Card Board Products v. State of Bihar — 1993 DIGILAW 353 (PAT)

JUDGMENT S. B. Sinha, J. The petitioners in this application have, inter-alia, prayed for quashing of a notice dated 26.7.1993 as contained in Annexure 18 to the writ petition. The petitioners have also filed supplementary affidavit annexing therewith another notice dated 4.8.1993 issued by the Anchal Adhikari (respondent no. 8) purported to be under section 3 of the Bihar Public Land Encroachment Act (here-in-after to be referred to as 'the Act') whereby and where under the petitioners have been directed to show cause as to why the encroachment allegedly made by the petitioners in Plot No. 278 of village Sasbera, measuring an area of 0.77 acrcs shall not be directed to be removed. 2. In view of the order proposed to be passed, it is not necessary to state the fact of the mailer in great details. 3. The petitioner no.1 is a partnership firm and petitioners no. 2 to 5 are its partners. Petitioner No.1 is a owner of the factory which produces fibre board containers for packing and transporting explosives. As the respondents allegedly had been interfering with the affairs of the said business, the petitioners filed a writ petition being Cr.W.J.C. No. 266 of 1993 (R) and by order dated 5.7.1993 as contained in Annexure 1 to this writ petition, the petitioners were directed to raise all the pleas available to them before the trial Magistrate before whom Complaint Case No. 88 of 1993 was pending, According to the petitioners, they have acquired the land in question by reason of a registered deed of sale in the year 1968. They further purchased 2 decimals of land in plot no. 280 in the year 1979 and, according to the petitioners, they got their names mutated in relation to the aforementioned purchased land in the office of the State of Bihar. 4. The contention of the respondents on the other hand appeared to he that 0.77 acres of land of the aforementioned plot belonged to the Stale of Bihar. The petitioner no.1 by letter dated 17.9.1992 was directed by respondent no.8 to produce documents of title without disclosing any purpose therefor. 4. The contention of the respondents on the other hand appeared to he that 0.77 acres of land of the aforementioned plot belonged to the Stale of Bihar. The petitioner no.1 by letter dated 17.9.1992 was directed by respondent no.8 to produce documents of title without disclosing any purpose therefor. The General Manager of the petitioner firm filed an application for supply of the certified copy of the order-sheet before filing any show cause on 25.9.1992 but the same was not received and, as such, the petitioner filed an application before the Sub-Divisional Officer, Bermo at Tenughat (respondent no. 6) making complaints against the behaviour of respondent no. 8 and pursuant thereto, by order dated 14.10.1992, respondent no. 6 directed respondent no. 8 to furnish a copy of the order sheet. The petitioners stated that despite the aforesaid directions, no copies were supplied to the petitioners. By another order dated 30.4.1993 upon a complaint made in this regard, respondent no. 6 directed respondent no. 8 not to enter into the premises of petitioner no.1, but despite the same, respondent no. 8 directed its subordinate staff, Circle Inspector, Amin and Head Clerk with armed forces to enter into the premises forcibly and demolished the factory shed etc. According to the petitioners, they damaged card board containers worth Rs. 12,000/- and assaulted and abused Darwan, Starr and other employees of petitioner no.1. The matter was again reported to the respondent no.6 on 19.5.1993 and some employees of the Company belonging to Harijan community also wrote a letter to the Deputy Commissioner, Bokaro (respondent no.4) on 24.5.1993. The management stall also filed a complaint petition in the court of the Additional Chief .Judicial Magistrate Bermo at Tenughat against respondent no. 8 and of her officers and by order dated 8.7.1993, Shri B.B. Pandey, Judicial Magistrate, 1st Class, Bermo at Tenughat, in whose court the aforementioned complaint petition was transferred held that there was a prima facie case for proceeding against the accused persons. Thereafter a notice dated 9.7.1993 as contained in Annexure 14 to the writ petition was issued by respondent no. 8. On 12.7.1993, the petitioner lodged an information to he recorded in the General Diary wit h the Officer-in-Charge, I.E.L. police station relating to the aforementioned letter dated 9.7.1993 as also the application filed by it requesting for time. However, on 16.7.1993, respondent no. 8. On 12.7.1993, the petitioner lodged an information to he recorded in the General Diary wit h the Officer-in-Charge, I.E.L. police station relating to the aforementioned letter dated 9.7.1993 as also the application filed by it requesting for time. However, on 16.7.1993, respondent no. 8 again entered into the factory premises of the petitioners with police force. The petitioners' again on 28.7.1973 lodged a diary against the aforementioned illegal action of respondent no. 8. Thereafter the impugned notice dated 26.7.1993 has been issued. 5. In the supplementary affidavit, the petitioners have staled that on 4.8.1993, a notice under section 3 of the Act has been issued against the petitioners. The said notice is contained in Annexure 21 to the writ petition. 6. Dr. Pal, learned Senior counsel appearing on behalf of the petitioner, inter-alia, submitted that in view of the aforementioned illegal actions on the part of the respondents, and respondent no.8 in particular, no justice can be expected al his hand and thus the impugned notice as contained in Annexure 18 and Annexure 21 should he quashed. He further submitted that in many events as the petitioners have raised bonafide dispute with regard to the of the land in question and as such summary proceeding under the Act is not maintainable. Learned counsel in support of his contention has relied in govt. of A.P. vs. T. Krishna Rao (AIR 1982 Supreme Court 1081), Maheshwari devi vs. State of Bihar and others (( 1988 BLJ 1051 ), Awadh Bihari Gupta and others vs. The State or Bihar and others ( 1990 (2) BLJ 142 ) and Smt. Rekha Singh vs. State of Bihar ( 1992 (2) PLJR 854 ). 5. In view of the order proposed to by passed by us, it is not necessary to consider the submission made by Dr. Pal in great details. Ii. There cannot be any doubt that the assertion made by the petitioners against respondent no. 8 appear to be prima facie correct. However, we do not intend to enter into the merit of matter at this stage as the same is subjudice 7. However, in view of the statements made in the pet it ion, it is evident that even if no actual bias can be attributed as against respondent no. 8, the petitioners have a real apprehension of bias as against respondent no.8. However, in view of the statements made in the pet it ion, it is evident that even if no actual bias can be attributed as against respondent no. 8, the petitioners have a real apprehension of bias as against respondent no.8. It further appears that he has prejudged the whole issue which also gives rise to a real likelihood of bias. In Administrative Law by H.W.R. WADE, the learned author stated as under "The courts have several times treated the two tests as different, and have felt obliged to elect between them. In 1954 a Divisional Court, after reviewing authorities, decided firmly in favour of real likelihood (R.v. Camborne Justices ex p. Pearce (1955) 1 QB 41). But in 1968 the Court of Appeal decided equally firmly in favour of reasonable suspicion, Metropolitan Properties (FGC) Ltd. v. Lannon (1969 1 QB 577 although Lord Denning MR interwoven this with the other test saying that the court does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression' which would he given to other people. And he continued: Nevertheless there must appear to be real likelihood of bias. Surmise or conjecture is not enough.... There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: 'the judge was biased'. Lord Denning then applied the test of the advice which would be given by a friend if consulted: if any friend would advise against it, the justice or chairman ought not to act. (At p. 600. Danckwerts and Edmund Davies LJJ also preferred and applied 'reasonable suspicion' as the test as opposed to 'real likelihood'.) This decision categorically restored 'justice must be seen to be done' as the operative principle and established, or perhaps re-established, the more stringent standard of natural justice - which, it might be said, reflected the change of judicial attitudes between 1954 and 1968. But in later cases the courts do not seem to have fell that the position was clear. Sometimes they have suggested that the two tests produce the same result. Hannam v. Bradford Cpn (1970) 1 WLR 937: and sometimes that, in the somewhat confusing welter of authority', it suffices to say that either test is satisfied on the facts. The latest judicial suggestion is that the two tests are substantially the same, but inapplicable to policy-based decisions such as those of planning authorities since these arc radically different from those of bodies such as rent tribunals, which decide objectively according to rules. In two cases local planning authorities had made contracts with developers for the exploitation of land which the authorities themselves owned, undertaking to do their best to procure planning permission, to be granted by themselves. It was shown that in granting permission both authorities had acted fairly and without bias in fact, and both courts held that it was irrelevant that a likelihood of bias might reasonably have been suspected - as on the facts was clearly so. R. v. Amber Valley DC ex p. Jackson (l985) 1 WLR 298; This was put in the form that the reasonable man test has no application in the case of an administrative decision', as opposed to be a decision 'of a judicial nature'. In the St. Edmundsbury case at 1193, 1194 (Stocker J). Otherwise, if was pointed out there might be 'an administrative impasse' in cases, where the planning authority had quite properly become involved in some development. (Quoted from the Sevenoaks case Glidewell)." 8. In this situation, we arc of the opinion that the respondent no. 8 should be directed to forebear from taking any action pursuant to or in furtherance of the impugned notices as contained in Annexure 18 to the writ petition and Annexure 21 to the supplementary affidavit. Learned Government Advocate, however, suggested that the proceedings under the Act can be heard and disposed of by the Deputy Commissioner, Bokaro, himself. In our opinion, the suggestion of the learned Government Advocate is fair. 9. It is true that in a case where exists a disputed question of title, the summary proceeding under the Act may not be suitable remedy. However, in our opinion, this jurisdictional fact can also be brought to the notice of the. In our opinion, the suggestion of the learned Government Advocate is fair. 9. It is true that in a case where exists a disputed question of title, the summary proceeding under the Act may not be suitable remedy. However, in our opinion, this jurisdictional fact can also be brought to the notice of the. Deputy Commissioner, Bokaro, who shall determine the same at the first instance. n Management of Express Newspapers (Private) Ltd, Madras vs. The Workers and others (AIR 1963 Supreme Court 569), it was held as follows : "The High Court undoubtedly has jurisdiction to ask the Industrial Tribunal to stay its hands and to embark upon the preliminary inquiry itself. The jurisdiction of the High. Court to adopt this course cannot be, and is indeed not disputed. But would it be proper for the High Court to adopt such a course unless the ends of justice seem to make it necessary to do so? Normally, the quest ions of fact, though they may be jurisdictional facts, the decision of which depends upon the appreciation of evidence, should be left to be tried by the Special Tribunals constituted for that purpose. If and after the Special Tribunals try the preliminary issue in respect of the such jurisdictional facts, it would be open to the aggrieved party to take that matter before the High Court by a writ petition and ask for an appropriate writ. Speaking generally, it would not be proper or appropriate that the initial jurisdiction of the Special Tribunal to deal with these jurisdictional facts should be circumvented and the decision of such a preliminary issue brought before a High court in its writ jurisdiction. We wish to point out that in making these observations, we do not propose to lay down any fix or inflexible rule; whether or not even the preliminary facts would be tried by High Court in a writ petition, must naturally depend upon the circumstances of each case and upon the nature of the preliminary issue raised between the parties. Having regard to the circumstances of the present dispute, we think the Court of Appeal was right in taking the view that the preliminary issue should more appropriately be dealt with by the Tribunal. Having regard to the circumstances of the present dispute, we think the Court of Appeal was right in taking the view that the preliminary issue should more appropriately be dealt with by the Tribunal. The Appeal Court has made it clear that any party who feels aggrieved by the finding of the Tribunal on this preliminary issue may move the High Court in accordance with law. Therefore, we arc not prepared to accept Mr. Sastri's argument that Appeal Court was wrong in reversing the conclusion of the trial Judge in so far as the Trial Judge proceeded to deal with the question as to whether the action of the appellant' was a closure or a lock out." 10. Similarly in State of Uttar Pradesh vs. Shri Brahm datt sharma and another (AIR 1987 Supreme Court 943), the Supreme Court observed as follows: "When a show cause notice is issued to a Government Servant under a statutory provision calling upon him to show cause, ordinarily the Government servant must place his case before the authority concerned by showing cause and the Courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government Servant and once cause is shown, it is open to the Government to consider the mailer in the light of the facts and sub-missions placed by the government servant and only thereafter a final decision in the mailer could be taken. Interference by the Court before that stage would be premature." 11. We have no doubt in our mind that the Deputy Commissioner, Bokaro, shall consider all aspects of the matter and shall pass appropriate order in accordance with law. 12. Before parting with this case, however, we may observe that in view of the order passed by us, although we may not feel it necessary to make an enquiry against respondent no. 8, but we hope and trust that the competent authorities of the State of Bihar will take up the matter with all seriousness and take appropriate action against the erring officer, if considered necessary any, after holding an enquiry. The officers of the State should always bear in mind that the country is governed by rule of law and not by rule of man. The officers of the State should always bear in mind that the country is governed by rule of law and not by rule of man. If any action which is taken by a statutory authority by misusing or abusing his power the same has to be severely condemned and appropriate action in this regard should be taken by the higher authorities, 13. In this view of the matter, this application is disposed of with a direction to respondent no. 8 to transmit all records of the proceedings relating to the impugned notice as contained in Annexure 18 to the writ petition and Annexure 21 to the supplementary affidavit to the court of the Deputy Commissioner, Bokaro, who upon taking into consideration of the entire facts and circumstances of the case, if he so likes, may proceed with the matter, The petitioners, however, are directed to file their show cause before the Deputy Commissioner, Bokaro, as if the notice under section 3 of the Act as contained in Annexure 21 to the supplementary affidavit has been issued by the Deputy Commissioner, Bokaro, himself, within 15 days from the date of receipt of a copy of this order. Till any final order, if any, is passed in this case under the provision of the Act, the petitioners' possession shall not be disturbed by the respondents nor any hinderance or obstacle shall be created in running its factory. However, in the facts and circumstances of the case, there will be no order as to cost.