IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2687 of 2011
With
W.P.(C) No. 2688 of 2011
With
W.P.(C) No. 1932 of 2011
M/s R.G.’S Fashions Private Limited …… Petitioner
(In W.P.(C) No. 2687/2011).
Manoj Goyal & another ...... Petitioners
(In W.P.(C) No. 2688/2011).
Deva Prasad Chakraborty & Others ...... Petitioners
(In W.P.(C) No. 1932/2011).
Versus
The State of Jharkhand & others .... Respondents
( in all the cases).
CORAM: - HON'BLE MRS. JUSTICE POONAM SRIVASTAV
For the Petitioners : Mr. P.K. Prasad, Sr. Advocate ,
Mr. N.K. Pasari, Mr. Shailesh, Advocates
For the Respondents State : Mr. R.R. Mishra, G.P.II
For the Zila Parishad : Mr. Niranjan Singh, Advocate
For the Intervenor : Mr. Rajiv Kumar, Advocae
Reserved on 14.06.2011 Delivered on 11th /July/2011
05/ 11th /07.2011: Common controversy has been raised by the petitioners in three
connected writ petitions, as such, all the writ petitions were decided by a
common judgment. Leading case is W.P.C. No. 2687 of 2011 (M/s R.G.’s
Fashion Private Limited Vs. The State of Jharkhand and others). Counter
affidavit has also been filed on behalf of Zila Parishad, rejoinder to the said
counter affidavit is also on record. Counter affidavit and rejoinder are being
read in all three connected cases and common arguments have been
advanced on behalf of all the petitioners.
2. An application on behalf of Suresh Prasad, son of late Bilar Ram,
resident of Baludih, as intervenor for being arrayed him as one of the
respondents was moved. The ground for intervention is that he had filed one
Public Interest Litigation W.P.(PIL) No. 5926 of 2009 against Dhanbad Zila
Parishad for removal of unauthorized occupants from the land illegally
occupied in connivance with the authorities of Dhanbad Zila Parishad.
Application on behalf of the Intervenor was rejected on 14.6.2011 for the
reasons that the process for removal of unauthorized occupants has already
been initiated at the instance of Zila Parishad and it is being contested on
behalf of the Zila Parishad, therefore, the intervenor is not a necessary party.
3. The instant writ petitions were filed challenging action of the Zila
Parishad, whereby respective commercial premises of the petitioner situated
at Central Plaza Bank More, Dhanbad was sealed without there being any
order passed by a competent Court of law and in violation of the procedure
of law and statutory provisions. The prayer of the petitioners is for a direction
in the nature of mandamus to remove the seals affixed in relation to their
respective unit/ shop, wherein business was being carried out. The petitioner
of the leading case claimed that his shop runs in the name of CITI Style at
Central Plaza and deals with ready made garments. Claim of the petitioner is
that he is in occupation of the shop under lease agreement and he is
conducting his business in the capacity of a tenant. The garment business
has a retail chain stores through out the country and he runs a business after
grant of a valid and legal license/ permission obtained from the State
Government and the petitioner is duly registered with the Commercial Taxes
Department at Dhanbad and pays approximately Rs. 40,00,000/- (Forty
lakhs) per annum as tax to the State of Jharkhand. The lease agreement was
entered into in the year 2006 with the building owners, who it is alleged,
were in peaceful possession since last 7 decades in terms of settlement of
the land in the name of Prabhulal Pranjiwan Pathak by means of a registered
deed being Patta no. 1755 dated 16th April 1934 said to have been executed
by the then Chairman of the District Board, Manbhum. The land owners
purchased the land from M/s H.W. Builders Ltd. by means of a registered sale
deed dated 21st April 1998, who in his turn, is said to have come in
possession of the land from the Benamidar of Prabhulal Pranjiwan Pathak.
The land was developed in terms of the sanction plan issued by the
Executive Engineer, Mineral Area Development Authority (MADA), Dhanbad.
After execution of the lease agreement the petitioner is said to have made
substantial investment in opening the commercial outlets.
4. The contention on behalf of the petitioner is that the order dated
25th January 2011 and 25th March 2011 in W.P.(PIL) No. 6141 of 2008
(Annexure-1) in the leading writ petition was passed with regard to removal
of the various encroached land within the State of Jharkhand in W.P.(PIL) No.
6141 of 2008. However, the said order passed by this Court was not in
relation to the property where already litigation is pending before a Court of
competent jurisdiction. Mr. P.K. Prasad, Sr. Counsel has placed the order
dated 25th January 2011 and 25th March 2011 in support his argument that
these orders were passed with a view to remove encroachment. The Court
has expressed its resentment that the State Police is active alone, whereas
the Municipal authorities such as Ranchi Municipal Corporation and Ranchi
Regional Development Authority have primary responsibility of removing
encroachments. The order of the Division Bench was unequivocal that such
constructions, which are in violation of the sanction map will immediately be
notified and such encroachers will be put on notice of 12-24 hours to remove
the encroachments suo motu or otherwise authorities will take notice. I.A.
No. 971 of 2011 in W.P.(PIL) 1872 of 2010 along with certain other writ
petitions, which related to Public interest was moved and I.A. No. 971 of 2010
was converted into contempt petition and Deputy Development
Commissioner-cum-Chief Executive Officer, Zila Parishad, Dhanbad was
issued a show cause notice as to why contempt proceeding be not initiated
against him for disobeying the order dated 9.9.2010 passed in W.P.(PIL) No.
5926 of 2009 and also why an order of punishment for wilful disobedience be
not passed, since no steps for getting the premises vacated were taken.
5. On perusal of the record it transpires that Annexure-2 to the writ
petition is an order passed in W.P.(C) No. 5244 of 2005 connected with W.P.
(C) No. 5918 of 2005. These writ petitions related to challenge of a letter
issued by Deputy Development Commissioner-cum-Chief Executive Officer,
District Board, Dhanbad, whereby the land just below the over bridge on
which this Central Plaza complex is situated was claimed to be an
encroachment by the occupants and, therefore, the intention of the District
Board to remove the said construction was challenged. Two writ petitions
were filed by Deba Prasad Chakraborty and Shrimati Bimla Devi and others.
Petitioners in the said writ petitions challenged that one Prabhulal Pranjiwan
Pathak was the joint Benamidar with Kripa shankar Worah and Sri Narveram
G. Chandani and the land was settled by means of registered deed. The
dispute in respect of which settlement was made was a part of land
appertaining to khata no. 165, plot no. 266, mouza no. 51, P.S. And District
Dhanbad, having an area of 4 Bigha, 27 Katha and 27 Sq. ft.. Challenge was
also in respect of an order passed by the Sub-divisional Officer dated 10 th
August 2005, which was impugned in the said writ petitions. The two writ
petitions were disposed of and the interim order granted was vacated
holding that there is nothing on record to suggest that Prabhulal Pranjiwan
Pathak was the joint Benamidar of Kripa Shankar Worah, Hari Shankar Worah
and Sri Narveram G. Chandani and, therefore, prima facie the petitioners
have not been able to establish their right and title over the land in question.
6. Pursuant to the orders passed in Public Interest Litigation cases
all relating to the encroachment removal drive and also order passed in the
I.A. No. 971 of 2011, which was treated as a contempt petition, a general
notice was published in the daily news paper detailing the public buildings
and structure, which were termed to be illegal structure including the one in
occupation of the present petitioners, who have their shops at Central Plaza
Buildings,which is annexed as Annexure-3 to the writ petition. The premises
were sealed which is challenged in all these petitions.
7. The grievance of the respective counsels of the shop owners on
behalf of of Central Plaza building is that the places where they were carrying
on their business, was the only source of their livelihood and they were not
given individual notice, though they were running the shop on the basis of a
lease deed between actual owner of the land and the petitioners. Therefore,
their occupation was neither illegal nor could be termed to be encroachment
of public land and, thus, the sealing of their shops has been challenged being
unconstitutional and against the principle of natural justice for want of
individual notice to the shop owners. It is also argued on behalf of the
petitioners that assuming their occupation was illegal, even then the
respondents should have taken recourse to oust them after adopting the
procedure of law and not in highhanded manner without any notice or
opportunity as it has been done in the instant case.
8. Supplementary affidavit has also been filed brining on record
lease deed entered into between M/s Chakraborty & Sen Enterprises, a
partnership firm having its Principal Office at Central Plaza and the petitioner
M/s R.G.’S Fasion Pvt. Limited for a total area 7290 Sq. Ft. of the Lower
Ground Floor, Upper Ground Floor, 1st Floor and 2nd Floor of the building
situated at Bank More, Dhanbad. Another supplementary has been filed to
bring on record order passed in W.P.(PIL) No. 5926 of 2009 (Suresh Prasad
Versus The State of Jharkhand & others). The writ petition was disposed of by
a Division Bench on 9.9.2010.
9. The grievance of the petitioner in the said writ petition was in
respect of more than 100 properties of Dhanbad Zila Parishad which were
occupied by the government officials illegally, who have allegedly wild power
in the political circles including the trade union leaders. The Chief Executive
Officer gave undertaking before the Court in the said writ petition that
allotments of those unauthorized occupants shall be cancelled by 11.09.2010
and the State Government also extended its assurance to give assistance to
the Chief Executive Officer to get the properties vacated very soon.
10. Submission of the learned counsel is that Zila Parishad has acted
only on account of undertaking and assurance given on behalf of the State
and local bodies before the High Court and in compliance of its order. Thus
their removal is neither illegal nor opposed to principle and procedure of law.
11. Counter affidavit has been filed on behalf of the respondent nos.
4 to 6. At the very out set preliminary objection raised is that the lessor of
the petitioners have not been made parties and they have not come forward
to support the lessee, therefore, lease deed cannot be accepted in support
of the contention raised by the petitioners. Besides none of the lease deed is
registered ,therefore, lessee cannot claim through lessor, who has allegedly
purchased property from M/s H.W. Builders Ltd.. Neither the sale deed
between lessor and M/s H.W. Builders Ltd. nor anything to substantiate that
how M/s H.W. Builders Ltd. has become owners and has any claim to the
property in question is on record. Admittedly the property is in the name of
Zila Parishad regarding which writ petitions being W.P.(C) No. 5244 of 2005
and W.P.(C) No. 5918 of 2005 were contested and orders passed in two writ
petitions have attained finality. The judgments are annexed as Annexure-2
to the writ petition. Therefore, unless the right of lessor is substantiated vis-
a-vis Zila Parishad the right of subsequent tenancy of the respective
petitioners is automatically rendered illegal. There is nothing on record to
substantiate that the petitioners are valid occupants and so called ‘lease
deed’ annexed with the supplementary affidavit is a sham document. The
respondents have also emphatically submitted that sufficient notices were
given to the lessor of the petitioners as well as the alleged owner of the
Central Plaza Building. The lessee and agents had sufficient notice through
the paper publication as well as individual notice as annexed along with the
counter affidavit (Annexures- G, H, I/1, J and J/1. Therefore, contention on
behalf of the petitioners that they had no knowledge about the intention of
the Zila Parishad to oust them and they were taken by surprise cannot be
accepted.
12. I have considered the respective documents and gone through
the record, it is apparent that the petitioners claimed their right through their
lessor Deba Prasad Chakraborty, who has not been arrayed as a party and
the only basis of their claim and assertion that their occupation is valid and
legal is on the basis of an unregistered deed between the petitioners and
Deba Prasad Chakraborty mentioned aforesaid.
13. I have also taken into consideration the order passed by this
Court in writ petition W.P.(C) No. 5244 of 2005 and W.P.(C) No. 5918 of 2005
which is part of the record. Deba Prasad Chakraborty, Shrimati Bimla Devi
and others challenged letter no. 839 dated 31st August 2005 issued by the
Deputy Development Commissioner-cum-Chief Executive Officer, District
Board, Dhanbad intimating them that they had encroached on the public
land. This Court had declined to grant any relief and recorded finding that the
right and title claimed by the petitioners could not be decided in a writ
petition and also that the aggrieved party may move to get their claim
decided by a competent authority or civil Court of competent jurisdiction. The
order passed in the writ petition has also not been challenged either in L.P.A.
Or before the apex Court and, therefore, it is evident that there is nothing to
support and give aid to the contention of the petitioners that they are in
valid occupation. So far their ouster is concerned, it is pursuant to an order of
Division Bench of this Court, individual notices are also part of the counter
affidavit. The petitioners were made aware about the proceedings through
their so-called landlord, which has not been disputed as well as the paper
publication is sufficient to establish that the respondents had noticed the
petitioners before putting the seal or lock on the different commercial
establishments. The petitioners claim, that their occupation is valid cannot
be accepted and is without any substance, the only basis is a lease deed,
which is an unregistered deed and cannot be taken into consideration by this
Court. No doubt the petitioners were carrying on their business and the
shops in question are the only source of their livelihood, but they cannot
escape the fact that Zila Parishad claimed its title and all along was trying to
oust the shop owners being illegal occupation. The petitioners have not taken
any steps to make settlement with Zila Parishad and to get their occupancy
legalized. The petitioners even did not take any step either to restrain Zila
Parishad or any authority but was sleeping over the matter despite the fact
that writ petitions filed on behalf of lessors stood dismissed in the year 2006
itself. Now at such a belated stage the act of the Zila Parishad cannot be
questioned.
14. The Zila Parishad, Dhanbad has annexed documents to support
the contention that name of the Zila Parishad is already mentioned in the
existing Khatian. Annexure-A to the counter affidavit, which is a report given
by the Sub-Divisional Officer, Dhanbad vide memo no. 2124 dated 10th
August 2005 is sufficient proof of the fact that the land in question belongs to
Zila Parishad and there being no allotment of shop by Zila Parishad, the
occupation of the petitioners cannot be validated.
15. I am in agreement with the submission of the learned counsel
appearing on behalf of the Zila Parishad that according to section 96 of the
Bihar and Orisa Local Self Government Act, 1885 (as amended vide Act I of
1923, Act II of 1932 ) prior sanction of the (then) Local Self Government was
essential for any transfer or settlement of any immovable property placed by
the Local Government under the control and administration of the District
Board. Evidently the claim of the petitioners that there was a registered
settlement dated 16th April 1934 in the name of Prabhulal Pranjiwan Pathak
cannot be accepted, since there was neither any prior approval of the then
Local Self Government nor it was made in the name of the then Governor/
Government. Therefore, the petitioners or their alleged lessor gains no right
even if he has purchased the land from the M/s H.W. Builders Ltd. , who in
turn was not authorized to do so.
16. Besides, there is nothing on record to show that Kripa Shanakar
Worah and others were Benamidar, specially at present such a benami
transaction has no legal sanctity and, therefore, all subsequent deeds are
rendered meaningless.
17. Learned counsel appearing on behalf of the petitioners has
placed reliance on a number of decisions to substantiate his argument that
an occupant in possession cannot be dispossessed without recourse to law.
In Krishna Ram Mahale Vrs. Mrs. Shobha Venkat Rao, (1998) 4
Supreme Court Cases 131. It was held that where a person who was in
settled possession of property, even on the assumption that he had no right
to remain on the property, he cannot be dispossessed by the owner of the
property except by recourse to law. The preposition of privy council in
another case that “In India persons are not permitted to take forcible
possession; they must obtain such possession as they are entitled to through
a Court” was followed by the apex Court. Similar view was expressed in case
of Pratp Rai N. Kothari Versus John Braganza (1999) 4 Supreme
Court Cases 403. This citation is also on the question of possessory title. It
is a principle of law that a person who has been in long continuous
possession of an immovable property can protect the same by seeking an
injunction against any person in the world other than the true owner. Another
decision in the case of Rame Gowda Versus M. Varadappa Naidu and
another, (2004) 1 Supreme Court Cases 769, which deals with the
question of occupant in “settled possession” lay down the principle that he
cannot be ousted without recourse to law . Another decision cited by learned
counsel in M.C. Mehta Versus Union of India and others , (2009) 16
Supreme Court Cases 535 and Meghmala and others Versus G.
Narasimha Reddy and others (2010) 8 Supreme Court cases 383. In
this case illegal forcible eviction from land even by Government by an
executive order was held not permissible.
18. The citations relied upon by learned counsel on behalf of the
petitioners are absolutely correct and I am in full agreement that no
occupant even if he is unauthorized can be evicted without following the
procedure of law, but in the present writ petitions it cannot be said that
proper procedure has not been followed. The owner is a local body i.e. Zila
Parishad and it is custodian of the public property. Zila Parishad all along on
several occasions issued notices to the lessors of the petitioners and also
adjudication by this Court in two previous writ petitions rejecting the claim of
the petitioners, namely, Deba Prasad Chakraborty and Shrimati Bimla Devi
and others cannot be overlooked. No further steps have been taken either by
the lessor or occupants to validate their claim. Settlement as claimed by the
petitioners pertaining to the year 1934 with co-Benamidar is absaolutely
frivolous, besides the settlement was invalid. Thereafter the seal was affixed
by respondents on the shops only after an order and direction of the High
Court was issued in PIL. Notices were also published in the news
paper,admittedly notices by publication is accepted in law. Therefore,
contention of the petitioners that the seal has been affixed without following
procedure of law and in a highhanded manner is not correct. The act of Zila
Parishad cannot be held to be unconstitutional specially when the petitioners
were sleeping over the matter.
19. In the circumstances the decisions relied upon by learned counsel
has no applicability in the instant cases specially in all these citations
referred to above by the learned counsel the contesting party was a private
owner and it was not a case where there were a number of occupants
occupying a chunk of public property. Thus, the petitioners’ contention is
liable to be rejected. Zila Parishad had no other option but to take stringent
action against the occupants such as the petitioners specially in view of
specific direction by the highest Court of the State. I am of the view that
there is no merit in this writ petitions.
20. In the facts and circumstances what has been stated above, all
the three writ petitions are dismissed.
(POONAM SRIVASTAV, J)
Sharma