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2023 DIGILAW 1941 (PNJ)

Jitender v. State of Haryana

2023-06-01

G.S.SANDHAWALIA, HARPREET KAUR JEEWAN

body2023
JUDGMENT G.S. Sandhawalia, J. (Oral) The challenge is to the demolition orders, dated 17.04.2023 (Annexures P-16 to P-20), which have been upheld in the appeal on 15.05.2023 (Annexure P-22). Apparently, show causes notices were issued under Section 408A (1) of the Haryana Municipal Corporation Act, 1994, on 27.03.2023 (Annexure P-14) to the petitioners herein regarding the unauthorized encroachment of 'Khasra' No. 47, Village Dhana, within the limits of Municipal Corporation Manesar. The encroachment qua all the petitioners mentioned as under:- Petitioners Name Petitioners Nos. Encroachment land in square yards Satender & Jitender Petitioners No. 1 and 2 94.78 square yards late Sh. Virbhan Father of Anil Kumar petitioner No. 3 76.98 square yards Karambir Petitioner No. 4 188.56 square yards Chanderbhan Petitioner No. 5 266.22 square yards Kuldeep Petitioner No. 6 69.43 square yards 2. Resultantly, the said persons were asked to appear on 03.04.2023 to show cause as to why they should not vacate the premises of building/land or building/structure constructed thereon or to restore the site to its original state. They were asked to call for the ownership documents and permission/approval granted by the competent authority . 3. Apparently, the matter was pending since long as the petitioners had earlier approached this Court by way of CWP-467-2023, challenging the demolition orders dated 03.01.2023 (Annexures P-23 to P-32 in that petition). The following order was passed on 31.01.2023 (Annexure P-25), while recording the fact that non-presence of the petitioners or their authorized representatives at the time of demarcation, in such situation, will not be a ground for taking as if the demarcation was carried out in their absence. The said order reads as under:- "Learned counsel for the respondents submits that the notices which have been issued to the petitioners or their authorized representatives would be withdrawn and fresh notices, if required, would be issued to them and others by the competent authority by following the proper procedure in accordance with law. In the light of the statement made by the counsel for the respondents, we dispose of the present writ petition with liberty to the respondents to withdraw the impugned order/notices which have been issued to the petitioners or their authorized representatives, and as a consequence thereof, the demolition orders which have been impugned by the petitioners in this petition dated 03.01.2023 (Annexures P-23 to P-32) shall not be proceeded with. It goes without saying that in case, the proper notices are issued and served upon the petitioners or their authorized representatives, petitioners would be bound to appear before the competent authority at the time of demarcation, if held. Non-presence of the petitioners or their authorized representatives at the time of demarcation, in such situation, will not be a around for takine it as if the demarcation was carried out in their absence. Learned counsel for the respondents has brought to the notice of the Court that there is a contempt petition before this Court i.e. COCP-2491-2022 titled as 'Murari Lal Sharma v. Munesh Kumar and Anr.' which is now listed for hearing on 25.04.2023 Let this fact be brought to the notice of the Hon'ble Contempt Court which shall thereafter pass an appropriate order. The writ petition stands disposed of accordingly. " 4. Apparently, the show cause notices were based on the demarcation report, dated 23.02.2023 (Annexure P-26), keeping in view the orders passed by this Court earlier. It had also been noticed by the coordinate Bench of this Court in the aforesaid order dated 31.01.2023 (Annexure P-25) that a contempt petition bearing No. COCP-2491-2022 titled Murari Lal Sharma v. Munesh Kumar and another is also pending before this Court. 5. A perusal of the report which has been placed on record by the petitioners themselves would go on to show that out of the 06 petitioners, Jitender (petitioner No. 1), Anil Kumar (petitioner No. 3) and Chander Bhan (petitioner No. 5) have been recorded to be present for the demarcation proceedings. On the basis of the same, the demolition orders were passed on 17.04.2023 (Annexure P-16 to P-20), though objections had been filed on 03.04.2023 (Annexure P-15) by petitioners No. 1 and 2 (Jitender and Satender). 6. Apparently, the said demolition orders, dated 17.04.2023 (Annexures P-16 to P-20), were passed by the Joint Commissioner-II, Municipal Corporation, Manesar, in a terse manner rejecting the objections by coming to the conclusion that the reply was considered unsatisfactory. No reference as such was made to the demarcation report and to come to the conclusion that which of the occupant was in possession of what portion of land unauthorizedly and no reasons were given in the demolition orders. 7. No reference as such was made to the demarcation report and to come to the conclusion that which of the occupant was in possession of what portion of land unauthorizedly and no reasons were given in the demolition orders. 7. The petitioners approached this Court by way of filing CWP-9032-2023, on the same ground that a non-speaking order had been passed and they have to file an appeal provided under the statute. Therefore, interim protection was granted to them, vide order dated 28.04.2023 (Annexure P-21), that in case the said appeal is filed and an application for stay is also preferred alongwith the same within the time as stipulated, i.e. one week, status quo shall enure with regard to the possession, as it exists today till the decision is taken by the appellate authority on the application for stay on the appeal as would be preferred by the petitioners, whichever is earlier. The said order reads as under:- "Mr. Murari Lal Sharma, Advocate has put in appearance on behalf of the complainant and has filed Power of Attorney, which is taken on record. Learned Senior counsel for the petitioners contends that while passing impugned orders dated 17.04.2023 (Annexures P-16 to P-20) the Joint Commissioner II, Municipal Corporation, Manesar has not mentioned anything about the reply which was filed by the petitioners. A non-speaking order has been passed. It has been stated that the petitioners would be availing a remedy of appeal, as provided under the statute which will be filed by them, within a period of one week from today. He submits that the petitioners may be protected till the decision on the application for stay which would be preferred by them alongwith the appeal. Keeping in view the submission as has been made by learned counsel for the petitioners, we issue notice to the respondents. On the asking of the Court, Mr. Pravindra S. Chauhan, Sr. Addl. A.G., Haryana, accepts notice on behalf of the respondent(s)-State. Without going into the merits of the case or commenting thereon, we dispose of the present writ petition by permitting the petitioners to file an appeal within one week from today. On the asking of the Court, Mr. Pravindra S. Chauhan, Sr. Addl. A.G., Haryana, accepts notice on behalf of the respondent(s)-State. Without going into the merits of the case or commenting thereon, we dispose of the present writ petition by permitting the petitioners to file an appeal within one week from today. In case, the said appeal is filed and an application for stay is also preferred alongwith the same within the time as stipulated i.e. one week, status quo shall enure with regard to the possession, as it exists today till the decision is taken by the Appellate authority on the application for stay on the appeal as would be preferred by the petitioners, which ever is earlier. Disposed of, accordingly." 8. Eventually, the appeal has now been decided on 15.05.2023 (Annexure P-22). The order of the Commissioner, Municipal Corporation, Manesar, also suffers from the same infirmity of lack of reasoning as apart from reproducing the show cause notice and referring to the fact of the mutation in the jamabandi, demarcation report, demolition orders and the relevant provisions. The appellate authority came to the conclusion that there is no documentary proof with the appellants to substantiate the claim of ownership and the Municipal Commissioner, Manesar, is the owner of the land in question comprised in 'Khasra' No. 47 situated in the revenue estate of Village Dhana. Thus, at both levels, it would be termed that the orders are non-speaking. 9. Various objections have been taken in the reply dated 03.04.2023 (Annexure P-15), that there is no 'Pakka' point available in the village for demarcation and that it has not been mentioned in the report that how much land is under the ownership of Panchayat, and how much is lying vacant, how much of the street is constructed, or how much is encroached upon. 10. It is a settled principle of law that once an order is passed effecting the civil rights of the person, it has to be a order containing reasons, so that the Court examining the said order can uphold the same after satisfying itself that the order is justifiable. 11. 10. It is a settled principle of law that once an order is passed effecting the civil rights of the person, it has to be a order containing reasons, so that the Court examining the said order can uphold the same after satisfying itself that the order is justifiable. 11. Reliance can also be placed upon the judgment of the Apex Court passed in Kranti Associates Pvt. Ltd. and another v. Masood Ahmed Khan and others, (2010) 3 SCC (Civil) 852, wherein it has been held that even administrative orders should contain reasons, since the decision affects the persons prejudicially. Following principles were laid down in the said judgment:- "51. Summarizing the above discussion, this Court holds: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process." 12. In the present circumstances, as noticed, the demolition orders were passed by giving just one line finding "that the reply is not satisfactory" and the same have also been upheld in the appeal. 13. In such circumstance, we are of the considered opinion that on account of the fact that the contested litigation is coming to this Court again and again, the matter be re-decided by the Joint Commissioner-II, Municipal Corporation, Manesar, within a period of 03 weeks by giving a proper hearing to the petitioners. 13. In such circumstance, we are of the considered opinion that on account of the fact that the contested litigation is coming to this Court again and again, the matter be re-decided by the Joint Commissioner-II, Municipal Corporation, Manesar, within a period of 03 weeks by giving a proper hearing to the petitioners. A reasoned order be passed after taking into account the objections which have already been raised regarding demarcation and which might be further raised. The necessary reference be made to the demarcation report qua all the petitioners to show the extent and the manner in which they have encroached upon the land belonging to the Municipal Corporation. 14. Needless to say that once the order will be passed by the Joint Commissioner, the petitioners will have a remedy of an appeal, if they need to challenge the same. 15. Accordingly, the petitioners shall put in an appearance before the Joint Commissioner-II, Municipal Corporation, Manesar, on 26.06.2023. 16. Resultantly, the petition stands allowed by quashing the orders dated 17.04.2023 (Annexures P-16 to P-20) and the order passed in appeal on 15.05.2023 (Annexure P-22) with the aforesaid observations. 17. Pending miscellaneous application (s), if any, also stand disposed of.