We are, therefore, not inclined to accept the plea that RMC has powers to remove any encroachment over the municipal property merely by a notice providing 48 hours' time. No such power for removing the encroachments over the municipal property by a simple notice has been conferred by the Legislature either to the Municipal Commissioner or the Chief Executive Officer or any other officer of the municipality, except acting in accordance with the procedure established by law. {Para 47}
JHARKHAND HIGH COURT
LPA No. 143 of 2022
Suresh Tirkey v The Governor With Connected Matters
Pronounced on 10/08/2022
WP(C) No. 4907 of 2021 filed by Sonu Pascal Ekka son of late
Esrael Ekka and WP(C) No. 4953 of 2021 filed by Suresh Tirkey son of late
Kanhu Tirkey both residents of village Bara Ghaghra within the district of
Ranchi in the State of Jharkhand were dismissed on 31st March 2022. By this
order, the writ Court rejected their challenge to the notice communicated
through letter dated 25th October 2021 and public notice dated 23rd December
2021, for removing encroachments over the lands belonging to Ranchi
Municipal Corporation (in short, RMC).
2. Suresh Tirkey and Sonu Pascal Ekka have challenged the
aforesaid order dated 31st March 2022 passed by the writ Court.
3. The writ petitioners who are appellants before us claimed right,
title and interest over Plot Nos. 57 and 58 under Khata No. 328 in village
Bara Ghaghra which are recorded in the name of their ancestors in the
cadastral survey record of rights. They pleaded that their fathers/forefathers
were in khas possession of the aforesaid lands before 1908 (when Chota
Nagpur Tenancy Act came into force) and after their death they have been
peacefully enjoying the stated properties. On such pleadings, they took a
stand that any wrong entry in the revisional survey record of rights in the
name of Municipality would not divest them of their lawful rights over the
said properties and merely by a notice they cannot be forcibly dispossessed
from their properties.
4. Both writ petitions were taken up for hearing on a Sunday upon
urgent mentioning by their learned counsel and the notice served upon them,
both dated 23rd December 2021, issued by the Deputy Municipal
Commissioner, RMC requiring the noticees to remove encroachments from
Plot Nos. 57 & 58 within Khata No. 328 under Thana No. 221 at Mauza Bara
Ghaghra, was stayed by the writ Court by an order dated 26th December
2021.
5. In the proceedings before the writ Court, the State of Jharkhand
did not file any affidavit and the respondent nos. 6 and 7 which are the
contesting parties pleaded that RMC claims the aforesaid lands comprised
within Khata No. 328 by virtue of an entry in the revisional survey record of
rights.
6. RMC put forth the following stand:
9. That it is stated and submitted that the lands pertaining to
Khata No. 328, Plot No. 57 and 58 alongwith other plots under
Khewat No. 21 of village Bada Gaghara, Thana No. 221 District-
Ranchi stand recorded in the Revisional Survey Record of Rights in
the name of Municipality.
10. That it is stated and submitted that the as per section 84 of the
CNT Act every entry in the Revisional Survey Settlement Record of
Rights so published shall be presumed to be correct.
11. That it is stated and submitted that in case of conflict between
an earlier and a later entry, the Record of Rights of later entry shall
prevail. In other words, the entry made in the Revisional Survey
Record of Rights shall prevail over the entries of the Cadastral Survey
Record of Rights. It is beyond doubt that the land in disputed is owned
by Ranchi Municipal Corporation and the petitioner alongwith other
over the land in question are none but, trespassers.
12. That it is stated and submitted that answering respondent, in
the capacity of having title over the land in dispute, has executed a
Deed of Lease deed on 27th July, 2016 in favour of M/s Apollo
Hospitals Enterprise Limited and leased all that piece and parcel of
land measuring an area 2.80 acres more or less under Khata No. 328,
Plot No. 57 and 58 situated at village-Bada Ghagara, Thana No. 221
Ranchi for the purpose of construction of esteemed Multi-Speciality
Hospital with a capacity of 200 beds at Bara Ghaghra, Doranda,
Ranchi on Public Private Partnership (PPP) basis.
13. That it is stated and submitted that in the light of the above
Deed of Lease, Urban Development and Housing Department,
Government of Jharkhand vide its notification no. 167 dated 21st
November 2016 had released and granted administrative approval for
sum of Rs. 14,42,41,328/- for the purpose of land acquisition to
construct an approach road from the Main Road to the proposed site
of the hospital.
14. That it is stated and submitted that the land acquisition for the
construction of approach road was completed by the District Land
Acquisition Officer, Ranchi and the acquired land was accordingly,
handed over to the Ranchi Municipal Corporation vide letter no. 727
dated 17th May 2018.
15. That it is stated and submitted that the land for the
construction of Apollo Hospital was to be transferred to the Hospital
free from all encumbrance and encroachment.
16. That it is stated and submitted that Plot No. 57 and 58 Khata
no. 328 of village Bada Ghagara, Doranda, District-Ranchi had some
encroachments about 15.07 kathas of land, which required to be
removed and freed from encroachment.
17. That it is stated and submitted that in the light of the aforesaid
fact the Assistant Municipal Commissioner, Ranchi Municipal
Corporation, Ranchi vide his letter no. 1368 dated 25th October 2021
requested Circle Officer, Argora Circle, Ranchi to initiate proceeding
under the Jharkhand Public Land encroachment Act, 2000 for the
removal of the encroachment made over Plot no. 57 and 58 under
Khata No. 328 village Bada Ghagara, Doranda, District-Ranchi.
7. The writ Court held that claim of the writ petitioners in respect
of the lands which were recorded in the cadastral survey record of rights in
the name of their ancestors cannot be considered by the Court under
extraordinary writ jurisdiction so as to interfere in the matter.
8. The writ Court has held as under:
19. In the case in hand, the petitioners have not put challenge to the
vires of the Jharkhand Municipal Act, 2011 or Section 606(2) of the
said Act under which the impugned notices have been issued to
them. The petitioners have also failed to show before this court that
the Act, 2011 or the previous Municipal Act i.e Bihar Municipal
Act, 1922 has been declared ultra vires by any competent court of
law. It is also not the case of the petitioners that the Governor of
Jharkhand has declared either Bihar Municipal Act, 1922 or the
Jharkhand Municipal Act, 2011 as inapplicable within the
Scheduled Areas in exercise of power conferred under 5 th Schedule
of the Constitution of India.
20. The petitioners have neither averred in the writ petitions nor
their learned counsel has been able to point out as to which
provision of the Act, 2011 is inconsistent with Part IX-A of the
Constitution of India and thus in view of the judgment of learned
Division Bench of this court rendered in the case of Debashis Soren
(supra.), there is no specific bar in continuance of the existing laws
if they are consistent with the provisions of Part IX-A. Vague
argument of learned counsel for the petitioners that the Act, 2011
will not be applicable within the District of Ranchi, has thus no leg
to stand.
21. The other limb of argument of the learned counsel for the
petitioners is that the petitioners have right, title and interest over
their respective land as the same was recorded in the name of their
ancestors in the cadastral survey record of rights and they have
been in khas possession of their respective land since 1908,
however in the revisional survey record of rights, these were
wrongly recorded in the name of Municipality.
22. Though the petitioners have claimed that they are in khas
possession over their respective land, however they have failed to
bring on record any document in support of such claim i.e., opening
of jamabandi in their name, entry in Register-II as well as rent
receipts issued in respect of the land in question so as to show their
lawful possession over the same. Moreover, the Circle Officer,
Argora Circle, Ranchi, vide order dated 21.12.2021 passed in
Encroachment Case No. 11/2021-22, has observed that the entry
pertaining to the land in question made in the name of Municipality
in the revisional survey record of rights will prevail over the entries
made in the cadastral survey record of rights. It has further been
observed that Ranchi Municipal Corporation has the authority to
remove encroachment from the land belonging to it. The petitioners
have also not averred in their rejoinder affidavits that the order
dated 21.12.2021 passed in Encroachment Case No. 11/2021-22
has been set aside by any higher court of law. Moreover, the claim
of the petitioners that their respective land were recorded in the
name of their ancestors in the cadastral survey record of rights,
cannot be entertained by this Court under extraordinary writ
jurisdiction.
23. The writ petitions are accordingly dismissed. The petitioners
are however at liberty to claim their title over the land in question
before a competent court of civil jurisdiction, if so advised.
9. Briefly stated, RMC executed a lease deed on 27th July 2016 on
payment of One rupee per annum for construction of a Multi Speciality
Hospital of 200 beds at Bara Ghaghra in the district of Ranchi on Public
Private Partnership basis. The leased lands are comprised under Khata
No. 328 within Plot Nos. 57 and 58 admeasuring about 2.80 acres under
Thana No. 221 at village Bara Ghaghra in Ranchi. According to RMC, it
found encroachments over a part of Plot Nos. 57 and 58 and notices were
issued to the encroachers. Simultaneously, RMC requested the Circle Officer,
Argora Circle, Ranchi on 25th October 2021 to initiate proceedings under the
Jharkhand Public Land Encroachment Act, 2000 for removing encroachments
upon the lands in question. According to RMC, Encroachment Case
No. 11/2021-22 (“State v. Suresh Tirkey and others”) was registered and an
order for removing encroachments over the lands in question was passed on
21st December 2021. Thereafter, a notice labelled as public notice (not in the
newspaper) was issued on 23rd December 2021 requiring the encroachers to
remove the encroachments within 72 hours failing which the same was to be
done forcibly. The writ Court passed an order on 26th December 2021 staying
the aforesaid notice but after the writ petitions were dismissed fresh notice
was issued to the appellants on 9th April 2022 and their houses were razed to
ground on 11th April 2022.
10. The appellants have raised inter alia the following grounds to
challenge the notice/public notice issued by RMC :
(i) Notices were illegal as the same were issued in the name of dead
persons;
(ii) Notices were issued arbitrarily and against the rules of natural
justice;
(iii) Section 606(2) of the Jharkhand Municipal Act, 2011 is
unconstitutional in view of Article 243-ZC of the Constitution of
India;
(iv) Notice under a statute which is unconstitutional does not carry
any force of law; and
(v) Ownership of RMC over the lands comprised under Plot nos. 57
and 58 under Khata no. 328, Thana no. 221 at village Bara
Ghaghra, Ranchi is not established merely by showing extracts
from revisional survey record of rights.
11. Several other grounds though not properly formulated but all
revolving around Constitutionality of the Jharkhand Municipal Act, 2011 in
general and section 606(2) in particular are formulated in the memorandum
of Appeal.
12. The counter-affidavits filed on behalf of the respondent nos.6
and 7 in both matters proceed on similar lines taking identical objections as
pleaded before the writ Court. RMC has challenged bona fide of the
appellants and their entitlement for any relief on the ground that no material
has been produced by them to substantiate their claim. RMC has contested
the matter on the following grounds:
(i) Encroachment by the appellants was a hurdle in construction of
Apollo Hospital in the city of Ranchi;
(ii) The appellants were not paying heed to the earlier notices for
removing the encroachments;
(iii) 9 days after the final order was passed in the writ petitions filed
by them a notice through letter dated 09th April 2022 was issued
to the appellants but they failed to remove the illegal structures
within 48 hours;
(iv) Payment of Holding tax by the appellants which is imposed
upon the residents for availing amenities provided by RMC shall
not create any title in their favour over the lands in question;
(v) The appellants did not challenge the writ Court's order
immediately and these Appeals have been filed after notice
dated 09th April 2022 was duly served upon the appellants, to
protract and complicate the litigation;
(vi) The expression “municipal property” in section 606 of the
Jharkhand Municipal Act 2011 cannot be limited to streets,
footpaths and parks only and shall mean and include all
properties owned by RMC;
13. We shall first see in what manner the appellants have challenged
the aforesaid notices and public notice on the ground of jurisdiction of RMC.
The plea raised by the appellants is that the district of Ranchi has been
declared Scheduled Area by the President of India and unless the Governor of
the State in exercise of the powers under 5th paragraph of the Fifth Schedule
directs by a public notification that the Jharkhand Municipal Act, 2011 shall
apply to the Scheduled Areas or any part thereof in the State of Jharkhand,
any provision under the Jharkhand Municipal Act, 2011 cannot apply in the
district of Ranchi and while so the notices issued by RMC are without any
authority of law vested in it.
14. The Constitution (Seventy-fourth Amendment) Act, 1992
brought Part IX-A in the Constitution which deals with the establishment,
constitution, powers and functions of Municipality as institutions of
self-government. The relevant provisions under Part IX-A are Articles
243-ZC, Article 243-ZF which are extracted as under:
243-ZC. Part not to apply to certain areas — (1) Nothing in this
Part shall apply to the Scheduled Areas referred to in clause (1), and
the tribal areas referred to in clause (2), of Article 244.
(2) Nothing in this Part shall be construed to affect the functions and
powers of the Darjeeling Gorkha Hill Council constituted under any
law for the time being in force for the hill areas of the district of
Darjeeling in the State of West Bengal.
(3) Notwithstanding anything in this Constitution, Parliament may, by
law, extend the provisions of this Part to the Scheduled Areas and the
tribal areas referred to in clause (1) subject to such exceptions and
modifications as may be specified in such law, and no such law shall
be deemed to be an amendment of this Constitution for the purposes
of Article 368.
243-ZF. Continuance of existing laws and Municipalities—
Notwithstanding anything in this Part, any provision of any law
relating to Municipalities in force in a State immediately before the
commencement of the Constitution (Seventy-fourth Amendment) Act,
1992, which is inconsistent with the provisions of this Part, shall
continue to be in force until amended or repealed by a competent
Legislature or other competent authority or until the expiration of one
year from such commencement, whichever is earlier:
Provided that all the Municipalities existing immediately before such
commencement shall continue till the expiration of their duration,
unless sooner dissolved by a resolution passed to that effect by the
Legislative Assembly of that State or, in the case of a State having a
Legislative Council, by each House of the Legislature of that State.
15. Article 243-ZC confers powers upon Parliament to extend the
provisions of Part IX-A to a Scheduled Area subject to exceptions and
modifications by making a law in this regard. Therefore, Part IX-A does not
ipso facto apply to Scheduled Areas and it is an admitted position that
Parliament has not made any law extending the provisions of Part IX-A to the
Scheduled Areas of Jharkhand. Article 243-ZF is an enabling provision
which permits the existing laws relating to municipalities to remain in force
for one year, even if inconsistent with Part IX-A. Such existing laws may,
however, continue to remain in force if amended within one year to make
those in consonance with Part IX-A.
16. Article 244 of the Constitution of India which deals with the
administration of Scheduled Areas and Tribal Areas provides that
Fifth Schedule to the Constitution shall apply to the administration and
control of the Scheduled Areas and Scheduled Tribes in any State other than
the States of Assam, Meghalaya, Tripura and Mizoram, which are
administrated under the provisions of Sixth Schedule. Paragraph 6(1) of Fifth
Schedule to the Constitution provides that “Scheduled Areas” means such
areas as the President may by order declare to be Scheduled Areas. Under the
Scheduled Areas (Part A States) Order 1950 issued on 26th January 1950 few
districts/divisions including the district of Ranchi were declared Scheduled
Areas. Subsequently, different Presidential Orders were issued in 1977, 2002
and 2007 by which parts of the State of Jharkhand were declared Scheduled
Areas. Under the Scheduled Areas (State of Jharkhand) Order, 2007 which
was issued vide Notification dated 11th April 2007, the districts of Ranchi,
Lohardaga, Gumla, Simdega, Latehar, East-Singhbhum, West-Singhbhum,
Saraikela-Kharsawan, Sahebganj, Dumka, Pakur, Jamtara and parts of the
districts of Palamu, Garhwa and Godda have been declared Scheduled Areas.
17. Therefore, 15 districts of the State of Jharkhand including the
areas under the district of Ranchi which are declared by the President as
Scheduled Areas shall be governed by Fifth Schedule to the Constitution.
18. Prior to the Constitution, the excluded areas were dealt with by
sections 91 and 92 of the Government of India Act, 1935 to the effect that the
excluded and partially excluded areas were those areas declared so by the
order by the Governor-in-Council. The laws made by the Federal Legislature
or the Provincial Legislature were not to apply to an excluded or a partially
excluded areas, unless the Governor by public notification so directed. After
the Constitution, the laws in force are to continue until altered or repealed or
amended by a competent Legislature.
19. The Bihar and Orissa Municipal Act, 1922, predecessor of the
Jharkhand Municipal Act, 2000, is an existing law applicable in relation to
excluded areas which now fall under the Scheduled Areas in Jharkhand. We
may indicate that preamble to the Bihar and Orissa Municipal Act, 1922
contained a recital that previous sanction of the Governor-General under
sub-section (3) of Section 80A of the Government of India Act was obtained
to the passing of the Act. Therefore, it is saved by Explanation-I to
Article 372 which provides that the laws in force under Article 372 shall
include a law passed or made by the Legislature or other competent authority
in the territory of India before the commencement of the Constitution. 5th
paragraph of Fifth Schedule to the Constitution empowers the Governor of
the State to issue a public notification to exclude operation of an Act of
Parliament or State Legislature to a Scheduled Area. The Governor may also
by a public notification direct that any particular Act of Parliament or of the
State Legislature shall apply to a Scheduled Area subject to the specific
exceptions and modifications. However, there is no public notification by the
Governor of the State of Jharkhand excluding operation of the Jharkhand
Municipal Act, 2000 in the Scheduled Areas of Jharkhand.
20. The Jharkhand Municipal Act, 2000 was made applicable to the
whole of the State of Jharkhand except Cantonment areas; and this has been
replaced by the Jharkhand Municipal Act, 2011. The preamble to Jharkhand
Municipal Act, 2011 provides that this Act has been framed in conformity
with the provisions of the Constitution (Seventy-fourth Amendment)
Act, 1992. The writ Court referred to the decisions in “Debashish Soren v.
State of Jharkhand & Ors.”1, “Ram Kirpal Bhagat v. State of Bihar”2 and
“Sundargarh Zilla Adivasi Advocates Association & Ors. v. State of Odisha
& Ors.”3 to come to a conclusion that there is no specific bar in continuance
of the existing laws if they are consistent with the provisions of Part IX-A of
the Constitution of India. In “Debashish Soren”1 amendments incorporated in
Jharkhand Municipal Act, 2000 were challenged on the ground that those
provisions cannot be extended to the Scheduled Areas in the district of
Ranchi, as Parliament alone can extend Part IX-A of the Constitution to the
Scheduled Areas. A Division Bench of this Court held that the Bihar and
Orissa Municipal Act, 1922 which was applied and made applicable to the
State of Jharkhand prior to 74th amendment to the Constitution is an existing
law which shall continue to operate even in the Scheduled Areas of Ranchi.
21. In our opinion, the writ Court rightly held that the Jharkhand
Municipal Act, 2011 which amended laws relating to the municipal
1. 2008 (1) JCR 542 (Jhr)
2. (1969) 3 SCC 471
3. (2013) 14 SCC 217
governance in the State of Jharkhand is in conformity with provisions of the
Constitution (Seventy-fourth Amendment) Act, 1992, and there is no
challenge before us to this finding of the writ Court. Therefore, the challenge
by the appellants to the notices issued to them on the above ground must be
rejected.
22. Suresh Tirkey claimed right, title and interest over 76 decimal
lands in Plot no. 151 within Khata No. 39, Khewat No.1, Pargana Khukra,
Mouza Bara Ghaghra No. 221 within Thana Ranchi. The aforesaid lands
comprised under Plot No. 151 are recorded in cadastral survey in the name of
late Barka Tutang Oraon who was his ancestor. Sonu Pascal Ekka claimed
right, title and interest over 0.73 acres land in Plot No. 148 within Khata
No.73, Khewat No.1, Pargana Khukra, Mouza Bara Ghaghra on the basis of
entries in the record of rights in cadastral survey in the name of his ancestor
Budwa Oraon. The appellants have pleaded that the descendants of the
recorded tenants remained in peaceful possession of the stated lands, enjoyed
their right, title and interest over such lands and resided in their house
constructed thereon and have been paying Holding tax, Municipal tax and
other taxes.
23. Chapter-XII in the Chota Nagpur Tenancy Act, 1908 (in short,
CNT Act, 1908) titled “record of rights and settlement of rents” deals with
preparation of record of rights under sections 83 and 84 of CNT Act, 1908.
RMC has set up a case that section 84 of CNT Act, 1908 shall apply ex
proprio vigore and entries in its name in the revisional survey record of right
are conclusive proof of its right, title and interest over the lands comprised in
Plot nos. 56, 57, 58 and 69 under Khata No. 328 at village Bara Ghaghra.
24. Sections 83 and 84 of CNT Act, 1908 are extracted below:
“83. Preliminary publication, amendment and final publication of
record-of-rights. - (1) When a draft record-of-rights has been
prepared under this Chapter, the Revenue Officer shall publish the
draft in the prescribed manner and for the prescribed period and shall
receive and consider any objections which may be made to any entry
therein, or to any omissions therefrom, during the period of
publication.
(2) When such objections have been considered and disposed of in
the prescribed manner, the Revenue Officer shall finally frame the
record, and shall cause it to be finally published in the prescribed
manner, and the publication shall be conclusive evidence that the
record has been duly made under this Chapter.
(3) Separate draft or final records may be published under subsection
(1) or sub-section (2) for different local areas, estates, tenures
or parts thereof.
84. Presumptions as to final publication and correctness of
record-of-rights - (1) In any suit or other proceedings in which a
record-of-rights prepared and published under this Chapter or a duly
certified copy thereof or extract therefrom is produced, such recordof-
rights shall be presumed to have been finally published unless such
publication is expressly denied and a certificate, signed by the
Revenue Officer, or by the Deputy Commissioner of any district in
which its local area, estate or tenure or part thereof to which the
record-of-rights relates is wholly or partly situate, stating that the
record-of-rights has been finally published, under this Chapter shall
be conclusive evidence of such publication.
(2) The State Government may, by notification, declare with regard to
any specified area, that a record-of-rights has been finally published
for every village included in that area; and such notification shall be
conclusive evidence of such publication.
(3) Every entry in a record-of-rights so published shall be evidence of
the matter referred to in such entry and shall be presumed to be
correct until it is proved, by evidence, to be incorrect.”
25. The effect of section 84 of CNT Act, 1908 which raises a
statutory presumption of correctness as to publication and entries made in the
record of rights so published is a matter for trial. The presumption raised
under sub-section (3) to section 84 that every entry in the record of rights
shall be presumed to be correct until it is proved by evidence to be incorrect
is a rebuttable presumption. The legislative intendment behind section 84 is
protection of the rights of the raiyats and tenure-holders. Section 6 of CNT
Act, 1908 provides that “raiyat” means primarily a person who has acquired a
right to hold and for the purpose of cultivating it by himself or by members
of his family, or by hired servants or with the aid of partners; and includes the
successor-in-interest of persons who have acquired such a right. The
explanation to section 6 clarifies that a tenant having right to cultivation shall
be deemed to have acquired a right to hold it for the purpose of cultivation,
notwithstanding that he uses it for the purpose of gathering the produce of it
or of grazing cattle on it. The raiyats, tenure holders including under-tenure
holders, occupancy raiyats, tenants holdings, under-raiyats and Mundari
khunt-kattidars fall under the category of tenants, who are entitled to hold
lands on payment of rent. Under CNT Act, 1908, a “tenure-holder” is a
person who has acquired from the proprietor, or from another tenure-holder, a
right to hold land for the purpose of collecting rents or bringing under
cultivation by establishing tenants on it and includes (a) successor-in-interest
of persons who have acquired such a right and, (b) the holder of tenures
entered in any register prepared and confirmed under Chota Nagpur Tenures
Act, 1869 (Beng. Act 2 of 1869). Under section 16, every “raiyat” who immediately before the commencement of the Act has any right of occupancy in any land by the operation of any enactment or by local custom or uses or
otherwise shall have right of occupancy in that land, notwithstanding the fact
that he may not have cultivated or held the land for a period of 12 years.
26. The CNT Act, 1908 is a piece of beneficial legislation which is
intended to extend protection to a class of citizens who constitute a weaker
section in the society unable to protect their property. The protection
mechanism envisaged under CNT Act, 1908 must be given full effect so as to
work out the protection to the tribals, even by adopting liberal construction
wherever necessary4. CNT Act, 1908 covers whole of the North Chota
Nagpur, South Chota Nagpur and Palamau Division including the areas or
parts of the areas which have been constituted into a Municipality or a
Notified Area Committee under the Bihar and Orissa Municipal Act, 1922
(Bihar and Orissa Act 7 of 1922) or which are within a Cantonment.
27. In the aforesaid background, one can see the reasons why
several particulars, such as, name and class of tenant/occupant, name of the
landlord/proprietor, mode in which rent was fixed, easement rights, right and
obligation of each tenant and landlord etc. are required to be specified in the
order made under section 80 on the basis of which a draft record of rights is
prepared under section 83. Under sub-section (2) to section 83, the objections
made to any entry or any omission are considered and disposed of and then
the record of rights is finally published in the prescribed manner. RMC has
produced extract from revisional survey record of rights to lay its claim over
about 2.80 acres of land under Khata No. 328 comprised in Plot Nos. 56, 57,
58 and 69 at village Bara Ghaghra, but without any corroboration. The
extract from the revisional survey record of rights is not even authenticated
by a competent authority or supported by any other corroborative evidence,
as indicated under sections 80, 81 and 83 of CNT Act, 1908. The entries
made in the revisional survey record of rights are not supported by any
statement by RMC, and it is not known since when the aforesaid lands
comprised in Plot Nos. 56, 57, 58 and 69 under Khata No. 328 are held in its
possession and used for a particular purpose – to say, dump yard.
28. On the other hand, the entries made in the name of predecessors
4. “D (A Minor) v. Berkshire County Council” (1987) 1 All ER 20 HL : Broad and liberal construction
should be given to give full effect to the legislative purpose.
of the appellants in the revenue records/Khatiyan are not disputed and by
virtue of non-transferable nature of the lands the presumption envisaged
under sub-section (3) to section 84 does not come in aid of RMC. That is
more so because RMC does not even know since when and the manner how
the aforesaid lands came in its possession. The plea urged by RMC that by
operation of section 84 of CNT Act, 1908 entries made in the revisional
survey record of rights in favour of RMC is a conclusive proof of its
ownership over the lands in question cannot be accepted – at least,
possession of RMC over the said lands is not established. This cannot be
overlooked that RMC does not even claim that it exercised its ownership
rights and continued in possession of the said lands since 1932, whereas long
continuous possession of the appellants coming to them through their
predecessors is established.
29. The writ Court was not justified in holding that it shall not look
into cadastral survey record of rights – presumably in view of section 84(3)
of CNT Act, 1908. The appellants are in possession of the disputed lands,
their possession has been continuous and uninterrupted coming to them and
they are tenants under CNT Act, 1908. Therefore, notwithstanding entries in
the revisional survey record of rights, the appellants can very well use entries
in the cadastral survey record of rights as corroborative piece of evidence to
establish that they have valid claim over the aforesaid lands comprised under
Plot Nos. 148 and 151.
30. To lay a foundation for ignoring entries in the cadastral survey
record of rights, judgment in “Shri Raja Durga Singh of Solon v. Tholu &
Ors.”5 wherein the Hon'ble Supreme Court observed that where there is
conflict between prior and latter entries the entry made in the new records
must prevail, has been relied upon by RMC. No doubt a presumption of
correctness of new entry may be raised but entries in the record of rights, old
as well as new, must be proved in accordance with the laws of evidence, and
this is no answer to a claim raised on the basis of old entry in the cadastral
survey record of rights that new entry in the revisional survey record of rights
has not been challenged in any judicial proceeding. The writ Court shall not
act on such pleadings by the respondent(s) to take a final decision without
calling for and verifying the records.
5. AIR 1963 SC 361
31. RMC next turned to the order passed by the Circle Officer,
Argora Anchal, Ranchi to support its direction to the violators by a simple
notice to remove encroachments. As noticed above, Encroachment Case
No. 11/2021-22 was drawn by the Circle Officer on the basis of the letter
dated 25th October 2021 by RMC. A show-cause notice under section 3 of the
Jharkhand Public Land Encroachment Act 2000 was issued to Birsa Oraon,
Smt. Sushma Ekka and Suresh Tirkey, who produced cadastral survey record
of rights and evidence regarding payment of Holding tax and other taxes to
RMC. The Circle Officer was, however, of the view that RMC has powers
under section 606(2) of the Jharkhand Municipal Act, 2011 to remove any
encroachment and obstruction on the municipal property. Taking note of the
notice dated 25th October 2021 issued by RMC to the appellants, the Circle
Officer declined to proceed further in the encroachment case and proceedings
in the said case were dropped. It is a matter of record that no direction was
issued by the Circle Officer, Argora Anchal, Ranchi to the appellants to
remove encroachments, as RMC would try to contend. Rather, the
proceedings in Encroachment Case No. 11/2021-22 were dropped and a
decision in this regard was communicated to RMC.
32. For a better appreciation of the aforesaid controversy, the order
dated 21st December 2021 passed by the Circle Officer, Argora Anchal,
Ranchi is extracted as under:
“Present proceeding has been initiated upon the request made
by the Assistant Municipal Commissioner, Ranchi, Municipal
Corporation, Ranchi, who vide Letter No.-1368 dated 25.10.2021 has
requested to initiate a proceeding under the Bihar (Now Jharkhand)
Public Land Encroachment Act, for removal of encroachment made
by the Opp. Party namely (1) Sadho Oraon Son of Sri Duiya Oraon,
(2) Sri Sabhal Oraon Son of Mahadeo Oraon, (3) Sri Kanhu Tirkey
Son of Sri Jituwa Tirkey and (4) Sri Mahadeo Oraon All Resident of
Bara Ghaghra, P.S. Doranda, District Ranchi upon the land
measuring an area of 10,848 Sq. Ft. (approx 15.07 Kathas) pertaining
to Khata No.-328, Plot No.-57 & 58 of Village Bara Ghaghra, Thana
No.-221, District Ranchi. The aforesaid land belonging to Ranchi
Municipal Corporation has been leased out by it for construction of
Apollo Hospital.
A report upon the matter was called from the RSI, CI and
Amin. The Anchal Amin of Argora Anchal and Amin of Ranchi
Municipal Corporation have submitted a joint report upon the matter
on 20.11.2021. As per the report, demarcation of the land pertaining
to Khata No.-328, Plot No.-57 & 58 area 2.74 Acres of Village Bara
Ghaghra, Thana No.-221, District Ranchi was done by them. They
have reported that, (1) Birsa Oraon Son of Tuiya Oraon has
encroached upon 7.14 decimals of land under Khata No.-328, Plot
No.-58/Part of Village Bara Ghaghra, Thana No.-221, District
Ranchi by constructing boundary wall, (2) Sushma Ekka W/o Late
Israil Ekka has encroached upon 7.78 decimals of land under Khata
No.-328, Plot No.-58/Part of Village Bara Ghaghra, Thana No.-221,
District Ranchi by constructing boundary wall and house with
asbestos sheet roof and (3) Suresh Tirkey Son of Kanhu Tirkey has
encroached upon 11.50 decimals of land under Khata No.-328, Plot
No.-57 & 58/Part of Village Bara Ghaghra, Thana No.-221, District
Ranchi by constructing boundary wall and Pucca house over the
same.
A notice U/s 3 of the Jharkhand Public Land Encroachment
Act, 1956 was issued upon the aforesaid (1) Birsa Oraon Son of Tuiya
Oraon (2) Sushma Ekka W/o Late Israil Ekka and (3) Suresh Tirkey
Son of Kanhu Tirkey on 20.11.2021 calling upon them to show-cause,
why the encroachment made by them shall not be removed.
As per the Opp. Parties, the Assistant Municipal
Commissioner of Ranchi Municipal Corporation, Ranchi has already
issued letter No. 1369(ii) dated 25.10.2021 under Section 606(2) of
the Jharkhand Municipal Act 2011 for removal of the encroachment
made upon the land forming the subject matter of the Notice dated
20.11.2021 issued to the Opp. Party in the instant case. The instant
parallel proceeding is not maintainable in the eyes of law. The land
of mauza Bara Ghaghra, Thana No. 221, Thana- Ranchi stands
recorded in Cadastral Survey Record of Right in the name of his
ancestor Barka Tutang Oraon. The Opp. Party Mr. Suresh Tirkey is
paying holding tax and other taxes of the same land to the Ranchi
Municipal Corporation. The ancestor of the Opp. Party and after
them the Opp. Party is coming in possession of the land since the
publication of the cadastral survey record of right.
On going through the record, I find that the aforementioned
land in question pertaining to Khata No.-328, Plot No.-57 & 58 of
Village Bara Ghaghra, Thana No.-221, District Ranchi stands
recorded in the R.S Record of Right in the name of Municipality. As
per Section 84 of the CNT Act, every entry in a record-of-rights so
published shall be evidence of the matter referred to in such entry and
shall be presumed to be correct until it is proved, by evidence, to be
incorrect. The entry made in the R.S. Record of Right shall prevail
over the entries of the Cadastral Survey record of right. It is beyond
doubt that the land belonging to the Ranchi Municipal Corporation
i.e. local bodies is a public land within the meaning of Jharkhand
Public Land Encroachment Act and the Opp. Party have encroached
and constructed substantial structure upon the same, which is purely
an act of un-authorized construction upon the land of RMC.
As per Section 606 (2) of the Jharkhand Municipal Act, The
Municipal Commissioner or the Executive Officer has power to
remove any encroachment and obstruction on the municipal property
if it is not authorized, or if it objectionable or obstruct traffic. The
Ranchi Municipal Corporation has full authority and ample resources
to remove encroachment from the land belonging to the Municipality.
The Corporation has already instituted an encroachment proceeding
with respect of the land in question forming the subject matter of the
instant case by issuing letter No. 1369(ii) dated 25.10.2021 under
Section 606(2) of the Jharkhand Municipal Act 2011 for removal of
the encroachment made upon the land forming the subject matter of
the instant case.
Hence in order to avoid multiplicity of orders/directions for
removal of encroachment with respect of the same land against the
same persons, I think it would be expedient for the ends of justice to
drop the instant proceeding. Therefore the instant proceeding is
hereby dropped.
The Office is directed communicate this order to the Assistant
Municipal Commissioner, Ranchi Municipal Corporation, Ranchi, so
that he could proceed with the case U/s 606 of the Jharkhand
Municipal Act initiated against the Opp. Parties.
Also send a copy to the Opp. Parties for information.”
33. In the aforesaid order of the Circle Officer, there is a reference
of a Joint Report of the Anchal Amins of Argora Anchal and RMC but a copy
of the said report dated 20th November 2021 has not been found in the
records of RMC, when the original records were produced before us. The
observations of the Circle Officer that entries in the revisional survey record
of rights shall prevail over the record of rights prepared during cadastral
survey or the aforesaid Joint Report dated 20th November 2021 cannot be
used by RMC to direct the appellants by a notice to remove encroachments.
In fact, there is no material on record to establish that the appellants have
encroached upon the lands belonging to RMC.
34. Now we turn to the stand taken by RMC that in exercise of the
powers conferred upon it under sub-section 2 to section 606 notices were
issued to Birsa Oraon, Smt. Sushma Ekka and Suresh Tirkey, and
encroachments were removed 9 days after the writ petitions were dismissed
by the High Court.
35. The Jharkhand Municipal Act, 2011 is divided into 9 parts which
contain 48 Chapters spread over 617 provisions for municipal governance in
the State of Jharkhand. Under section 131, the Municipal Commissioner or
the Executive Officer is required to maintain a register and a map of all
immovable properties of which the Municipality is the owner or which is
vested in it or which the Municipality holds in trust for the Government. No
register containing a list of municipal properties has been produced before us,
and RMC has admitted in its affidavit that in the past 5 years no notice was
issued to anyone for removing encroachments, except Sonu Pascal Ekka,
Suresh Tirkey and Birsa Oraon.
36. Part-IX of the Jharkhand Municipal Act, 2011 is captioned as
“powers, procedures, offences and penalties”. Sections 490 to 498 provide
the procedure how public notices and advertisements shall be issued by the
Municipality. Section 493 provides that any notice, bill, order, or requisition
issued or made under the Act or the Rules or Regulations made thereunder
shall specify a “reasonable time” for doing some act for which no time is
fixed, and all such notices, bills, summons etc. shall bear signature of the
Municipal Commissioner or the Executive Officer or any other officer of the
Municipality, except a cheque drawn upon the Municipal Fund (see,
section 494).
37. Sub-section 1(d) to section 496 which specifically deals with
“service of notices etc.” provides that every notice, bills, summons, orders,
requisitions or other documents shall be tendered to the person to be served
and, if such person cannot be found notices, bills, summons etc. shall be
given or tendered to some adult member of his family or affixed on some
conspicuous part of the land or building to which it relates, or, alternatively it
may be sent through registered post. Sub-section 2 to section 496 provides
that any document which is required or authorised to be served on the owner
or the occupier of any land or building may be addressed to “the owner” or
“the occupier” and shall be delivered in accordance with clause(d) of subsection
(1). It further provides that any document shall be deemed to be duly
served if it is delivered to some person on the land or building or where there
is no such person to whom it can be delivered may be affixed to some
conspicuous part of the land or building.
38. A glance at the notice/public notice dated 25th October 2021, 23rd
December 2021 and 9th April 2022 reveal the arbitrary manner in which these
notices were issued to the appellants. RMC issued notice dated 25th October
2021 in the name of Late Kanhu Tirkey who was 3rd descendant of the
recorded tenant Late Barka Tutang Oraon – Suresh Tirkey who is the
appellant in LPA No. 143 of 2022 is the son of Late Kanhu Tirkey. A similar
notice was issued in the name of Sambhal Oraon son of Late Mahadeo Oraon
both of whom according to the appellants are not descendants of the recorded
tenant. Moreover, the said notice was not even issued in the name of the
father of Sonu Pascal Ekka – Late Esrael Ekka was 3rd descendant of the
recorded tenant Late Budwa Oraon. They submitted their reply-cumapplication
on 29th October 2021 and challenged legality of notice dated 25th
October 2021.
(A) Notice dated 25 th October 2021:
Letter No. 1369 (ii) Date : 25.10.2021
To,
Sri Kanhu Tirkey,
S/o Sri Jituwa Oraon,
Address:Bara Ghaghra, Ranchi
It is informed through this notice that the lands under Mauza
Bara Ghaghra, Thana No. 221, Khata No. 328, Plot Nos. 57 and 58, area-
2.83 acres are Khatiyani land of the Municipal Corporation. In course of
the survey, it came to notice that you have constructed a pucca house,
hand pump and temporary boundary wall by encroaching upon 3004
square feet land of Plot No. 57 and 1336 square feet land of Plot No. 58
under Khata No. 328.
Therefore, you are directed to present your case before the
undersigned on 29.10.2021 at 12:00 A.M, if you have any order/document/
paper etc. related to the above plot or if you have to say anything in
person/through your authorized representative failing which action shall
be taken to remove the structure u/s 606(2) of the Jharkhand Municipal
Act, 2011 considering the same as encroachment.
Treat it as most urgent.
(B) Public Notice dated 23 rd December 2021:
Letter No. 1585 Date : 23.12.2021
Public Notice
Mauza-Bara Ghaghra, Thana No. 221, Khata No. 328, Plot No. 57
and 58 is recorded in the R.S. Khatiyan in the name of Municipality. Sri
Birsa Oraon, S/o Tuiya Oraon encroached some part of this land by
constructing a boundary wall over 07.14 decimals land in Khata No. 328,
Plot No. 58, Mauza-Bara Ghaghra and Thana No. 221. Smt. Sushma
Ekka, W/o Esrael Ekka encroached upon 07.78 decimals land in Khata
No. 328, Plot No. 58, Mauza-Bara Ghaghra, Thana No. 221 by
constructing boundary wall and house having asbestos-sheet roof. Sri
Suresh Tirkey, S/o Kanu Tirkey encroached upon Khata No. 328, Plot No.
57 and 58, Mauza-Bara Ghaghra, Thana No. 221 by constructing
boundary wall and pucca house.
It is hereby informed that this land has been given to Apollo Hospital
on lease by Ranchi Municipal Corporation for the construction of Apollo
Hospital. Therefore, all encroachers are directed to ensure to vacate the
above mentioned lands within 72 hours. Otherwise, encroachment shall be
removed forcefully without any prior information and cost incurred for the
same shall be recovered from the encroachers.
(C) Notice dated 9 th April 2022:
Letter No. 444 Date : 09/04/22
Notice
Sri Suresh Tirkey, S/o Kanu Tirkey
Some portions of land of Ranchi Municipal Corporation situated at
Mauza Bara Ghaghra under Thana No. 221, Khata No. 328, Plot No. 57
and 58 have been encroached by Sri Birsa Oraon, S/o Tuiya Oraon over
07.14 decimals land, by Smt. Sushma Ekka, W/o Late Esrael Ekka over
07.78 decimals land and by Suresh Tirkey, S/o Kanu Tirkey over
11.50 decimals land. Ranchi Municipal Corporation vide Letter No. 1585
dated 23.12.2021 had given notice to the aforesaid three persons for
removing the encroachments. All of them were directed through notice to
remove the encroachment within 72 hours from receiving this notice. But
you have challenged the notice as well as this matter before the Hon’ble
High Court through writ petition W.P. (C) No. 4907/2021 and W.P. (C) No.
4953/2021. The Hon’ble High Court heard both writ petitions and
thereafter dismissed the petitions agreeing with the view/the notice of the
Municipal Corporation. The decision of the Hon’ble High Court was
pronounced on 31.03.2022 in presence of your lawyer. It is 9th day since
the order passed by the Hon’ble Court from 09.04.2022, but till now you
have not removed the encroachments. It is made known to you that due to
not removing of the encroachments, the construction of proposed hospital
is obstructed.
You are given 48 hours' time from 09.04.2022 as last chance with
direction to ensure removal of aforementioned encroachments on your
own failing which Ranchi Municipal Corporation would be compelled to
remove the encroachments over the aforesaid lands forcefully after
48 hours.
39. The aforesaid notices issued by RMC which are said to have
been served upon the noticee did not provide sufficient time to them to
remove encroachments, and it is not explained how those notices were
addressed to dead persons. The notice dated 25th October 2021 was addressed
to dead persons and provided 3 days' time to the noticees to produce
documentary evidence as to their right, claim and interest over the lands in
question. However, RMC did not examine the evidence produced on behalf
of the noticees and no action was taken pursuant thereto and the matter was
referred to the Circle Officer for initiating the encroachment case. Next a
public notice was issued on 23rd December 2021 asking the encroachers to
remove within 72 hours the boundary wall and other constructions made over
Plot Nos. 57 and 58 comprised under Khata No. 328. By the said public
notice, the encroachers were informed that the aforesaid lands have been
leased by RMC to Apollo Hospital and encroachments shall be removed
forcibly without any prior notice. 3rd notice was issued on the ground that the
noticees had failed to remove encroachments which was causing obstructions
in construction of Apollo Hospital, even 9 days after the writ petitions were
dismissed. Therefore, fresh notice was issued to Birsa Oraon, Smt. Sushma
Ekka and Suresh Tirkey on 9th April 2022. The records which were produced
before us did not contain any communication by the lessee about
encroachment or obstruction in construction of Apollo Hospital. It is also a
matter of record that a certified copy of the writ Court's order was not made
available to RMC by 9th April 2022 or even on 11th April 2022 and, therefore,
RMC had no occasion to examine the contents of the order and directions
issued by the writ Court. What is more disturbing is the timings when public
notice dated 23rd December 2021 and notice dated 9th April 2022 both were
issued by RMC – during Christmas and Ramnavami vacations.
40. Apparently, RMC issued the aforesaid notices with oblique
motives and its actions lack bonafide.
41. Chapter-47 of the Jharkhand Municipal Act, 2011 captioned as
“Offences and Penalties” contains various provisions for fine, penalty,
punishment, offences by companies, prosecution and compounding of
offences under sections 600 to 611. RMC has taken a specific stand that the
impugned actions are authorised under sub-section (2) to section 606 of
Jharkhand Municipal Act, 2011.
42. Section 606 of Jharkhand Municipal Act, 2011 is extracted
below:
“606. Encroachment on streets.-
(1) No person shall cause any encroachment or obstruction on any
municipal property such as a street or footpath or park without
specific permission of an officer of the municipality duly uthorized
to grant such permission. Any person causing such encroachment
or obstruction on any municipal property as aforesaid shall, on
conviction, be punishable with fine which may extend to five
thousand rupees.
(2) The Municipal Commissioner or the Executive Officer shall
have power to remove any encroachment and obstruction on the
municipal property if it is not authorized, or if it objectionable or
obstructs traffic.”
43. Section 606 is a specific provision making encroachment or
obstruction on any street, footpath, park and other municipal property an
offence which shall be punishable with a fine which may extend to
Rs. 5,000/-. Sub-section (1) and sub-section (2) to section 606 are not
isolated provisions and they have to be read together in conjunction with
each other and once section 606 is read as a whole it becomes clear that the
Municipal Commissioner or the Executive Officer shall have powers to
remove any encroachment and obstruction over street, park etc. However,
there is no procedure prescribed under the Jharkhand Municipal Act, 2011 for
removing encroachment from other municipal properties . Therefore, RMC is
required to follow the rules of natural justice even where there is no dispute
as regards right, title and interest over the encroached lands. The phraseology
used under sub-section (2) such as “if it is not authorised”, or, “if it is
objectionable”, or, “obstructs traffic” cannot confer draconian powers on the
Municipal Commissioner or the Executive Officer or any other officer of
RMC to direct a person in settled possession to remove encroachment within
72/48 hours' time.
44. No one can raise a claim of ownership over streets, footpaths or
parks. Mere stray or even intermittent acts of trespass do not give any right
against the true owner, and a casual act of possession would not have the
effect of interrupting possession of the rightful owner. Therefore, the
encroachments over streets, footpath, park etc. stand on a different footing,
particularly because of inconvenience caused to the general public.
Chapter-29 which deals with public streets provides under section 291 that all
public streets and parking areas within the municipal area shall vest in the
Municipality. The alleged encroachments by the appellants are not on any
public road and RMC does not even claim that the lands in question vested in
the Municipality by virtue of section 291. Furthermore, various provisions
under the Jharkhand Municipal Act, 2011 clearly lay down a procedure for
proceeding against a violator. Section 284 and other provisions indicate that
cognizance of an offence can be taken by the Court only upon a complaint in
writing made by any officer duly authorized. Alongwith the other provisions,
section 610 provides that no Court shall proceed to the trial of any offence
punishable by or under this Act except on the complaint of, or upon
information received from the Municipal Commissioner or the Executive
Officer or any person authorised by him by general or special order in this
behalf. The aforesaid provisions provide sufficient guidelines to RMC
wherever it intends to proceed under sub-section (2) to section 606 that RMC
has to follow the procedure prescribed under the general laws in this regard.
45. Sir John Edge “Midnapore Zamindary Company, Limited v. Naresh Narayan Roy and others” - 1924 SCC OnLine speaking for the Privy Council observed that in
India persons are not permitted to take forcible possession; they must obtain
such possession as they are entitled to through a Court. The law in India does
not permit even a lessor to use force to throw out the lessee. “Lallu Yeshwant Singh v. Rao Jagdish Singh” AIR 1968 SC 620. In “Munshi
Ram v. Delhi Admn.” AIR 1968 SC 702 the Hon'ble Supreme Court has held that no one
including the true owner has a right to dispossess the trespasser by force if
the trespasser is in settled possession of the land and, in such a case, unless
the lessee is evicted in the due course of law, he is entitled to defend his
possession even against the rightful owner. About quarter a century
PC 18 : (1923-24) 51 IA 293
thereafter, in “Krishna Ram Mahale v. Shobha Venkat Rao”9 the Hon'ble
Supreme Court has held that where a person is in settled possession of
property, even on the assumption that he has no right to remain on the
property, he cannot be dispossessed by the owner of the property except by recourse to law.
46. The expression due process of law may take different colors in
different situations but when such expression is used to question ejectment
from settled possession the stated expression would mean that a person in
settled possession cannot be ejected without a Court of law having
adjudicated upon his rights qua true owner. In “Sopan Sukhdeo Sable v. Asstt.
Charity Commr.,”10 the Hon'ble Supreme Court has observed as under:
“24. There are two different sets of principles which have to be
borne in mind regarding course to be adopted in case of forcible
dispossession. Taking up the first aspect, it is true that where a
person is in settled possession of property, even on the assumption
that he has no right to remain in property, he cannot be dispossessed
by the owner except by recourse to law. This principle is laid down
in Section 6 of the Specific Relief Act, 1963. That section says that
“If any person is dispossessed without his consent of immovable
property otherwise than in due course of law, he or any person
claiming through him may, by suit, recover possession thereof,
notwithstanding any other title that may be set up in such suit.”
That a person without title but in “settled” possession — as against
mere fugitive possession — can get back possession if forcibly
dispossessed or rather, if dispossessed otherwise than by due
process of law, has been laid down in several cases. It was so held
by this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh, Krishna
Ram Mahale v. Shobha Venkat Rao (SCC at p. 136), Ram Rattan v.
State of U.P. and State of U.P. v. Maharaja Dharmander Prasad
Singh. The leading decision quoted in these rulings is the decision of
the Bombay High Court in K.K. Verma v. Union of India.”
47. We are, therefore, not inclined to accept the plea that RMC has powers to remove any encroachment over the municipal property merely by a notice providing 48 hours' time. No such power for removing the encroachments over the municipal property by a simple notice has been conferred by the Legislature either to the Municipal Commissioner or the Chief Executive Officer or any other officer of the municipality, except acting in accordance with the procedure established by law.
48. Besides the above, notice dated 09th April 2022 which is
impugned in the present proceeding suffers from vice of arbitrariness and
unreasonableness and must be held against natural justice.
9. (1989) 4 SCC 131
10. (2004) 3 SCC 137
49. The time of 48 hours provided by RMC through notice dated 09th
April 2022 for removing encroachments militates against natural justice and
fair play in action. The “State of Maharashtra v. Alka B. Hingde”11 and
“State of J&K v. Haji Wali Mohd.”12 provide specific instances where time
granted for removing the encroachment within 2-3 days was found not a
reasonable time for doing the acts required to be done by the notice.
50. Reliance has been placed on the decisions in“Ratansingh v.
Vijaysingh & Ors.”13 and “Hans Raj Dhir v. State of Himachal Pradesh &
Ors.”14 to support demolition of the appellants' properties after the writ
petitions filed by them were dismissed. The writ petitions were filed
questioning legality of the notice/public notice issued by RMC and not
against demolitions and, therefore, judgments referred to by the learned
Senior counsel for RMC are not relevant for the present purposes and,
moreover, those judgments do not support issuance of notice in an arbitrary
manner – subsequent actions by RMC are being separately dealt with by this
Court in WP(C) No. 2066 of 2022.
51. To recapitulate, by virtue of the order of Hon'ble the Chief
Justice passed on administrative side on 11th April 2022 these Letters Patent
Appeals were assigned to Division Bench-III and upon the matter being
mentioned by the learned counsel for the appellants these Letters Patent
Appeals were directed to be posted at 2:15 PM on the same day. The order
dated 11th April 2022 passed by Division Bench-I records that these Letters
Patent Appeals shall be posted before another Bench “forthwith”. A brief
narration of the events which preceded hearing of these Letters Patent
Appeals is recorded in the order passed on 11th April 2022. The learned State
counsel made a statement in the Court that he duly informed the learned
counsel for RMC about filing of these Letters Patent Appeals and the order
passed by Division Bench-I. The learned State counsel further informed the
Court that the learned Advocate-General had also spoken to the learned
counsel for RMC. It appears that these communications were exchanged
between 12:30 PM to 1:13 PM and according to the learned counsel for RMC
demolitions at the site were stopped at 14:35 PM on instructions of the
11. AIR 1998 SC 2342
12. (1972) 2 SCC 402
13. AIR 2001 SC 279
14. 1985 CRI. L. J. 1030
Municipal Commissioner, Ranchi who was informed by the learned
counsel/vice-counsel for RMC about the order passed by Division Bench-I.
In paragraph no.19 of the order dated 11th April 2022 this Court has recorded
that : “The tearing hurry with which RMC has proceeded in the matter is
astonishing and the Court is left wondering what could be the motive behind
such an action”. The Advocate Commissioners appointed by this Court
inspected the properties demolished by RMC and submitted report in sealed
cover. The Deputy Commissioner, Ranchi was also directed to make
arrangements for photography and videography of the properties under
demolition. By an order dated 25th April 2022, these materials were directed
to be supplied to the parties.
52. The report of Advocate Commissioners and photographs
submitted by the Deputy Commissioner, Ranchi show that the dwelling
houses of Suresh Tirkey, Sanjay Tirkey and Sonu Pascal Ekka were
completely demolished and household articles such as beds, kitchenware,
doors, windows, water connections etc. were damaged. Altogether
22 persons including 8 children were residing there and marriage of Nikita
Tirkey who is niece of Suresh Tirkey was to be solemnised on 19th April 2022
at his house. The photographs provided by the Deputy Commissioner, Ranchi
captured old women and minor children sitting outside the demolished
houses under the scorching sun – on 12th April 2022, Mercury had risen to
41oC.
53. Relevant extracts of the order dated 25th April 2022 passed by
this Court are reproduced below:
“12. During hearing of the present Letters Patent Appeals, a
statement has been made, on instructions, that encroachments by the
appellants are over a part of 2.80 acres of land recorded in revisional
survey records in the name of municipality. RMC on the basis of the
entries in revisional survey records is claiming that 7.14 decimal of
land is under occupation/ encroached upon by Birsa Oraon; 7.78
decimal of land by Sushma Ekka and; 11.50 decimal of land by
Suresh Tirkey, and for removing the encroachments by them a notice
was issued to them on 23rd December 2021 directing them to remove
the encroachments within 72 hours.
13. RMC is claiming right over 2.80 acres of land comprised
under Khata No. 328, Plot Nos. 57 & 58 situated at village Bara
Ghaghra which is the proposed site for construction of Multi
Speciality Hospital on Public-Private Partnership basis. It is stated
that land was acquired by the District Land Acquisition Officer,
Ranchi for construction of the approach road and the same has been
handed over to RMC vide letter No. 727 dated 17th May 2018. We
have been taken through the counter affidavit filed by RMC in the
proceeding before the writ Court in which Annexure-C is a letter
issued from the Urban Development and Housing Department which
refers to 1.34 acres of land acquired for the approach road to Apollo
Hospital.
14. In the counter affidavit, RMC has produced a copy of the
wireless information dated 9th April 2022 sent by Sub-Divisional
Magistrate, Sadar, Ranchi to Additional Municipal Commissioner,
Circle Officer, Junior Engineers, Officer-in-charge of Doranda PS
and Deputy Superintendent of Police. In the said wireless message, it
is stated that letter No. 443 dated 9th April 2022 was received from the
Additional Municipal Commissioner for removing the encroachments
upon a part of the lands comprised under Khata No. 328, Plot Nos.
57 & 58 over which construction of Apollo Hospital is proposed. It is
further recorded in the wireless message that requisition has been
made for providing sufficient number of Armed Police Force and
Executive Magistrate for forcible removal of the encroachments and
for maintaining law and order and safety of the employees of RMC.
15. The demolition on 11th April 2022 has been carried out
pursuant to notice dated 9th April 2022 which records that a notice on
23rd December 2022 was already given to Birsa Oraon, Sushma Ekka
and Suresh Tirkey and the writ petitions filed by them were dismissed
on 31st March 2022. In the notice dated 9th April 2022, the Additional
Municipal Commissioner has indicated that due to encroachments by
the aforesaid persons construction of the hospital has been
obstructed. By the said notice, 48 hours time was given to the
aforesaid persons for removing the encroachments failing which they
shall be forcibly evicted from the land belonging to RMC.
16. We are informed that on 11th April 2022 by 09:00 AM the
demolition team accompanied by police force and Executive
Magistrate reached the site. This is confirmed by the report of the
Advocate Commissioners also. In the report submitted by the learned
Advocate Commissioners it is stated that the notice dated 9th April
2022 was served upon the aforesaid persons around 03:30 PM on 9th
April 2022.
17. Therefore, by any account the time gap between service of
notice dated 9th April 2022 and the start of demolition work was
definitely less than 48 hours.
18. We further find that out of 2.80 acres of land which part was
occupied by the aforesaid persons has not even been indicated in the
aforesaid notices. The photographs of the demolition site produced by
the Deputy Commissioner, Ranchi would indicate that houses of the
aforesaid persons were in the middle of the area. In the wireless
message or any of the documents produced before us, we do not get
even an inkling as regards the identification of the land encroached
by the writ petitioners – except the extent of the lands encroached
upon.
19. All that we find is that a joint report dated 20th November 2021
was submitted by Anchal Amin of Argora Anchal and Amin of Ranchi
Municipal Corporation in the proceeding in Encroachment Case No.
11 of 2021-22, but before that, the Additional Municipal
Commissioner had already issued notice on 25th October 2021 for
removing the encroachments. There is no statement made on behalf of
RMC before us that any information with documents was provided to
the demolition team for identification of the lands under
encroachment by the appellants. The notice was issued on 9th April
2022 and 10th April 2022 was Sunday. This period was under Chaiti
Durga Pooja/Chhath Pooja and on 11th April 2022 the demolition was
carried out. There is no explanation why the Assistant Municipal
Commissioner did not issue instructions for stopping the demolition
work the moment he received an information about mentioning of the
matter before DB-I. We have already recorded in the order dated 11th
April 2022 that the tearing hurry with which RMC proceeded in the
matter was astonishing and the Court was left wondering what could
be the motive behind such action. Any demolition even sanctioned by
any law cannot be approved by us because definitely the demolition
team started demolition without any definite information and razed
the whole construction to the ground. The actions by RMC appear to
be wholly illegal. ”
54. The right to shelter is a fundamental right of every citizen under
the Constitution and any infraction of this right by State action must invite
judicial intervention to protect the occupants of a dwelling house. Across the
world, the law recognises rights of even an encroacher to be protected from
State action which is not in consonance with the procedure established by
law. Except in a very few exceptional kind of cases such as encroachments on
public roads and pavements, the issue of illegal constructions and
encroachments is not a simple one and invariably the Courts are confronted
with contentious issues which cause delays in rendering decisions. But then,
this is the procedure in law we have chosen for ourselves. In a country like
India which professes high democratic values, the Constitution of India
stands like a lighthouse illuminating life aspirations of the people of India
that every State action must follow the procedure established by law. RMC
being an instrumentality of the State under Article 12 of the Constitution of
the India is governed by the rule of law in a welfare State and cannot arrogate
to itself a status beyond what is provided by the Constitution.
55. In view of the aforesaid discussions, in summation, we hold that
the writ Court committed serious errors in law in not entertaining the writ
petitions and, accordingly, the order dated 31st March 2022 passed in WP(C)
No. 4907 of 2021 with WP(C) No. 4953 of 2021 is set aside.
56. The aforesaid writ petitions are allowed and, consequently,
notice dated 25th October 2021, public notice dated 23rd December 2021 and
notice dated 9th April 2022 are quashed.
57. LPA No. 143 of 2022 and LPA No. 144 of 2022 are allowed,
without any order as to costs.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 10th August 2022
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