Monday 15 August 2022

Whether municipal Corporation can remove any encroachment over Municipal property after giving 48 hours notice?

 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

Per, Shree Chandrashekhar, J .

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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