Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1209 (MP)

MOHAMMAD SAGEER MANIHARI WALE v. STATE OF M P

2008-10-13

PRAKASH SHRIVASTAVA

body2008
Judgment ( 1. ) THIS writ petition has been filed by the petitioner seeking a direction that 14 shopkeepers, to whom the petitioner is representing, should be immediately rehabilitated over sheet no. 33, Khasra no. 3360, area 0. 30 hectares (10183 sqft.) known as manihari Market in Naya Bazar, Damoh, at the cost and expense of the State and they be granted permanent lease for that area and paid damages for the loss caused by the respondents on 17. 2. 2005. ( 2. ) THE brief facts are that the petitioner is the President of Manihari Market, damoh, and is stated to be representing 14 shopkeepers whose shops were situated at Manihari Market. On 17. 2. 2005 without any notice these shops were alleged to have been demolished by the respondents. The petitioner had earlier filed writ petition W. P. No. 1440/2005 before this court aggrieved with the aforesaid action of the respondents. The writ petition was disposed of by order dated 6. 4. 2005 with a direction to the Commissioner, Sagar, to conduct an enquiry with regard to the rights of the petitioner and to ascertain whether the demolition was done in accordance with law. In pursuance to the direction of this court an enquiry was conducted by the Commissioner and the report dated 3. 10. 2005 was prepared. The petitioner being dissatisfied with the report has filed the present writ petition claiming the relief, mentioned above. ( 3. ) LEARNED counsel appearing for the petitioner submitted that the petitioners are in possession of the land in question since 1932 and they have been dispossessed on 17. 2. 2005 without giving any opportunity of hearing. He further submitted that the petitioners are entitled for permanent lease for running their shops at Manihari Market. He submitted that since the petitioners are running their business in the Manihari Market for last so many years, therefore, right has accrued in their favour. ( 4. ) LEARNED counsel appearing for the respondents have opposed the writ petition and submitted that the area in question has been marked for parking in the master plan, therefore, the petitioners cannot be granted lease for that area. He further submitted that the petitioners were encroachers on the land, therefore, they have rightly been removed. ( 4. ) LEARNED counsel appearing for the respondents have opposed the writ petition and submitted that the area in question has been marked for parking in the master plan, therefore, the petitioners cannot be granted lease for that area. He further submitted that the petitioners were encroachers on the land, therefore, they have rightly been removed. Placing reliance upon the resolution, annexure R/5-2, he submitted that the Municipality is ready to provide alternate site to the petitioners where permanent shops have been constructed. He submitted that the petitioners were rightly removed from the Manihari Market and they had no right of hearing since they were removed in terms of the provisions of the lease deed, Transfer of property Act and by giving a public notice. ( 5. ) THE Commissioner in pursuance to the directions of this court contained in the order dated 6. 4. 05 passed in W. P. No. 1440/2005 has conducted an enquiry and prepared the report dated 3. 10. 2005 which has been filed as annexure P/1 to the writ petition. The Commissioner, in the report, has reached to the following important conclusions : i) the land at the place of Manihari Market is Nazul land which is registered in the name of Municipal Committee; ii) between 1990-91 to 2001 -02 temporary lease for one year was granted every year to 32 persons. Out of these, 22 persons paid ground rent upto 2001-02, two persons upto 1994-95, one upto 1991 and 7 upto 1991 -92. Thereafter they have not paid the ground rent nor the temporary lease deed was renewed in their favour and thus the lease deed has automatically terminated. iii) Manihari shopkeepers by constructing the temporary shops are doing the business since 1935. iv) Manihari area is the main commercial area and this area has been earmarked for parking in the Damoh Master Plan and a decision has been taken to remove the encroachment due to the hindrances in traffic. v) Alternate shops have been made available in the premises of Damoh Municipality and to join the alternative site with the main road, road has been constructed by demolishing two rooms. The Manihari shopkeepers and other shopkeepers sitting by the side of the road have vacated the disputed area by shifting their temporary shops to the alternative site. The Manihari shopkeepers while negotiation had willingly agreed to shift to the alternative site. The Manihari shopkeepers and other shopkeepers sitting by the side of the road have vacated the disputed area by shifting their temporary shops to the alternative site. The Manihari shopkeepers while negotiation had willingly agreed to shift to the alternative site. vi) There were hindrances in traffic on the main road due to the temporary shops of the Maniharis. vii) Neither notice nor opportunity of hearing was given to the Manihari shopkeepers before removing them. " The procedure prescribed under section 248 of the M. P. Land Revenue Code was not followed. Neither the Nazul officer nor any competent revenue officer followed any lawful process in removing the encroachment, therefore, the process of removing the shops of Manihari shopkeepers was not in accordance with law. viii) Though a public notice were published in Dainik Jagran newspaper on 14. 2. 2005 and 19. 2. 2005 for removing the encroachment but no individual cases were registered and individual notices to remove the encroachment were not given to the encroachers. ( 6. ) THE aforesaid findings recorded by the Commissioner indicate that the 14 shopkeepers to whom the petitioner is stated to be representing, were temporary lease holders and neither did they deposit the ground rent after 2001-02 nor their temporary lease deed was renewed, therefore, they had no right to continue on the land in question. The Commissioner has recorded contradictory findings in respect of the process of removal adopted by the authorities. On one hand the commissioner has recorded that the shopkeepers had willingly shifted their temporary shops to the alternate site by negotiation and on the other hand the commissioner has concluded that lawful process as required under section 248 of the M. P. Land Revenue Code was not adopted for removing the encroachments and the encroachments have not been removed as per law. ( 7. ) THE writ petition has been filed by the petitioner claiming a relief that the petitioner should be settled on the same place in the Manihari market where they were earlier doing their business for the last several years. The Commissioner in the report has noted clause 7 and 8 of the temporary lease which was granted to the petitioner which provides that: "7. The Commissioner in the report has noted clause 7 and 8 of the temporary lease which was granted to the petitioner which provides that: "7. On expiry of the period of the lease, the lessee shall vacant the land and leave it and any trees or structures thereon in substantially the same condition as at the time that he entered on the lease. 8. As soon as the new site of the Bazar is finalized, the lessee will have to shift when ordered". ( 8. ) UNDER the aforesaid clause on the expiry of period of lease the petitioners were required to vacate the premises and leave it substantially in the same condition as it was existing in the time they had entered the lease. As per clause 8 even during the subsistence of the temporary lease, the temporary lease holder could be shifted as soon as the new site of Bazar was finalized, therefore, under the terms of the lease the petitioner had no right to continue in possession of the lease area on the termination of the lease. It is not in dispute that the temporary lease granted to the petitioner has already been terminated prior to 2002 and has not been renewed thereafter. Even as per section 108 (2) of the Transfer of Property act, the petitioner is liable to vacate the premises on the termination of the lease. ( 9. ) THE respondents have placed on record the relevant extract of the master plan of Damoh city which shows that the area which was earlier used as Manihari market has been earmarked for creating a place for parking of the vehicles to solve the parking problem in the central area of the town. Before publishing the final master plan in terms of section 19 of the M. P. Nagar Tatha Gram Nivesh Adhiniyam, a draft master plan is required to be published under section 18 and objections invited. Thus, apparently, the master plan demarcating the area in question for the parking purpose has been prepared after hearing the objections. The need which has been noted by the Commissioner in his report and which is also reflected in the master plan, annexure R/5-1 is the need of the larger public, which has to be given precedence as against the individual interest of the petitioners. ( 10. The need which has been noted by the Commissioner in his report and which is also reflected in the master plan, annexure R/5-1 is the need of the larger public, which has to be given precedence as against the individual interest of the petitioners. ( 10. ) IN view of the aforesaid analysis the direction which has been sought by the petitioner in the writ petition relating to their rehabilitation at the old place of manihari market cannot be granted since such a direction would run counter to the master plan prepared under section 18 of the Act and that would also run counter to the interest of the general public. Such a direction cannot be issued also for the reason that the petitioners have no legal and enforcible right to claim settlement at the old Manihari market place. ( 11. ) AFTER removing the petitioner from the area in question they have been offered the alternative site in the premises of the Municipality where 23 permanent shops with the shutters have been constructed. A resolution passed by the Municipality, damoh, to this effect has been placed on record as Annexure R/5-2. ( 12. ) THE report of the Commissioner also indicates that the Damoh Municipality had given the proposal for allotment of the alternative site to the petitioner and the other similarly situated shopkeepers which was rejected by them as they were claiming the re-settlement at the old place at Manihari market. Learned counsel appearing for the respondent no. 5 has fairly stated that the offer to settle the petitioners at the alternative site is still open and if they approach the respondent no. 5 within a reasonable time of three months from the date of this order accepting that offer, then their case can still be considered. In view of the stand of the respondent no. 5 no direction need be issued in respect of re-settlement of the petitioners at the alternative site. ( 13. ) NOW, coming to the question whether the petitioners have been illegally dispossessed on 17. 2. In view of the stand of the respondent no. 5 no direction need be issued in respect of re-settlement of the petitioners at the alternative site. ( 13. ) NOW, coming to the question whether the petitioners have been illegally dispossessed on 17. 2. 2005 from their earlier place of business at Manihari market, it is not in dispute that no individual notice was given to the petitioners nor any proceedings under section 248 of the M. P. Land Revenue Code were initiated to remove them but it is on record that the notice in the local newspaper was published on 14. 2. 2005 and 19. 2. 2005 in respect of removal of the encroachment. The fact the petitioners were forcibly dispossessed from their shops is in dispute since the commissioner in the report has also recorded that the Manihari shopkeepers had willingly shifted their temporary shops to the alternate place by vacating the disputed place. ( 14. ) IT is settled law that there is no straight jacket formula to apply the principle of natural justice. The Supreme Court in several judgments which have been noted hereinafter has settled that principles of natural justice can be excluded in following circumstances besides others :- (i) right of hearing can be excluded in view of the subject matter and exceptional situation such as urgency to safeguard public health, safety or public interest etc. , (ii) When no prejudice is caused to person concerned. (iii) When quashing of order on ground of breach of principles of natural justice will revive another order which itself is illegal. (iv) Where on admitted or undisputed facts only one conclusion which has been drawn is possible. ( 15. ) THE Supreme Court in the matter of State of Maharashtra and others V. Jalgaon Municipal Council and others, 2003 9 SCC 731 , has taken the view that: 32. The caution of associating rules of natural justice with the flavour of flexibilities would not permit the Courts applying different standards of procedural justice in different cases depending on the whims or personal philosophy of the decision maker. The basic principles remain the same; they are to be moulded in their application to suit the peculiar situations of a given case, for the variety and complexity of situations defies narration. That is flexibility. The basic principles remain the same; they are to be moulded in their application to suit the peculiar situations of a given case, for the variety and complexity of situations defies narration. That is flexibility. Some of the relevant factors which enter the judicial process of thinking for determining the extent of moulding the nature and scope of fair hearing and may reach to the extent of right to hearing being excluded are : (i) the nature of the subject-matter, and (ii) exceptional situations. Such exceptionality may be spelled out by (i) need to take urgent action for safeguarding public health or safety or public interest, (ii) the absence of legitimate exceptions, (iii) by refusal of remedies in discretion, (iv) doctrine of pleasure such as the power to dismiss an employee at pleasure, (v) express legislation. There is also a situation which Prof. Wade and Forsyth terms as "dubious doctrine" that right to a fair hearing may stand excluded where the Court forms an opinion that a hearing would make no difference. Utter caution is needed before bringing the last exception into play. (Administrative Law, ibid, at pp. 543-544 ). ( 16. ) IN the matter of Aligarh Muslim University and others V. Mansoor Ali Khan, 2000 7 SCC 529 , the apex court while noting its earlier judgments has held that compliance of rule of natural justice is not mandatory if no prejudice is caused by holding that: 21. As pointed recently in M. C. Mehta V. Union of India 1999 6 SCC 237 there can be certain situations in which an order passed in violation of natural justice need not be set aside under article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateshwara Rao v. Govt. of A. R, AIR 1966 SC 828 , it is not necessary to quash the order merely because of violation of principles of natural justice. 22. of A. R, AIR 1966 SC 828 , it is not necessary to quash the order merely because of violation of principles of natural justice. 22. In M. C. Mehta it was pointed out that at one time, it was held in Ridge v. Baldwin, 1964 AC 40, that breach of principles of natural justice was in itself treated as prejudice and that no other de facto prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S. L. Kapoor v. Jagmohan, 1980 4 SCC 379 , chinnappa Reddy, J. followed Ridge v. Baldwin and set aside the order of supersession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer. 23. Chinnappa Reddy, J. in S. I. Kapoors case 1980 4 scc 379 laid two exceptions (at p. 395 of SCC) namely, "if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception. 24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K. L. Tripathi v. State Bank of India, 1984 1 SCC 43 , sabyasachi Mukharji, J. (as he then was) also laid down principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wades Administrative Law (5th Ed. Pp. 472-475) as follows (Para 31) : ". . . . . it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent. . . . . . . . It was observed, quoting Wades Administrative Law (5th Ed. Pp. 472-475) as follows (Para 31) : ". . . . . it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent. . . . . . . . There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth. Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S. K. Sharma, 1996 3 SCC 364 . In that case, the principle of prejudice has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M. P. , 1996 5 SCC 460 25. The useless formality theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above, there has been considerable debate of the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M. C. Mehta, 1999 6 SCC 237 , referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Singham, Megarry, J. and Straughton, L. J. etc. in various cases and also views expressed by leading writers like Profs, Garner, Craig, De Smith, Wade, D. H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case. ( 17. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case. ( 17. ) IN the matter of Om Prakash Mann V. Director of Education (Basic) and others, 20067 SCC 558, the Supreme Court has held that: 9. By now it is well-settled principle of law that the doctrines of principle of natural justice are not embodied rules. They cannot be applied in a strait jacket formula. To sustain the complaint of violation of the principle of natural justice one must establish that he has been prejudiced by non-observance of the principle of natural justice. As held by the High Court the appellant has not been able to show as to how he has been prejudiced by non-furnishing of the copy of the enquiry report. The appellant has filed a detailed appeal before the Appellate Authority, which was dismissed as noticed above. It is not his case that he has been deprived of making effective appeal for non-furnishing of copy of enquiry report. He has participated in the enquiry proceedings without any demur. It is undisputed that the appellant has been afforded enough opportunity and he has participated throughout the enquiry proceedings, he has been heard and allowed to make submission before the Enquiry Committee. ( 18. ) IN Managing Director, ECIL, Hyderabad and others V. B. Karunakar and others, 1993 4 SCC 727 , the Supreme Court has held that : 30. . . . . . . (v) The next question to be answered is what is the effect on the order of punishment when the report of the Enquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice. ( 19. ) SUPREME Court in the matter of Anamallai Club V. Government of T. N. and others, 1997 3 SCC 169 , has held that: 10. Shri Sorabjee contended that the appellant is entitled to notice before the order of termination of grant made and so the action is bad in law and so the appellant is entitled to restitution of the property. We are not inclined to agree with him. The recourse to Article 226 of the Constitution, to establish title would not be proper remedy. In this case, we are not inclined to go into the question for the reason that the High Court has held that the writ petition is not maintainable. After termination of the licence by the Government under the Government Grants Act, the Estate officer appointed under Section 3 cannot go into its correctness and adjudicate in the proceedings under Section 3 thereof. In our view, the Division Bench of the High Court is right in its finding. After termination of the licence by the Government under the Government Grants Act, the Estate officer appointed under Section 3 cannot go into its correctness and adjudicate in the proceedings under Section 3 thereof. In our view, the Division Bench of the High Court is right in its finding. The Government having determined the licence, the Estate Officer cannot go into the question of legality of the termination of the licence under the Crown (Government) Grants Act to take further steps under Sections 4 and 5 of the Act. In that view of the situation in this case, we think that it is not necessary for the State government to nominate the Estate Officer and for the Estate officer to give notice under Sections 4 and 5. There is no need for the State to file a suit for eviction. But notice in compliance of principles of natural justice should have been given giving reasonable time of 10 or 15 days to vacate the premises and to deliver vacant and peaceful possession; thereafter, the Government would be free to resume possession. Since possession was already taken, though we are not approving of the manner in which the same was taken, we do not think that in this matter notice afresh needs to be given to the appellant. It may be open to the appellant to avail of any remedy available in law. ( 20. ) THUS, applying the law settled by these judgments in the facts of the present case it is found that the action of the respondents cannot be faulted on ground of non-compliance of principles of natural justice, since undisputedly petitioners have no right to continue in Manihari Market, there was urgency to take action in public interest and even if the notice was given to the petitioners, the result would have been the same. ( 21. ) NOW coming to the question of damages claimed by the petitioners, even assuming that the respondents by their act have caused damage to the shops and the property and the petitioners are entitled for damages then also damage cannot be ascertained in exercise of the writ jurisdiction and the proper remedy for the petitioner is to approach the appropriate forum and establish the claim in accordance with law. ( 22. ( 22. ) IN view of the aforesaid, I do not find any merit in the writ petition and the writ petition is accordingly dismissed. No orders as to costs. Petition dismissed.