Allahabad High Court
Career Convent Educational & Charitabe ... vs State Of U.P.Thru.Addl.Chief ... on 12 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1623
Bench: Pankaj Kumar Jaiswal, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- MISC. BENCH No. - 8889 of 2020 Petitioner :- Career Convent Educational & Charitabe Trust & Anr. Respondent :- State Of U.P.Thru.Addl.Chief Secy.Revenue Lucknow & Ors. Counsel for Petitioner :- Amit Jaiswal-Ojus Law,Ambrish Singh Yadav,Rajeiu Kumar Tripathi Counsel for Respondent :- C.S.C. Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Dinesh Kumar Singh,J.
1. Land is the most valuable and scarce natural resource available on this planet to the mankind. With growing population, this natural resource is becoming more and more scarce and costly. There is a tendency to grab this scarce natural resource by unscrupulous and greedy people including land mafias. People are encroaching and forcibly occupying the land of others and the land belonging to State and other State authorities. If law enforcement agencies take action against the land grabbers, such actions are always met with several hurdles including legal. Land grabbers try every trick to prevent the authorities from getting them evicted. They make all sorts of allegations against an authority which proposes legal action against them. However, it is the responsibility and bounden duty of the law enforcing agencies to prevent the unauthorised use, occupation and possession of this natural scarce resource. The might of these people has to be dealt with by the authorities with a stern hand.
2. Many at times people who illegally occupy the scarce natural resource i.e. land get patronage from the executive and political class. The vested interests allow the encroachment over the public utility and land vested in the State or State authorities by the unscrupulous people. When an authority initiates an action to remove the encroachment from the land, such an authority has to meet the challenges not only from the land grabbers but also from the political and executive class. Sometime such an authority/ officer has to face the wrath of the political masters and executive class who have vested interests in the land in question. When the land-grabbers do not succeed to prevent the authority from taking action against them, they approach the court and make all sorts of allegations against the authority/officer concerned.
3. The State is the trustee of all natural resources which, by nature are made for public use and enjoyment. The State as a trustee is under the legal duty to protect the natural resources. Therefore, if a State authority takes an action to protect a natural resource such as land and remove the encroachers from the land, unless the person coming before the court has an absolute clear and unambiguous right, title over the land, the action of the authority should not be viewed with the prism of suspicion. The allegations of mala fide against the authority proposing an action against the encroachers of the land should not be considered unless such a person has undeniable right, title and interest over the land.
4. The present petition has been filed by the petitioners impugning the order dated 30th November, 2019 passed by the District Magistrate, Lucknow on a complaint by Raees Ahmed, of the resident of the village Ghaila, Paragana and District Lucknow in respect of petitioners' alleged encroachment upon Chak roads, main roads, drainage, pump canal and Naveen Parti land etc. The Sub Divisional Magistrate, Sadar, and Circle Officer, Sadar, Lucknow were directed to make spot inspection and take legal action in accordance with the law. A copy of the complaint of Raees Ahmed was also enclosed with the said order of the District Magistrate.
A prayer has also been made in the writ petition for quashing of the proceedings and orders taken and passed in pursuance of the aforesaid order passed by the District Magistrate, Lucknow on 30th November, 2019.
5. A notice was issued by the concerned Circle Officer on 12th December, 2019 to the petitioners requiring them to cooperate in the inquiry and produce the relevant documents in respect of the land in their possession. The SDM and Tehsildar initiated proceedings under Sections 104/105 Cr.P.C. and under Section 67 of the U.P. Revenue Code, 2006 against the petitioners.
6. A team consisting of Revenue Inspector and four Lekhpals was constituted to submit a report regarding alleged encroachment of the land by the petitioners. The said team submitted its report to the SDM on 30th December, 2019 to the effect that land in Gata No. 205/0.117 hect (area 420 sq meters), in Gata No.207/0.018 hect, (area 60 sq meters) and in Gata No.249/0.037 hect (area 370 sq meters) which is the public utility land, had been encroached upon by the petitioners. It was further reported that a part of the land of Gata No.173/0116 hect registered as pump canal had been encroached upon the petitioners for which it was for the Irrigation Department to take action against the petitioners. It was also said that in respect of the other land mentioned in the complaint, the petitioners' encroachment was not found.
7. The Tehsildar initiated proceedings under Section 67 of the U.P. of the Revenue Code, 2006 against the petitioners on the basis of the aforesaid report. The petitioners did not participate in the proceedings despite service of notice. The Tehsildar vide order dated 29th February, 2020 passed in Case No.00759 of 2020, ordered eviction of the petitioners from the public land in their illegal possession. A fine of Rs.3,30,000/- and a cost of Rs.1000/- was also imposed.
8. Since the petitioners neither deposited the said fine nor vacated the land in their unauthorised possession, a recovery certificate has been issued against them.
9. The aforesaid decision of the District Magistrate dated 30th November 2019, and subsequent actions taken in pursuance thereof have been challenged basically on two grounds; firstly the order has been passed by the District Magistrate due to mala fide intention and secondly the order impugned is unlawful and has been passed in contravention to the authority vested in the District Magistrate.
10. In support of the first ground, it is stated that the present District Magistrate of Lucknow had filed a complaint under Section 497 IPC against son of petitioner No.2, Iqbal Ali in the Court of A.C.J.M., Court No.31, Lucknow, in relation to his then wife. Learned Additional Chief Judicial Magistrate had issued summons on 09.06.2015 against the son of petitioner No.2. Against the order passed by the learned A.C.J.M. a petition under Section 482 Cr.P.C. was filed by the son of petitioner No.2 which is still pending in the High Court. It is said that the present District Magistrate actuated with malafide had passed order dated 30.11.2019 on which subordinate officers have initiated action against the petitioners.
11. In respect of the second ground, it has been stated that whole of the area of Village Ghaila had been notified on 05.12.2019 in exercise of powers under Sub-Section 2 of Section 3 of the U.P. Nagar Nigam Adhiniyam, 1959 read with Article 243(Q) of the Constitution of India and, therefore, orders and proceedings initiated under the U.P. Revenue Code, 2006 are without jurisdiction, per se illegal and void.
12. District Magistrate is under a statutory duty to enquire the complaint in respect of the land grabbing. Serious allegations with Gata Nos. etc., were made by Raees Ahmad against the petitioners for encroaching upon the land in those Gata Nos. by them. Direction issued by the District Magistrate to the Sub-Divisional Magistrate and Circle Officer to enquire into the allegation and take action strictly in accordance with law can by no stretch of imagination be said to have been actuated with malice. Mala fide means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose.
13. If an act is done in discharge of the public duty, it would be deemed to have been done in a good faith unless it is shown that the action taken was contrary to the requirements of the relevant statute or discretion was exercised improperly to achieve some ulterior purpose. The administrative authority is free to act if it deems necessary or it is so satisfied, as its responsibility lies only in enforcing the law. The action taken must, therefore, be proved 'mala fide' for such extraneous considerations. Mere assertion or a vague or bald statement, is not sufficient. It must be demonstrated either by admitted or proved facts or considerations in a given case.
14. It would be suffice here to extract the relevant paragraphs of the judgement of the Supreme Court rendered in the case of State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 which read as under:-
49. The focal point from the above background is whether the charge-sheets are vitiated by the alleged mala fides on the part of either of the complainant R.K. Singh or the Investigating Officer G.M. Sharma. In Judicial Review of Administrative Action S.A. de Smith, (3rd edn. at p. 293 [Ed.: 4th Edn., p. 335] ) stated that:"The concept of bad faith ... in relation to the exercise of statutory powers ... comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred. His intention may be to promote another public interest or private interests. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise .... The administrative discretion means power of being administratively discreet. It implies authority to do an act or to decide a matter a discretion."
The administrative authority is free to act in its discretion if he deems necessary or if he or it is satisfied of the immediacy of official action on his or its part. His responsibility lies only to the superiors and the Government. The power to act in discretion is not power to act ad-arbitrarium. It is not a despotic power, nor hedged with arbitrariness, nor legal irresponsibility to exercise discretionary power in excess of the statutory ground disregarding the prescribed conditions for ulterior motive. If done it brings the authority concerned in conflict with law. When the power is exercised mala fide it undoubtedly gets vitiated by colourable exercise of power.
50. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.
51. The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand."
15. In the present case, it cannot be said that the District Magistrate has acted beyond his authority for oblique or ulterior purposes and, therefore, allegation of malafide by the District Magistrate does not have any basis and is hereby rejected.
16. The District Magistrate has passed order on 30.11.2019 whereas the notification under Sub-section 2 of Section 3 of the U.P. Nagar Nigam Adhiniyam, 1959 is said to have been issued on 05.12.2019. The Tehsildar has passed the order under Section 67 of the U.P. Revenue Code after taking into consideration an enquiry report in which the petitioners were found to have encroached upon some areas of public land as mentioned above.
17. Section 67 of the U.P. Revenue Code, 2006 reads as under:-
67. Power to prevent damage, misappropriation and wrongful occupation of Gram Panchayat property.-
"(1) Where any property entrusted or deemed to be entrusted under the provisions of this Code to a Gram Panchayat or other local authority is damaged or misappropriated, or where any Gram Panchayat or other authority is entitled to take possession of any land under the provisions of this Code and such land is occupied otherwise than in accordance with the said provisions, the Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed.
(2) Where from the information received under sub-section (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropriated, or any person is in occupation of any land referred to in that sub-section in contravention of the provisions of this Code, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation not exceeding the amount specified in the notice be not recovered from him and why he should not be evicted from such land.
(3) If the person to whom a notice has been issued under sub-section (2) fails to show cause within the time specified in the notice or within such extended time as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person shall be evicted from the land, and may, for that purpose, use or cause to be used such force as may be necessary, and may direct that the amount of compensation for damage or misappropriation of the property or for wrongful occupation, as the case may be, be recovered from such person as arrears of land revenue.
(4) If the Assistant Collector is of opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (2), he shall discharge the notice.
(5) Any person aggrieved by an order of the Assistant Collector under sub-section (3) or sub-section (4), may within thirty days from the date of such order, prefer an appeal to the Collector.
(6) Notwithstanding anything contained in any other provision of this Code, and subject to the provisions of this section every order of the Assistant Collector under this section shall, subject to the provisions of sub-section (5) be final.
(7) The procedure to be followed in any action taken under this section shall be such as may be prescribed.
Explanation. - For the purposes of this section, the word ''land' shall include the trees and buildings standing thereon.
18. From perusal of the aforesaid provision, it is evident that there is a remedy of appeal provided under Sub-Section 5 of Section 67 of the U.P. Revenue Code, 2006 against the order passed by Tehsildar. Instead of approaching the appellate authority, the petitioners have rushed to this Court under Article 226 of the Constitution of India and made reckless allegations of mala fide agaiast the District Magistrate for taking action by him as warranted in law. This Court does not find any merit and substance in the allegations mala fide against the District Magistrate and nor it would like to interfere in a case where the petitioners have usurped the public utility land and have made unauthorized construction.
19. We therefore, dismiss this writ petition with cost of Rs.10,000/- to be deposited in the Chief Minister Distress Relief Fund- Covid Care Fund, U.P. (Dinesh Kumar Singh,J.) (Pankaj Kumar Jaiswal,J.) Order Date :- 12.6.2020 prateek