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Jharkhand High Court · body

2018 DIGILAW 2073 (JHR)

Sangeet Dalmia v. State of Jharkhand

2018-09-14

RAJESH SHANKAR, RAJESH SHANKAR

body2018
JUDGMENT : The present writ petition has been filed for quashing two notices both dated 27.07.2017 issued by the Circle Officer, Town Anchal, Ranchi-cum-Collector in Encroachment Case No. 04/17-18 under sub-section 2 of section 6 of Jharkhand Public Land Encroachment Act, 1956 (in short “the Act, 1956”) whereby the petitioner has been called upon to comply the order passed under clause (e) of sub-section (1) of section 6 of the Act, 1956 for removal of encroachment from plot no. M.S 1826/03 measuring an area of 253.24 sq. ft. and from plot no. 1826/04 measuring an area of 286 sq. ft. of village Chadri, Thana No. 199, P.S. Kotwali, District Ranchi (hereinafter to be referred as “the said land”). 2. The factual background of the case as stated in the writ petition is that the petitioner is one of the three partners of a partnership firm namely M/s Krishi Vikash which deals in sale of fertilizers and other items related to agriculture. The business of the firm is run in two rooms shop each having 400 sq. ft. and annexed to each other at Circular Road, Ranchi. There are some more shop rooms constructed in a row facing the Circular Road on the front which have been let out to different tenants by the owner/landlord. The owner has some land in the back side of these shop rooms. Originally the said land/shops belonged to Sri Ram Niwas Saboo and after his death, his only son Raj Kishore Saboo being the successor, became the owner of the said land. The petitioner received two notices both dated 27.07.2017 issued by the Circle Officer, Town Anchal, Ranchi-cum-Collector under the Act, 1956 in Encroachment Case No. 04/17-18 under sub-section (2) of section 6 of the said Act whereby the petitioner has been called upon to comply the order passed under clause (e) of sub-section (1) of section 6 of the Act, 1956 for removal of encroachment from the said land which gives rise to filing of the present writ petition. 3. The learned counsel for the petitioner submits that the firm of the petitioner through its partners is continuing as a tenant in the shop rooms in question for about last 40 years and the petitioner has regularly been paying the monthly rent at the rate and in the manner as being directed from time-to-time by the landlord. 3. The learned counsel for the petitioner submits that the firm of the petitioner through its partners is continuing as a tenant in the shop rooms in question for about last 40 years and the petitioner has regularly been paying the monthly rent at the rate and in the manner as being directed from time-to-time by the landlord. The petitioner is running a legally recognized business and is also paying tax to the government. The registration number has duly been obtained from the commercial taxes department of the State Government being TIN-20210302297 and he is running the business through the partnership firm. It is further submitted that a multi-storeyed commercial building is being constructed by the landlord over rest of his land behind these existing shop rooms and the construction is almost complete now. The distance between the shop rooms and the newly constructed building is hardly four to five feet. The said land and building is accessible through a 15-20 feet wide passage running adjacent to the western side of the row of these several shop rooms as well as the newly constructed building for which wide open space in the front side is essential. The landlord, in order to sell and utilize the newly constructed building wants to demolish the old shop rooms including the shop of the petitioner. When the landlord tried to evict the petitioner, he filed Title Suit No. 414 of 2013 before the competent civil court and the same is presently pending in the court of Sub-Judge-II, Ranchi in which the landlord has also appeared and contested. However, the landlord has admitted in the written statement that the petitioner is a tenant over the said land for which he has received the rent till September, 2013. It is also submitted that the Ranchi Municipal Corporation (RMC) issued notice upon the petitioner vide letter no. 96 dated 12.01.2015 alleging illegal construction over government land to which the petitioner replied vide letter dated 17.01.2015 giving factual details and also elaborating the illegal objective and motive of the landlord. It is also submitted that the said land is not a government land, rather it belongs to the landlord upon which a new multi-storeyed building has been constructed, the building plan of which has also been sanctioned by the RMC. The old shop rooms are still standing in the row and occupied by different tenants. It is also submitted that the said land is not a government land, rather it belongs to the landlord upon which a new multi-storeyed building has been constructed, the building plan of which has also been sanctioned by the RMC. The old shop rooms are still standing in the row and occupied by different tenants. Some shops are in the possession of the landlord also. The petitioner has the reasons to believe that the impugned order has been passed in connivance with the landlord as well as the developer with oblique motive. Learned counsel for the petitioner further submits that before issuing the impugned notices dated 27.07.2017, no notice under section 3 of the Act, 1956 was issued to the petitioner asking him to file show cause reply against the allegation levelled against him and as such the order of eviction has been passed in violation of principles of the natural justice. Though the respondents have claimed that the said land is a ‘Kaishre Hind’ land, but neither any documentary evidence has been produced in support thereof nor it has been shown as to when the measurement of land was taken and the proceeding was initiated as well as the order for issuance of notice under Section 3 of the Act, 1956 was passed. The petitioner has however filed reply to the impugned notices dated 27.07.2017 on 12.08.2017, but the same has not been considered. 4. Per contra, the learned counsel for the respondents submits that one Kundan Kumar Singh made a complaint before the Chief Minister, Jansambad Kendra, Soochna Bhawan, Meyers Road, Ranchi stating therein that the land of revenue village-Chadri, P.S. No. 199 (Old Ward No. 1) M.S. Plot No. 692/1826 situated in the court compound is a ‘Kaishre Hind’ land which has been encroached by some people by constructing permanent structures. On the basis of the said complaint, a case was registered being Complaint No. 2017-22428. In the light of instructions received vide letter no. 2270(ii) dated 10.07.2017 from the Land Reforms Deputy Collector, Sadar, Ranchi and vide letter no. 2448(ii)/Rev. dated 10.07.2017 from the Additional Collector, Ranchi, an inquiry was made through spot verification by the concerned Circle Inspector/Revenue Karmchari, Town Anchal, Ranchi and Anchal Amin. On enquiry and measurement of the said land, it was detected that some persons including the petitioner have encroached the said land by making substantial structures. 2448(ii)/Rev. dated 10.07.2017 from the Additional Collector, Ranchi, an inquiry was made through spot verification by the concerned Circle Inspector/Revenue Karmchari, Town Anchal, Ranchi and Anchal Amin. On enquiry and measurement of the said land, it was detected that some persons including the petitioner have encroached the said land by making substantial structures. Thereafter, an encroachment proceeding being case no. 04 of 2017-18 was initiated against the said encroachers including the petitioner in the court of Circle Officer, Town Anchal, Ranchi-cum-Collector under the Act, 1956. It is further submitted that the notices under section 3 of the Act, 1956 were issued to the said encroachers informing inter alia that the land in question is a public land as defined in sub-section 5 of section 2 of the Act, 1956 and the encroachers were directed to appear on 27.07.2017 and to file show cause reply in this regard. It is also submitted that except one Shio Shankar Prasad Sahu, all the said encroachers refused to receive the said notice under section 3 of the Act, 1956. On receipt of notice, Shio Shankar Prasad Sahu filed a petition before the respondent no. 4 stating that he has taken the shop on rent from Ram Niwas Sahu in 1971 and after his death, he has been paying rent of the shop to his only son Raj Kishore Sahu. Thereafter, the respondent no. 4 passed the order dated 27.07.2017 for removing the encroachment from the said land treating it to be public land as the land in question stands recorded as ‘Kaishre Hind’ land in the R.S. record of rights. Further notices were ordered to be issued under Section 6 of the Act, 1956 to the other encroachers calling upon them to remove the encroachment from the public land by 07.08.2017. Accordingly, notices issued under sub-section (2) of section 6 of the Act, 1956 are just and proper in the eyes of law as the said action has been taken after following the due process of law. It is further submitted that the petitioner has encroached the public land by making ‘pucca’ construction and as such the respondent no. 4 has rightly passed the order for removal of encroachment from the said public land. 5. Heard the learned counsel for the parties and perused the materials available on record. It is further submitted that the petitioner has encroached the public land by making ‘pucca’ construction and as such the respondent no. 4 has rightly passed the order for removal of encroachment from the said public land. 5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has challenged the impugned notices dated 27.07.2017 purportedly issued under section 6 of the Act, 1956 contending that the same has been issued in violation of principles of natural justice as no notice under Section 3 of the Act, 1956 was issued to the petitioner seeking his reply. It is claimed by the petitioner that he has been in occupation of the shops situated over the said land for more than 40 years on the strength of tenancy and has also paid rent thereof to the landlord. The petitioner has alleged that the action of the respondents is in connivance of the landlord and with oblique motive to demolish the old shops as a multi-storeyed building has been constructed behind the said shops. On the contrary, the respondents have contended that the said land is a ‘Kaishre Hind’ which is a government land and the petitioner has encroached the same by making permanent structure. The respondents have further contended that after making proper inquiry by the concerned Circle Inspector/Revenue Karmchari, Town Anchal, Ranchi and Anchal Amin, the notice under Section 3 of the Act, 1956 was issued to the petitioner but he did not appear in the proceeding before the respondent no. 4. 6. Sub-section (1) of Section 3 of the Act, 1956 provides that on an application made by any person or upon information received from any source, if it appears to the Collector that any person is likely to make or is making or has made or is responsible for continuance of any encroachment on public land, the said authority may serve notice to such person in the prescribed form requiring him to appear and file show cause reply on a date specified in the notice which shall not be less than thirty days and more than sixty days from the date of service of the notice. Though the contention of the respondents is that notice under Section 3 of the Act, 1956 was issued to the petitioner, but he did not receive the same. Though the contention of the respondents is that notice under Section 3 of the Act, 1956 was issued to the petitioner, but he did not receive the same. The said averment has out rightly been denied by the petitioner. 7. In the case of Maneka Gandhi v. 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 v. 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 v. 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. In England, the rule was thus expressed by Byles, J. in Cooper v. 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? And the same question was put to Eve also.” 8. Further, in the case of Sahara India (Firm) (1) v. CIT, reported in (2008) 14 SCC 151 , the Hon’ble Supreme Court has held as under :- “18. Recently, in Canara Bank v. 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. 9. Audi alteram partem is the pivotal concept of the principles of natural justice. This principle has to be applied appropriately in a proceeding before the administrative as well as quasi-judicial authority to ensure fair play and justice to the affected persons. No order, which results in adverse civil consequence, should be passed without affording an opportunity of hearing to the person against whom the order sought to be passed. Due application of this principle is imperative to improve administrative efficiency, expediency and to mete out justice. The procedure adopted by the administrative/quasi-judicial authority must be just and fair. 10. In the present case, in spite of the strong denial of service of notice by the petitioner, the respondents have not brought on record any proof with regard to proper service of notice to the petitioner. Once the proper service of notice has been denied by the petitioner, the onus shifts upon the respondents to prove by cogent evidence that the notice has properly been served which they have failed to prove. If the notice issued to the petitioner is said to have been refused by him, the substituted means of service of notice could have also been resorted to by the respondent no. 4 to ensure fairness in decision making process. However, the respondents have failed to bring on record any material so as to suggest proper service of notice to the petitioner. The administrative action must be exercised objectively, rationally, fairly and non-arbitrarily. 4 to ensure fairness in decision making process. However, the respondents have failed to bring on record any material so as to suggest proper service of notice to the petitioner. The administrative action must be exercised objectively, rationally, fairly and non-arbitrarily. It should not be taken in haste in disregard to the due procedures. Thus, the impugned notices under Section 6 of the Act, 1956 issued by the respondent no. 4 being in violation of the principles of natural justice cannot be sustained in law. 11. Another aspect of the case is that the petitioner has claimed to be in occupation of the said land since long as a tenant paying rent of the same to the landlord. The purpose of introduction of Bihar (now Jharkhand) Public Land Encroachment Act, 1956 is the removal of any encroachment from a public land through a summary proceeding. Thus, the authority is required to proceed under the Act, 1956 only if it prima facie appears that a public land has been encroached. However, if there appears some bonafide dispute of title over the land between the alleged encroacher and the government, the same should not be decided under the Act, 1956 and the government is required to take recourse before the appropriate civil court for resolving of the issue. 12. In the case of Govt. of Andhra Pradesh Vs. Thumulls Krishna Rao, reported in A.I.R. 1982 S.C. 1081, the Hon’ble Supreme Court has held that a person in unauthorized occupation of government land cannot be evicted through a summary proceeding where complicated question of title arises for decision. The duration of occupation is relevant in the sense that occupation of the property by a person for appreciable length of time can be prima facie taken to have a bonafide claim over the property requiring an impartial adjudication according to the established procedure of law. 13. In the case of Smt. Rekha Singh and others Vs. State of Bihar and others reported in [1992] 2 PLJR 854, learned Division Bench of Patna High Court held as under :- “8. It has been well settled by now that the summary remedy for eviction under the Act can be resorted to by the Government only against the persons who are in unauthorised occupation of any land which is "the property of Government". It has been well settled by now that the summary remedy for eviction under the Act can be resorted to by the Government only against the persons who are in unauthorised occupation of any land which is "the property of Government". If there is a bonafide dispute regarding the title of the Government to any property, the Government cannot take unilateral decision in its own favour that the property belongs to it, and, on the basis of such decision take recourse to the summary remedy provided for evicting the person who is in possession of the property under a bona fide claim or title. 9. In the instant case, unquestionably, the petitioners have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed under the Act is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process for evicting the petitioners. 10. The facts which raise a bona fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary course of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is in occupation of a property for a considerable length of time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law.” 14. It appears from the record that Title Suit No. 414 of 2013 is pending before the Sub-Ordinate Judge-II, Ranchi wherein the petitioner has sought relief for restraining the landlord from evicting him from the said land without any order of a competent court of law. In the said title suit, the landlord has also filed his written statement contesting the claim of the petitioner as the owner of the concerned premises. The petitioner has also brought on record the TIN number allotted to M/s Krishi Vikash by the Commercial Taxes Department which also supports the claim of the petitioner that the said firm is in occupation of the premises since long. 15. The petitioner has also brought on record the TIN number allotted to M/s Krishi Vikash by the Commercial Taxes Department which also supports the claim of the petitioner that the said firm is in occupation of the premises since long. 15. Thus, it prima facie appears that the firm of the petitioner has been in occupation of the said land/premises for long. Though the claim of the respondents is that the said land is ‘Kaishre Hind’, the petitioner is in occupation of the same for more than 40 years as a tenant of the concerned landlord. In view of the judgment rendered by the Hon’ble Supreme Court in the case of Thumulls Krishna Rao (supra), the occupation over a land for appreciable length of time can prima facie be taken as a bonafide claim to the property requiring an impartial adjudication according to the established procedure of law. 16. In view of the aforesaid facts and circumstance, the notices dated 27.07.2017 issued by the office of Circle Officer, Town Anchal, Ranchi-cum-Collector in Encroachment Case No.04/17-18 are hereby quashed and set aside. However, the respondents are at liberty to move before the competent court of law claiming title over the said land. 17. The writ petition is accordingly disposed of.