Mukesh Kumar Shukla @ Pintu Shukla vs The State Of Jharkhand
2022 Latest Caselaw 526 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(C) No. 2040 of 2021

Mukesh Kumar Shukla @ Pintu Shukla         ...     ...      Petitioner
                                 Versus
1. The State of Jharkhand
2. The Deputy Commissioner, Pakur
3. The Sub-Divisional Officer, Pakur
4. The Circle Officer, Pakur                ...    ...      Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate For the Respondents : Mr. Devesh Krishna, SC (Mines)-III

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Order No. 07 Dated: 17.02.2022

The writ petition is taken up today through Video conferencing.

The present writ petition has been filed for quashing the order dated 07.06.2021 (Annexure-4 to the writ petition) passed by the respondent no. 3 - the Sub-Divisional Officer, Pakur in R.E.R. Case No. 05/2021-22, whereby the petitioner has been ejected from the land appertaining to Dag No. 605, Jamabandi No. 22, Mouza- Shaharkol, measuring an area of 3 Kattha, exercising power under Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949.

2. Mr. R.S. Mazumdar, learned Senior Counsel for the petitioner, submits that the land appertaining to Dag No. 605, Jamabandi No. 22, Mouza-Shaharkol, measuring an area of 8 bigha 14 kattha and 5 dhoor was recorded in the name of Marwari Rai in the last survey of record of rights. After demise of the recorded tenant, his only son namely, Dukhu Rai came in possession of the said land, who died leaving behind his only son namely, Jantri Rai. After the death of Jantri Rai, his widow namely, Reshmi Devi being exclusive owner of the same, gifted 03 kattha of the said land to the mother of the petitioner namely, Lal Mani Devi vide affidavit dated 16.03.2005. Since then, the petitioner and his mother Lal Mani Devi have been in possession of the said land and have constructed a residential house. The petitioner has annexed copies of the electricity bills to suggest that he along with his family has been in peaceful

possession of the residential house constructed over the same without objection from any corner. Learned Senior Counsel further submits that Dag No. 605, Jamabandi No. 22, Mouza-Shararkol is a big chunk of land where altogether 53 persons are residing for several years by constructing residential houses. Reshmi Devi, heir of recorded raiyat being the exclusive owner of the land had also given no objection for the occupants of the land in question to the respondent no. 4 - the Circle Officer, Pakur on 28.01.2019 containing list of 53 persons (copies of which has been annexed as Annexure-3 to the writ petition). However, the respondent no. 3 initiated R.E.R. Case No. 05/2021-22 and without issuing any notice to the legal heir of recorded raiyat (Reshmi Devi), the mother of the petitioner or the petitioner, directed ejection of the petitioner from the said land under Section 42 of the Act, 1949 vide impugned order dated 07.06.2021.

3. Learned Senior Counsel for the petitioner emphasises on the issue that the petitioner along with his family has been in possession of the said land since 2005 and hence, a valuable right has been created in his favour which cannot be taken by the authorities of the State without providing due opportunity of hearing. Since the impugned order has been passed by the respondent no. 3 without issuing any notice to the concerned parties including the petitioner, the same is violative of the principles of natural justice and therefore, deserves to be set-aside. It is also submitted that while passing the impugned order dated 07.06.2021, the respondent no. 3 relied upon the enquiry report submitted by the respondent no.4 vide letter no. 04 dated 02.06.2021, however, during the said enquiry also, the petitioner was not noticed and the enquiry report was prepared behind his back.

4. On the contrary, Mr. Devesh Krishna, learned SC (Mines)- III appearing on behalf of the respondents while relying on the counter affidavit, submits that the alleged transfer of the land in question to the petitioner's mother namely, Lal Mani Devi is completely in contravention of Section 20(1) of the Act, 1949 and, therefore, the respondent no. 3 has rightly exercised the power under Section 42 of the said Act for ejecting the petitioner from the said

land. Learned counsel for the respondents puts reliance on a judgment rendered by learned Division Bench of Patna High Court in the case of "Bhauri Lal Jain Vs. Sub-Divisional Officer, Jamtara" reported in 1972 PLJR 415, wherein it has been held that there was no incidence of transferability of the raiyati holdings in Santhal Parganas on the date of the commencement of the Constitution either because there was no right of transferability at any point of time in Santhal Parganas or even alternatively because Section 27 of the Regulation had made them non-transferable which section was replaced by Section 20 of the Act, in 1949. It is also submitted that the nature of land as recorded in Khatiyan is "Baari Doyem" i.e., suitable for agricultural purposes. A Bench of this Court in the case of "Gour Dutta @ Gour Chandra Dutta & Ors. Vs. State of Jharkhand & Ors." reported in 2010 (1) JCR 47 (Jhr.) has held that the expression "agricultural land" has not been defined anywhere in the Act, 1949 and in the ordinary course it may mean a piece of land over which operation of husbandry is carried on. Since the said land was transferred by the heir of the recorded raiyat in favour of the petitioner's mother in contravention of Section 20 of the Act, 1949, the respondent no. 3 was duty bound to initiate a proceeding under Section 42 of the Act, 1949 so as to prevent the petitioner who was a wrongdoer and had misused the provisions of the said Act by occupying the land in contravention of the provisions of the Act. It is further submitted that the respondent no. 3 vide order dated 07.06.2021 has also directed the respondent no. 4 to make an enquiry over illegal transfer made in contravention of the Act, 1949 and to submit a report so as to proceed for ejection of illegal transferees from non-transferable land. Though the heir of the recorded tenant Reshmi Devi has filed no objection with the respondent no. 4 with regard to possession and occupancy of the persons staying over entire part of the land, yet the same has no legal sanctity in absence of any such provision in the Act, 1949. It is also submitted that writ petition filed by the petitioner is not maintainable on account of specific provision of appeal provided by section 57 of the Act, 1949.

5. Heard learned counsel for the parties and perused the materials available on record. The main contention of the learned Senior Counsel for the petitioner is that the respondent no. 3 while passing the impugned order dated 07.06.2021 has not provided any opportunity of hearing to the petitioner or his mother. Moreover, no notice was issued to the heir of the recorded tenant in the land ejection proceeding i.e., R.E.R. Case No. 05/2021-22. Since the order of ejectment from the said land has serious adverse impact on the petitioner's civil rights, it was incumbent upon the respondent no. 3 to provide an opportunity of hearing to the petitioner before passing the impugned order.

6. To appreciate the contention of the learned counsel for the parties, it would be relevant to refer few judgments of the Hon'ble Supreme Court, wherein the law relating to compliance of the principles of natural justice has been summarised.

7. In the case of "Kesar Enterprises Limited Vs. State of Uttar Pradesh & Ors." reported in (2011) 13 SCC 733, the Hon'ble Supreme Court has held as under:

30. Having considered the issue, framed in para 16, on the touchstone of the aforenoted legal principles in regard to the applicability of the principles of natural justice, we are of the opinion that keeping in view the nature, scope and consequences of direction under sub-rule (7) of Rule 633 of the Excise Manual, the principles of natural justice demand that a show-cause notice should be issued and an opportunity of hearing should be afforded to the person concerned before an order under the said Rule is made, notwithstanding the fact that the said Rule does not contain any express provision for the affected party being given an opportunity of being heard.

31. Undoubtedly, action under the said Rule is a quasi-judicial function which involves due application of mind to the facts as well as to the requirements of law. Therefore, it is plain that before raising any demand and initiating any step to recover from the executant of the bond any amount by way of penalty, there has to be an adjudication as regards the breach of condition(s) of the bond or the failure to produce the discharge certificate within the time mentioned in the bond on the basis of the explanation as also the material which may be adduced by the person concerned denying the liability to pay such penalty. Moreover, the penalty amount has also to be

quantified before proceedings for recovery of the amount so determined are taken.

32. In our view, therefore, if the requirement of an opportunity to show cause is not read into the said Rule, an action thereunder would be open to challenge as violative of Article 14 of the Constitution of India on the ground that the power conferred on the competent authority under the provision is arbitrary.

8. In the case of "Asha Sharma Vs. Chandigarh Administration & Ors." reported in (2011) 10 SCC 86, the Hon'ble Supreme Court has held as under:

14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factors of the situations in question were identical. This uncertainty must be avoided.

9. In the case of "Manohar, S/o Manik Rao Anchule Vs. State of Maharashtra & Anr." reported in (2012) 13 SCC 14, the Hon'ble Supreme Court has held as under:

25. Thus, the principle is clear and settled that right of hearing, even if not provided under a specific statute, the principles of natural justice shall so demand, unless by specific law, it is excluded. It is more so when exercise of authority is likely to vest the person with consequences of civil nature.

10. In light of the above decisions, it is clear that a prior show-cause notice granting a reasonable opportunity of being heard is an essential element of all administrative decision-making. If the

statute conferring the power is silent with regard to giving a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, the administrative or quasi-judicial authorities are bound to observe the principles of natural justice unless the same is specifically excluded by law.

11. In the case in hand, the petitioner has claimed violation of the principles of natural justice. Though the respondents have contested the writ petition on merit, however, they have not denied the statement of the petitioner made in the writ petition that before passing the impugned order dated 07.06.2021, no opportunity of hearing was given to him. The stand taken by the respondents in the counter affidavit that no notice was required to be issued to the petitioner before passing the order of ejectment under Section 42 of the Act, 1949, is a misconceived one. Though this Court is not entering into the rival contentions of the learned counsel for the parties on merit, yet is of the view that even if the statute is silent with respect to granting opportunity of hearing to the affected parties, an order of ejection from the land carries a serious adverse impact on the occupants and, therefore, an opportunity of hearing has to be provided by the authority to the affected persons. The impugned order dated 07.06.2021 passed by the respondent no. 3 cannot be held to be legal on that score alone.

12. One of the arguments of the learned counsel for the respondent-State is that the petitioner has alternative efficacious remedy by filing appeal provided by Section 57 of the Act, 1949. The learned Senior Counsel for the petitioner has put reliance on the judgment of the Hon'ble Supreme Court in the case of "Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors." reported in (1998) 8 SCC 1, wherein it has been held the alternative remedy does not bar filing of writ petition in at least three contingencies namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or proceeding is wholly without jurisdiction or the vires of an Act is

challenged. Since in the present case, the petitioner has claimed violation of the principles of natural justice by not providing any opportunity of hearing before passing the impugned order dated 07.06.2021 and the said fact has not been controverted by the respondents, the said argument made on behalf of the respondents has no leg to stand.

13. Accordingly, the order dated 07.06.2021 passed by the respondent no. 3 - the Sub-Divisional Officer, Pakur in R.E.R Case No. 05/2021-22 is hereby quashed and set-aside. The respondent no. 3 is, however, at liberty to commence proceeding under Section 42 of the Act, 1949 afresh and after issuing notices to the legal heir of the recorded raiyat namely, Reshmi Devi as well as the petitioner and on providing due opportunity of hearing to them, to pass a fresh order in accordance with law.

14. The writ petition is accordingly disposed of.

(Rajesh Shankar, J.) Manish/AFR