Jharkhand High Court
Narendra Kumar Singh Neelam And Anr vs Land Reforms And Revenue Department on 7 February, 2017
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 565 of 2017
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1. Narendra Kumar Singh "Neelam"
2. Phool Kumari Singh --- ---- Petitioners
Versus
1. The State of Jharkhand through its Secretary, Land Reforms Department
2. Deputy Commissioner, Giridih
3. Circle Officer, Giridih cum Collector under the BPLE Act --- Respondents
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CORAM:The Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioners: M/s Shresth Gautam,Vishal Kr. Trivedi, Advocates
For the Resp - State: Mr. Jayant Franklin Toppo, SC (L&C)
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03/ 07.02.2017Heard counsel for the parties.
2. Order dated 02.02.2017 reflecting the grievances of the petitioners, is quoted hereunder:
"Counsel for the petitioners undertakes to remove the surviving defects during course of the day.
2. Learned counsel for the petitioners submits that the impugned notice at Annexure-8 in BPLE Case No. 53/15-16 directs the petitioners to remove the encroachment on the basis of the order purportedly passed under section 5(1)(C) of Bihar Public Encroachment Act, 1956 (Now Jharkhand) in respect of Plot Nos, 213, 215 area 1.05 decimal at village Makatpur Thana No. 95 P.S.- Giridih (T), Khata No. 05 Thoka No. 206 District-Giridih, though neither any order has been passed in terms of section 6 of the Act, nor any opportunity of hearing has been given in terms of provisions of section 5 of the Act; certified copy of any order passed in the encroachment proceeding under section 6 has also not been communicated to the petitioner despite application made for the same.
3. Learned counsel for the State submits that there is a remedy of appeal under section 11 of the Act. However, he seeks short time to obtain instruction as to whether in the instant BPLE proceedings, any order has been passed under section 6 of the Act directing removal of encroachment against the petitioner or not.
4. Accordingly, list the case on 07.02.2017 as a fixed case.
5. Till then, no coercive steps be taken against the petitioners."
Counter affidavit has been filed on behalf of the State with copy to the other side served yesterday.
3. Respondent state that show-cause on behalf of the petitioners was filed on 01.03.2016.Thereafter, proceedings were adjourned on four days, but in spite of sufficient opportunity, petitioners did not file documentary or oral evidence in respect of denial of encroachment on land which is part of public road. As such, the Circle Officer, Giridih passed an order on 18.01.2017 holding encroachment on 1.05 decimal of public road by the petitioners. He directed for issuance of notice in 2 Form-2 for removal of encroachment.
4. Petitioners, in the writ petition, have enclosed the reply / petition filed by them on 01.03.2016 as Annexure-6 in Encroachment Case No. 53/15-16 before the Circle Officer, Giridih cum Collector under the BPLE Act. Counsel for the petitioners submits that Sale Deed No. 498 dated 14.05.2002, referred to in para-5 of their reply was enclosed as Annexure-1, which conveyed transfer of property from its vendor Sanjay Kumar Rajgarhia; rent receipts referred to in para-7 of their reply, were enclosed as Annexure-2 and copy of Amin's report referred to at para-8 of their reply was enclosed as Annexure-3. According to the petitioners, Amin's report shows possession of only 7.66 decimal of land, whereas they had purchased about 8.01 decimal of land in total. Thus, petitioners did not have more lands in their possession. Copy of drawing of the land with respect to the road were also enclosed as Annexure-5 to the reply. Counsel for the petitioners submits that order dated 18.01.2017 (part of Anneuxre-A series) being the order sheet of Encroachment Case No. 53/15-16, is a non-speaking order. It does not contain any reasons or any findings on consideration of the reply of the petitioners. Petitioners would be seriously prejudiced in preferring any appeal against the same in absence of any findings or reasons. Reliance has been placed upon the judgment rendered by the Apex Court in the case of Oryx Fisheries Private Limited Versus Union of India and others [(2010) 13 SCC 427].
5. Counsel for the Respondent submits on the basis of the averments made in the counter affidavit and enclosed annexures that opportunity of hearing was given to the petitioners in terms of provisions of the Act of 1956 and on failure of the petitioners to produce any document in their support, the Circle Officer, Giridih has passed the order for removal of encroachment. There is a remedy of appeal also against the order of removal of encroachment under section 11 of the Act.
6. Considered the submissions of the parties in the background of the relevant material facts noticed herein-above. The order dated 18.01.2017 reads as under: 3.
^^vfHkys[k miLFkkfirA mDr Hkwfe IykWV u0 215 yksd Hkwfe gSA jktLo dxZpkjh dk tkWp izfrosnu izkIr gSA vr% foi{kh dks mDr IykWV ds 1-05 Mh0 Hkwfe ls vfrdze.k gVkus dk vkns'k ikfjr fd;k tkrk gSA izi= II esa foi{kh dks uksfVl fuxZr djsaA+**
7. On the face of it, it is non-speaking and does not show any reason for directing removal of encroachment of 1.05 decimal of land by the petitioners. It also shows non- application of mind to the defence taken by the petitioners in their reply. The reply of the petitioners was admittedly filed on 01.03.2016 and according to the petitioners, they had also enclosed supporting documents along with it. In any case, in the absence of reasons, on the face of the order passed by the Respondent No. 3 leading to issuance of the impugned notice at Annexure-8 purportedly under section 6(1)(c) of the Act of 1956, it would be indeed an empty formality for the petitioners to go in appeal as they would, in effect, be unable to assail any such grounds before the Appellate Authority. Reliance has rightly been placed upon the judgment rendered by the Apex Court in the case of Oryx Fisheries Private Limited (Supra) where ratio rendered in the case of Kranti Associates (P) Ltd. vs. Masood Ahmed Khan [(2010) 9 SCC 496] have been profitably quoted. It would be apposite to quote the opinion of the Hon'ble Supreme Court contained in paragraph-40 of the Report.
"40. In Kranti Associates this Court after considering various judgments formulated certain principles in SCC para 47 of the judgment which are set out below: (SCC pp. 510-12) "(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision-
maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions 4. based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harv. L. Rev. 731-37.)
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain, EHRR at p. 562, para 29 and Anya v. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, 'adequate and intelligent reasons must be given for judicial decisions'.
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of 'due process'."
8. Therefore, on consideration of the aforesaid facts and the position in law, this Court is satisfied that interference under Article 226 of Constitution of India is warranted. The impugned notice at Annexure-8 dated 18.01.2017 passed in Case No. 53/15-16 stands quashed. Consequently, the Respondent Circle Officer, Giridih cum Collector under the BPLE Act would pass a fresh order in accordance with law, after due application of mind to the reply submitted by the petitioners, within a period of four weeks from the date of receipt of a copy of this order.
9. Writ petition is allowed.
(Aparesh Kumar Singh, J) Ranjeet/