Allowed

John Khriesaneihu and 5 Ors. v. the State of Nagaland and 3 Ors.

Gauhati HC8 Apr 2022WP(C)/86/2018

Case brief

AI extract

What is this about?

The Gauhati High Court set aside the Deputy Commissioner's order cancelling a land patta and eviction orders held ultra vires. The Deputy Commissioner lacked statutory power under the Nagaland Eviction Act to cancel a valid patta without declaring unauthorised occupation. The matter was treated as a private dispute requiring due process.

What did the court decide?

Impugned order dated 22.01.2014 and appellate order dated 01.10.2016 set aside; eviction orders struck down; petitioners restored possession of land 45 x 15 sq.ft.

John Khriesaneihu and 5 Ors. Vs the State of… — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/14

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GAHC020001882018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH

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Case No. : WP(C) 86/2018

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1:JOHN KHRIESANEIHU AND 5 ORS NEW MINISTERS HILL, KOHIMA

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2: S.D. RUPREO

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NEW MINISTERS HILL KOHIMA

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3: VIZOVONUO RUPREO NEW MINISTERS HILL KOHIMA

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4: KEDUOVITUO RUPREO NEW MINISTERS HILL KOHIMA

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5: MHASILENUO RUPREO MISSION COMPOUND URA ACADEMY

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6: NEILAKUOLIE NEW MINISTERS HILL KOHIM

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VERSUS

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1:THE STATE OF NAGALAND AND 3 ORS. KOHIMA

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2:THE COMMISSIONER N/L KOHIMA N/L

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Page No.# 2/14

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3:THE DEPUTY COMMISSIONER KOHIMA KOHIMA N/L

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4:KIPFELIE TERHASE

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RESIDENT NEAR ASSEMBLY OF GOD SCHOOL HOSPITAL COLONY KOHIMA N/

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Advocate for the Petitioner : R. IRALU, SR. ADV

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Advocate for the Respondent : GOVT ADV NL

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BEFORE

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THE HON’BLE MR JUSTICE ARUN DEV CHOUDHURY

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For the Petitioner : Mr. R Iralu, Sr. Advocate Mr. L Iralu, Advocate

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For the State respondents : Ms. A Ayemi, learned State counsel.

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For the Pvt. Respondent No. 4: Mr. Tongpok Pongener, Advocate

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Date of hearing :31.03.2022, 05.04.2022 Date of Judgment & Order :08.04.2022

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JUDGMENT & ORDER (CAV)

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Heard Mr. R Iralu, learned Senior counsel assisted by Mr. L Iralu, learned counsel for the petitioners. Also heard Ms. A Ayemi, learned State counsel and Mr. Tongpok Pongener, learned counsel for the private respondent No. 4.

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Page No.# 3/14 2. By way of the present writ petition the petitioners challenge the order dated 22.01.2014 whereby the order of allotment of land in favour of the predecessor in interest of the petitioners measuring 675 sq.ft. was cancelled. The further challenge is the eviction order dated 28.08.2014 and 20.09.2014. The petition was filed by the predecessor in interest of the present petitioners. As the said petitioner died in the meantime, the present petitioners were substituted in the present proceeding as petitioners by this court by order dated 13.12.2019 passed in IA No. 171/2019.

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The brief facts in sequence on the basis of the pleading of the parties can be summarized as under:

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(I) The predecessor in interest of the petitioners was allotted a plot of land measuring 45 ft X15 ft or 675 sq. ft. near PWD Central Store, Kohima Town vide allotment order No. REV/LS/22/76(Pt) dated 15.02.1989 with certain boundaries.

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(II) Subsequently, the petitioner was granted construction permission by the Deputy Commissioner and accordingly a kutcha house was constructed.

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(III) It is the case of the petitioners that on the basis of the allotment order dated 15.02.1989, land patta was issued in favour of the predecessor in interest of the petitioners on 27.04.1991 being patta No. 2553 and plot No. 2040.

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(IV) Thereafter, a plot of land belonging to the respondent No. 4 was

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Page No.# 4/14 sought to be used for traffic control room situated opposite to SKV Petrol Pump at Kohima and accordingly a proposal was initiated for allotment of Government quarter being quarter No. PWD/CH/58 in favour of the respondent No. 4.

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(V) In the meeting of SLAA held on 23.10.2008 it was decided to see whether the said quarter is in the midst of other Government quarter or in an isolated location suitable for allotment to the respondent No. 4 and accordingly the Deputy Commissioner, Kohima along with W&H Department was directed to verify the same.

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(VI) Thereafter, the Superintendent Engineer, PWD(H) submitted a report. The map annexed to the said report shows that the quarter No. 58 is bounded in north by quarter No. 59, in south by one private quarter, in West by another private quarter (of Mr. Kaikho Mao, the father of the present petitioners) and East by private quarter. Thereafter the Chief Engineer, PWD (H) by its communication dated 05.06.2009 addressed to the Commissioner & Secretary, W&H Department submitted the report.

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(VII) On 31.08.2009, the old patta granted in favour of the predecessor in interest of the petitioners was renewed after payment of all pending land revenue and a new patta was issued being patta No. (new) 6271 and plot No. 2040.

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(VIII) The Deputy Commissioner, Kohima by its communication dated 15.11.2009 addressed to the Secretary, Land and Revenue Department intimated that the quarter proposed to be allotted in favour of the

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Page No.# 5/14 respondent No. 4 at PWD colony is surrounded by private buildings, except a single Government quarter in its northern side.

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(IX) The SLAA, in the meeting held on 07.09.2010 decided to allot quarter No. PWD/CH/58 in favour of the respondent No. 4 in lieu of traffic control room situated opposite SKV petrol pump.

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(X) Thereafter the Deputy Commissioner, Kohima by allotment order dated 30.07.2011 allotted the Government quarter No. 58 with the land in favour of the respondent No. 4.

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(XI) On the basis of an application filed by the respondent No. 4 alleging that the predecessor in interest of the petitioners started constructing a building on the Western portion of the land allotted to the respondent No. 4, the Deputy Commissioner by passed an order dated 04.01.2012 restraining the encroachers from further development.

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(XII) On 04.09.2012, alleging that in spite of such restraint order the encroacher continued such work, the respondent No. 4 again lodged a complaint before the Additional Chief Secretary and Commissioner, Nagaland.

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(XIII) On 26.09.2012, the Deputy Commissioner issued a direction to dismantle the illegal construction within a period of 14 days from the date of issue of such order.

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Page No.# 6/14

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(XIV) On 18.10.2012 another notice was issued for joint spot verification to be held on 25.10.2012.

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(XV) Thereafter, the respondent No. 4 on 06.11.2012 filed an application before the Deputy Commissioner to cancel the patta granted in favour of encroacher and the aforesaid fact as narrated in the four preceding paragraphs were stated in such application dated 06.11.2012.

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(XVI) Thereafter on 06.06.2013, the predecessor in interest of the petitioners requested the Commissioner, Nagaland to allow her to continue with the construction.

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(XVII) By a communication 19.07.2013 issued by the SDO (C), Hq in response to the communication dated 06.06.2013 intimated that the issue of encroachment relating to the quarter No. 59 has been settled and only dispute remains in between the petitioners and respondent No. 4. It is pertinent to mention that a notice dated 26.09.2012 and restraining order dated 23.02.2012 were issued in respect of the quarter No. 59 and not in respect of quarter No. 58.

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(XVIII) Thereafter the Deputy Commissioner, Kohima by impugned order dated 22.01.2014 cancelled the patta allotted in favour of the predecessor in interest of the petitioners and declared the same to be null and void and further directed the predecessor in interest to handover the possession of the land to the respondent No. 4. The respondent No. 4 was directed to pay a lumsum amount of Rs. 3,00,000/- in favour of the predecessor in interest of the petitioners. Such compensation was granted

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Page No.# 7/14

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on humanitarian ground. Further direction to execute the order was also issued.

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(XIX) Thereafter, a final notice dated 30.04.2014 was issued to the predecessor in interest of the petitioners to collect the compensation amount and thereafter on 28.08.2014 eviction order was issued.

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(XX) The appeal preferred by the predecessor in interest of the petitioners was dismissed by the appellate authority on 01.10.2016.

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The basic ground of challenge by the petitioners is non-compliance of the principle of natural justice and the power and authority of the Deputy Commissioner to cancel a patta in exercise of his power under the Nagaland Eviction of Person in Unauthorized Occupation of Public Land Act, 1971 (in short the Act, 1971).

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It is the case of the petitioners that no notice was issued to the predecessor in interest of the petitioners while cancelling the patta allotted and issuing the order of eviction. According to the learned Senior counsel Mr. R Iralu, representing the petitioners the notices that were issued to the petitioners relates to the quarter No. 59 and not in respect of quarter No. 58. It is the further case of the learned Senior counsel that by communication dated 20.07.2013 the SDO (Civil) has in no unambiguous term clarified that the dispute relating to quarter No. 59 has already been settled and only dispute remains to be settled is the dispute between the petitioners and the respondent No.4. Therefore, a private dispute could not have been decided by the Deputy Commissioner in exercise of power under the Act, 1971, that too without giving

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Page No.# 8/14

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any opportunity of hearing to predecessor in interest of the petitioners, submits Mr. Iralu, learned Senior counsel.

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The State of Nagaland more particularly the respondent Nos. 1 and 2 by filing affidavit-in-opposition took a stand that the allotment made in favour of the predecessor in interest of the petitioners and subsequent patta issued in her favour were done without following due process of law and no materials are available on record to show that settlement was made and patta was issued in favour of the predecessor in interest of the petitioners. The said respondent has also taken a stand that the signature of patta issuing authority is itself doubtful and therefore the same is liable to be annulled at any time after detection. The respondents also relied on certain verification report to substantiate their stands. It is the case of the State respondent that notice was issued upon the husband of the original petitioner.

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The respondent No. 4 also contested the case by filing his affidavit-inopposition. The case projected by the respondent No. 4 is that he was duly allotted the plot of land in lieu of traffic control room situated opposite of SKV petrol pump and the said land has been encroached by the predecessor in interest of the petitioners and thus he has been deprived of his right. He also supported the stand of the State respondent that the allotment order and issuance of patta are illegal and dehors the established procedure. He also raised the dispute regarding the authenticity of the signature of the patta issuing authority.

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Another contention has been raised by Mr. Tongpok Pongener, learned counsel for respondent No. 4 that this writ petition is liable to be dismissed for

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Page No.# 9/14 suppression of material fact. According to the respondent No. 4, the petitioner approached the Village Council Court of Tsutuonuomia, which is the original land owner and accordingly said court directed that an area of land of 675 sq. ft. be demarcated and shall belong to the petitioners rest to respondent No. 4 and both the parties shall pay the cost of the land to the Tsutuonuomia and it is the case of the respondent No. 4 that it has already paid the amount to the Tsutuonuomia and such fact has been withdrawn from this court.

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I have given anxious consideration to the submissions made by the learned counsels for the parties. Also perused the materials available on record.

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The fact narrated hereinabove reflects claims and counter claims of the petitioners and the respondent No. 4 over the plot of land in question. Admittedly, the procedure under the Act, 1971 was initiated on the basis of the claim of the respondent No. 4. Admittedly, no notice was issued to the patta holder i.e. the mother of the present writ petitioners though a stand has been taken that notice was issued to the father of the present petitioners. There is no dispute that the impugned order cancelling the patta and allotment made in favour of the mother of the petitioners was done in exercise of power under Act, 1971.

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The Act, 1971 defines Public Land as land belonging to or taken on lease by the State Government, a local authority, a Government Company or a Corporation owned and controlled by the State Government and includes any land requisitioned by or on behalf of the State Government.

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Unauthorised occupation of public land has been defined as use or occupation by any person of public land without, any authority in writing of the

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Page No.# 10/14 appropriate officer. Such unauthorised occupation also includes occupation by any person of public land after expiry of or determination of any authority under which such public land was occupied.

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The Act, 1971 further provides that the Act shall have overriding effect over any Custom and uses which permit or purport to permit the use or occupation of any public land by any person or by group of person without the sanction of appropriate officer.

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In the case in hand, on the date of impugned order dated 22.01.2014, the mother of the petitioners was having an order of settlement as well as a patta in her favour. The Act, 1971 do not empower the Deputy Commissioner either to cancel any settlement of land made in favour of any person or to cancel any patta issued in favour any person. Therefore, in the aforesaid backdrop, though the genuineness of the order of settlement and issuance of patta in favour of the mother of the petitioners were doubted, in absence of any power being conferred upon the Deputy Commissioner to cancel such patta or cancel such allotment of land under the provision of Act, 1971, the action of the Deputy Commissioner in issuing the impugned order, in considered opinion of this court is without any sanction and authority under the Act, 1971. Therefore, the order dated 22.01.2014 is a nullity and all consequential order thereof is liable to be struck down.

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However, such finding shall not deter the State authorities to proceed in accordance with law by following principles of natural justice i.e. issuing notice to the petitioners and giving them reasonable opportunity of hearing, if the State doubts the genuineness of the allotment of the land in question and the patta issued.

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Page No.# 11/14

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The procedure mandated under Section 5 of the Act, 1971 is that if the Deputy Commissioner is of the opinion that any person is in unauthorised occupation over public land, the Deputy Commissioner is to issue a notice in such form and containing such particular as may be prescribed, calling upon the person concerned to show cause why an order of eviction shall not be issued.

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Section 6 of the Act, 1971 facilitating the person concerned not only show cause but allows the parties to adduce evidence and further empowers the Deputy Commissioner to make an enquiry.

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In the case in hand, admittedly the notice was issued to the father of the petitioners and the father of the petitioners was not the patta holder. Over and above, the impugned order of the Deputy Commissioner is based on the following finding:

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(I) The dispute is land dispute between the mother of the petitioners and the respondent No. 4.

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(II) It is necessary to examine the merit of the case basing of the genuineness and authenticity of the allotment made in the case.

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(III) Allotment made in favour of the mother of the petitioners was without following laid down procedure. No specific report is available.

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(IV) In view of such finding the Deputy Commissioner is convinced that allotment of land in favour of the allottee is not a valid allotment and

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Page No.# 12/14

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therefore same was cancelled.

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The Act, 1971 makes it abundantly clear that while exercising its power under the Act, 1971 the Deputy Commissioner must form an opinion that public land is under authorised occupation. The definition of unauthorised occupation clearly shows that the land which is under alleged unauthorised occupation must be a public land. Public land means a land belonging to Government etc. Therefore in the considered opinion of this court until and unless the allotment order and patta issued in favour of the predecessor in interest of the petitioners are cancelled by following due process of law, the predecessor in interest of the petitioners cannot be said to be unauthorised occupant and proceeding under the Act, 1971, could not have been initiated against her.

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Even if this court goes by the allotment order dated 30.07.2011 allotting the Government quarter No. 58 with land in favour of the respondent No. 4, from that date the said property no more remains a public land defined under the Act, 1971. From the impugned order dated 22.01.2014 of the Deputy Commissioner it reflects that the dispute is a private dispute. In that view of the matter also the Deputy Commissioner could not have decided the private dispute between two citizens.

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Further as held hereinabove the Deputy Commissioner is not empowered to cancel a patta or to cancel allotment of land, in exercise of his power under the Act, 1971.

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The argument of the respondent No. 4 regarding suppression of fact of approaching the Village Council, this court is of the considered opinion that the

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Page No.# 13/14

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fact of approaching Village Council and the resultant order, is having no material bearing for determination of the issue involved in the present case inasmuch as the issue of jurisdiction of the Deputy Commissioner in cancelling the patta in question is having no nexus with the order of the Village Council. It is no more res-integra that the fact suppressed must have material bearing for determination of the issue and then only court can refuse relief to a person who suppresses material fact.

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In view of the aforesaid reasons and decisions, the order of appellate authority dated 01.10.2016 is also liable to be struck down. Accordingly, the impugned order dated 22.01.2014 and appellate order 01.10.2016 are set aside and quashed and consequently all the orders of eviction impugned are also set aside. Consequently, the Deputy Commissioner, Kohima is directed to forthwith restore the possession of the petitioners over the plot of land measuring 45 ft X15 ft sq. meter near PWD Central Store, Kohima Town vide allotment order No. REV/LS/22/76(Pt) dated 15.02.1989 being patta No. 2553 (O) 6271 (N) and plot No. 2040.

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This court cannot be oblivious of the right of the respondent No. 4. If his land / building has been taken by the State, he needs to be compensated as per law. However, the same cannot be at the cost of the right of the predecessor in interest of the petitioners or by way of a proceeding not permitted under Law. Therefore, it is made clear that the present order cannot be treated as determination of the right and claim of the contesting parties over the disputed land and as such the parties are at liberty, including the respondent No. 4 to agitate his right before competent forum / authority and the State to proceed following due process of law, if they want to cancel the patta issued in favour of

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Page No.# 14/14

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the predecessor in interest of the petitioners, if law permits the same.

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In terms of the above, the writ petition is allowed. However no order as to cost.

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JUDGE

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Comparing Assistant

John Khriesaneihu and 5 Ors. v. the State of Nagaland and 3 Ors.

Case brief

What is this about?

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John Khriesaneihu and 5 Ors. v. the State of Nagaland and 3 Ors.

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What the court decided

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