Shri Itesh Shyam Ali alias Ali Khan vs The State of Nagaland and Another

K.N. Saikia, J.—This is a writ application under Article 226 of the Constitution of India impugning the order No. JUD/ILP/84-85 dated 9th October, 1984 passed by the Deputy Commissioner, Tuensang, Nagaland, cancelling the Inner Line Permit of the Petitioner with immediate effect and externing him and ordering him to leave Tuensang within seven days from the date of issue of the order.

The Petitioner, after obtaining an Inner Line Permit issued under the provisions of the Bengal Eastern Frontiers Regulation, has been residing in Tuensang since 1971 working three as a Government Contractor. On 9.10.84 the Deputy Commissioner, Tuensang, served on him the following impugned order:

The undermentioned I.L.P. holders of Tuensang town who are found indulging in undesirable activities are here-by externed from. Tuensang District and their I.L.Ps are hereby cancelled with immediate effect.

Shri. Hari Kishan Kothari, s/o Jathmol Kothari holder of I.L.P No. 6701.

Shri S.K. (sic) S/o Late S.K. Iyassin holder of I.L.P. No. 524.

Shri Itesh Shyaa All (Ali Khan) S/o Md. Ahmed holder of I.L.P. NO, 5546.

They shall leave Tuensang within 7 (seven) days from the date of issue of this order.

Sd. S.S. Rai, I.A.S. Deputy Commissioner, Tuensang,

It is stated by Mr. D.C. Mahanta, the learned Counsel for the Petitioner, that the Petitioner has since obtained an order from the Deputy Commissioner extending the period of his stay at Tuensang till 30.10.84 and he is still at Tuensang by virtue of that order.

Mr. Mahanta submit that the impugned order affected his liberty and it was passed without giving him any opportunity to show cause. From the tenor of the order also if does not appear that any opportunity was given to the Petitioner oner to state his case. The ''undesirable activities'' have not also been specified. It also does not show under what provision of law it has been passed.

Mr. Z. Angami, the learned Government Advocate, Nagaland, submits that the order has been passed under the Chin Hills Regulation, 1896, (shortly, the Regulation) and that the Petitioner has his, alternative remedy under that Regulation by way of revision before the state Government and hence this Petitioner is not entertainable .

Mr. Mahatma does not deny that the order was passed under that Regulation. Only Sections 22, 23, 35, 38(2) and 40 of the Regulation were in force in kohima and Mokokchung districts vide Notification No. 784 P dated 9.10.1911. These sections are also in force in Tuensang District vide the Tuansang Frontier Division (Assimillation of Laws) Regulation, 1955 (Regulation 4 of 1955),. Section 40 of the Regulation clearly lays down that no order made under Clause (1) shall be called in question in any Civil or Criminal Court. Section 38(2) of the Regulation provides that the State Government may revise any order passed under Clause (1) of that section.

In Ganpatrai Agarwalla Vs. The State, a Division Bench of this Court held that an order passed u/s 22 of the Regulation cannot be called in question in any Civil or Criminal Court. The Provincial Government alone has the power to revise such orders. Section 22 provides: "Where the Superintendent or the Deputy Commissioner of an area specified in the Schedule is satisfied that the presence of any person not being a native of such area is injurious to the peace or good administration of the area, he may, for reason to be recorded in writing, order such person to leave the area within a given time''. There is no dispute that the impugned order has been passed u/s 22 of the Regulation However, in the instant case the question is not of jurisdiction of the Deputy Commissioner to pass the impugned order but of violation of principles of natural justice. The instant petition is not under the provision of the Regulation, but under Article 226 of the Constitution of India.

In Shri Abhimanya, Kalita v. The Deputy Commissioner and Ors. (1983) 2 GLR 101 , it has been held by this Court that where no opportunity was given to the Petitioners before passing an order under the Regulation affecting the Petitioner''s civil rights such an order was liable to be set aside in exercise of writ jurisdiction of this Court. This view has been based on a catena of decisions including Bata Shoe Co. Ltd. Vs. City of Jabalpur Corporation, ; Malak Singh and Others Vs. State of P and H and Others, ; State of Karnataka Vs. Pratap Chand and Others, and that of Swadeshi Cotton Mills Vs. Union of India (UOI), In that case reliance was also placed on Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, ; Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, ; Prem Chand (Paniwala) Vs. Union of India (UOI) and Others, as well as Wire-Netting Stores and Another Vs. The Delhi Development Authority and Others, Reference may also be made to Civil Rule No. 366175 dated 16.9.74 (Wasir Lama v. The Deputy Commissioner, Kameng District, Bomdila) and Civil Rule No. 22176 dated 22.9.76 (Wasir Lama v. Union Territory of Arunachal Pradesh).

An order passed in violation of the principles of natural justice is void ab initio and is to be regarded as non est. It has also been expressed that such at order it not even required to be set aside being void ab Initio. As in the instant case the Petitioner grievance it that he was not given any opportunity whatsoever to state his case and as the impugned order cancelling the Petitioner Inner line Permit and externing him from Tuensang affects his civil rights, the Petitioner-was entitled to be given a reasonable opportunity to show cause before such drastic action was taken against him. In such cases existence of alternative remedy would be no bar to interference in writ as was held in Baburam Prakash Chandra-Maheswari v. Antaria Zila Parishad AIR 1951 SC 556 . read with Wire-Netting Stores and Another Vs. The Delhi Development Authority and Others,

Mr. Mahanta has fairly agreed that the Petitioner, in view of the above provisions of the Regulation, should approach the appropriate authority by submitting a representation before 30.10.84. We direct the Deputy Commissioner, Tuensang to give the Petitioner a fair bearing on his representation and take decision according to law. Till then the impugned order shall not be given effect to and the Petitioner shall not be compelled to leave Tuensang. If the Petitioner feels aggrieved at the decision of the Deputy Commissioner, it will be open for him to approach the State Government for revision as provided u/s 38(2) of the Regulation.

With the above direction this petition is disposed of.