Research › Search › Judgment

Jharkhand High Court · body

2010 DIGILAW 58 (JHR)

Maan Singh v. Jamshedpur Notified Area Committee

2010-01-08

DABBIRU GANESHRAO PATNAIK

body2010
JUDGMENT : D.G.R. Patnaik, J. This application is taken up for disposal at the stage of admission. 2. Heard counsel for the parties. 3. The petitioner in this writ application has prayed for issuance of a writ in the nature of certiorari for quashing the letter No. 1122 dated 18.09.2007 (Annexure-6) issued by the Respondent No. 2 whereby and whereunder the Respondent No. 5 has been directed to take action against the petitioner restraining him from interfering with the proposed construction of Sulabh Sauchalay over the land under dispute in this case. A further prayer has been made for issuance of a writ in the nature of mandamus commanding upon the respondents not to interfere with the right, title and interest of the petitioner over the disputed lands. 4. The petitioner has claimed his right, title and interest over the land pertaining to Plot No. 3027 under Khata No. 28 situated at village Golmuri. His contention is that earlier, the lands were acquired by his grandfather who by virtue of the sale deed executed in his favour by one Sukra Manjhi dated 8.1.1979, was the recorded tenant. The petitioner is the successor in interest and has been continuously coming in possession of the disputed land. To support his claim of possession, the petitioner has referred to the orders passed in the proceeding u/s 144 Cr. PC which was initiated sometime in the year 1983 against his grandfather and in which, the petitioner, in support of his claim of being in possession of the disputed land, has also referred to the earlier proceeding u/s 144 Cr. PC and the orders passed by the Revisional Court in the said proceedings claiming that the respondent No. 3 who was a party in the proceeding, had declared that there was no dispute between the parties namely, the respondent No. 3 and the petitioner's grandfather over the land under reference. He has also referred to an order passed by the Land Reforms Deputy Collector in the year 1988 whereby on the application of the petitioner's mother for fixation of rent in respect of the disputed lands under reference in this case, an order was passed in the rent fixation case. 5. He has also referred to an order passed by the Land Reforms Deputy Collector in the year 1988 whereby on the application of the petitioner's mother for fixation of rent in respect of the disputed lands under reference in this case, an order was passed in the rent fixation case. 5. The grievance of the petitioner is that in spite of the fact that his possession over the disputed land has been confirmed by the orders of the Land Reforms Deputy Collector, the respondent No. 2 had attempted to encroach upon the land and dispossessed him from there by proceeding to construct a Sulabh Sauchalaya on the land. The petitioner has termed the impugned order of the respondent No. 2, as an attempt to infringe the petitioner's right over the land. 6. Assailing the impugned order as being illegal, beyond jurisdiction and violative of Article 14, 19(1)(g) of the Constitution of India, Shri Anil Kumar Sinha, learned Senior Advocate appearing on behalf of the petitioner, has raised and confined his arguments on substantially two points for consideration. 7. Learned Counsel explains that in view of the 74th amendment of the Constitution of India which came into effect from 01.06.1993 and by which, Part-IX(A) and Article 243Q was added in the Constitution of India. Pursuant to the amendment, the State Government had also amended the Bihar and Orissa Municipal Act in tune with the Constitutional amendment. Section 388 of the Old Act under which the State Government had the power to constitute the Notified Area Committees for the purposes of the old Act and for the area specified by the notification, was deleted. By the amendment, after abolishing the Notified Area Committee, a three tier system was introduced. The State Government was required therefore to constitute the Municipal Corporation in place of the abrogated Notified Area Committees. Learned Counsel explains that even the extended period of the committee, purportedly constituted as per the provisions of Article 243Q of the Constitution of India, has long expired. As such, Jamshedpur Notified Area Committee is deemed to have suffered its natural death for all purposes. Learned Counsel argues that Sub Divisional Officer (Respondent No. 2) claiming himself to be the Special Officer of the Jamshedpur Notified Area Committee, cannot assume any authority over the disputed land and pass the impugned order. As such, Jamshedpur Notified Area Committee is deemed to have suffered its natural death for all purposes. Learned Counsel argues that Sub Divisional Officer (Respondent No. 2) claiming himself to be the Special Officer of the Jamshedpur Notified Area Committee, cannot assume any authority over the disputed land and pass the impugned order. To buttress his argument, learned Counsel refers to and relies upon the judgments of the Patna High Court in the case of Dwarika Nath Prasad @ Munna Vs. State of Bihar and Others, (1999) 3 PLJR 718 and Division Bench judgment in the case of Ram Naresh Singh Vs. The State of Bihar and Others, (2000) 3 PLJR 736 . Controverting the stand taken by the respondents with reference to the notification of the State Government dated 08.09.1998 (Annexure-A) by which the earlier existing Managing Committee of the Jamshedpur Notified Area Committee was dissolved since after its completion of five years term, learned Counsel explains that the purported notification was issued in exercise of the powers u/s 29 of the Bihar Municipal Act, 1922 which declares the dissolution of the Municipality and it has nothing to do with Section 388 of the Municipality Act which has already been deleted and as such, the notification is of no relevance to the points raised by the petitioner. Learned Counsel argues that in absence of any Notified Area Committee, the appointment of the Special Officer to discharge the functions of the Notified Area Committee is totally absurd and a wrong interpretation of the provisions of law and a misuse of authority. Learned Counsel argues further that even the State Government has no authority to appoint any officer as a Special Officer of the Notified Area Committee to exercise all the repealed powers of the Notified Area Committee including sanctioning of the maps and realization of taxes. (ii) The second point raised by Sri A.K. Sinha is by way of controverting the arguments advanced by the respondents based on the Division Bench Judgement of the Patna High Court in the case of Prof. Rabindra Nath Singh Vs. State of Bihar and Others, (2000) 4 PLJR 139 . Learned Counsel argues that in the aforesaid judgement, the question as to whether Notified Area Committee still exists or not was never the subject matter for consideration by the Court. Rabindra Nath Singh Vs. State of Bihar and Others, (2000) 4 PLJR 139 . Learned Counsel argues that in the aforesaid judgement, the question as to whether Notified Area Committee still exists or not was never the subject matter for consideration by the Court. Rather, the subject matter which was under consideration, was whether the power exercised u/s 29 of the Municipal Act is valid or not. Learned Counsel argues that even from the judgement in the case of Professor Rabindra Nath Singh (Supra), it appears that the District Magistrate has been empowered to depute a person to perform certain duties or functions. Such powers cannot certainly be exercised for sanctioning maps and collecting taxes thereby indirectly performing the works of a non-operational Notified Area Committee. Learned Counsel argues further that Annexure-G, (which is a notification dated 07.05.2009), issued by he Department of Urban Development of the State Government purporting to appoint one Sunil Kumar as the Special Officer, Jamshedpur Notified Area Committee, is also illegal in view of the notification (Annexure-A), under which it is the Deputy Commissioner of the district who is to depute a person to look after the works of the Notified Area Committee. 8. The respondents have filed counter affidavits denying and disputing the entire claim of the petitioner. In reply to the points raised by the learned Counsel for the petitioner, learned Advocate General would submit the following arguments: (i) The Jamshedpur Notified Area Committee had come into existence under the provisions of the Bihar Municipal Act, 1922 which was adopted by the State of Jharkhand . (ii) After the 74th amendment in the Constitutional Act under the provisions contained in Article 243Q(1), the Jamshedpur Notified Area Committee vide Notification No. 110/89-3111 dated 08.09.1998 (Annexure-A), was dissolved by the State Government and it was directed that the District Magistrate may depute any officer as Special Officer for executing the day to day functions of the Jamshedpur Notified Area Committee. (iii) The aforesaid notification of the State Government was challenged by the Tata Iron & Steel Company vide C.W.J.C. No. 3061 of 1998 which was disposed of by this Court on 28.04.2000 vide judgement passed in the case of Professor Ravindra Nath Singh (Supra). In the judgement passed in the aforesaid case, this Court had directed the State Government to issue appropriate notification forthwith under the amended Municipal Act. In the judgement passed in the aforesaid case, this Court had directed the State Government to issue appropriate notification forthwith under the amended Municipal Act. However, this Court had refused to quash the second part of the notification dated 08.09.1998 by which District Magistrate was empowered to depute any officer as Special Officer for executing the day to day affairs of the Notified Area Committee. Learned Advocate General explains further that in the light of the order passed by this High Court in W.P.(C) No. 517 of 2006 and in analogous cases, the State Government issued a resolution No. 2151 dated 15.07.2006 intending to execute the directions of the legislature and that of this Court, to convert the Municipality into Nagar Parishad / Nagar Panchayat or such other organization to fulfill the legal requirements. A notification was accordingly issued by the State Government whereby the Jamshedpur Municipal Corporation was constituted including the Jamshedpur Notified Area Committee, Mango Notified Area Committee, Jugsalai Municipality and other adjacent areas. Against the aforesaid notification issued on 08.12.2005 and also against the order dated 26.03.2006 passed in W.P.(C) No. 517 of 2006 by this Court, the TISCO Limited preferred a SLP before the Supreme Court vide SLP (C) No. 14926 of 2006. The Supreme Court, by an interim order dated 09.01.2008 had directed for maintaining status quo. 9. Learned Advocate General explains further that under the second part of the Notification dated 08.09.1998 (Annexure-A), Sri Sunil Kumar, who is presently posted as Executive Magistrate, Dalbhum Sub Division, Jamshedpur, has been given additional charge of Special Officer Jamshedpur Notified Area Committee vide Notification dated 07.05.2009 (Annexure-G). Such notification is in consonance with the order of this Court passed in the case of Professor Rabindra Nath Singh (Supra). 10. Learned Advocate General submits further that the petitioner, by confining argu Professor Rabindra Nath Singh ments only to the aforementioned two issues, has wanted to side track the main issue relating to his disputed claim of right, title and interest over the land under reference. Learned Advocate General explains that the lands pertaining to Plot No. 3027 under Khata No. 28 Mauza Golmuri, measuring 2.17 acres, is in fact a part of the land which was leased out by the State Government to the Tata Iron & Steel Company and the same was allotted by way of sub-lease to the respondent Tinplate Company of India Limited. The land had earlier fallen within the jurisdiction of the Jamshedpur Notified Area Committee. Since now the Jamshedpur Notified Area Committee has been dissolved, Sri Sunil Kumar, Executive Magistrate has been authorized to function as the Special Officer to discharge the duties earlier executed by the Jamshedpur Notified Area Committee, in respect of the lands which was under its jurisdiction. Learned Counsel submits further that the petitioner has no manner of right, title and interest or even possession over the disputed land. Considering the essential need to construct a Sulabh Sauchalay for providing public amenities and welfare, a request was forwarded to the Special Officer to obtain clearance from the original lessee namely the TISCO and after obtaining the clearance, construction of the proposed Sulabh Sauchalay was commenced on the disputed land. When the petitioner illegally raised objections and interference, the impugned order was issued to restrain him from interfering with the proposed construction of the Sulabh Sauchalay. Learned Advocate General explains further that the petitioner in support of his illegal claim of right and title over the disputed land, has wanted to place reliance upon some orders passed in the 144 Cr. P.C. proceedings and upon some orders passed by the Land Reform Deputy Collector. The issue relating to the right, title and interest was never decided either in the 144 Cr.P.C. proceeding or in the proceeding before the Land Reform Deputy Collector and in fact, neither of these authorities could have passed any order deciding the right, title and interest of any party over the disputed land. 11. From the rival submissions, as it appears, the petitioner's main challenge is to Annexure-A and particularly, to the second part of the Annexure-A on the basis of which a notification (Annexure-G) has been issued by the State Government. The impugned order (Annexure-6) has been assailed on the ground that the Respondent No. 2 could not exercise any authority to pass the impugned order. 12. In the case of Professor Rabindra Nath Singh (supra), the Government Notification (Annexure-A) dated 08.09.1998 was challenged. The impugned order (Annexure-6) has been assailed on the ground that the Respondent No. 2 could not exercise any authority to pass the impugned order. 12. In the case of Professor Rabindra Nath Singh (supra), the Government Notification (Annexure-A) dated 08.09.1998 was challenged. The Division Bench of this Court, while considering the context in which the notification was issued and the objections taken thereto, has refused to quash the second part of the notification under which the District Magistrate has been empowered to depute any officer under him to execute the day to day works which used to be performed by the Jamshedpur Notified Area Committee since after its dissolution. Subsequent to the aforesaid notification (Annexure-A), a further notification (Annexure-D) was issued by the State Government whereby Sri Sunil Kumar, Executive Magistrate, Dhalbhum Sub-Division, Jamshedpur, in addition to his duties, was deputed to perform the works pertaining to the Jamshedpur Notified Area Committee as Special Officer, till further orders. 13. Sri Anil Kumar Sinha, learned Counsel for the petitioner has argued that such an authority cannot be vested for discharging the duties of the Notified Area Committee which has already ceased to exist. The erstwhile Jamshedpur Notified Area Committee under Rules and Bye-laws was authorized to execute several works including collection of taxes, sanctioning of building plans etc. and unless the duties are specifically assigned, the Respondent No. 2 in his purported capacity of Special Officer, cannot discharge any work which used to be earlier discharged by the Jamshedpur Notified Area Committee. 14. The argument of Sri Anil Kumar Sinha, though persuasive, yet is not acceptable. The second part of the notification dated 08.09.1998 (Annexure-A) which, despite challenge before the Division Bench of this High Court in the case of Professor Rabindra Nath Singh (Supra), has been allowed to remain operative suggesting thereby, that the State Government has the power to make an interim arrangement, after the dissolution of the Jamshedpur Notified Area Committee, for continuing with the works which the erstwhile Jamshedpur Notified Area Committee used to perform and for such purposes, to depute an officer for discharging the duties which earlier used to be performed by the Jamshedpur Notified Area Committee. The designation "Special Officer, Jamshedpur Notified Area Committee" as stated in the notification, cannot be taken as appointment of an officer to function as a representative of the dissolved Jamshedpur Notified Area Committee. The designation "Special Officer, Jamshedpur Notified Area Committee" as stated in the notification, cannot be taken as appointment of an officer to function as a representative of the dissolved Jamshedpur Notified Area Committee. The intent declared in the notification (Annexure-A) is only to ensure, by way of an interim arrangement, till the State Government takes a final decision for constituting a Municipal body, that the day to day duties under the Municipal Act, which the erstwhile Jamshedpur Notified Area Committee used to perform, are continued and the resultant void after the dissolution of the Jamshedpur Notified Area Committee is filled up temporarily. This situation was in existence on the date when the SLP (C) No. 14926 of 2006 was filed before the Supreme Court and on the date when the Supreme Court had passed the interim order of maintaining status quo. As informed by the learned Advocate General, the order passed by the Division Bench of this Court in W.P.(C) No. 517 of 2006 along with analogous cases, has been challenged and is presently pending before the Supreme Court for adjudication vide SLP. The issues which were involved in W.P.(C) No. 517 of 2006, have also been raised before the Supreme Court in the SLP and the same is pending adjudication by the Apex Court. 15. The judgment in the case of Ram Naresh Singh (Supra) and Dwarika Nath Prasad (Supra) referred to by the learned Counsel for the petitioner, only emphasizes that pursuant to the amendment of the Bihar Municipal Act, 1922 and the deletion of Section 388 from the Municipal Act, no Notified Area Committee exists in the eye of law. The dispute in both the above referred cases, was on the ground that the despite abrogation of the Notified Area Committee, the Chairman of the Notified Area Committee had sought to settle a piece of land as taxi stand and prescribe for collection of tolls. 16. In the present case however, the facts are not similar. By the impugned notification (Annexure-A), an interim arrangement has been made by the concerned authorities to continue with the day to day works under the Municipal Act, for the area which were earlier within the jurisdiction of the Jamshedpur Notified Area Committee. The interim arrangement as declared in the interim arrangement, was to continue till the State Government constitutes a valid Municipal Body. The interim arrangement as declared in the interim arrangement, was to continue till the State Government constitutes a valid Municipal Body. As informed, the State Government had constituted a Municipal Body and it had also notified the same, but as it appears, the notification is under challenge before the Supreme Court and an order for maintaining status quo, has been passed by the Apex Court in the SLP pending before it. 17. Under the circumstances, and in the light of the judgment passed in the case of Professor Rabindra Nath Singh (Supra), the petitioner cannot possibly raise any issue in respect of the second part of the notification (Annexure-A), as issued by the State Government, under which the respondent No. 2 has been vested with the powers to function as Special Officer for discharging the duties which used to be done by the erstwhile Jamshedpur Notified Area Committee. On a plain reading of the impugned order dated 18.09.2007 (Annexure-6), it appears that it is only by way of an information/complaint made by the Respondent No. 2 to the Officer-in-charge of the Police Station for taking appropriate action against any apprehended interference by the petitioner in the construction of the proposed Sulabh Sauchalaya. In the context of the denial of the respondents of the petitioner's claim of right, title and interest over the disputed land, the controversy, as it appears, involves disputed question of facts. The petitioner therefore may seek his remedy before a Civil Court of competent jurisdiction for redressal of his grievance, if any. With the above observations, this writ application is disposed of. Let a copy of this order be given to the counsel for the respondents. Application disposed of.