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Encroachers Shall Also Be Protected From State Actions That Violate Procedures Established By Law: Jharkhand HC

Shvena Neendoor ,
  17 August 2022       Share Bookmark

Court :
Jharkhand High Court
Brief :

Citation :
LPA No. 144 of 2022

Case title:
Suresh Tirkey Vs The Governor with Connected Matters

Date of Order: 
10th August 2022

Bench:
Justice Shree Chandrashekhar

Parties: 
Appellants:Suresh Tirkey
Respondents- The Governor

SUBJECT

As per the Jharkhand High Court, the right to shelter is a fundamental right guaranteed to every citizen under the Constitution, and any violation of this right by the state must result in court intervention to safeguard the tenants of a dwelling home.

The remark was made in an appeal filed against the dismissal of two writ petitions seeking a public notice for the removal of encroachments on property supposedly owned by Ranchi Municipal Corporation.

IMPORTANT PROVISIONS

Section 606(2) of the Jharkhand Municipal Act, 2011- The section states that if encroachment or hindrance on municipal land is not allowed, undesirable, or obstructs traffic, the Municipal Commissioner or Executive Officer has the authority to remove it.

Article 243-ZC of the Constitution of India- Article 243-ZC empowers Parliament to make legislation to extend the provisions of Part IX-A to a Scheduled Area, subject to exceptions and amendments.

Article 243-ZF of the Constitution of India- Article 243-ZF is an enabling clause that allows current municipal legislation to stay in effect for one year even if they are conflicting with Part IX-A.

OVERVIEW

  • The appellants, the writ petitioners, claimed right, title, and interest in plots in the village of Bara Ghaghra that were documented in the name of their ancestors in the cadastral survey record of rights. 
  • They claimed that their forefathers were in khas ownership of the aforementioned lands before 1908 (when the Chota Nagpur Tenancy Act went into effect) and that since their deaths, they have been peacefully enjoying the abovementioned holdings. 
  • On such pleadings, they took the position that any incorrect entry in the revisional survey record of rights in the name of Municipality would not deprive them of their lawful rights over the said properties and that they could not be forcibly evicted from their properties simply by receiving a notice. Both writ petitions were heard in court and the notice issued by the Deputy Municipal Commissioner, RMC directing the noticees to remove encroachments from the plots was delayed by an order of the writ Court. 
  • The State of Jharkhand did not file any affidavits in the proceedings before the writ Court, and the respondent, who are the disputing parties, contended that RMC claims the aforementioned properties encompassed within the plot by virtue of an entry in the revisional survey record of rights. 
  • The writ court ruled that the writ petitioners' claim to lands registered in the cadastral survey record of rights in the name of their ancestors could not be evaluated by the Court under exceptional writ jurisdiction in order for the Court to intervene in the situation.
  • RMC signed a leasing agreement for the development of a 200-bed multi-speciality hospital in Bara Ghaghra on a public-private partnership basis. The leased lands are located in Khata No. 328, Plot Nos. 57 and 58. According to RMC, encroachments were discovered over a portion of Plot Nos. 57 and 58, and notifications were given to the encroachers. 
  • Simultaneously, RMC requested that the Circle Officer commence procedures under the Jharkhand Public Land Encroachment Act, 2000 to remove encroachments on the disputed properties. According to RMC, the case was lodged, and an order was issued to remove encroachments on the property in question.
  • Following that, on December 23, 2021, a public notice was issued asking the encroachers to dismantle the encroachments within 72 hours or face being forcefully removed. 
  • The writ Court granted an order suspending the aforementioned notice, but when the writ petitions were dismissed, a new notice was given to the appellants, and their homes were demolished on April 11, 2022.

ISSUES RAISED

Whether the writ court was justified in dismissing the writ petitions of the appelants?

ARGUMENTS ADVANCED BY THE APPELLANT

The appellant raised the following grounds challenging the notice issued by the RMC

  • That the notices were illegal because they were issued in the names of deceased people; 
  • The notices were granted arbitrarily and in violation of the rules of natural justice; 
  • That Section 606(2) of the Jharkhand 2011 is unconstitutional in light of Article 243-ZC of the Indian Constitution; 
  • A notice issued under an unconstitutional statute, therefore, has no legal force;
  • RMC's ownership of the lands comprising Plot nos. 57 and 58 under Khata no. 328 is not proven simply by displaying excerpts from the revisional survey record of rights. 

Several more issues, albeit not properly articulated, were formulated in the memorandum of appeal, all of which revolve around the constitutionality of the Jharkhand Municipal Act, 2011, in general, and section 606(2) in particular.

ARGUMENTS ADVANCED BY THE RESPONDENT

  • The respondents questioned the appellants' bona fide and their entitlement to any remedy on the grounds that no information has been supplied to establish their claim.
  • It was argued that the appellants' encroachment was a stumbling block in the construction of Apollo Hospital in Ranchi and the appellants ignored prior warnings to remove the encroachments.
  • It was submitted that a notice by letter dated 09th April 2022 was sent to the appellants 9 days after the final decision was passed in the writ petitions filed by them, however, they failed to dismantle the illegal buildings within 48 hours.
  • Furthermore, payment of the appellants' Holding tax, which was placed on residents for using RMC services, does not confer any title in their favour to the lands in dispute.
  • It was also submitted that the appellants did not immediately contest the writ Court's ruling, and these appeals were filed after the notice was legally served on the appellants, in order to prolong and complicate the lawsuit.
  • It was argued that the term "municipal property" in Section 606 of the Jharkhand Municipal Act 2011 should imply and encompass all properties owned by RMC and shall not be restricted to roadways, pathways, and parks.

JUDGEMENT ANALYSIS

  • It was the opinion of the bench that the writ Court correctly held that the Jharkhand Municipal Act, 2011, which amended laws relating to municipal governance in the State of Jharkhand, is in accordance with the provisions of the Constitution (Seventy-fourth Amendment) Act, 1992, and there is no challenge to this finding. As a result, the appellants' challenge to the notices issued to them on the aforementioned grounds must be denied.
  • It was noted that the appellants argued that the successors of the recorded tenants remained in peaceful possession of the said properties, enjoyed their right, title, and interest in such lands, dwelt in their house built on such land and paid Holding tax, Municipal tax, and other taxes.
  • The court held that the Circle Officer's views that entries in the revisional survey record of rights should prevail over the record of rights created during the cadastral survey or the aforementioned Joint Report cannot be utilised by RMC to require the appellants to remove encroachments through a notice. In fact, there is no evidence on the record to show that the appellants encroached into RMC's holdings.
  • Furthermore, it was stated that Subsections (1) and (2) of Section 606 are not isolated provisions and must be read in conjunction with one another. When Section 606 is read as a whole, it is clear that the Municipal Commissioner or the Executive Officer has the authority to remove any encroachment and obstruction over a street, park, etc. 
  • The Jharkhand Municipal Act, 2011, however, does not specify a mechanism for eliminating encroachment from other municipal sites. As a result, even where there is no disagreement about rights, ownership, or interest in the encroached properties, RMC is compelled to observe the standards of natural justice.
  • It was stated that the phraseology used in the sub-section cannot grant the Municipal Commissioner, the Executive Official, or any other RMC officer draconian authority to order a person in settled possession to remove encroachment within 72/48 hours.
  • The court stated that it was not inclined to accept the plea that RMC has the authority to remove any encroachment on a municipal property simply by issuing a notice with a time limit of 48 hours. The Legislature has not granted the Municipal Commissioner, Chief Executive Officer, or any other officer of the municipality the right to remove encroachments on municipal land with a simple notification, except when acting in line with the procedure prescribed by law.
  • It was opined that no one may claim ownership of streets, sidewalks, or parks. Simple stray or intermittent actions of trespass do not confer any claim against the genuine owner, and a casual act of possession has no influence on the legitimate owner's ownership. As a result, encroachments on roadways, footpaths, parks, and so on are treated differently, according to the discomfort given to the general public.
  • Under the Constitution, the right to shelter is a basic right of every person, and any violation of this right by the state must result in court intervention to safeguard the tenants of a dwelling home.

CONCLUSION

It was held that the notice of April 9, 2022, which was being challenged in this process, suffers from the vices of arbitrariness and unreasonableness and must be found against natural justice.

The court stated that the writ Court made severe legal mistakes in not hearing the writ petitions, and as a result, the ruling of March 31, 2022, was reversed.

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

Click here to download the original copy of the judgement

 
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