trial Court as well as the learned Appellate Court appears to be fallacious in as much as, it is the categorical contention of the petitioners herein, from the very inception, that the suit land belongs to the Government of Nagaland, vide Notification dated 23.09.1992, published in the Nagaland Gazette, the land and premises, vested absolutely to the Government.
20. It appears that the respondents/plaintiff had claimed that they are the rightful owners and possessors of their respective plots of land, which they have received by way of gifts and/or sale from late Page 61 of 80 V. Atoshe Sumi @ Hutoshe Sema, who was the original owner of their land under Dag No. 38 and 40, situated at Diphupar area. The respondents had also claimed that they had been enjoying the possession of their respective plots of land by way of transferring and mutating their names in the land records maintained by the Office of the Deputy Commissioner, Dimapur, by issuing respective land pattas in respect of their respective plots of land.
20.1. It is their pleaded case that V. Atoshe Sumi on 10.10.1991 had purchased a plot of land on the banks of Diphupar river from one Mr. Vizheto Sema covered by Dag No.38, Diphupar, measuring an area of 9½ Bighas for a sum of Rs. 1,25,000/-. Thereafter, V. Atoshe Sumi on 09.09.1996 had purchased adjoining plot from Mr. Vizheto Sema under Dag No.38 measuring an area of 9B-4K-3L for an amount of Rs.2,85,000/-. The sale was witnesses by the then SDO (Civil), Dhansripar.
20.2. It is their further pleaded case that V. Atoshe Sumi on 05.03.1995, had purchased another plot of land from one Smti S. Khehoni, wife of late Sahoto Yeptho, measuring an area of 5 1/2 Bighas located at Diphupar Village for an amount of Rs.2,85,000/-. The land was free from all encumbrances.
20.3. Thereafter, on 05.03.2000, V. Atoshe Sumi purchased the remaining adjacent plot of land from Smti S. Khehoni measuring an area of 9 1/2 Bighas for an amount of Rs.2,85,000/-. Also V. Atoshe Sumi on 07.04.1995, had purchased the private plot of land with Teak Tree plantation from one Nitovi Yeptho, measuring an area of Page 62 of 80 1 1/2 Bigha located at Diphupar Village for an amount of Rs.57,000/-. Thereafter, on 07.07.1995, V. Atoshe Sumi purchased the remaining adjacent plot of land from Mr. Nitovi Yeptho measuring an area of 1 1/2 Bigha.
20.4. It is also their pleaded case that the Deputy Commissioner, Dimapur vide order dated 27.10.1993, issued temporary allotment of land measuring an area of 09B-04K-03Ls under Dag No. A/40 located at Diphupar to V. Atoshe Sumi. Thereafter, as directed by the Additional Deputy Commissioner, Dimapur, a spot verification was conducted by the office of Land Record Survey Officer (LRSO), Dimapur against the allotment of land to V. Atoshe Sumi under Dag No.40. The report of LRSO dated 09.07.1996 categorically stated that the land of V. Atoshe Sumi, under Dag No.40 of Diphupar village, falls outside the fencing of the acquired land for Airport Authority of India (AAI). On receipt of the spot verification report, the Office of Deputy Commissioner, vide Order No.VLS-25/90- D/6444-47, dated 02.09.1996, regularized in the name of V. Atoshe Sumi the allotment of the plot of land measuring an area of 09B- 04K-03Ls under part of Dag No.A/40 of Diphupar village which was earlier temporarily allotted to him. Then, the Deputy Commissioner, Dimapur vide Order No.VLS-31/76-D/Pt/2840-44 dated 23.05.2007, issued in the name of V. Atoshe Sumi a Jamabandi and/or Patta in respect of the plot of land measuring 09B-04K-03Ls under part of Dag No.A/40 at Diphupar village. Accordingly, the land Jamabandi/Patta No.45 for surveyed village under Diphupar was issued to V. Atoshe Sumi.
Page 63 of 8020.5. And the Deputy Commissioner, Dimapur vide Order No.VLS/91-D/Pt.file/1502-05 dated 10.08.2009 rectified Patta No.45, under Dag No.40/100 a plot of land measuring an area of 23B-03K-10Ls located at Diphupar village in the name of V. Atoshe Sumi. The said plot of land located at Diphupar village which was directed to be rectified includes the land bought by V. Atoshe Sumi from erstwhile land owners as described above.
20.6. It is also their pleaded case that the AAI, in the year 2002 encroached upon the private land of V. Atoshe Sumi while undertaking developmental activities. Then V. Atoshe Sumi had filed representations dated 06.08.2002, 11.07.2003 and 12.05.2007 to the Deputy Commissioner, Dimapur against the illegal encroachment of his land by the AAI and against developmental works being carried out without any compensation or negotiation with the land owner.
20.7. Thereafter, V. Atoshe Sumi, by way of gift and sale transferred to the respondents No.1-13 their respective plot of land from his registered land located at Diphupar Village. Thereafter, the respondents applied before the Office of the Deputy Commissioner, Dimapur for transferring and mutating their respective plots of land in their names. Then the Office of the Deputy Commissioner, Dimapur had conducted spot verification and advised that for mutation of their respective plots of land from the registered land of V. Atoshe Sumi, the Surveyor from the Office of the Deputy Commissioner had asked the respondents to prepare their respective sale deed/gift deed showing their land situated at Page 64 of 80 Ekranipathar. Accordingly, as advised by the Surveyor, the respondents prepared their respective sale/gift deeds showing their lands located at Ekranipathar and the Office of the Deputy Commissioner had mutated their lands and issued their respective land Jamabandi at Ekranipathar though their actual possession of land is situated at Diphupar Village.
21. However, it appears from the documents placed on record and further appears from the pleading of the petitioners and from the submission of Mr. Balgopal, learned Advocate General, Nagaland that on receipt of complaint by the Office of the Commissioner of Nagaland that V. Atoshe Sumi/proforma respondent No. 14, was in illegal occupation of land which was acquired by the State Government for extension of Dimapur Airport, under Dag No.38 and 40 of Diphupar Village, summons were issued to the land holders/respondents to appear before the Commissioner of Nagaland, the petitioners No. 2 herein.
21.1. The Commissioner of Nagaland after hearing the parties, vide Order No.CNR-5/6/99(Pt-II)/116, dated 30.11.2019, held Shri V. Atoshe Sumi and 22 other transferees, to be in illegal possession of public land at Dag No.38 and 40 and were declared as encroachers. The Commissioner, Nagaland then cancelled the Allotment Order No.VLS-5/86-D/1500-02, issued to V. Atoshe Sumi for an area of 27B-02K-08Ls in respect of land covered by Dag No.79 Ekaranipathar, but, recorded as Dag No.97 Ekaranipathar for an area of 47B-02K-08Ls in the Chitha and Jamabandi records.
Page 65 of 8021.2. Further, it appears that by the same order, the Deputy Commissioner, Dimapur was directed to immediately proceed for eviction as per law. The Deputy Commissioner, Dimapur vide Order No.REV-31/2016-D/1/5953-80, dated 05.12.2019, had cancelled the mutation order and the pattas issued to the 22 transferees, flowing from V. Atoshe Sumi‟s patta wherein the allotment order issued to V. Atoshe Sumi was cancelled.
21.3. Against the aforesaid order of the Commissioner, Nagaland dated 30.11.2019 and the order of the Deputy Commissioner, Dimapur dated 05.12.2019, the respondents/plaintiffs, whose pattas and mutation orders were cancelled, approached this Court by filing WP(C) No.151/2020, in the Principal Seat, wherein vide dated 08.01.2020, an order of status quo was passed in respect of possession of the transferees over the land covered by the impugned orders. Thereafter, the writ petition was transferred to Kohima Bench and renumbered as W.P.(C) No.7(K) of 2020 and vide order dated 09.12.2020, the petitioners were allowed to withdraw the writ petition with liberty to file a fresh one on the ground that due to miscommunication between the plaintiffs and their counsel at Guwahati, several relevant documents were not annexed and the pleadings were also misplaced.
21.4. The record also indicates that this Court while dealing with I.A. (Civil) No. 83 of 2020 filed by the petitioners to modify the interim order, dated 08.01.2020, passed the judgment and order dated 04.12.2020, modifying the status quo in respect of the land at Ekranipathar where the plaintiffs/respondents herein are all residing Page 66 of 80 and in physical occupation of the land covered by Dag No. 40 Patta No.45 at Diphupar.
21.5. Thereafter, the respondents herein had again instituted W.P.(C) No.216(K) of 2020 and vide order dated 11.12.2020 the writ petition was disposed of with a direction that the petitioner may approach the Civil Court.
21.6. Thereafter, the Deputy Commissioner, Dimapur had issued eviction order No. REV-31/2016-D/I/10365, dated 11.12.2020, wherein, the respondents were directed to vacate the land on or before 18.12.2020.
22. The record also indicates that the petitioners herein had contended that there is a statutory bar i.e. Section 9 of the Code of Civil Procedure in entertaining civil suit and that the learned Trial Court had exercised the jurisdiction not vested upon it. It is also their contention that the subject of the suit is with regards to eviction of persons in unauthorised occupation of public land, where the Nagaland Eviction of Persons in Unauthorized Occupation of Public Land Act, 1971 ("The Act", for short) expressly bars the Civil Court to entertain such nature of suit.
22.1. But, the learned Appellate Court had held that there is no dispute that under the Act, the Commissioner is the appellate authority, however, in the instant case, the respondents cannot take the order of the Deputy Commissioner, Dimapur, dated 05.12.2019, cancelling the order of mutation and their pattas and the eviction order dated 11.12.2020, on appeal to the Commissioner would not Page 67 of 80 be maintainable as the same would be against the principles of natural justice since the Commissioner would be sitting over his own cause, and that though it is strenuously argued by the counsel for the appellants that there is an express statutory bar to suits or legal proceedings vide Section 14 of the Act, and there is force in the submission advanced by the learned counsel for the respondents, but it had observed that the instant case involve issues with regard to rights, title and interest and that the same must be adjudicated and decided only by the ordinary Civil Courts, and the instant suit and the accompanying application for temporary injunction were instituted on the basis of the direction of this Court in the order dated 11.12.2021, in WP(C) No.216(K) of 2020, where it was observed by this Court that - "from the submission of the learned counsel of the petitioner it appears prima facie that this is a fit case for approaching the civil court, and therefore, the petitioner may approach the civil court," and this finding also appears to be erroneous in as much as, in fact this Court had never issued any direction to institute a civil suit. Rather, an observation was made, which is being misinterpreted by the learned Appellate Court to assume the jurisdiction.
22.2. Further, the record reveals that the Civil Suit No. 14 of 2020, was not filed for right, title and interest over a suit property. It was instituted by the respondents, inter alia, praying for the below noted reliefs: -
Page 68 of 80(a) A decree declaring the even dated Orders dated 30.11.2019 and the Order dated 05.12.2019 as null and void.
(b) A decree declaring the eviction Order dated 11.12.2020 as null and void.
(c) A decree declaring and directing the defendants (appellants herein) to properly and befittingly compensate the plaintiffs (Respondents No.1-13 herein) if the land of the plaintiffs be required for public development.
(d) The full costs of the suit;
(e) Any other reliefs which the court may deemed it fit and proper in the facts and circumstances of the case.
22.3. That being so, the learned Appellate Court had committed a grave mistake by making/recording such a finding. Even for the sake of argument, if it is accepted that the relief for right, title and interest is covered in the prayer (e), then also the suit for declaration of right, title and interest, where possession is not sought for, is hit by Section 34 of the Specific Relief Act and is thus not maintainable. [See- Ram Saran vs. Ganga Devi reported in (1973) 2 SCC 73 and Vinay Krishna vs. Keshab Chandra, reported in 1993 Supp (3) SC 129] 22.4. The learned Appellate Court had also placed reliance upon a decision of Hon‟ble Supreme Court in D.R. Chawla & Ors v. MCD, reported in (1993) 3 SCC 162; wherein it was held that where a statute bars the Civil Court's jurisdiction, a suit questioning the appellate order would be maintainable on ground of Page 69 of 80 jurisdictional error. But, reliance upon this decision also by the learned Appellate Court to assume jurisdiction not vested in it, appears to be misplaced.
23. It is the categorical contention of the petitioners‟ that V. Atoshe Sumi was allotted a plot of land in June, 1993, wherein it was mentioned that the land has been acquired for Airport expansion for which compensation has already been paid and the allotment was subject to vacating the land and not claiming compensation in terms of the said letter, followed by a temporary allotment of Dag No. A/40, and the said land was given to him because he was landless. The said land i.e. Dag No. A/40 is supposed to have been regularized in 1996. However, on 31st May 2005, on the ground that the site allotted to Atoshe falls within the Airport land, the same was cancelled on 31st May, 2005, by the Deputy Commissioner in the year 2005, after issuing several show cause notices, under the Nagaland Eviction of Person in Unauthorized Occupation of Public Land Act, 1971 were served upon Atoshe.
23.1. Admittedly, the order dated 31st May, 2005, has not been challenged by V. Atoshe Sumi, and therefore, it has become final. Further, V. Atoshe Sumi had relied upon a purported jamabandi of the same Dag No. A/40, two years after the cancellation. The factum of cancellation of the jamabandi, in the year 2005 was suppressed by the respondents. After such cancellation, the Deputy Commissioner has no power of review the same without permission of the Government. It is also stated that V. Atoshe Sumi had claims Page 70 of 80 that he had obtained Dag No. 117 by ratification of Dag No. 40/100, but such a procedure is not known in law.
23.2. It is not in dispute that by issuing various notifications, the Government has prohibited issuance of patta by the Deputy Commissioner without the approval of the Government. And these Notifications were upheld by a Division Bench of this Court in Avio Naleo (supra). It also appears that a report regarding the genuineness of the jamabandi with patta No. 45, Dag No. 40/100 of Block Diphupar was called for from the officer concerned, who had, vide his letter dated 10.01.2020, clarified that the jamabandi, purportedly signed by him, is not his signature and that he never issued such jamabandi. Further, report of the Surveyor, after spot verification, dated 09.12.2019 indicates that total area of land occupied under Dag No. 38, an area of 48B 00K-09L and under Dag No. 40, an area of 06B-00K 11L all total 15.9 Acres were encroached.
23.3. The learned Trial Court, however, solely relying on the pleadings of the parties, the documents relied upon by the parties and without going into the merits of the case, had held that the respondents herein had succeeded in establishing a prima-facie case in their favour. In arriving at such a finding, the learned Trial Court had relief upon the following facts and circumstances: -
(i) The respondents/plaintiffs are in actual physical possession of the suit land;Page 71 of 80
(ii) The finding of the defendant/O.P. No. 2 (petitioner No. 2 herein), is based on a report of one-man enquiry committee, wherein the plaintiffs/respondents had not participated;
(iii) It is an admitted fact that through V. Atoshe Sumi, the others i.e. respondents/plaintiffs had entered into possession of the suit land;
(iv) The parties were not given opportunity to defend their case, even if the land of the plaintiffs situated at Ekranipathar, not at Diphupar.
(v) The eviction order, dated 11.12.2020, indicates that notices issued on 05.12.2019 and deemed served in respect of the compliance is not acceptable.
(vi) The procedure laid down in Section 5 of the Act of 1971 has not been complied with before eviction order dated 11.12.2020, had been issued.
23.4. But, it appears that the basis of the claim of the respondent V. Atoshe Sumi is that the land was allotted in June, 1993 as because he was land less and there was some condition that the land has been acquired for airport expansion for which compensation has already been paid the allotment was subject to vacating the land and not claiming any compensation in terms of the said letter followed by temporary allotment of Dag No. A/40. The said land i.e. Dag No. A/40 is supposed to have been Page 72 of 80 regularized in 1996. However, on 31st May 2005, on the ground that the site allotted to V. Atoshe Sumi falls within the Airport land, the same was cancelled on 31st May, 2005, by the Deputy Commissioner in the year 2005, after issuing several show cause notices under the Nagaland Eviction of Person in Unauthorized Occupation of Public Land Act, 1971 were served upon V. Atoshe Sumi. This fact is not disputed. The cancelled order dated 31st May, 2005, having not been challenged, had already attained finality. That being so, the possession of the suit land by the respondent V. Atoshe Sumi, is held to be illegal on the date of filing the suit and the respondents had no valid title. It is well settled that in favour of a trespasser, injunction, being an equitable relief, cannot be granted.
23.5. For the reason aforesaid, the finding of „prima-facie‟ case in favour of the respondents, by the learned Trial Court as well as upholding the same by the learned Appellate Court, fails to withstand the legal scrutiny. When a trespasser, being in illegal possession of a government land, acquired for the purpose of extension of Dimapur Airport, the balance of convenience, being found in favour of the trespasser by the learned Trial Court and also by Appellate Court appears to be illegal and arbitrary. The third golden principle, i.e. irreparable loss also cannot be found in favour of a trespasser. Since the land in question has been acquired for extension of the Dimapur Airport, considerable public interest is involved therein, as it is the categorical contention of the petitioners that existing short runway fails to meet the requirement of a long Page 73 of 80 runway for landing of bigger aircraft as there is risk of accident. Thus, the fourth requirement also appears to be not in favour of the respondents herein.
24. Further, it appears that the learned Trial Court as well as the learned Appellate Court are not an authority, either appellate or revisional, under the Nagaland Eviction of Persons in Unauthorised Occupation of Public Land Act, 1971, to examine and decide the legality of the order of eviction being passed by the Deputy Commissioner, Dimapur. Therefore, the finding of the learned Trial Court that - from a bare reading of the Eviction Notice dated 11.12.2020, if it is to be presumed that show cause Notice dated 05.12.2019, is to be made applicable to the instant Eviction Order, dated 11.12.2020, and deemed served in compliance to the provision of law the same cannot be accepted and that the defendant/OP No.3, cannot rely upon the show cause Notice issued more than a year ago and issue a fresh eviction order after a year on the strength of the said show cause Notice issued more than a year ago, and as far as the Eviction order No.REV-31/2016- D/I/10365, dated 11.12.2020, is concerned the same had been issued without complying to the procedure laid down under Section 5 of the of The Nagaland Eviction of Persons in Unauthorized Occupation of Public Land Act, 1971, fails to withstand legal scrutiny. And further, the observation made by the learned Appellate Court that the suit was filed for right, title and interest, which has to be adjudicated upon, and assuming jurisdiction to Page 74 of 80 adjudicate the matter is perverse, being based on improper factual appreciation of the matter.
24.1. That, a perusal of Section 12 of The Nagaland Eviction of Persons in Authorized Occupation of Public Land Act, 1971 reveals that it provides for an appeal. Sub-section (1) read as under:-
(1) An appeal shall lie from every order made by the Deputy Commissioner under sub-section (1) of Section 5 or under Section 7 in respect of any public land to an Appellate Officer who shall be the Commissioner of the State of Nagaland.
(2) Every appeal referred to in sub-section (1) shall be referred within fifteen days from the date of service of the order on the person concerned:
Provided that where the Appellate Officer is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of fifteen days, he may allow the appeal to be preferred within a further period of thirty days.
25. Further, Section 14 of the said Act provides for a Bar to suits or other legal proceedings. It read as under: -
"No suit or other legal proceedings shall lie in any Court in respect of the eviction of any person who is in unauthorised occupation of any public land or the Page 75 of 80 recovery of any damages or costs awarded under this Act or any portion of such damages or costs".
26. This being the legal and factual position, the suit to challenge the legality, propriety and correctness of the eviction order dated 30.11.2019 and 11.12.2020, is not at all maintainable in view of Section 9 CPC, and the learned Advocate General, Nagaland has rightly pointed this out and this court is inclined to put judicial imprimatur to the same.
27. It is also to be noted here that in WP(C) No. 151/2020, filed by the respondent/plaintiffs, before the Principal Seat of this Court which was transferred to Kohima Bench and renumbered as WP(C) No. 7/2020, they had conceded in para No. 3, 5, 7, 8 and 11 that their land is at Ekaranipathar and not in Dag Nos. 38 and 40, and even at para No. 26 in the prayer clause the respondents had asked for protection of their land at Ekaranipathar. However, said WP(C) No. 7/2020 was withdrawn by them, but it is well settled that the admission made in one case can be used in another case between the same parties. But this aspect also eschewed consideration of both the courts below.
28. Thus, to recapitulate, on the following grounds, the impugned order of the learned Appellate Court and the impugned order of the learned Trial Court have failed to withstand legal scrutiny: -
(i) Section 14 of the Nagaland Eviction of Persons in Unauthorised Occupation of Public Land Act, 1971, imposed a bar to suits or other legal proceedings and as Page 76 of 80 such in view of Section 9 of the Code of Civil Procedure, the suit itself is not maintainable;
(ii) Merely because the Commissioner, being an appellate authority, and being involved in the process of issuance of eviction notice to the respondents, the learned Trial Court or the learned Appellate Court cannot assume jurisdiction on such count, as such jurisdiction is not vested upon it by the statute.
(iii) The land in question, being acquired for extension of Dimapur Airport and in view of Section 41 (ha) and Schedule of the Specific Relief Act, extension of Airport being an infrastructure project, injunction cannot be granted.
(iv) The Dag number of the land being claimed by the respondents, and the land in respect of which eviction notice was issued for being illegally occupied by them, is different, while the land of the respondents admittedly situated at Ekranipathar, the land in illegal occupation is situated at Diphupar.
(v) Having not been any authority, either appellate or revisional, under the Act of 1971, and having not been vested with any power under the said Act, the learned Appellate Court had no authority to comment/examine Page 77 of 80 the legality of the eviction order, being passed by the Deputy Commissioner, Dimapur.
(vi) The land under Dag No. 38 and 40 at Diphupar were acquired by the Government and vide Notification dated 23.09.1992, the same were vested with the Government as per Section 6(2) of the Nagaland (Requisition and Acquisition) Act, 1965, and it was published in the Official Gazette and by virtue of it the Government is the absolute owner of the same. That being so, the finding of the learned Appellate Court in respect of fourth dimension is perverse.
(vii) Besides, the three golden principles, including the fourth one, were arbitrarily decided in favour of the respondents ignoring the settled principles of law.
(viii) The land under Dag No. A/40, was cancelled on 31st May, 2005, by the Deputy Commissioner in the year 2005, after show cause notice, under the Nagaland Eviction of Person in Unauthorized Occupation of Public Land Act, 1971 and the said order had already attained finality and on such count possession of the suit land by the respondents on the date of filing of the suit was illegal and their status becomes trespasser, as the respondents had no valid title on that day, an equitable relief, like injunction, cannot be granted to a trespasser.
Page 78 of 80(ix) In WP(C) No. 7/2020, they had conceded in para-No. 3, 5, 7, 8 and 11 that their land is at Ekaranipathar and not in Dag Nos. 38 and 40, and even at para-No. 26 in the prayer clause the respondents had asked for protection of their land at Ekaranipathar. But the Courts below had not taken note of the same.
29. In the result, and for the reason aforesaid, this Court finds sufficient merit in this petition and accordingly, the same stands allowed. The impugned order dated 29.09.2023, passed by the Principal District Judge, Dimapur, in Civil Appeal No. 24/2023, vide which the learned Principal District Judge, Dimapur had upheld the order dated 22.11.2021, passed by the learned Civil Judge (Senior Division), Dimapur in I.A. (Civil) No. 224/2020, arising out of Civil Suit No. 14/2020, in granting temporary injunction in favour of the respondents/plaintiffs in respect of the land under Dag Nos. 38 and 40 of Diphupar area and restraining the petitioner No. 3 from executing the eviction order dated 11.12.2020, stands set aside and quashed.
30. It is, however, true that this civil revision petition is not supported by any affidavit as required under Chapter 5A Rule-1 of the Gauhati High Court Rules. Mr. Das, the learned counsel for the respondent No.14 has rightly pointed this out. But the petition is supported by a certificate. Moreover, this is a ground, too technical, to deny the relief being sought for to the petitioners.
Page 79 of 8031. Before parting with the record, this court is inclined to make it clear that the observations, made herein above, are only for the purpose of disposing of the present petition.
32. In terms of above, this writ petition stands disposed of. Send down the records of the learned Trial Court as well as the learned Appellate Court, along with a copy of this judgment and order. The parties have to bear their own costs.
JUDGE Comparing Assistant Page 80 of 80