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2021 DIGILAW 600 (JHR)

Dilip Kumar v. Ranchi Municipal Corporation

2021-08-09

RAJESH SHANKAR

body2021
JUDGMENT : RAJESH SHANKAR, J. 1. The present writ petition is taken up today through Video conferencing. 2. At the request of learned counsel for the petitioners, the defects, as pointed out by the office, are ignored. 3. The present writ petition has been filed by the 24 petitioners for quashing the orders dated 23rd July, 2021 passed by the Municipal Commissioner, Ranchi Municipal Corporation, Ranchi the respondent no. 2 in respective un-authorized construction cases, the details of which are given as under:- S. No. Name U.C. Case Number Order Date 1. Dilip Kumar 183 of 2021 23.07.2021 2. Upendra Rai 207 of 2021 23.07.2021 3. Ranjay Singh 214 of 2021 23.07.2021 4. Gajadhar Prasad 210 of 2021 23.07.2021 5. Jagdhari Prasad 208 of 2021 23.07.2021 6. Sukan Yadav 209 of 2021 23.07.2021 7. Mary Hemrom 186 of 2021 23.07.2021 8. Ganesh Prasad Gupta 195 of 2021 23.07.2021 9. Malti Devi 204 of 2021 23.07.2021 10. Santosh Kumar Singh 206 of 2021 23.07.2021 11. Sarda Devi 197 of 2021 23.07.2021 12. Pintu Singh 187 of 2021 23.07.2021 13. Priyanka Devi 200 of 2021 23.07.2021 14. Ajay Munda 185 of 2021 23.07.2021 15. Neelam Devi 201 of 2021 23.07.2021 16. Mahendra Nath Yadav 202 of 2021 23.07.2021 17. Kranti Devi 205 of 2021 23.07.2021 18. Hira Lal Gupta 175 of 2021 23.07.2021 19. Shiv Ram Sahu 172 of 2021 23.07.2021 20. Premchand Gupta 203 of 2021 23.07.2021 21. Babli Devi 177 of 2021 23.07.2021 22. Munna Gupta 176 of 2021 23.07.2021 23. Ajit Minz 196 of 2021 23.07.2021 24. Munni Sinha 191 of 2021 23.07.2021 4. Mrs. Ritu Kumar, learned counsel for the petitioners submits that all the petitioners are residents of New Bandhu Nagar, Hinoo, Ranchi and have been in possession of their respective pucca houses/temporary asbestos houses since long. Learned counsel for the petitioners while assailing the impugned orders dated 23rd July, 2021 submits that the petitioners were never informed about initiation of un-authorized constructions cases against them, much less providing opportunity of hearing to them in order to satisfy the respondent no. 2 that they have not made any un-authorized construction over the respective plots. The Assistant Municipal Commissioner, Ranchi Municipal Corporation, Ranchithe respondent no. 3 vide letters dated 31st March, 2021, 1st April, 2021 and 3rd April, 2021 called upon the petitioners to submit their reply with respect to making un-authorized construction. 2 that they have not made any un-authorized construction over the respective plots. The Assistant Municipal Commissioner, Ranchi Municipal Corporation, Ranchithe respondent no. 3 vide letters dated 31st March, 2021, 1st April, 2021 and 3rd April, 2021 called upon the petitioners to submit their reply with respect to making un-authorized construction. The petitioners, however, could not respond to the said notices due to second wave of COVID-19 pandemic. So far as the notice dated 15th June, 2021 mentioned in the impugned orders is concerned, the petitioners never received the same. Unfortunately, the petitioners could not read any daily newspaper on 21st July, 2021 in which the final notices were purportedly published by the respondent no. 2 calling up them to put forth their respective cases before him on 22nd July, 2021. In fact, the respondent no. 2 passed the impugned orders dated 23rd July, 2021 in undue haste without providing opportunity of hearing to the petitioners. 5. Mr. Shashank Shekhar, learned counsel appearing on behalf of the respondents submits that the impugned orders dated 23rd July, 2021 would itself indicate that during spot verification made by the officers of the Ranchi Municipal Corporation, Ranchi on 5th April, 2021, none of the petitioners had shown the approved building plan subsequent to which un-authorized construction cases were registered and notices were issued to them on 15th June, 2021 calling upon them to put forth their respective defence. Moreover, final notices were also published in the local daily newspapers on 21st July, 2021 intimating them to submit their reply in un-authorized construction cases on 22nd July, 2021. Since none of the petitioners appeared in un-authorized construction cases despite publishing final notices addressed to them, the respondent no. 2 had no option but to pass the impugned orders dated 23rd July, 2021 exercising powers under Sections 436 and 437 of the Jharkhand Municipal Act, 2011. 6. Heard the learned counsel for the parties and perused the content of the writ petition. 7. The contention of the petitioners is that the respondent no. 2 has not provided them opportunity of hearing before passing the impugned orders dated 23rd July, 2021 directing them to demolish the construction made over their respective plots within 15 days of the order. It appears that initially notices dated 31st March, 2021, 1st April, 2021 and 3rd April, 2021 were issued to the petitioners by respondent no. 2 has not provided them opportunity of hearing before passing the impugned orders dated 23rd July, 2021 directing them to demolish the construction made over their respective plots within 15 days of the order. It appears that initially notices dated 31st March, 2021, 1st April, 2021 and 3rd April, 2021 were issued to the petitioners by respondent no. 3 (copies of which have been annexed as Annexure-1 series to the writ petition) directing them to respond to the show-cause notices within three days as to why the illegal construction made by them either should not be stopped or sealed to ensure the rule of law. The said notices do not indicate institution/registration of any un-authorized construction case in Ranchi Municipal Corporation, Ranchi. So far as the notices dated 15th June, 2021 as mentioned by the respondent no. 2 in the impugned orders dated 23rd July, 2021 is concerned, the specific case of the petitioners is that the said notices were never served upon them. As regards, the final notices issued to the petitioners by publishing in the local newspapers, the petitioners have stated in the writ petition that unfortunately they did not read any newspaper and as such could not come to know about the same. 8. Be that as it may. 9. On perusal of the impugned orders dated 23rd July, 2021, it appears that vide final notices dated 21st July, 2021 published in daily newspapers, the petitioners were called upon to put forth their respective cases before the respondent no. 2 on the next date i.e. 22nd July, 2021. Thus even if it is assumed that the notices dated 21st July, 2021 published in the daily newspapers addressed to the petitioners were deemed to have been validly served, asking them to appear on the very next date with their defence in the respective un-authorized construction cases can be said to be arbitrary and un-reasonable. The respondent no. 2 while publishing the notices in the newspapers should have provided the petitioners reasonable time to appear in the respective un-authorized construction cases to put forth their defence. Moreover, the respondent no. 2 in the impugned orders dated 23rd July, 2021 has not said anything on merit, rather he has only mentioned certain provisions of Jharkhand Municipal Act, 2011 and about issuance of the notices upon the petitioners. Moreover, the respondent no. 2 in the impugned orders dated 23rd July, 2021 has not said anything on merit, rather he has only mentioned certain provisions of Jharkhand Municipal Act, 2011 and about issuance of the notices upon the petitioners. In last paragraph, he has directed the petitioners to demolish the buildings within 15 days of the order. 10. The claim of the petitioners is that they have not made any unauthorized construction over their respective plots and as such, orders dated 23rd July, 2021 passed by the respondent no. 2 without affording any opportunity of hearing to them definitely caused serious prejudice to their interest over the buildings/structures in question. 11. The Hon’ble Supreme Court of India in the case of Asha Sharma vs. Chandigarh Administration and Others, 2011 SCC Online SC 1176 has held as under: “14. Action by the State, whether administrative or executive, has to be fair and inconsonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then defer from person to person and from situation to situation, Even if the determinative factors of the situations in question were identical. This uncertainty must be avoided.” 12. Decision taken by an administrative authority adversely affecting the right of a person must show impartiality and fairness. The said order should also contain the reasons for arriving at a particular conclusion so that if the person feels aggrieved with the same, he may challenge it in the higher courts of law assailing the reasons mentioned therein. Justice should not only be done but must be seen to be done. The said order should also contain the reasons for arriving at a particular conclusion so that if the person feels aggrieved with the same, he may challenge it in the higher courts of law assailing the reasons mentioned therein. Justice should not only be done but must be seen to be done. Even if there is no rule to govern an administrative action, the authorities exercising the discretion are bound to follow the rule of fairness by providing due opportunity of hearing to the concerned persons whose civil rights are involved in any proceeding. In the present case, the way in which the impugned orders have been passed by the respondent no. 2 certainly appears to have been done in haste and with a pre-occupied mind. 13. Since the impugned orders dated 23rd July, 2021 are bereft of any reason whatsoever directing demolition of the structure/houses in question and that the same appears to have been passed without any application of mind as well as without providing opportunity of hearing to the petitioners, the same cannot be sustained in the eyes of law. Accordingly, all the impugned orders dated 23rd July, 2021 passed by the respondent no. 2 in the respective un-authorized construction cases are hereby quashed and set aside. The matter is remanded to the respondent no. 2 to pass fresh reasoned orders in accordance with law in respective un-authorized construction cases after providing due opportunity of hearing to the petitioners/their representatives. 14. The respondent no. 2 is directed to take up these cases on 2nd September, 2021 at 11 a.m. The petitioners/their representatives shall appear before the respondent no. 2 on the said date and file their respective reply. 15. Till the fresh orders are passed by the respondent no. 2, no coercive steps shall be taken against the petitioners for demolition of their structures existing over the respective plots in question. 16. The writ petition is disposed of with aforesaid direction.