Jharkhand High Court
Himalayan Academy vs The State Of Jharkhand on 13 June, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
-1- W.P. (Cr.) No. 317 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 317 of 2019
Himalayan Academy, Shankarpur, Mehrama (a unit of a trust
known as Leela Devi Educational Trust), through its
Chairman namely Arvind Kumar Santhalia, aged about 51
years, son of Shiv Santhalia, resident of Thana Road,
Kahalgaon, P.O. & P.S.-Kahalgaon, District-Bhagalpur
(BIhar).
..... ... Petitioner
Versus
1. The State of Jharkhand, through the Principal Secretary,
Department of Home, Ranchi.
2. Deputy Commissioner-cum-District Magistrate, Godda.
3. Superintendent of Police (Naxal), Special Branch,
Jharkhand, Ranchi.
4. Superintendent of Police, Godda.
5. Sub-Divisional Officer, Mahgama, Godda.
6. Sub-Divisional Police Officer, Mahgama, Godda.
7. Circle Officer, Meharma, Godda.
8. Officer-in-charge, Meharma Police Station, Godda.
9. District Superintendent of Education, Godda.
10.District Education Officer, Godda.
11.District Child Welfare Officer, Godda. ..... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Indrajit Sinha, Advocate.
: Mr. Ajay Kumar Sah, Advocate.
For the State : Mr. Manoj Kumar, G.A.-III.
: Mr. P.C. Sinha, A.C. to G.A.-III.
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12/ 13.06.2022 Heard Mr. Indrajit Sinha, learned counsel appearing for the
petitioner and Mr. Manoj Kumar, learned G.A.-III appearing for the respondent-State.
2. This petition has been filed for quashing of the order dated 12.09.2019, issued under the signature of the C.O., Meharma in the District of Godda, whereby the Circle Officer, has directed the Officer-in- Charge to vacate the school and close the school building and hostel within two days and inform the office of the C.O., Meharma. Further prayer has been made for quashing of the order dated 5.09.2019, passed by the Deputy Commissioner-cum-District Magistrate, Godda, whereby he has taken the decision for closing of the petitioner-school till further order and directed the Sub-Divisional Police Officer, Mahagama to comply that order.
3. Preliminary objection has been raised by Mr. Manoj Kumar, learned G.A.-III appearing for the State and submits that this petition is not maintainable and only civil writ, under Article 226 of the Constitution of India can be maintained before this Hon'ble Court. He submits that there is no criminality involved in the matter. He further submits that in view of -2- W.P. (Cr.) No. 317 of 2019 the matter, the criminal writ, under Article 226 of the Constitution of India is not maintainable.
4. On the other hand, Mr. Indrajit Sinha, learned counsel appearing for the petitioner submits that the on the alleged allegation of law and order, Superintendent of Police was also involved in the matter and thereafter the sealing order with respect to the property of this petitioner has been directed to be issued by the Deputy Commissioner. He submits that once the FIR is registered and based on this, the impugned order is passed, the criminal writ petition is maintainable.
5. To buttress his arguments, he relied in the case of Ram Kishan Fauji Versus State of Haryana & Ors., reported in (2017) 5 SCC 533, wherein the Hon'ble Supreme Court in Paras-28, 29, 30, 31 and 40 has held as follows:-
"28. The Court in Ishwarlal Bhagwandas case referred to Article 133 of the Constitution and took note of the submission that the jurisdiction exercised by the High Court as regards the grant of certificate pertains to judgment, decree or final order of a High Court in a civil proceeding and that "civil proceeding" only means a proceeding in the nature of or triable as a civil suit and a petition for the issue of a high prerogative writ by the High Court was not such a proceeding. Additionally, it was urged that even if the proceeding for issue of a writ under Article 226 of the Constitution may, in certain cases, be treated as a civil proceeding, it cannot be so treated when the party aggrieved seeks relief against the levy of tax or revenue claimed to be due to the State. The Court, delving into the nature of civil proceedings, noted that: (AIR p. 1821, para 8) "8. ... The expression "civil proceeding" is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof."
29. After so stating, the Court elucidated the nature of criminal proceeding and, in that regard, ruled thus: (Ishwarlal Bhagwandas case, AIR p. 1821, para 8) "8. ... A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes -3- W.P. (Cr.) No. 317 of 2019 proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed."
30. Explicating the concept further, the Court opined that: (Ishwarlal Bhagwandas case, AIR p. 1821, para 8) "8. ... The character of the proceeding, in our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed."
It further held that a civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and which, if the claim is proved, would result in the declaration, express or implied, of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status, etc.
31. The aforesaid authority makes a clear distinction between a civil proceeding and a criminal proceeding. As far as criminal proceeding is concerned, it clearly stipulates that a criminal proceeding is ordinarily one which, if carried to its conclusion, may result in imposition of (i) sentence, and (ii) it can take within its ambit the larger interest of the State, orders to prevent apprehended breach of peace and orders to bind down persons who are a danger to the maintenance of peace and order. The Court has ruled that the character of the proceeding does not depend upon the nature of the tribunal which is invested with the authority to grant relief but upon the nature of the right violated and the appropriate relief which may be claimed.
40. As the controversy in Jogendrasinhji Vijaysinghji case related to further two aspects, namely, whether the nomenclature of the article is sufficient enough and further, whether a tribunal is a necessary party to the litigation, the two-Judge Bench proceeded to answer the same. In that context, the Court referred to the authorities in Lokmat Newspapers (P) Ltd. v. Shankarprasad, Kishorilal, Ashok K. Jha and Ramesh Chandra Sankla and opined that maintainability of a letters patent appeal would -4- W.P. (Cr.) No. 317 of 2019 depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. It further observed that barring the civil court, from which order as held by the three-Judge Bench in Radhey Shyam that a writ petition can lie only under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be under Article 227 of the Constitution. Whether the learned Single Judge has exercised the jurisdiction under Article 226 or under Article 227 or both, would depend upon various aspects. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. It was reiterated that it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both. The two-Judge Bench further clarified that the Division Bench would also be required to scrutinise whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. The delineation with regard to necessary party not being relevant in the present case, the said aspect need not be adverted to."
6. In view of the above facts and considering the submission of learned counsel appearing for the parties, it is an admitted fact that the FIR has been lodged against the employees of the petitioner and in the impugned order, it has been stated that to maintain the law and order, the property in question is being sealed. The Hon'ble Supreme Court in the case of Ram Kishan Fauji (Supra) in para-31 has made the distinction between a civil proceeding and a criminal proceeding and has held that the character of the proceeding does not depend upon the nature of the tribunal, which is invested with the authority to grant relief, but upon the nature of the right violated and the appropriate relief, which may be claimed.
7. In the case in hand, the entire allegations are criminal in nature and the impugned order has been passed based on that, as such it cannot be said that criminal writ petition cannot be maintained, under Article 226 of the Constitution of India. Accordingly, this petition is -5- W.P. (Cr.) No. 317 of 2019 maintainable and the objection of learned counsel appearing for the State has been answered hereinabove.
8. Mr. Indrajit Sinha, learned counsel appearing for the petitioner submits that the petitioner is a trust and it was run in the name of Leela Devi Educational Trust, which was constituted, vide registered trust deed having Token No. 14261/2013 dated 22.08.2013 with an object to establish, maintain and run schools, colleges, social service centres, industrial centre and also for promotion of education and learning in all branches. He submits that thereafter the said trust had decided to run a school in the name and style of Himalayan Academy, Shankarpur, Godda. He submits that approximately 1200 students have been pursing their studies in the petitioner-school from Class Nursery to Class-VIII and about 250 students have been availing hostel facility of the school. He further submits that about 40 teaching staffs and 35 non-teaching staffs are associated with the petitioner-school for day to day affairs and for smooth functioning of the petitioner-school. He submits that on 22.07.2019, a first information report, being Meharma P.S. Case No. 119 of 2019 was registered under Sections 354-B, 354-D and 509 of the Indian Penal Code, Section 12 of the Protection of Children from Sexual Offence Act, Section 67-A of the Information Technology Act and Section 2(2)(v)(ka) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. He further submits that this case was registered on the allegation received from the superior authority that the viral video to the teaching staff of the said school and voice of the lady in the alleged video clip is of Sudha Sinha, Administrative In-charge has also identified male voice of one Animesh Kumar. He further submits that the statement of the victim was recorded on 28.08.2019. He further submits that when it has come in the knowledge of the authorities, they have lodged the FIR before the competent authority.
9. Learned counsel appearing for the petitioner refers to Section 102 of the Cr.P.C. and submits that this Section postulates the seizure of the property. He submits that the immovable property cannot be seized, however, police officer is not barred or prohibited from seizing documents/papers of title, relating to immovable property, as the same is distinct and different from seizure of immovable property. To buttress his argument, he relied in the case of Nevada Properties Private Limited Versus State of Maharashtra and Anr., reported in (2019) 20 SCC 119, wherein the Hon'ble Supreme Court in paras-29 to 34 held as follows:-
"29. Section 102 postulates seizure of the property.-6- W.P. (Cr.) No. 317 of 2019
Immovable property cannot, in its strict sense, be seized, though documents of title, etc. relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word "seize" would include such action of attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. In the absence of the legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hold that this power should be inferred and is implicit in the power to effect seizure.
30. Equally important, for the purpose of interpretation is the scope and object of Section 102 of the Code, which is to help and assist investigation and to enable the police officer to collect and collate evidence to be produced to prove the charge complained of and set up in the charge-sheet. The section is a part of the provisions concerning investigation undertaken by the police officer. After the charge-sheet is filed, the prosecution leads and produces evidence to secure conviction. Section 102 is not, per se, an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner. This is clear from the objective behind Section 102, use of the words in the section and the scope and ambit of the power conferred on the criminal court vide Sections 451 to 459 of the Code.
31. The expression "circumstances which create suspicion of the commission of any offence" in Section 102 does not refer to a firm opinion or an adjudication/finding by a police officer to ascertain whether or not "any property" is required to be seized. The word "suspicion" is a weaker and a broader expression than "reasonable belief" or "satisfaction". The police officer is an investigator and not an adjudicator or a decision maker. This is the reason why the Ordinance was enacted to deal with attachment of money and immovable properties in cases of scheduled offences.-7- W.P. (Cr.) No. 317 of 2019
32. In case and if we allow the police officer to "seize" immovable property on a mere "suspicion of the commission of any offence", it would mean and imply giving a drastic and extreme power to dispossess, etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised. We have hardly come across any case where immovable property was seized vide an attachment order that was treated as a seizure order by police officer under Section 102 of the Code. The reason is obvious. Disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in civil courts. We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side (see Binod Kumar v. State of Bihar). Thus, it will not be proper to hold that Section 102 of the Code empowers a police officer to seize immovable property, land, plots, residential houses, streets or similar properties. Given the nature of criminal litigation, such seizure of an immovable property by the police officer in the form of an attachment and dispossession would not facilitate investigation to collect evidence/material to be produced during inquiry and trial.
33. As far as possession of the immovable property is concerned, specific provisions in the form of Sections 145 and 146 of the Code can be invoked as per and in accordance with law. Section 102 of the Code is not a general provision which enables and authorises the police officer to seize immovable property for being able to be produced in the criminal court during trial. This, however, would not bar or prohibit the police officer from seizing documents/papers of title relating to immovable property, as it is distinct and different from seizure of immovable property. Disputes and matters relating to the physical and legal possession and title of the property must be adjudicated upon by a civil court.
34. In view of the aforesaid discussion, the reference is answered by holding that the power of a police officer under Section 102 of the Code to seize any property, which may be found under circumstances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property."
10. He further submits that the property is the Constitutional right, guaranteed under Article 300-A of the Constitution of India and that right cannot be taken away in such a way. To buttress his arguments, he relied -8- W.P. (Cr.) No. 317 of 2019 in the case of M.C. Mehta Versus Union of India and Ors., reported in (2020) SCC Online SC 648, where the Hon'ble Supreme Court in Paras- 106, 107 and 109 held as follows:-
"106. The power of sealing of property carries civil consequences. A person can be deprived of the property by following a procedure in accordance with law. The Monitoring Committee is not authorized to take action concerning the residential premises situated on the private land. If there is unauthorized construction or in case of deviation, the requisite provisions are under the DMC Act, such as sections 343, 345, 347(A), 347(B). The mode of action and adjudication under the Act is provided including appellate provisions and that of the Tribunal. It would not be appropriate to the Monitoring Committee to usurp statutory powers and act beyond authority conferred upon it by the Court. The Monitoring Committee could not have sealed the residential premises, which were not misused for the commercial purpose as done vide Report No. 149, nor it could have directed the demolition of those residential properties.
107. Article 300A of the Constitution provides that nobody can be deprived of the property and right of residence otherwise in the manner prescribed by law. When the statute prescribes a mode, the property's deprivation cannot be done in other modes since this Court did not authorize the Committee to take action in the matter. An action could have been taken in no other manner except in accordance with the procedure prescribed by law as laid down in the decisions referred to at the Bar thus:
(a) State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, wherein this Court observed:
"59. ....In absence of any substantive provisions contained in a parliamentary or legislative act, he cannot be refrained from dealing with his property in any manner he likes. Such statutory interdict would be opposed to one's right of property as envisaged under Article 300-A of the Constitution."
(b) K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1 in which it was opined:
"168. Article 300-A proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without the support of law made by a competent legislature. The expression "property" in Article 300-A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law.-9- W.P. (Cr.) No. 317 of 2019
169. This Court in State of W.B. v. Vishnunarayan and Associates (P) Ltd. while examining the provisions of the West Bengal Great Eastern Hotel (Acquisition of Undertaking) Act, 1980, held in the context of Article 300-A that the State or executive officers cannot interfere with the right of others unless they can point out the specific provisions of law which authorises their rights."
(emphasis supplied)
(c) In T. Vijayalakshmi v. Town Planning Member, (2006) 8 SCC 502, the Court observed:
"13. Town Planning legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, are ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled with so long as an appropriate amendment in the legislation is not brought into force.
***
15. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. ...."
(emphasis supplied)
(d) In the matter of State of U.P. v. Manohar, (2005) 2 SCC 126, this Court observed:
"7. Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, -10- W.P. (Cr.) No. 317 of 2019 Article 300-A has been placed in the Constitution, which reads as follows:
"300-A. Persons not to be deprived of property save by authority of law.--No person shall be deprived of his property save by authority of law."
8. This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities. ..."
(e) In Delhi Airtech Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354, this Court held:
"83. The expression "law" which figures both in Article 21 and Article 300-A must be given the same meaning. In both the cases the law would mean a validly enacted law. In order to be valid law it must be just, fair and reasonable having regard to the requirement of Articles 14 and 21 as explained in Maneka Gandhi. This is especially so, as "law" in both the Articles 21 and 300-A is meant to prevent deprivation of rights. Insofar as Article 21 is concerned, it is a fundamental right whereas in Article 300-A it is a constitutional right which has been given a status of a basic human right."
(f) It was further argued that planning laws are expropriatory and should be strictly construed, and any ambiguity is to be construed in favour of the property owner as laid down in Delhi Airtech Services (P) Ltd. v. State of U.P. (supra) thus:
"129. Statutes which encroach upon rights, whether as regards person or property, are subject to strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights and if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted. (See Maxwell on The Interpretation of Statutes, 12th Edn. by P. St. J. Langan.)
130. This Court in Devinder Singh7 held that the Land Acquisition Act is an expropriatory legislation and followed the case of Hindustan Petroleum Corpn. v. Darius Shapur Chenai8. Therefore, it should be construed strictly. The Court has also taken the view that even in cases of directory requirements, substantial compliance with such provision would be necessary."
(emphasis supplied)
(g) In Ramchandra Ravindra Waghmare v. Indore Municipal Corporation, (2017) 1 SCC 667, it was opined:
"67. It was also submitted that town planning and municipal institutes are regulating and restricting the use of private property under the aforesaid Acts. They are "expropriatory legislation". Thus they are -11- W.P. (Cr.) No. 317 of 2019 liable to be construed strictly as laid down in Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd."
(h) In Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705, it was held:
"57. The Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted, requires strict construction. An owner of land ordinarily would be entitled to use or develop the same for any purpose unless there exists certain regulation in a statute or statutory rules. Regulations contained in such statute must be interpreted in such a manner so as to least interfere with the right to property of the owner of such land. Restrictions are made in larger public interest. Such restrictions, indisputably must be reasonable ones. (See Balram Kumawat v. Union of India,; Krishi Utpadan Mandi Samiti v. Pilibhit Pantnagar Beej Ltd. and Union of India v. West Coast Paper Mills Ltd.) The statutory scheme contemplates that a person and owner of land should not ordinarily be deprived from the user thereof by way of reservation or designation.
58. Expropriatory legislation, as is well-known, must be given a strict construction."
(i) In State of Gujarat v. Shantilal Mangaldas, (1969) 1 SCC 509, it was held:
"55. ...... Once the draft town-planning scheme is sanctioned, the land becomes subject to the provisions of the Town Planning Act, and on the final town-planning scheme being sanctioned, by statutory operation the title of the various owners is readjusted and the lands needed for a public purpose vest in the local authority. Land required for any of the purposes of a town planning scheme cannot be acquired otherwise than under the Act, for it is a settled rule of interpretation of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all:"
(emphasis supplied)
(j) In Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111, it was opined:
"40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof."
(emphasis supplied) -12- W.P. (Cr.) No. 317 of 2019
(k) In Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, (2013) 5 SCC 627 it was held:
"43. ...... This is the reason why time-limit of ten years has been prescribed in Section 31(5) and also under Sections 126 and 127 of the 1966 Act for the acquisition of land, with a stipulation that if the land is not acquired within six months of the service of notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphade's interpretation of the scheme of Sections 126 and 127, if accepted, will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300-A of the Constitution."
(emphasis supplied)
109. After going through the report of the Monitoring Committee and other reports which have been relied upon by the Amicus Curiae, there is no scintilla of doubt that the Monitoring Committee in the past at any point of time did not seal any residential premises being used for residential purposes, situated on the private land nor it could have ordered demolition. The 'caption' of the various reports of Monitoring Committee i.e. "PRELIMINARY REPORT OF THE MONITORING COMMITTEE FOR SEALING OF COMMERCIAL ESTABLISHMENTS IN RESIDENTIAL PREMISES"
makes it absolutely clear that Monitoring Committee did not entertain any doubt about the purpose for which it was constituted. Apart from that, it was authorized by subsequent orders to act with respect to unauthorized construction on the public land and roads that too, which violated the MPD-2021.
11. He also relied in the case of Sukh Dutta Ratra & Anr. Versus State of Himachal Pradesh & Ors., in Civil Appeal No. 2273 of 2022 [arising out of S.L.P.(C) Diary no. 13202 of 2020], wherein the Hon'ble Supreme Court in pars-13 and 14 held as follows:-
"13. While the right to property is no longer a fundamental right, it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A. Constitution (Forty Fourth Amendment) Act, 1978.
14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property -13- W.P. (Cr.) No. 317 of 2019 without due process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the King's Bench in Entick v. Carrington and by this court in Wazir Chand v. The State of Himachal Pradesh. Further, in several judgments, this court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law."
12. He further submits that once the right is infringed illegally, the aggrieved person can approach the High Court under Article 226 of the Constitution of India and mandamus can be issued by the Court. To buttress his arguments, he relied in the case of Hari Krishna Mandir Trust Versus State of Maharashtra & Ors., reported in (2020) SCC 356, wherein the Hon'ble Supreme Court in para-103 held as follows:-
"103. The Court is duty-bound to issue a writ of mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of mandamus is that mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through mandamus. Unless a statutory duty or right can be read in the provision, mandamus cannot be issued to enforce the same."
13. On the point of illegal sealing of the premises in question, he relied in the case of Union Club, Dhanbad Versus State of Jharkhand & Ors., in Civil Appeal No. 6626 of 2012 [arising out of S.L.P. (Civil) No. 17445 of 2011] and submits that in this judgment, the Hon'ble Supreme Court has considered as to whether the respondents would have forcibly and without any proceedings before the competent court or authority evicted the appellant club or not. On this ground, he submits that the property cannot be seized in such a way, as since last three years the property in question has been sealed that too without any authority of law.
14. Per contra, Mr. Manoj Kumar, learned G.A.-III, appearing for the State submits that in the school, illegal activities were going on and for that the people of the locality were angry and the allegations were found to be true and thereafter the Deputy Commissioner has passed the said order. He submits that even the school was not having the valid affiliation under the CBSE or any Examination taken body and illegally the school was being run. He relied in the case of M.C. Mehta Versus Union of India & Ors. reported in (2020) SCC Online SC 648 and he also draws the -14- W.P. (Cr.) No. 317 of 2019 attention towards certain paragraphs of the said judgment, which was already been relied by Mr. Indrajit Sinha, learned counsel appearing for the petitioner. He relied in paras-21, 22, 24 and direction part of Para-43, which was passed on one I.A. The said paragraphs are quoted hereinbelow:-
21. It is apparent that the only question for consideration of this Court was the misuse of the residential premises for illegal or commercial purposes. In paragraph 14 (quoted above), this Court made it clear that it did not consider the issue of unauthorized constructions. This Court considered the plight of the residential areas in para 33 of the judgment, where it noted large-scale conversion of residential premises for commercial use, thus:
"33. Keeping future needs in view, experts prepare master plans. Perusal of the Delhi Master Plans, 1962 and 2001 shows what were plan projections. At the time of planning, the experts in the field of town planning take into account various aspects, such as, healthy living, environment, lung space need, land use intensity, areas where the residential houses are to be built and where the commercial buildings are to be located, need of household industries, etc. Provision for household industries in residential areas does not mean converting residential houses into commercial shops. It only means permitting activities of household industry in a part of a residential property. It does not mean that residential properties can be used for commercial and trading activities and sale and purchase of goods. Master plan contemplates shops in district centres, community centres, local shopping centres, etc. and not in residential areas. Be that as it may, for the present, we are not considering the cases of small shops opened in residential houses for catering to day-to-day basic needs, but are considering large-scale conversion, in flagrant violation of laws, of residential premises for commercial use."
(emphasis supplied)
22. The court further considered that none has the right, human or fundamental, to violate the law with immunity and claim any right to use a building for a purpose other than authorized, thus:
"35. In the impugned judgment, while dealing -15- W.P. (Cr.) No. 317 of 2019 with the provisions of the layout plan, it was observed that the provisions for user "are only regulatory in nature". While dealing with the user, the High Court observed that "the power, whereby and whereunder the basic human rights or the fundamental rights conferred upon a person is taken away, must be specifically conferred by a statute". The provisions of user may be regulatory but all the same, they are mandatory and binding. In fact, almost all the planning provisions are regulatory. The violations of the regulatory provisions on massive scale can result in plans becoming merely scraps of paper. That is the ground reality in the capital of the country. None has any right, human or fundamental, to violate the law with immunity and claim any right to use a building for a purpose other than authorised. Further, the words "unless the context otherwise requires" in Section 331 of the DMC Act are of no consequence for determining the point in issue as the context herein does not provide otherwise for the present purposes. It does not provide that the power of sealing under Section 345-A cannot be exercised in case of misuser. In view of the clear language of Section 345-A, we are also unable to sustain the view of the High Court that action under Section 345-A can be taken only when there exists order of demolition under Section 343 or an order under sub-section (1) of Section 344. The conclusion of the High Court that action under Section 345-A can be taken only when there exists an order of demolition under Section 343, or on passing of an order under sub-section (1) of Section 344, and in no other contingency cannot be accepted in view of the clear provision of Section 345-A that action can be taken even before or after an order is made under those provisions."
(emphasis supplied)
24. The court focused on the misuse of the property and further observed in para 61 regarding misuse thus:
"61. Despite passing of the laws and repeated orders of the High Court and this Court, the enforcement of the laws and the implementations of the orders are utterly lacking. If the laws are not enforced and the orders of the courts to enforce and implement the laws are ignored, the -16- W.P. (Cr.) No. 317 of 2019 result can only be total lawlessness. It is, therefore, necessary to also identify and take appropriate action against officers responsible for this state of affairs. Such blatant misuse of properties at large-scale cannot take place without connivance of the officers concerned. It is also a source of corruption. Therefore, action is also necessary to check corruption, nepotism and total apathy towards the rights of the citizens. Those who own the properties that are misused have also implied responsibility towards the hardship, inconvenience, suffering caused to the residents of the locality and injuries to third parties. It is, therefore, not only the question of stopping the misuser but also making the owners at default accountable for the injuries caused to others. Similar would also be the accountability of errant officers as well since, prima facie, such large-scale misuser, in violation of laws, cannot take place without the active connivance of the officers. It would be for the officers to show what effective steps were taken to stop the misuser."
43. On 6.12.2017, this Court reserved its orders on IA Nos. 93010 and 93007 of 2017, which were decided on 15.12.2017. In the order dated 6.12.2007, this Court considered the matter with respect to unauthorized colonies, which came up as per reports dated 12.4.2016 and 30.10.2017. It was observed in the order that the power of the Monitoring Committee be restored. While the order was reserved on the aforesaid date on IA No. 93010 and 93007 of 2017, the relevant portion is extracted:
................
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Directions
35. In our opinion, as far as Infinity Knowledge Systems is concerned the following conditions would meet the ends of justice and also provide a safeguard against possible misuse of residential premises for commercial (nonindustrial) purposes:
(1) The applicants will file an affidavit before the Monitoring Committee stating that they will use the premises in question only for residential purposes and for no other purpose whatsoever. The applicants will identify the persons for whose residential use the premises in question are sought to be desealed.
Any change will be notified to the Monitoring Committee.
-17- W.P. (Cr.) No. 317 of 2019(2) The affidavit filed by the applicants will state the name, address and other particulars of the person who will be responsible for any misuse of the premises in question, that is, for use of the premises in question for any purpose other than residential. (3) The person identified as the person responsible in terms of condition No. 2 above will also file an affidavit clearly stating therein that he or she will ensure that the premises in question are used only for residential purposes and that in the event the premises in question are used for any purpose other than residential, the deponent would be liable for contempt of this Court.
(4) The applicants will file with the Monitoring Committee proof of payment of conversion charges to the statutory authority.
(5) The affidavits will be filed before the Monitoring Committee who may impose such other further conditions as may be appropriate.
36. In the event the Monitoring Committee is satisfied that the premises in question ought to be de-sealed, it may require the concerned statutory authority to de-seal the premises in question. If the Monitoring Committee is not satisfied that the premises in question ought to be desealed, the applicants will be at liberty to approach this Court for appropriate orders. We make it clear that in view of Report No. 46 dated 12th November, 2007 this Order will not be applicable to all other commercial activities that have been sealed in the premises in question.
37. We make it clear that henceforth it will not be necessary for any person whose residential premises have been sealed for misuse for any commercial (other than industrial) purposes at the instance of the Monitoring Committee to file an appeal before the appropriate statutory Appellate Tribunal. Instead, that person can directly approach the Monitoring Committee for relief after depositing an amount of Rs. 1,00,000/- with the Monitoring Committee which will keep an account of the amounts received by it. Any person who has already filed an appeal before the appropriate statutory Appellate Tribunal but would prefer approaching the Monitoring Committee may withdraw the appeal and approach the Monitoring Committee for relief on the above terms and conditions and on deposit of Rs. 1,00,000/- as costs with the Monitoring Committee, provided that the premises were sealed -18- W.P. (Cr.) No. 317 of 2019 at the instance of the Monitoring Committee. Any challenge to the decision of the Monitoring Committee will lie to this Court only. We are constrained and compelled to make this order given the history of the case and the more than serious observations of this Court of an apparent nexus between some entities and the observations regarding corruption and nepotism.
38. We make it clear that this order will inure to the benefit of only those who are using residential premises for commercial purposes (nonindustrial) or for any other non-residential purpose and whose premises were sealed at the instance of the Monitoring Committee. This order will not at all inure for the benefit of anybody using residential premises for any industrial activity of any sort or nature whatsoever.
39. With regard to the writ petitions that have been transferred to the Delhi High Court which challenge the Act and subsequent legislations, we find from a perusal of the website of the Delhi High Court that these petitions have not yet been heard, for one reason or another. We do not find any fault with the Delhi High Court. The intention of this Court in transferring the writ petitions to the Delhi High Court was for their expeditious disposal preferably within one year. Almost four years have gone by in this exercise but without any decision. Therefore, given the gravity of the situation as revealed from the Reports of the Monitoring Committee, we think it appropriate that this Court ought to hear the writ petitions on an expeditious basis and, accordingly, withdraw the writ petitions that were transferred to the Delhi High Court to this Court. The Registry will place these writ petitions on receipt from the Delhi High Court for directions on 12th January, 2018."
15. He further submits that in view of these paragraphs of the judgment of Hon'ble Supreme Court, illegality has been found, as such this court may not interfere under Article 226 of the Constitution of India, as there is no illegality in the impugned order passed by the Deputy Commissioner.
16. On the point of not having the affiliation and the career of the students have been ruined by the Institute, he further relied in the case of Wazirganj College, Wazirganj Versus State of Bihar & Ors., reported in (2019) SCC Online Pat 261, wherein the Hon'ble Patna High Court in paras- 7 and 8 held as follows:-
-19- W.P. (Cr.) No. 317 of 2019"7. I have heard the learned counsel for the parties and gone through the materials on record and I find that neither the petitioner-College has got any affiliation or recognition or permission from either the State Government or the Bihar School Examination Board for the purposes of admitting the students for Class-XIth and XIIth Intermediate level course, hence it is apparent that the petitioner has illegally inducted the students in the Arts as well as in the Science stream pertaining Patna High Court CWJC No.22582 of 2018 dt.01-03-2019 to the Intermediate level and in the process has duped the innocent students. Despite opportunity having been granted to the petitioner's College to show that it is having recognition/ affiliation to run Intermediate level course, no such order of recognition or affiliation could be produced by the petitioner's College. The argument of the learned Senior Counsel for the petitioner that since in the past, the students of the petitioner- College have been permitted to appear in the Intermediate level examination without affiliation/ recognition of the petitioner's College, this year also the same facility has to be extended, is fallacious, inasmuch as illegal precedents cannot become a rule and an illegality cannot be perpetuated.
8.It is a trite law that "There is no equality in illegality". This Court finds that the respondent no. 5 has been accomodative and sympathetic towards the innocent children and has thereby, allowed 384 candidates of the illegal petitioner's College to appear in the Science stream of the Intermediate examination, 2019 though the same was neither warranted nor legal and in fact permitting any candidate to appear from the petitioner-College was/is admittedly illegal, however this Court is restraining itself from cancelling the candidature of such candidates of the petitioner-College keeping Patna High Court CWJC No.22582 of 2018 dt.01- 03-2019 in mind the future career of the innocent students as also considering the fact that such students do not have any complicity in the matter. The learned Senior Counsel for the petitioner has infact, not been able to show any legal right vested with the petitioner-College so as to seek a direction upon the respondent- Board to permit its students to appear in the Science stream of the Intermediate examination, 2019 which ultimately shows that the petitioner is neither having recognition nor affiliation from the State Government/ Bihar School Examination Board as far as the Intermediate level -20- W.P. (Cr.) No. 317 of 2019 is concerned, hence no positive mandamus can be issued by this Court in the present case especially in view of the fact that issuing any directions to the respondent- Board to permit the students of the petitioner's college to appear in extra seats of the Science stream pertaining to the Intermediate examination, 2019 would only result in passing of an illegal order, which this Court is obligated not to do."
17. By way of placing these judgments, he submits that there was no violation by the college in question, the Hon'ble Patna High Court has not interfered and the case of the respondent State is fully covered in the light of the judgment of Hon'ble Patna High Court. Lastly he submits that in the light of proviso to Article 309 of the Constitution of India, The Jharkhand Right of Children to Free and Compulsory Education Rules, 2011 was framed and in the light of Part-4 of the said Rules, particularly sub-rule (3) of Rule-7 the State Government or Local authority shall ensure that no child is subjected to caste, class, religious or gender abuse in the school. On these grounds, he submits that this is a fit case to be dismissed.
18. In the light of the rival submissions of the parties, the Court has gone through the materials available on record and on perusal of the impugned order dated 05.09.2019, this court finds that the learned Deputy Commissioner has directed to seal the property in question, as he has received certain complaints against the employees of the petitioner school with regard to sexual harassment of the students. The only question is required to be answered by this court, as to whether the premises in question was directed to be vacated and the building in question was sealed in accordance with law or not by the authorities.
19. On the ground of resentment of the local people, the premises in question was directed to be vacated and the building in question was sealed. It is well settled that in a criminal proceeding, the investigating authorities does not have the power to seal the property in the light of the criminal procedure, as held by the Hon'ble Supreme Court in the case of Nevada Properties Private Limited (Supra). There are statutory powers involved in other Acts for sealing the premises in question, if any illegality is being done and only that competent authority, provided under the statutory provisions, under the Municipal Act or other relevant provisions to do so. Article 300-A of the Constitution of India provides that nobody can be deprived from the property otherwise in the manner prescribed by the law. When statues provides in a particular way that is required to be -21- W.P. (Cr.) No. 317 of 2019 followed and by way of no other modes, the immovable property can be sealed.
20. The judgment relied by Mr. Manoj Kumar, learned G.A.-III appearing for the State in the case of M.C. Mehta (Supra) with regard to the direction, which was passed on the I.A., wherein the Hon'ble Supreme Court with regard to the monitoring committee has been considered later on in the same judgment in para-106, 107 and 109 and it has been held that the monitoring committee could not have sealed the residential premises. The judgment relied upon by Mr. Manoj Kumar in the case of Wazirganj College, Wazirganj (supra) is not in dispute and this court is not giving any opinion on the point of affiliation, as it is within the domain of the authorities concerned and the petitioner to demonstrate as to whether the school in question was having the affiliation with any examining body or not.
21. Since this Court has come to the conclusion that the premises in question was sealed without following the due process of law, as even the petitioner was not allowed to be heard and not hearing of the petitioner, has caused the prejudice to him.
22. As such the impugned order dated 12.09.2019, issued under the signature of the C.O., Meharma in the District of Godda, whereby the Circle Officer, has directed the Officer-in-Charge to vacate the school and close the school building and hostel within two days and inform the office of the C.O., Meharma. Further prayer has been made for quashing of the order dated 5.09.2019 passed by the Deputy Commissioner-cum-District Magistrate, Godda, whereby he has taken the decision for closing of the petitioner-school till further order and directed the Sub-Divisional Police Officer, Mahagama to comply that order, are hereby, quashed. The petitioner is directed to file fresh petition before the Deputy Commissioner, Godda, who will re-examine the matter and will consider as to whether since three years have already elapsed since the sealing of the premises in question, whether it will fulfill to go with the sealing or not. Only on that point, the order has been quashed and so far the FIR and allegation of non-affiliation of the school in question are concerned, this Court has not given any opinion and that will be open for the parties to demonstrate before the appropriate authorities.
23. With the above observation, this petition is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.) Amitesh/-