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2020 DIGILAW 964 (JHR)

Ashok Kumar Sinha v. State of Jharkhand

2020-10-06

RAVI RANJAN, SUJIT NARAYAN PRASAD

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ORDER : 1. With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding the visual/audio connectivity. I.A. No. 1560 of 2020 This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 137 days in preferring this Letters Patent Appeal. 2. Heard parties. 3. Having regard to the averments made in the application and submissions made on behalf of the parties, we are of the view that the appellant was prevented from sufficient cause in filing the appeal within the period of limitation. As such, the delay of 137 days in preferring the appeal is hereby condoned. 4. I.A. No. 1560 of 2020 stands allowed. L.P.A. No. 228 of 2019 5. The instant intra-Court appeal is directed against the order/judgment dated 25.09.2018 passed by learned Single Judge of this Court in C.W.J.C. No. 1569 of 2001 whereby and whereunder the writ petition has been dismissed by not interfering with the order dated 16.07.1996 passed in Misc. Case No. 8(iii) of 1995-96 and order dated 12.03.2001 passed in B.P.L.E. Appeal Case No. 1/97. 6. The brief facts of the case which are required to be enumerated herein, read as under: The appellants/petitioners claim themselves to be the rightful owner of the land situated at Khata No. 56, Plot No. 1601, area 10 decimal having been purchased by the father of the present appellants/petitioners, who died during pendency of the writ petition, through registered sale deed bearing No. 552 dated 14.02.1977 from Shakti Pado Dutta and Prabhakar Dutta who had acquired above property in the year 1967 by different sale deeds from rightful owner. The appellants/petitioners claim their possession since the date of purchase of the land in question. In the year 1995, a proceeding under Public Land Encroachment Act was initiated by the Circle Officer being Encroachment Case No. 9(iii)/95-96 alleging therein about encroachment of 324 sq. ft. land on Plot No. 6960, village - Chas, Thana No. 30, P.S. Chas. Accordingly, a notice under Section 3 of the Public Land Encroachment Act was issued against father of the appellants/petitioners on 04.11.1995 to show cause as to why the alleged encroachment may not be ordered to be removed. ft. land on Plot No. 6960, village - Chas, Thana No. 30, P.S. Chas. Accordingly, a notice under Section 3 of the Public Land Encroachment Act was issued against father of the appellants/petitioners on 04.11.1995 to show cause as to why the alleged encroachment may not be ordered to be removed. It is the case of the appellants/petitioners that in fact the notice dated 04.11.1995 had never been served and a false receipt showing service of notice was kept on record basis upon which the proceeding was directed to be proceeded but somehow the father of the appellants/petitioners came to know about issuance of aforesaid notice and, as such, had appeared before the respondent No. 5 as also made an application but the same was not accepted, therefore, the said application was sent through registered post to several authorities. The Circle Officer passed an order in exercise of power conferred under Section 6(e) of the Public Land Encroachment Act on 17.11.1995 holding therein that a portion about 324 sq. ft. of the petitioners’ house is on Plot No. 6960 which is on public land and as such, encroachment was directed to be removed by 19.11.1995. Being aggrieved with the order dated 17.11.1995, father of the appellants/petitioners approached to this Court by filing writ petition being C.W.J.C. No. 3512 of 1995 (R) which was allowed vide order dated 06.02.1996 by quashing the order dated 17.11.1995 whereby and whereunder the matter was remitted before the respondent No. 4 with a direction to provide an opportunity to the parties for adducing evidence in support of their respective cases and thereafter to pass final order. The father of the appellants/petitioners, thereafter, had appeared before Respondent No. 4 with his show cause but the same was refused to be accepted and having no option, the he again sent the same through registered post. It is the further case of the appellants/petitioners that the concerned authority initiated a separate proceeding being Misc. The father of the appellants/petitioners, thereafter, had appeared before Respondent No. 4 with his show cause but the same was refused to be accepted and having no option, the he again sent the same through registered post. It is the further case of the appellants/petitioners that the concerned authority initiated a separate proceeding being Misc. Case No. 8(iii)/95-96 on 23.02.1996 but even in the said case no notice was issued to the father of the appellants/petitioners and as such, an application was filed before the Deputy Commissioner-cum-Collector, Bokaro dated 10.06.1996 communicating him that they are not aware as to what action the respondents are taking in the matter even though the High Court has issued specific direction to pass appropriate order after providing an opportunity of hearing but the concerned authority passed order in Misc. Case No. 8(iii)/95-96 behind the back of the father of the appellants/petitioners. The father of the appellants/petitioners then preferred an appeal before the aforesaid order but the same was also dismissed against which writ petition was filed but the writ court also declined to interfere with the impugned orders which is the subject matter of the instant appeal. 7. Mr. Hemant Kumar Shikarwar, learned counsel appearing for the appellants/writ petitioners, has agitated the point of non-observance of principle of natural justice right from the stage of appeal as also before the writ court which, according to him, has not been taken into consideration and as such, the impugned orders are not sustainable in the eyes of law. 8. Per contra, Mr. Mithilesh Singh, learned GA-IV, appearing for the respondents, has submitted by referring to the impugned order as also the other material available on record that it is incorrect on the part of the appellants/writ petitioners to say that opportunity of hearing was not provided, rather, due notice was issued and it is the failure on the part of the appellants/writ petitioners that they had chosen not to appear before the concerned authority right from the very beginning and even pursuant to the order passed by this Court in C.W.J.C. No. 3512 of 1995 (R). He further submits that although reply was submitted through registered post but the authorities had time and again asked the father of the appellants/writ petitioners to produce the original copy of registered deed but he intentionally did not produce the original copy of registered deed and hence the authority, on the basis of the measurement of the land which was conducted in presence of the father of the appellants/writ petitioners, basis upon which encroachment proceeding Encroachment Case No. 1(iii)/95-96 was initiated which was within his knowledge but he had chosen not to appear hence it is not a case where opportunity of hearing was not provided rather, the father of the appellants/writ petitioners, knowing fully well that the encroachment of 324 sq. ft. over the public land was found by the measuring authority and as such he had chosen not to appear before the concerned authority. The concerned authority, after taking into consideration the entire aspect of the matter and based upon the measurement of the Circle Officer wherein the encroachment of about 324 sq. ft. of land was found over the public land, has rightly passed the order for removing the encroachment. He further submits that the writ court, after taking into consideration the aforesaid aspect of the matter, has passed the order, therefore, the same needs no interference in the present appeal. 9. This Court has heard learned counsel for the parties and perused the material available on record from which it is apparent that a proceeding under the Public Land Encroachment Act was initiated on the basis of a public petition filed before the competent authority. The aforesaid competent authority directed the concerned Circle Officer to get the land measured in order to assess as to whether there is any encroachment over the public land or not? The Circle Officer, on the basis of the aforesaid direction, conducted the measurement and found encroachment of 324 sq. ft. over the public land. A proceeding was initiated under the Public Land Encroachment Act for removal of aforesaid encroachment. The Circle Officer, on the basis of the aforesaid direction, conducted the measurement and found encroachment of 324 sq. ft. over the public land. A proceeding was initiated under the Public Land Encroachment Act for removal of aforesaid encroachment. At the first instance, the authority had passed order for removal of the aforesaid encroachment which was assailed by the father of the present appellants/writ petitioners before this Court in C.W.J.C. No. 3512 of 1995 (R) which was disposed of with the following directions:- “It appears that in spite of two copies of the writ application being served by learned counsel appearing on behalf of the petitioner upon learned counsel appearing on behalf of the State on 01.12.1995, no counter affidavit has been filed as yet as the respondents have not bothered to give any instruction to learned counsel for the state for filing counter affidavit in the case, therefore, the application has to be disposed of on the statements made therein. Heard the parties. This application has been filed for quashing order dated 17.11.1995 passed by the Circle Officer, respondent no. 4, in Encroachment Case No. 1(III) 95/96, contained in Annexure 7, whereby final order has been filed for removal of the alleged encroachment. From the order sheet it appears that reasonable opportunity was not afforded either to the petitioner or her husband. It further appears that after passing of the impugned order, the alleged encroachment was removed without giving adequate opportunity of hearing to the petitioner. In this view of the matter, I have no option but to allow this application. Accordingly, the application is allowed, order dated 17.11.1995, contained in annexure 7, is quashed and the matter is remanded to the Anchal Adhikari, Chas (respondent no. 4) for considering the matter afresh. It is made clear that if the petitioner wants to contest the proceeding, she and her husband both should appear before the Anchal Adhikari (respondent no 4) by filing a Vakalatnama and show-cause petition within a period of three weeks from today. In case, the petitioner denies the alleged encroachment then respondent no. 4 shall give opportunity to the parties to adduce evidence in support of their respective cases and thereafter he shall pass final order after giving opportunity of hearing to the parties. It is needless to say that in case, ultimately, it is found by respondent no. In case, the petitioner denies the alleged encroachment then respondent no. 4 shall give opportunity to the parties to adduce evidence in support of their respective cases and thereafter he shall pass final order after giving opportunity of hearing to the parties. It is needless to say that in case, ultimately, it is found by respondent no. 4 that there is no encroachment, it will be open to the petitioner to reconstruct that portion which has already been demolished. If the petitioner and her husband fail to appear by the said date, the proceeding shall be taken up ex-parte. With the aforesaid direction, the writ application is disposed of.” In pursuance of the aforesaid order, proceeding afresh was initiated. The appellants/writ petitioners, however, have agitated the issue of non-issuance of notice which has been disputed by the State authorities in the stand having been taken in the counter affidavit. Learned Single Judge has taken into consideration the aforesaid aspect of the matter and came to a finding that the father of the writ petitioners had to appear suo moto before the authority but he had chosen not to appear. It has further been taken note of that a miscellaneous case being Misc. Case No. 8(iii)/95-96 was initiated, order-sheet passed in the aforesaid miscellaneous case has been brought on record by way of counter affidavit which indicates that the notice was issued to the father of the appellants on 11.07.1996 which has been noted to be served, as would be evident from the order dated 16.07.1996, but the father of the appellants/writ petitioners had chosen not to appear. Learned Single Judge has further found that before the appellate authority the father of the appellants/writ petitioners never raised any grievance with respect to service of notice and for the first time the issue of non-observance of principle of natural justice by not issuing notice was raised before this Court by making statement to that effect at paragraph 22 of the writ petition but the said statement has been discarded by the learned Single Judge holding it contrary to the records and further on the ground that the point which has not been raised before the appellate authority cannot be allowed to be agitated before the writ court and accordingly, the learned Single Judge has come to conclusive finding that even after due service of notice the father of the writ petitioners had chosen not to appear and therefore the said point is not available to be agitated by the appellants/writ petitioners. Further, it has been taken into consideration that the reply sent by the father of the writ petitioners through registered post before the original authority has duly been considered and thereafter the order has been passed for removal of encroachment of about an area of 324 sq. ft. over Plot No. 6960. It is further available from the material available on record that the original sale deed was never produced before the competent authority and further it is also evident that the report of measurement conducted by the Circle Officer concerned has never been questioned by the writ petitioners/appellants and in such circumstances, if the authority, exercising the power conferred under the Public Land Encroachment Act, has come to a conclusion about encroachment of 324 sq. ft. of land, the same cannot be said to be an unjustified decision. It is not in dispute that the Public Land Encroachment Act confers power upon the competent authority to exercise such power of removal of encroachment over the public land but before taking such decision, an opportunity of hearing is to be provided. We, on the basis of the pleading as also the material available on record, are of the considered view that there is no violation of principle of natural justice, rather, reply submitted by the father of the appellants through registered post, has duly been considered and time and again original registered deed was asked to be produced but the same had never been produced. In such circumstances, if the learned Single Judge has come to a finding about commission of no illegality by the authority exercising the power conferred under the Public Land Encroachment Act, the same cannot be interfered with. 10. At this juncture, it would be proper for this Court to refer the judgment rendered by the Hon’ble Apex Court in the case of Syed Yakoob vs. Radhakrishnan, AIR 1964 SC 477 , wherein at paragraph no. 7 their Lordships have been pleased to hold as follows:- “The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised [vide Hari Vishnu Kamath vs. Ahmad Ishaque, 1955 (1) SCR 1104 : AIR 1955 SC 233 , Nagendra Nath vs. Commr. of Hills Division, 1958 SCR 1240 : AIR 1958 SC 398 and Kaushalya Devi vs. Bachittar Singh, AIR 1960 SC 1168 ]. In another judgment of Hon'ble Apex Court in the Case of Sawarn Singh vs. State of Punjab, (1976) 2 SCC 868 their Lordships, while discussing the power of writ under Article 226 for issuance of writ of certiorari, has been please to hold at paragraph nos.12 and 13 as under: “12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra). 13. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra). 13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.” In view of the ratio laid down by the Hon’ble Apex court in the judgments referred hereinabove, it cannot be said that the order passed by the learned Single Judge refusing to interfere with the impugned orders in exercise of power to issue writ of certiorari under Article 226 of the Constitution of India, suffers from any infirmity taking into consideration the principle of issuance of writ of certiorari which can only be issued if there is violation of principle of natural justice or the order suffers from jurisdictional error or if violates the fundamental rights but no such ground is available on the basis of material available on record. 11. This Court, after taking into consideration the entire facts and circumstances of the case, is of the conscious view that the impugned order cannot be faulted with. 12. In the result, the appeal fails and the same is dismissed.