Executive Can't Enforce DV Order: Gauhati High Court Quashes Annulment Of Husband's Land Possession Certificate
The Gauhati High Court quashed an order passed by appellate authority under Arunachal Pradesh government's land management department which had cancelled a land possession certificate issued to a husband, based on alleged violation of interim order by the trial court in favour of his estranged wife under domestic violence act. In doing so the court observed that the appellate authority lacked...
The Gauhati High Court quashed an order passed by appellate authority under Arunachal Pradesh government's land management department which had cancelled a land possession certificate issued to a husband, based on alleged violation of interim order by the trial court in favour of his estranged wife under domestic violence act.
In doing so the court observed that the appellate authority lacked the jurisdiction to pass such an order, and any order lacking jurisdiction is null and void.
Justice Manish Choudhury, observed, “An order by an authority lacking the proper jurisdiction is considered void and a nullity in law having no any legal effect whatsoever.”
“…the action taken by the respondent no. 1 for cancellation of the LPC dated 29.05.2017 by interpreting an order of a judicial court of competent jurisdiction has been found to be one which is unauthorized in law, thereby, making the impugned Order dated 11.03.2024 non-est in law,” the Court added.
The dispute arose from an interim protection order issued by the Trial Court in a domestic violence case, whereby, the Trial Court directed the husband not to alienate a property which the wife had claimed was shared household, without court's permission. Later, the husband (donor) executed a gift in favour of another person (donee), on the basis of which a fresh LPC was issued.
The wife then moved the high court in a writ petition which disposed of her plea directing the deputy commissioner to "consider" and dispose of the wife's complaint for cancellation of the LPC after giving reasonable opportunity of hearing to all the three stakeholders–donee, husband and wife.
The Deputy Commissioner refused to interfere and stated that any aggrieved party could approach the appropriate court.
The wife then appealed and the Secretary (land management department), acting as appellate authority, cancelled the LPC by interpreting the Trial Court's restraining order as prohibiting any change of ownership. Against this the husband and the donee moved the high court.
The petitioners (husband and donee) argued before the high court that the Secretary could not interpret or enforce a judicial order passed by the Trial Court, and that any alleged breach of the interim protection order must be raised before the Magistrate under the Domestic Violence Act. The State aligned with this position, producing an official communication stating that the Secretary had wrongly presumed jurisdiction
The Court, in its order, reiterated whenever a writ petition is disposed of with a direction to an authority to consider a representation/complaint, etc. pending before the authority, without making an examination of the contentions raised therein or of the legal questions involved on merits and without recording any findings on the issues involved, such a direction to consider does not amount to an order to the authority to grant the relief sought for.
It observed, “When a Court directs an authority to consider, without examining the merits of the claim made in a representation/complaint etc., the authority is required to apply its mind to the facts and circumstances of the case and then to take a decision in accordance with law, which would include the power to refuse the relief sought for.”
“A simple direction to consider and dispose of a representation/complaint is not to be construed as a positive direction to grant the relief sought for. 'Consider' means to look at closely and carefully; to think or deliberate on; to take into account,” the Court added.
The Court further stated that the power to enforce or examine breach of a protection order lies exclusively with the Trial Court.
It noted, “Indubitably, the Order dated 10.06.2015 is a judicial order … the respondent no. 4 as the aggrieved person has the remedy of enforcing the interim protection order by approaching the Trial Court by appropriate application. ... a recourse has not been taken by the respondent no. 4(wife) before the Trial Court to enforce the interim protection order.”
“Had such a recourse being taken to enforce the interim protection order alleging breach of it by making a petition directly to the Trial Court as per the procedure laid down in Rule 15 of the Protection of Women from Domestic Violence Rules, 2006, the Trial Court after consideration, would have the authority and jurisdiction to enforce its own order be it a protection order or an interim protection order, if it finds that the action of the respondent, that is, the petitioner no. 2 to alienate the subject-plot was in breach of its direction,” the Court further noted.
The Court, thus, set aside the cancellation order, holding, “the impugned Order ... passed by the respondent no. 1 is set aside and quashed as it has suffered from lack of jurisdiction. Consequently, the writ petition is allowed to that extent. There shall, however, be no order as to cost.”
Case Title Smti Likha Nap & Anr. v. State of Arunachal Pradesh & Ors.
Case No.:WP(C) No. 151[AP]/2024