While speaking out most vocally in favour of even encroachers by stipulating most explicitly that even they are not to be removed in an arbitrary manner, the Jharkhand High Court in an extremely landmark, laudable, learned and latest judgment titled Suresh Tirkey vs The Governor With Connected Matters in LPA No. 143 of 2022 with LPA No. 144 of 2022 and C.A.V. on 08/06/2022 that was pronounced finally on August 10, 2022 has minced just no words to unequivocally observe that 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. It was made clear by the Court that even an encroacher can’t be removed without adopting the procedure established by law. The observation was made in an appeal preferred against dismissal of writ petitions challenging a public notice for removing encroachments over the lands allegedly belonging to Ranchi Municipal Corporation.
At the outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Shree Chandrashekhar for a Division Bench of Jharkhand High Court comprising of himself and Hon’ble Mr Justice Ratnaker Bhengra sets the pitch in motion by first and foremost putting forth in para 1 that, “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).”
Needless to say, the Bench then states in para 2 that, “Suresh Tirkey and Sonu Pascal Ekka have challenged the aforesaid order dated 31st March 2022 passed by the writ Court.”
To put things in perspective, the Bench then envisages in para 3 that, “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.”
As it turned out, the Bench then mentions in para 4 that, “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.”
As we see, the Bench then points out in para 5 that, “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.”
Simply put, the Bench then specifies in para 7 that, “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.”
Be it noted, the Bench notes in para 21 that, “In our opinion, the writ Court rightly held that the Jharkhand Municipal Act, 2011 which amended laws relating to the municipal 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.”
It is worth mentioning that the Bench then mentions in para 22 that, “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.”
It cannot be glossed over that the Bench then observes in para 39 that, “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.”
Quite forthrightly, the Bench then minces no words to hold in para 40 that, “Apparently, RMC issued the aforesaid notices with oblique motives and its actions lack bonafide.”
Notably, the Bench then points out in para 43 that, “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.”
Of course, the Bench then clearly holds in para 44 that, “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.”
While citing the relevant case laws, the Bench then quite commendably hastens to add in para 45 that, “Sir John Edge (“Midnapore Zamindary Company, Limited v. Naresh Narayan Roy and others” – 1924 SCC OnLine PC 18 : (1923-24) 51 IA 293) 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 thereafter, in “Krishna Ram Mahale v. Shobha Venkat Rao” (1989) 4 SCC 131 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.”
Quite naturally, the Division Bench then minces no words to unequivocally state in para 47 that, “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.”
Adding more to it, the Bench then adds in para 48 that, “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.”
To be sure, the Bench then deems it apposite to state in para 49 that, “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” AIR 1998 SC 2342 and “State of J&K v. Haji Wali Mohd.” (1972) 2 SCC 402 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.”
Most significantly, what constitutes the cornerstone of this learned judgment is then encapsulated in para 54 wherein the Division Bench holds that, “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.”
As a corollary, the Division Bench then holds in para 55 that, “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.”
In addition, the Bench then also mandates in para 56 that, “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.”
Finally, the Division Bench the concludes by directing in para 57 that, “LPA No. 143 of 2022 and LPA No. 144 of 2022 are allowed, without any order as to costs.”
In sum, the Jharkhand High Court has made it invariably clear that even the encroachers are also protected from the state action which violates procedure established by law. In other words, even the encroachers are to be evicted only in accordance with law and not otherwise. Moreover, it is made abundantly clear that the right to shelter is a fundamental right under the Constitution of India and any infraction of this right by State action must invite judicial intervention to protect the occupants of a dwelling house!