Patna High Court
Bhuvaneshwar Prasad vs State Of Bihar And Ors. on 5 July, 1994
Equivalent citations: AIR1995PAT1, AIR 1995 PATNA 1, (1995) 2 BLJ 520 (1994) 2 PAT LJR 571, (1994) 2 PAT LJR 571
Author: A.K. Ganguly
Bench: A.K. Ganguly
JUDGMENT A.K. Ganguly, J.
1. After the writ petition was filed on 11th January, 1994, it came up for admission on 21st January, 1994 and a Division Bench of this Court in the presence of the learned lawyer appearing for the State respondent gave three weeks time to the Government Pleader No. 1 to seek instructions and file counter-affidavit so that the application may be disposed of at the stage of admission itself and directed the parties to maintain status quo as of that date in respect of the disputed land/house in question.
2. Thereafter the matter had been appearing before the Division Bench of the Court on several dates. The mater appeared on 18-2-1994, 25-3-1994, 29-4-1994 and on all those dates time was given to the respondents' Counsel to file the counter affidavit but it was never filed.
3. After re-opening of the Court after summer vacation, the matter was placed before this Division Bench on 24th June, 1994. No affidavit was filed even on that date. As such the Court took an exception to the recalcitrant stand taken by the learned lawyer appearing for the State respondents in not filing the affidavit despite the repeated directions of the Court. As the learned State counsel, wanted further time, we felt that cost must be imposed. To that observation of the Court, the learned State Counsel took a rather defiant attitude and wanted the court to dispose of the matter without any counter affidavit. As such the Court is compelled to dispose of the matter without any counter affidavit.
4. The case as made out in the writ petition is that by a registered deed of lease dated 3-10-1950 executed by the Executive Engineer, Purnea Division, some portion of land measuring about 0.22 acres, namely, part of plot No. 637, village Sundrayam Dilwarganj, pargana Surjapur, Tauzi No. 7, Thana No. 10, Police Station Kishanganj was given to the father of the petitioner on the yearly rental of Rs. 120/- initially for a period of five years with provision for extension of the said period from time to time.
5. It has also been averred in the said writ petition that the lease was granted for construction of a house and for establishment of a petrol pump,
6. It has been further averred in the writ petition that the father of the petitioner is in possession of the leasehold property in question by constructing a building and establishing a petrol pump thereon. It is further stated in the writ petition that after the expiry of five years, the lease had been extended from time to time and the lease rent has been paid to the State of Bihar. It is also the case of the petitioner that the lessee has paid the holding tax to the Municipality. Suddenly in the year 1963-64 a land encroachment case was initiated against the petitioner and his father by the Sub-Divisional Officer, Kishanganj whereupon a report was called for from the Executive Engineer, Public Works Department and in the report dated 12-12-1966 it was stated that negotiation was going on for extension of the lease. As such the land encroachment proceedings were dropped with the observation that there is no encroachment of land. A copy of the said report has been annexed as Annexure 1 to the writ petition.
7. Thereafter the lessee has paid the amount of rent and taxes to the Municipality up to 31st August, 1993. It is also the case of the petitioner that the lessee is in actual physical possession of the land and building built on the leasehold property. The petitioner's case is that on 5-1-1994 the Circle Officer along with police force came to the house in question and directed the petitioner to demolish the house and threatened him with dire consequences if the petitioner fails to demolish the same. The petitioner was also told by the said Circle Officer that if the petitioner fails to demolish the house in question, the same will be demolished by the authorities and the cost of the demolition will be realised from the petitioner.
8. At this juncture, the writ petitioner moved this Court as aforesaid on 21-1-1994 and the Division Bench granted an interim order for maintenance of status quo and the same is being continued from time to time.
9. Learned counsel appearing for the petitioner states that in the background of this factual position, the petitioner seeks the protection of the Court against the un-authorised executive action of the State in threatening to demolish the house in question built on the leasehold property. Further case of the petitioner is that neither is he a trespasser nor an encroacher on any land. As such the State Government and the executive officer has no right in law to demolish the house of the petitioner built by his ancestors on the leasehold land except under some authority of law.
10. As there is no affidavit filed by the respondents, despite repeated opportunities, the Court is left with no option but to proceed on the basis of the averments as made in thue writ petition.
11. Learned counsel for the respondents argued that even accepting the averments made in the writ petition to be true, no case is made out by the petitioner warranting any interference by this Court. The learned State counsel made a threefold submission. His submissions are (a) the petitioner has not shown any legal right and as such he is not entitled to the issue of a writ of mandamus, (b) Petitioner has not made any demand for justice and as such he is not entitled to the relief claimed for and no mandamus can go in his favour, (c) The writ petition is moved against an apprehended or a threatened injury as such this Court should not entertain the same.
12. The aforesaid contentions of the learned counsel for the respondents, even though prima facie appears to be rather attractive, in fact they are unsustainable in law on a close examination of the same in their correct perspective.
13. A writ of mandamus certainly available in aid of an individual's legal right but the concept of legal right in the context of recent development of the constitutional law; especially Article 14 of the Constitution of India has undergone a sea change. Apart from the recent development of the Constitutional law, Salmond in his famous treatise on Jurisprudence while elucidating the concept of legal right also noticed that the said term legal right is used in a wider sense to include any legally recognised interest whether it corresponds to legal duty or not, Elaborating this idea further the learned author had said:
"In this generic sense a legal right may be defined as any advantage or benefit which is in any manner conferred upon a person by a rule of law". (Salmond on Jurisprudence, 11th Edition, page 270).
Here the rule of law established under the Constitution has definitely conferred upon a citizen a right of not being evicted from his residence except strictly in accordance with the provisions of law.
14. In the celebrated decision of the Supreme Court in the case of Bishan Das v. State of Punjab reported in AIR 1961 SC 1570 it has been clearly stated in paragraph 14 at page 1575 that:
"Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law,"
The Court has further pointed out:
"the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property.
As pointed out by this Court in Wazir Chand v. State of Himachal Pradesh, 1955 1 SCR 408 : (AIR 1954 SC 415), the State or its executive officers cannot interfer with the rights of others unless they can point to some specific rule of law which authorises their acts." (Emphasis supped).
15. In the uncontroverted facts of the case, the complaint is that the residential house of the petitioner is threatened with demolition. The requirement of one's house has been held to be included within the fundamental right under Article 21 of the Constitution of India.
16. In a concurring judgment in the case of Peerless General Finance and Investment Co. Ltd. v. Reserve Bank, of India reported in AIR 1992 SC 1033 at page 1060, paragraph 56, Justice K. Ramaswamy was pleased to observe:
"Article 25 of the Universal Declaration of Human Rights provides that "everyone has a right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care." Right to life includes the right to live with basic human dignity with necessities of life such as nutrition, clothing, food, shelter over the head, facilities for cultural and socio-economic well being of every individual. Article 21 protects right to life".
17. In two previous judgments of the Apex Court also the same thing was observed. In the case, of Shantistar Builders v. Narayan Khimalal Totame reported in AIR 1990 SC 630 at page 634, paragraph 13 the following observations have been made:
"Since a reasonable residence is an indispensable necessity for fulfilling the Constitutional goal in the matter of development of man and should be taken as included in 'life' in Article 21."
18. In the case of Prabhakaran Nair v. State of Tamil Nadu reported in AIR 1987 SC 2117, it was held in paragraph 35, at page 2130:
"This country very vitally and very urgently requires a National Housing Policy if we want to prevent a major breakdown of law and order and gradual dissolutionment of people. After all shelter is one of our fundamental rights."
19. In that view of the matter, it is clear that when petitioner has approached this Court, against a threatened demolition of his residential house, it can be said to be a threat to his fundamental right to life under Article 21 of the Constitution. When one's fundamental right is threatened, the person concerned can approach a Court of law and need not wait till such threat is translated into reality. This is the law laid down by the Constitution Bench of the Supreme Court in the case of D.A.V. College, Bhatinda v. State of Punjab reported in AIR 1971 SC 1731. In paragraph 5, page 1733, the Court held:
"that a petition under Article 32 in which petitioners make out a prima facie case that their fundamental rights are either threatened or violated will be entertained by this Court and that it is not necessary for any person who considers himself to be aggrieved to wait till the actual threat has taken place."
20. Therefore, the contention of the learned counsel for the respondents that the writ petition is based on apprehension and as such it cannot be entertained is far too puerile to receive any serious consideration.
21. On the other hand the Court is of the view that when a citizen approaches the Court the petitioner did and complain that he is facing threatened eviction from his house constructed on the leasehold property at the instance of an arrogant executive authority who does not choose to pass any order in writing but proposes to act on oral order and on the strength of police force, in such a situation, it is the duty of the Court to come to the rescue of the harassed citizen even by issuance of a writ of mandamus commanding the respondents authority not to demolish the structure of the petitioner in question or to evict him from there except in accordance with law.
22. In fact the present development of the law relating to the writ of mandamus shows that it must be available to 'reach injustice wherever it is found'. In the decision of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani reported in AIR 1989 SC 1607 at page 1613, paragraph 21 held as follows:--
"Hence again we may point out that mendamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith States: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract". (Judicial Review of Administrative Act 4th Ed. p. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water 7 tight compartment. It should remain flexible to meet the requirements of variable circum-
stances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226."
23. Therefore, the technical objection about the maintainability of this writ application on account of non-filing of demand for justice cannot be sustained. The said requirement of filing a demand for justice before filing a writ of mandamus is a technical requirement of the English Courts. In India it has been repeatedly held by the Apex Court that the law relating to writ jurisdiction, as has been enunciated by the Supreme Court, has gone far ahead of the technicalities which are associated with the issuance of writ in English Courts. In the United States also the requirement of prior demand for justice is not required "where it is manifest, it would be an idle ceremony." (Ferries on Extraordinary legal remedies at page 281).
24. Therefore, the said argument of the learned counsel for the respondents state that in absence of a demand for justice, any prayer for a writ in the nature of mandamus cannot be entertained, is an argument based on the shackles and trammels of the English Court in relation to the antiquated procedure of issuance of English writs. This requirement cannot and does not fetter the jurisdiction of the High Court under Article 226 of the Constitution of India. In a given circumstance, if the Court finds that the demand for justice would be an idle ceremony or will be an empty ritual, the Court can and, in my view, should issue an appropriate writ in its extraordinary jurisdiction. Therefore, this objection of the State respondents is overruled.
25. We hold that the executive authority acting under the Constitution is an authority under the law. Its authority to exercise power is circumscribed by provision of law. It cannot act without legal sanction especially when its action has the effect of seriously jeopardising the property or liberty of a citizen. The said limitation on the power of the executive authority while dealing with the property of the citizen is made clear under Article 300A of the Constitution to the effect that no person shall be deprived of his property save by the authority of law.
26. For the reasons aforesaid, this Court holds that the petition succeeds and the State respondents, its Officers and Subordinates are forbidden from, in any way, demolishing the residential house of the petitioner in question on the leasehold land except by acting under law and/or from evicting the petitioner from the said house except in accordance with law.
27. There will be no order as to costs.
B.L. Yadav, J.
28. I agree.