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2018 DIGILAW 201 (JHR)

Manikant Jha v. Jharkhand State Housing Board

2018-01-24

RAJESH SHANKAR

body2018
ORDER : RAJESH SHANKAR, J. 1. The present writ petition has been filed for setting aside the order dated 23.5.2015 passed in Eviction Case No. 42 of 2013, whereby the Competent Authority, Jharkhand State Housing Board, Ranchi (respondent No. 3) has directed the Executive Engineer, Jharkhand State Housing Board, Jamshedpur Division (respondent No. 2) to recover compensation of Rs. 91,425/- from the petitioner till 31.10.2013 and thereafter for each day till vacation of the encroachment @ Rs. 20/- per day per 100 sq. meter and Rs. 50 per constructed 100 sq. meter with further direction to the respondent No. 2 to take possession of the encroached land from the hands of the petitioner with the help of local Administration, ignoring the fact that the said land does not belong to the Jharkhand State Housing Board. It is further prayed for issuance of direction upon the respondent No. 5 to take final decision regarding settlement of the land situated at Plot No. 1320, Khata No. 225, Mouza-Ghagghidih, P.O. and P.S.-Bagbera, District-East Singhbhum in the name of petitioner or his son Sujit Kumar Jha. Learned counsel for the petitioner submits that the petitioner constructed his house in Plot No. 1320, Khata No. 225, Mouza-Ghagghidih, P.O. and P.S.-Bagbera, District-East Singhbhum (hereinafter referred to as "the said land") which is a Gair Mazruwa land. An application of the petitioner's son namely, Sujit Kumar Jha, an army personnel was forwarded by his Commanding Officer vide letter dated 22.11.1998 to the Deputy Commissioner, East Singhbhum (respondent No. 5) for allotment of the said land in his favour. Again, Zila Sainik Kalyan Padadhikari, West Singhbhum vide letter dated 8.5.1999 requested the Circle Officer, Karandih (the respondent No. 6) to look into the matter of the petitioner's family on the basis of the application made by the petitioner's son regarding allotment of land in their favour. The office of the respondent No. 5 vide letter dated 26.8.2008 accepted that the land is a Government land, however, it was stated that there is prohibition on the settlement of the Government land to any individual situated in urban and semi-urban area. Thereafter, the petitioner made objection vide letter dated 12.9.2008 stating that the aforesaid land is a village land, therefore, there is no problem to settle the land in their favour. Thereafter, the petitioner made objection vide letter dated 12.9.2008 stating that the aforesaid land is a village land, therefore, there is no problem to settle the land in their favour. The petitioner again made request to the respondent No. 5 vide his letter dated 11.2.2013 to settle the said land in which they have been residing since long by constructing a house. However, the petitioner came to know that Eviction Case No. 42 of 2013 has been initiated by the Court of Competent Authority, Jharkhand State Housing Board, Ranchi for eviction of the petitioner from the said land. Thereafter, the petitioner appeared in that case on 18.5.2015, however, the respondent No. 3, without affording any time to the petitioner to file reply to the show cause notice, passed the order dated 23.5.2015 for removal of encroachment from the said land and for realization of compensation from the petitioner by observing that the petitioner failed to produce any document in support of his claim. The petitioner's son, thereafter, inquired about his pending application for allotment of the said land before the respondent No. 5 and came to know that the same is pending for want of documents. 2. The learned counsel for the petitioner further submits that though the application for allotment of the said land was kept pending by the respondent No. 5, the impugned order of removal of encroachment has been passed by the respondent No. 3 on erroneous description of land as the said land is not the property of Jharkhand State Housing Board. It is also submitted that the impugned order dated 23.5.2015 has been passed by the respondent No. 3 in violation of the principles of natural justice. 3. Per contra, the learned counsel for the respondent-Jharkhand State Housing Board submits that the petitioner has been given due opportunity to bring on record cogent proof in support of his claim and when he failed to produce any document, the order dated 23.5.2015 has been passed, thus, there is no illegality in the said order. It is further submitted that mere pendency of any application for allotment of land does not ipso facto confers any right to the petitioner to occupy the land in question. It is further submitted that mere pendency of any application for allotment of land does not ipso facto confers any right to the petitioner to occupy the land in question. It is also submitted that admittedly the petitioner is not the owner of the said land, rather he has requested the State Government for allotment of the same in his favour or in favour of his son, who is an ex-army personnel. 4. Heard the learned counsel for the parties and perused the materials available on record. The petitioner's contention is that he along with his family members has been residing in a house constructed by him on a Government waste land for last 40 years and an application for settlement of the same in his favour or in favour of his son who is an ex-army personnel is still pending before the respondent No. 5. No counter-affidavit has been filed on behalf of the respondents. However, the learned counsel for the respondent Nos. 1 to 3 submits that an Eviction Case No. 42 of 2013 was initiated against the petitioner on the basis of the application of the Executive Engineer, Jharkhand State Housing Board, Jamshedpur Division (respondent No. 2) and the petitioner has been afforded due opportunity to bring on record cogent material in support of his claim. However, the petitioner failed to produce any document and as such, the order dated 23.5.2015 has been passed. However, on perusal of the record, it appears that the eviction case was initiated in the year, 2013 and the show-cause notice was issued to the petitioner on 27.2.2015 i.e., after about 2 years. The petitioner appeared before the respondent No. 3 on 18.5.2015 and immediately thereafter on 23.5.2015, the impugned order has been passed without providing sufficient time to the petitioner to file reply to the show-cause notice issued against him. 5. In the case of "Maneka Gandhi vs. Union of India", reported in (1978) 1 SCC 248 , the Hon'ble Supreme Court has held as under:-- "221. 5. In the case of "Maneka Gandhi vs. Union of India", reported in (1978) 1 SCC 248 , the Hon'ble Supreme Court has held as under:-- "221. It is well established that even where there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. This principle was laid down by this Court in the State of Orissa vs. Dr. (Miss) Binapani Dei in the following words: "The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore arise from the very nature of the function intended to be performed: it need not be shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case." 222. In England, the rule was thus expressed by Byles, J. in Cooper vs. Wandsworth Board of Works, (1863) 14 CB NS 180 : 1861-72 All ER Rep Ext. 1554 "The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God), 'where art thou' Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat? I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God), 'where art thou' Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat? And the same question was put to Eve also." 6. Further, in the case of "Sahara India (Firm) (1) vs. CIT", reported in (2008) 14 SCC 151 ; the Hon'ble Supreme Court has held thus:-- 18. Recently, in Canara Bank vs. V.K. Awasthy the concept, scope, history of development and significance of principles of natural justice have been discussed, in extenso, with reference to earlier cases on the subject. Inter alia, observing that the principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights, the Court said: (SCC pp. 331-32, para 14) "14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." 19. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." 19. Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial. 7. Right of being heard is one of the cardinal principles of natural justice. Affording opportunity of being heard is not a mere formality, rather the same must be applied in its true sense. Requirement to observe the principles of natural justice by the administrative/quasi-judicial authorities have been invariably emphasized by the constitutional courts so as to provide minimum protection of rights to private individuals against any arbitrary procedure that may be adopted by the quasi-judicial/administrative authorities. Any order passed in exercise of an administrative action which involves adverse civil consequences must conform to the requirements of the principles of natural justice. 8. In the case present case, the petitioner has been residing on the land in question for more than 40 years by constructing a house. The respondent No. 3, vide impugned order dated 23.5.2015 has directed the respondent No. 2 to remove the alleged encroachment from the said land and also to recover compensation from the petitioner. Thus, the impugned order has adverse civil consequence as against the petitioner and as such, in my considered opinion, the respondent No. 3 should have afforded sufficient opportunity to the petitioner to present his case before passing the order of eviction from the land in question treating it to be an encroachment. 9. Under the aforesaid circumstance, the impugned order dated 23.5.2015 passed by the respondent No. 3 is hereby quashed remanding the matter to the said authority with a direction to pass fresh order after affording due opportunity of hearing to the petitioner. 9. Under the aforesaid circumstance, the impugned order dated 23.5.2015 passed by the respondent No. 3 is hereby quashed remanding the matter to the said authority with a direction to pass fresh order after affording due opportunity of hearing to the petitioner. Since, it also appears that an application for settlement of the said land is pending before the Deputy Commissioner, East Singhbhum, Jamshedpur (respondent No. 5), with a view to set the lis at rest, the respondent No. 5 is also directed to dispose of the petitioner's application for settlement of the said land in accordance with law within two months from the date of receipt/production of a copy of this order. The present writ petition is disposed of in terms with the aforesaid observation and direction.