Jharkhand High Court
Sonu Pascal Ekka vs The Governor on 31 March, 2022
Author: Rajesh Shankar
Bench: Rajesh Shankar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4907 of 2021
With
W.P.(C) No. 4953 of 2021
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Sonu Pascal Ekka ... ... Petitioner [ in W.P.(C) No. 4907 of 2021] Suresh Tirkey ... ... Petitioner [ in W.P.(C) No. 4953 of 2021]
-Versus-
1. The Governor, through its Principal Secretary, Jharkhand, Ranchi
2. The Jharkhand Tribes Advisory Council, Ranchi through its Chairman
3. The Secretary, Jharkhand Tribes Advisory Council, Ranchi
4. The Joint Secretary, Jharkhand Tribes Advisory Council, Ranchi
5. The Mayor, Ranchi Municipal Corporation, Ranchi
6. The Municipal Commissioner, Ranchi Municipal Corporation, Ranchi
7. The Assistant Municipal Commissioner, Ranchi Municipal Corporation, Ranchi
8. The Chief Secretary, Government of Jharkhand
9. The Secretary, Urban Development and Housing Department, Government of Jharkhand, Ranchi ... ... Respondents (in both cases) CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioners : Mr. Kaushalendra Prasad, Advocate (in both cases) For the Resp.No. 6 & 7 : Mr. Shashank Shekhar, Advocate (in both cases) For the Resp. Nos. 8 & 9 : Mr. Ravi Prakash Mishra, A.C. to A.A.G.-II [W.P.(C) No. 4907 of 2021] Mr. Deepankar Roy, A.C. to A.G. [W.P.(C) No. 4953 of 2021]
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Order No. 08 Dated: 31.03.2022 The present writ petitions were initially filed for setting aside the notices as contained in letter nos. 1369 (iii) and 1369 (ii) both dated 25.10.2021 (Annexure- 1 to the respective writ petitions) issued by the Assistant Municipal Commissioner, Ranchi Municipal Corporation (RMC), Ranchi (the respondent no. 7) calling upon the concerned persons to submit the required documents relating to their respective land appertaining to Mouza- Bara Ghaghra, Thana No.- 221, Khata No. 328, plot nos. 57 and 58 before the said authority with further prayer to issue direction upon the concerned respondents to stop collection of holding tax/municipal tax and any other taxes imposed by the respondent-RMC, Ranchi from village Bara Ghaghra, Ranchi. The petitioners also prayed for declaration that village Bara Ghaghra cannot be said to be urban area or municipal area as the same is situated in the scheduled area of Ranchi district as well as for directing the concerned respondents to repay the holding tax/municipal tax and other taxes collected from the villagers of Bara Ghaghra.
2. During pendency of the present writ petitions, a public notice -2- as contained in letter no. 1585 dated 23.12.2021 was issued by the Deputy Municipal Commissioner, RMC, Ranchi whereby three persons namely Birsa Oraon, Sushma Ekka (mother of the petitioner of W.P.(C) No. 4907 of 2021) and Suresh Tirkey- petitioner of W.P.(C) No. 4953 of 2021 were directed to remove the alleged encroachment from the land in question by vacating the same within 72 hours failing which, the said encroachment was to be removed forcibly and the expenses incurred on the same was to be be realised from them as the said land were given on lease by the respondent-RMC for the purpose of construction of Apollo hospital. The petitioners also challenged the said general notice and prayed for staying the operation of the same. This Court, vide order dated 26.12.2021, stayed the operation of the notice as contained in letter no. 1585 dated 23.12.2021.
3. The claim of the petitioner of W.P. (C) No. 4907 of 2021 is that the land appertaining to Khata No. 73, plot No. 148, Khewat No. 1, Pargana- Khukhra of Mouza- Bara Ghaghra No. 221, Thana- Ranchi measuring an area of 0.73 acre was recorded in cadastral survey record of rights in the name of Budhuwa Oraon who was the ancestor of the petitioner. The petitioner being successor of the recorded tenant has been enjoying khas possession of the said land and has been residing in the house constructed over the same. The respondent no. 7 issued impugned notice as contained in letter no. 1369 (iii) dated 25.10.2021 in the name of Sabhal Oraon (ancestor of the petitioner- Sonu Pascal Ekka) directing him to submit the required documents relating to his land before the said authority and pursuant thereto, the petitioner submitted representation dated 29.10.2021 claiming that the respondent- RMC has no legal existence in Ranchi since 01.06.1993 in view of Article 243-ZC of Part- IX-A of the Constitution of India as Ranchi District has been declared Scheduled Area and therefore as per Article 244(1), the provisions of the Fifth Schedule to the Constitution of India will apply to the administration and control of the said area.
4. The claim of the petitioner of W.P.(C) No. 4953 of 2021 is that the land appertaining to Khata No. 39, plot No. 151, Khewat No. 1, Pargana- Khukhra of Mouza- Bara Ghaghra No. 221, Thana- Ranchi measuring an area of 76 decimals was recorded in the cadastral survey record of rights in the name of Barka Tutang Oraon (ancestor of the petitioner-Suresh Tirkey) and he remained in khas possession of the -3- same. After his death, the successors of the recorded tenant including the petitioners have enjoyed the said land and are residing in the house situated over the same. The respondent no. 7 issued the impugned notice as contained in letter no. 1369(ii) dated 25.10.2021 in the name of deceased father of the petitioner namely Kanhu Tirkey. In pursuance of the said notice, the petitioner submitted reply on 29.10.2021 claiming that the RMC has no legal existence in Ranchi since 01.06.1993 in view of Article 243-ZC of Part- IX-A of the Constitution of India as Ranchi District has been declared as Scheduled Areas and therefore, in view of Article 244(1), the provisions of the Fifth Schedule to the Constitution of India will apply in the said area.
5. Learned counsel for the petitioners submits that the respondent-RMC has been arbitrarily collecting holding tax and other taxes from the petitioners for their respective land and the said fact also reflects that the petitioners/their ancestors are in khas possession of the same. The land of the petitioners have not been acquired by the State authorities till date and the petitioners are in peaceful possession over the same. It is further submitted that the Scheduled Districts Act, 1874 was applied to the Lohardaga District (Now Ranchi District) as well as to entire Chutia Nagpur Division (now Chotanagpur Division) by the then Government of India and according to Section 3 of the said Act, the Governor was given power to implement the Federal and Provincial Acts within the Scheduled Area by issuing notification. The Governor of the State of Bihar did not notify the Bihar Municipal Act, 1922 and the Land Acquisition Act, 1894 to be made applicable within the District of Ranchi. Since vesting of the estates and tenures in the State of Bihar in the year 1956, ancestors of the petitioners have been in khas possession over their respective land described in the cadastral survey record of rights and till date, the petitioners are in continuous khas possession over their respective land by using it as homesteads as well as for agriculture and horticulture purposes. It is also submitted that as per the provisions of the Bihar Land Reforms Act, 1950, the petitioners are entitled to retain possession and the Collector/ Deputy Commissioner is authorised to fix the equitable rent of the said land. It is a well settled law that if at the time of vesting of Estates in the State of Bihar, any raiyat/tenure holder was found in -4- khas possession of any land as tenant for continuous period of more than 12 years, the same had to be settled with the said tenure holder. The petitioners/their ancestors were also found in khas possession of their respective land at the time of vesting of estates in the State of Bihar. Subsequently, the respondents with some evil intention, made wrong entry in the revisional survey khatian. The petitioners have obtained title over their respective land by virtue of inheritance from the original founders of the village as per usage or customary right prevailed in Munda tribe.
6. The learned counsel appearing on behalf of the respondent nos. 6 and 7 submits that the land in question stand recorded in the name of Municipality in the revisional survey record of rights. As per Section 84 of the Chotnagpur Tenancy Act, 1908, every entry in the revisional survey settlement record of rights so published shall be presumed to be correct and in case of conflict between an earlier and a later entry, the record of rights of later entry shall prevail. It is further submitted that the respondent- RMC executed a lease deed on 27th July, 2016 in favour of M/s Apollo Hospitals Enterprises Limited and leased all that piece and parcel of land measuring an area 2.80 acres more or less under Khata No. 328, Plot No. 57 and 58 situated at village Bara Ghaghara, Thana No. 221, Ranchi for the purpose of construction of a Multi-Speciality Hospital with a capacity of 200 beds at Bara Ghaghra, Doranda, Ranchi on Public Private Partnership (PPP) basis. In the light of the above deed of lease, Urban Development and Housing Department, Government of Jharkhand, vide its notification No. 167 dated 21.11.2016 released and granted administrative approval for a sum of Rs. 14,42,41,328/- for the purpose of land acquisition to construct an approach road from the main road to the proposed site of the said hospital. The land acquisition for the construction of approach road was completed by the District Land Acquisition Officer, Ranchi and the acquired land was accordingly, handed over to the respondent-Ranchi Municipal Corporation vide letter No. 727 dated 17.05.2018. However, there was encroachment upon the land in question and as such the respondent no. 7, vide his letter No. 1368 dated 25th October, 2021 requested Circle Officer, Argora Circle, Ranchi to initiate proceeding under the Jharkhand Public Land Encroachment Act, 2000 for removal of encroachment from the land in -5- question. Accordingly, the Circle Officer, Argora Anchal registered an Encroachment Case No. 11/2021-22 [State vs. Suresh Tirkey others] and on 21.12.2021, passed order for removal of the encroachment made over the land in question. The said order has not been challenged by the petitioners and as such the same has attained finality. Thereafter, a public notice was issued in daily newspapers to remove the encroachment on their own within 72 hours failing which the encroachment was to be removed forcefully. The petitioners have not demonstrated any provision of the Jharkhand Municipal Act, 2011 (in short, "the Act, 2011") which is inconsistent with the provisions of Part IX-A of the Constitution of India. Article 243- ZF of the Constitution of India mandates that any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of Part IX-A, shall continue to be in force until amended or repealed by a competent legislature or any other competent authority or until the expiration of one year from such commencement whichever is earlier. On conjoint reading of Article 243-ZC and 243-ZF of the Constitution of India, it is evident that the provisions relating to Part IX-A cannot be extended to Scheduled Areas, but the laws relating to State Municipalities, which were in existence prior to coming into force of 74th Amendment of the Constitution of India and had gone inconsistent with the provisions of Part IX-A of the Constitution, were allowed to operate for a specified period by virtue of Article 243-ZF. The Ranchi Municipality was functioning under the Bihar Municipal Act, 1922 which was applicable in the entire erstwhile State of Bihar including the schedule areas which now fall within the State of Jharkhand. There is no dispute that after creation of the State of Jharkhand, The Bihar Municipal Act, 1922 was adopted by the State of Jharkhand in exercise of the powers conferred under Section 85 of Bihar Re-organisation Act, 2000 by way of notification issued under memo No. 2755 dated 14th November 2002. The learned Division Bench of this Court in the case of Debashish Soren Vs. State of Jharkhand reported in 2008(1) JCR 542, has held that there is no specific bar for continuance of the existing laws relating to Municipalities, which were in existence prior to commencement of 74th Constitution Amendment if they are consistent -6- with the provisions of Part IX-A of the Constitution.
7. Heard learned counsel for the parties and perused the materials available on record.
8. The petitioners are aggrieved with the impugned notices dated 25.10.2021 issued by the respondent no. 7 calling upon them to produce documents in relation to their respective land allegedly encroached by them.
9. The main contention of the learned counsel for the petitioners is that the Jharkhand Municipal Act, 2011 is not applicable in the District of Ranchi. It is further contended that Article 243-ZC of Part IX-A of the Constitution of India provides that the said part shall not apply to the Scheduled Areas referred to in Clause (1) and Tribal Areas referred in Clause (2) of Article 244 w.e.f. 01.06.1993. Since the district of Ranchi is situated within Scheduled Area since 26.01.1950, the administration and control of the same shall be governed in view of Article 244(1) read with Fifth Schedule of the Constitution of India.
10. Learned counsel for the petitioners in support of his argument puts reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Ram Kirpal Bhagat and Others Vs. The State of Bihar reported in 1969 (3) SCC 471 wherein the question was as to whether on 13.12.1961, the Land Customs Act, 1924 (in short, the Act, 1924") was applicable to the place of occurrence, namely, Pakur situated within Santhal Parganas in erstwhile State of Bihar. Their Lordships have held that prior to the Constitution coming into force, the Central Acts or Federal Acts or Acts of the Dominion Legislature did not apply to an excluded or a partially excluded area unless those were declared by the Governor to apply in the said areas and the Land Customs Act was enacted in the year 1924 which was not declared to be applicable in Santhal Parganas. Their Lordships have held that the laws which were existing in territories other than excluded or partially excluded areas would not remain applicable under Article 372 in relation to excluded or partially excluded areas. The existing law for the rest of India would also not be existing law to area within the meaning of Clause-5 in the Fifth Schedule of the Constitution. The Act, 1924, therefore, cannot be said to apply to Santhal Parganas as an existing law.
11. It thus emerges from the aforesaid judgment that any law -7- applicable in India before commencement of Constitution would not be made applicable to the Scheduled Area unless the Governor declared the said law to apply to those areas. In the aforesaid case, Their Lordships have expressly observed that the Land Customs Act was not made applicable in Santhal Parganas before coming into force of the Act, 1924, thus the same cannot be said to be an existing law under Article 372 of the Constitution.
12. However, in the case in hand, the Bihar Municipal Act, 1922 was made applicable to entire erstwhile the State of Bihar and after re- organization, the same was adopted by the State of Jharkhand in exercise of power conferred under Section 85 of the Re-Organization Act, 2000. Now the Act, 2011 has been enacted to consolidate and amend the laws relating to the Municipal Governments in the State of Jharkhand in conformity with the provisions of the Constitution of India as amended by the Constitution (Seventy Fourth Amendment) Act, 1992. The facts and circumstance of the aforesaid case is completely different from the case in hand and as such the said judgment is not applicable in the case of the petitioners.
13. In the case of Sundargharh Zilla Adivasi Advocates Association and Others Vs. State of Odisha & Others reported in (2013) 14 SCC 217, the question fell for consideration before the Hon'ble Supreme Court as to whether the provisions of the Orissa Municipal Act, 1950 were applicable to Sundargarh District in Odisha.
14. Their Lordships in the said case observed that an amendment was carried out in Orissa Municipal Act, 1950 through the Orissa Act 11 of 1994 with effect from 31.05.1994 by inserting sub-section (6) in Section 1 to the effect as "Nothing in this Act shall apply to the Scheduled Areas referred to in Clause 1 of Article 244 of the Constitution." However, subsequently The Governor of Odisha issued Notification No. S.R.O No. 743/95 dated 14.08.1995 w.e.f 31.05.1994 in exercise of the powers conferred on him under Clause 5(1) of the Fifth Schedule of the Constitution whereby sub-section (6) of Section 1 of the Orissa Municipal Act was repealed and the said Act was extended to the Scheduled Areas of the State.
15. In the said case, the contention of the petitioner was that on coming into force of Part IX-A of the Constitution, the existing municipalities in Sundargarh district could not have continued beyond a -8- period of one year as provided in Article 243-ZF of the Constitution and therefore, their existence beyond 01.06.1994 was unconstitutional. Further contention of the petitioner was that neither the parliament had extended the provisions of Part IX-A of the Constitution to the Scheduled Area of Sundargarh nor the Governor had extended the provisions of the Orissa Municipal Act to Sundargarh District in exercise of the power conferred by Clause 5 of the Fifth Schedule to the Constitution and as such the provisions of the said Act were not applicable to Sundargarh District resulting into a situation that the continuance of the municipalities beyond 01.06.1994 was illegal. The said argument of the petitioner was not accepted by the Hon'ble Supreme Court having observed that the petitioner had not challenged the notification dated 14.08.1995.
16. Their Lordships further observed as under:-
21. Apart from the above, the learned counsel for the petitioners has not shown us any provision of the Orissa Municipal Act which is inconsistent with the provisions of Part IX-A of the Constitution. Article 243-ZF provides that any law relating to municipalities shall continue to apply even to a Scheduled Area for one year, except to the extent of inconsistency with the provisions of Part IX-A of the Constitution. Even beyond a period of one year a law relating to the municipalities may be applicable to a Scheduled Area, if the law is so extended, provided it is not inconsistent with the provisions of Part IX-A. It is in this context that the learned counsel for the petitioners could not point out any provision in the Orissa Municipal Act which is inconsistent with Part IX-A. The contentions of the learned counsel for the petitioners are presently without any foundational basis, but we leave open this question and express no opinion in this regard since Part IX-A has not been made applicable to the Scheduled Area of Sundargarh.
23. Reference may, however, be made to Bondu Ramaswamy v. Bangalore Development Authority [(2010) 7 SCC 129] which explains the purpose behind the introduction of Part IX-A in the Constitution. This is what was said: (SCC p. 159, paras 43-45) "43. The Constitution (Seventy-fourth Amendment) Act, 1992 inserting Part IX-A in the Constitution, seeks to strengthen the system of municipalities in urban areas, by placing these local self-governments on sound and effective footing and provide measures for regular and fair conduct of elections. Even before the insertion of the said Part IX-A, municipalities existed all over the country but there were no uniform or strong foundations for these local self-governments to function effectively.
44. Provisions relating to composition of municipalities, constitution and composition of Ward Committees, reservation of seats for weaker sections, duration of municipalities, powers, authority, responsibilities of municipalities, power to impose taxes, proper -9- superintendence and centralised control of elections to municipalities, constitution of committees for district planning and metropolitan planning, were either not in existence or were found to be inadequate or defective in the State laws relating to municipalities.
45. Part IX-A seeks to strengthen the democratic political governance at grass-root level in urban areas by providing constitutional status to municipalities, and by laying down minimum uniform norms and by ensuring regular and fair conduct of elections."
This objective has been achieved by the Orissa Municipal Act and the amendments made thereto, as extended to the Scheduled Areas.
24. In view of the factual position before us, we see no merit in this writ petition. It is accordingly dismissed. No costs.
17. I have also gone through the judgment of learned Division Bench of this Court rendered in the case of Debashish Soren Vs. State of Jharkhand, 2007 SCC OnLine Jhar 645 wherein after analyzing the Article 243-ZC and Article 243-ZF, it has been held that conjoint reading of both the articles would make it obvious that the provisions relating to the Part IX-A of the Constitution cannot be extended to Scheduled Areas, but the existing laws relating to State Municipalities which were in existence prior to the commencement of 74th Amendment of the Constitution of India and were not consistent with the provisions of Part IX-A of the Constitution, were allowed to operate for a specified period by virtue of Article 243-ZF. As such, even though such existing laws which are inconsistent with the provisions of this part, were permitted to continue until those were amended or repealed by the legislature or till the expiration of one year. However, this condition relating to continuance of existing laws for a specific period would apply only to the existing laws which were inconsistent with the provisions of Part IX-A of the Constitution of India and not to the existing laws which were consistent with the provisions of the said part. There is no specific bar for continuance of the existing laws if they are not inconsistent with the provisions of this part, i.e., if they are consistent with the provisions of Part IX-A of the Constitution of India.
18. In the said case, the learned Division Bench has analyzed the 5th Schedule of the Constitution of India where special provisions have been made with regard to the administration and control of Scheduled Areas and Scheduled Tribes and has held that as per the said provision, notwithstanding anything contained in the Constitution, the Governor
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by public notification may direct that any Act of Parliament or Legislature of the State shall not apply to the Scheduled Area. Even though these powers are conferred to the Governor, the same have not been exercised by the Governor by directing that the Act of 1922 would not apply to the Scheduled Areas. The provisions of Bihar Municipal Act, 1922, as adopted and amended by the State of Jharkhand were made applicable to the entire State of Bihar even prior to the 74th Amendment of the Constitution of India. Only the Governor of the State of Jharkhand having conferred the powers under 5th Schedule is empowered to direct by way of public notification that any particular Act of Parliament or of the Legislature of the State shall apply or shall not apply to a Scheduled Area or any part thereof in the State. The Governor of the State of Jharkhand, however did not choose to pass any order or to give any direction that the provisions of the said Act i.e. Bihar Municipal Act, 1922 would not be applicable to the Scheduled Areas of the State of Jharkhand.
19. In the case in hand, the petitioners have not put challenge to the vires of the Jharkhand Municipal Act, 2011 or Section 606(2) of the said Act under which the impugned notices have been issued to them. The petitioners have also failed to show before this court that the Act, 2011 or the previous Municipal Act i.e Bihar Municipal Act, 1922 has been declared ultra vires by any competent court of law. It is also not the case of the petitioners that the Governor of Jharkhand has declared either Bihar Municipal Act, 1922 or the Jharkhand Municipal Act, 2011 as inapplicable within the Scheduled Areas in exercise of power conferred under 5th Schedule of the Constitution of India.
20. The petitioners have neither averred in the writ petitions nor their learned counsel has been able to point out as to which provision of the Act, 2011 is inconsistent with Part IX-A of the Constitution of India and thus in view of the judgment of learned Division Bench of this court rendered in the case of Debashis Soren (supra.), there is no specific bar in continuance of the existing laws if they are consistent with the provisions of Part IX-A. Vague argument of learned counsel for the petitioners that the Act, 2011 will not be applicable within the District of Ranchi, has thus no leg to stand.
21. The other limb of argument of the learned counsel for the petitioners is that the petitioners have right, title and interest over their
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respective land as the same was recorded in the name of their ancestors in the cadastral survey record of rights and they have been in khas possession of their respective land since 1908, however in the revisional survey record of rights, these were wrongly recorded in the name of Municipality.
22. Though the petitioners have claimed that they are in khas possession over their respective land, however they have failed to bring on record any document in support of such claim i.e., opening of jamabandi in their name, entry in Register-II as well as rent receipts issued in respect of the land in question so as to show their lawful possession over the same. Moreover, the Circle Officer, Argora Circle, Ranchi, vide order dated 21.12.2021 passed in Encroachment Case No. 11/2021-22, has observed that the entry pertaining to the land in question made in the name of Municipality in the revisional survey record of rights will prevail over the entries made in the cadastral survey record of rights. It has further been observed that Ranchi Municipal Corporation has the authority to remove encroachment from the land belonging to it. The petitioners have also not averred in their rejoinder affidavits that the order dated 21.12.2021 passed in Encroachment Case No. 11/2021-22 has been set aside by any higher court of law. Moreover, the claim of the petitioners that their respective land were recorded in the name of their ancestors in the cadastral survey record of rights, cannot be entertained by this Court under extraordinary writ jurisdiction.
23. The writ petitions are accordingly dismissed. The petitioners are however at liberty to claim their title over the land in question before a competent court of civil jurisdiction, if so advised.
(Rajesh Shankar, J.) Ritesh/AFR