Jharkhand High Court
Mahavir Mahli vs The State Of Jharkhand on 25 June, 2024
Author: Rajesh Shankar
Bench: Rajesh Shankar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4050 of 2021
1. Mahavir Mahli
2. Shanti Devi
3. Basanti Devi
4. Palu Oraon
5. Ganesh Nayak
6. Jasoda Devi
7. Lila Devi
8. Bunchi Kachhap
9. Rajesh Munda
10. Radhika Toppo
11. Madiya Devi
12. Madiya Devi
13. Bimal Toppo
14. Shankar Minz
15. Durga Oraon
16. Dinesh Gope
17. Shanti Devi
18. Shivanandan Nayak
19. Mechandi Devi
20. Lall Neel Kanth Nath Sahdeo
21. Sunil Tirkey
22. Koili Kerketta ..... Petitioners
Versus
1. The State of Jharkhand
2. The Deputy Commissioner, Ranchi
3. The Land Reforms Deputy Collector, Ranchi
4. The Circle Officer, Nagri, Ranchi ..... Respondents
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CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners: Mr. S. B. Deo
For the Respondents: Mr. Shubham Gautam, A.C to A.A.G-V
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06/25.06.2024 The present writ petition has been filed against initiation of Land
Encroachment Case No. 01/2021-22 on the ground that Land Encroachment Case No. 06/2020-21 alleging encroachment over the same land was already initiated wherein vide order dated 20.07.2021, a direction was also issued to remove the said encroachment. Further prayer has been made for quashing the entire proceeding of Land Encroachment Case No. 06/2020-21 initiated against the petitioners as the same was conducted without providing any opportunity of hearing to them which is violative of the provisions of the Bihar (now 1 Jharkhand) Public Land Encroachment Act, 1956 [hereinafter referred to as 'the Act, 1956'].
2. Learned counsel for the petitioners submits that the land appertaining to Khata No. 114, R.S. Plot No. 1091, Mouza-Balalong, Thana No. 236, District- Ranchi (hereinafter referred as 'the said land') was recorded in the R.S Record of Rights in the name of Jagbandhan Nath Tiwari, who died in the year 1939. Thereafter, the said land was inherited by his widow, namely, Urangmohan Kunwar, who sold the same to several people including the ancestors of the petitioners and the buyers also got their names mutated in the concerned circle office. The petitioners/their ancestors constructed houses over the said land and started living there peacefully without any hindrance. Moreover, approval for construction of the houses under ''Indira Awas Yojna/Pradhan Mantri Gramin Awas Yojna'' has also been granted in favour of some of the petitioners/their relatives on the part of the said land which clearly suggests that the petitioners are not the encroachers.
3. It is further submitted that Forest Case No. 227/92 was registered with respect to the said land against ''Sukra Nayak'' under Sections 32, 33, 63 & 66 of the Indian Forest Act which was finally decided in his favour vide judgment dated 14.06.1995. It is thus evident from the aforesaid facts that the said land is not a government land as the petitioners/their ancestors have been residing over the same even before the construction of ''Dhurwa Dam''. The said land does not fall within the catchment area of the said dam which is situated almost 2 K.Ms. away from the petitioners' houses. A pitch road was constructed by the government authorities in the year 1975-76 connecting Village-Balalong to other parts of the city and the same has been in operation since then.
4. It is also submitted that Land Encroachment Case No. 06/2020-21 was initiated against 40 persons alleging encroachment upon the said land in which no individual notice was issued to the petitioners, rather notice was only 2 published in the newspaper. In pursuance of the said notice, some of the petitioners appeared and filed their documents, however, they were neither heard nor their documents were considered and vide order dated 20.07.2021, the petitioners including the other persons were directed to remove the alleged encroachment from the said land. It is further submitted that the petitioners have received individual notices dated 20.07.2021 under Section 3 of the Act, 1956 in Land Encroachment Case No. 01/2021-22 whereby a fresh proceeding has been initiated against them with respect to the same land which were involved in Land Encroachment Case No. 06/2020-21. Hence, the said encroachment case is wholly without jurisdiction.
5. Per-contra, learned counsel for the respondents submits that the said land is recorded as 'Gairmajarua Malik' and the same was acquired for construction of ''Dhurwa Dam'' which is within its catchment area. The petitioners have illegally occupied the said land and have constructed houses over the same. Hence, they are liable to be evicted therefrom in exercise of the power conferred under the Act, 1956. The notices were published in the newspaper thrice, however, only few petitioners appeared before the respondent No.4 and filed their documents. The respondent No.4 has passed the order dated 20.07.2021 after due consideration of the documents produced before him. So far as Land Encroachment Case No. 01/2021-22 is concerned, the same has been initiated in continuance of the proceeding of Land Encroachment Case No. 06/2020-21 and the persons, who were not issued notices in Encroachment Case No. 06/2020-21, have been issued fresh notices in Land Encroachment Case No. 01/2021-22.
6. Heard learned counsel for the parties and perused the relevant materials available on record. Thrust of the argument of learned counsel for the petitioners is that the impugned order dated 20.07.2021 has been passed in Land Encroachment Case No. 06/2020-21 without issuing individual notices to 3 the petitioners in terms with Section 3 of the Act, 1956. The petitioners have further contended that the initiation of Land Encroachment Case No. 01/2021- 22 with respect to the same land is illegal and the same is also liable to be set aside.
7. Sub-section (1) of Section 3 of the Act, 1956 provides that on an application made by any person or upon information received from any source, if it appears to the Collector that any person is likely to make or is making or has made or is responsible for continuance of any encroachment on public land, the said authority may serve notice to such person in the prescribed form requiring him to appear and file show cause reply on a date specified in the notice which shall not be less than thirty days and more than sixty days from the date of service of the notice. Format for serving the notice under Section 3 of the Act, 1956 has been provided under Form-1.
8. Section 4 of the said Act provides for raising defence by the person on whom notice is served under Section 3 or any person interested in the encroachment. Section 5 provides for hearing of the person on whom the notice has been served and any other person who may be interested either in the encroachment or in the removal thereof and take such other evidence as may be adduced in that behalf. Section 6 of the said Act provides for passing of final order in the matter after hearing the concerned persons and taking evidence, if any under Section 5 and after making such enquiry as the Collector deems necessary.
9. On conjoint reading of Sections 3, 4 & 5 of the Act, 1956, it would be apparent that a detailed procedure has been laid down for holding an encroachment proceeding. Before passing any order declaring a person to be an encroacher of the public land, the concerned person should be given due opportunity of hearing to place his case in terms with the procedure prescribed 4 under Sections 3, 4 & 5 of the Act, 1956, however, the same has not been followed in the present case by the respondent No.4.
10. On perusal of the record, it appears that no notice under Form-1 of the Act, 1956 was served to the petitioners with respect to Land Encroachment Case No. 06/2020-21, rather the notice for removal of the alleged encroachment was published in the daily newspaper and pursuant to that notice, some of the petitioners appeared in the said case and filed documents in support of their claims, however, the concerned Circle Officer has passed the order of eviction of the petitioners from the said land.
11. This Court is of the view that while passing the order dated 20.07.2021 in Land Encroachment Case No. 06/2020-21, the respondent No.4 has not followed due procedure of law and thus an opportunity of hearing has not been given to the petitioners before passing the said order. Moreover, while passing the impugned order dated 20.07.2021, the respondent No.4 has not observed that the petitioners have encroached the public land which is a pre-requisite for passing the order of eviction in exercise of the power conferred under the Act, 1956.
12. In the case of Maneka Gandhi Vs. Union of India & Anr. reported in (1978) 1 SCC 248, the Hon'ble Supreme Court has held as under:
"221. It is well established that even where there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. This principle was laid down by this Court in the State of Orissa v. Dr. (Miss) Binapani Dei in the following words:
"The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that 5 every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore arise from the very nature of the function intended to be performed: it need not be shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."
222. In England, the rule was thus expressed by Byles, J. in Cooper v. Wandsworth Board of Works, (1863) 14 CB NS 180: 1861-72 All ER Rep Ext 1554 "The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God), 'where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat? And the same question was put to Eve also."
13. Further, in the case of Sahara India (Firm), Lucknow Vs. Commissioner of Income Tax, Central-1, Another reported in (2008) 14 SCC 151, the Hon'ble Supreme Court has held as under:
"18. Recently, in Canara Bank v. V.K. Awasthy the concept, scope, history of development and significance of principles of natural justice have been discussed in extenso, with reference to earlier cases on the subject. Inter alia, observing that the principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi- judicial and administrative authority while making an order affecting those rights, the Court said: (SCC pp. 331-32, para 14)
"14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative 6 act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life."
19. Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial.''
14. Audi alteram partem is the pivotal concept of the principles of natural justice. This principle has to be appropriately applied in a proceeding before the administrative as well as quasi-judicial authority to ensure fair play and justice to the affected persons. No order, which results in adverse civil consequence, should be passed without affording an opportunity of hearing to the person against whom the order is sought to be passed. Due application of this principle is imperative to improve administrative efficiency, expediency and to meet out justice. The procedure adopted by the administrative/quasi-judicial authority must be just and fair.
15. In view of the aforesaid discussions, the impugned order dated 20.07.2021 passed by the respondent No.4 in Land Encroachment Case No. 06/2020-21 cannot be sustained in law and the same is hereby quashed and set aside. The matter is remanded to the respondent No.4 to issue fresh notices to the petitioners/persons against whom Encroachment Case No. 06/2020-21 was initiated and to pass final order after due compliance of the provisions of Sections 3 to 6 of the Act, 1956.
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16. So far as the initiation of Land Encroachment Case No. 01/2021-22 is concerned, the respondents have contended that the same is in continuance of the proceeding earlier initiated vide Land Encroachment Case No. 06/2020-21 and some persons, who were not issued notice in Land Encroachment Case No. 06/2020-21, have been issued fresh notices in Land Encroachment Case No. 01/2021-22. Thus, I do not find any infirmity in initiation of Land Encroachment Case No. 01/2021-22 with respect to the persons, who were not made parties in Land Encroachment Case No. 06/2020-21. As regards the persons, who were already made parties in Land Encroachment Case No. 06/2020-21, they shall not be made parties in Land Encroachment Case No. 01/2021-22. It goes without saying here that while deciding Land Encroachment Case No. 01/2021-22, the respondent No.4 shall also follow the procedure as provided in Sections 3 to 6 of the Act, 1956.
17. The present writ petition is accordingly disposed of with the aforesaid observations and directions.
Satish/- (RAJESH SHANKAR, J)
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