Jharkhand High Court
Court On Its Own Motion vs The State Of Jharkhand And Others on 29 June, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
WP(C) No. 2066 of 2022
Court on its own motion .... ... Petitioner
Versus
The State of Jharkhand and others .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Petitioner : Mr. Indrajit Sinha, Amicus;
Mr. Saurav Kumar, AC to Amicus
For the RMC : Mr. R.S. Mazumdar, Sr. Advocate
For the State : Mr. Sachin Kumar, AAG-II;
Mr. Deepak Kumar Dubey, AC to AAG-II
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th
Order No.04/ Dated: 29 June 2022
Per Shree Chandrashekhar, J.
IA No.5128 of 2022
Mr. R.S. Mazumdar, the learned senior counsel, on instructions
from Mr. Shashank Shekhar, the learned counsel for RMC, states that the
affidavit as directed by this Court shall be filed by the Municipal
Commissioner within this week.
2. IA No.5128 of 2022 is allowed.
WP(C) No. 2066 of 2022
3. Heard Mr. Indrajit Sinha, the learned Amicus assisted by
Mr. Saurav Kumar, the learned AC to Amicus; Mr. R.S. Mazumdar, the
learned senior counsel for the Ranchi Municipal Corporation (in short,
'RMC'), and; Mr. Sachin Kumar, the learned AAG-II for the State.
4. We may indicate here that on recording a prima facie finding
that the demolition carried out by RMC was not as per the procedure
established by law, this Court directed registration of a suo motu case "Court
on its own motion" which has been registered as WP(C) No. 2066 of 2022.
Presently, we are proceeding in the matter to determine award of interim
compensation to the victim families.
5. Mr. Sachin Kumar, the learned AAG-II makes a statement, on
instructions from Mr. Chhavi Ranjan, the Deputy Commissioner, Ranchi
who is present in the Court, that there is no scheme for rehabilitation of the
encroachers who are removed from the encroached land.
6. However, a proposal is made that alternative accommodation
can be provided to the families of Birsa Oraon, Sonu Pascal Ekka and
Suresh Tirkey till the time houses under "Pradhan Mantri Aawas Yojna
(urban)" are constructed for them.
7. We are informed that there is a scheme for urban populous
known as "Light House Project" which is a project of the Central
Government implemented by RMC.
8. We also record the statement made by the learned senior
counsel for RMC that a proposal for providing alternative accommodation
was made to Birsa Oraon, Sonu Pascal Ekka and Suresh Tirkey but they did
not accept the offer saying that they needed to talk to their learned counsels.
9. Mr. Indrajit Sinha, the learned Amicus refers to the judgments in
"Municipal Corporation of Greater Mumbai & others v. Sunbeam High
Tech Developers Private Limited" (2019) 20 SCC 781 and "Thane
Municipal Corporation & others v. Javed Khaliq Khan etc." in Civil Appeal
Nos. 1253-1271 of 2020 to submit that in cases of illegal demolition even if
the property was occupied by the encroachers the Court may grant
compensation in appropriate cases. Further submission of the learned
Amicus is that in exercise of the powers under Article 226 of the
Constitution of India the Court has ample powers to remedy any situation
and grant interim compensation to the displaced persons.
10. On 11th April 2022, on transfer of LPA Nos. 143 & 144 of 2022
from Hon'ble DB-I, this Court took cognizance of the manner in which
demolition of the houses belonging to the appellants took place, and a
direction was issued to RMC not to take any further action in relation to the
properties in question, for vacation of which notices were issued by RMC on
9th April 2022. In the order dated 11 th April 2022, this Court has recorded
that the contents of the notice dated 9 th April 2022 at the first glance
appeared to be obnoxious as no State authority even by virtue of any law
could have used words such as 'forcibly'. The manner in which the houses
belonging to Birsa Oraon, Sonu Pascal Ekka and Suresh Tirkey were razed
to ground on 11th April 2022 has been commented upon by this Court
observing 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 an action.
11. On 25th April 2022, the report of the Advocate Commissioners
was placed before the Court and a liberty was granted to the respondents to
inspect the records and obtain the copy of the report submitted by the
Advocate Commissioners.
12. There is no objection to the report of the Advocate
Commissioners.
13. In the counter affidavit filed by RMC, it is stated that no notice
for removing the encroachment was issued by RMC to any other person in
the last five years and the appellants in LPA No.143 of 2022 and LPA
No.144 of 2022 are the only persons who were given 48-hour time vide
notice dated 9th April 2022 to remove the encroachment.
14. In the order dated 25th April 2022, this Court observed that
48-hour time was granted to Birsa Oraon, Sonu Pascal Ekka and Suresh
Tirkey to remove the encroachments. However, the demolition team arrived
at the spot right at 09:00 AM on 11 th April 2022, much before lapse of
48 hours' time granted to the occupants to vacate the premises. The original
records which were produced in the Court on 9 th May 2022 revealed that
there was no map or report by any officer who along with Circle Officer had
demarcated the land on 20th November 2021. Furthermore, RMC claimed
encroachment over 26.42 decimals land and not over the entire area covered
by the houses which were completely demolished.
15. Relevant portions of the order dated 25th April 2022 which
briefly records the entire episode are reproduced below:
"10. To recapitulate, both the Letters Patent Appeals were notified for
hearing at 02:15 PM on 11th April 2022 but before that the learned
counsel for the State and the learned counsel for RMC had already sent
messages about proposed hearing of the Letters Patent Appeals at
02:15 PM. In the counter affidavit dated 22 nd April 2022, the Assistant
Municipal Commissioner has stated that as soon as he received
information about hearing of the matter at 02:15 PM he stopped
demolition forthwith.
11. Before the writ Court, the notices dated 25th October 2021 and 23rd
December 2021 were under challenge. The notice dated 25 th October
2021 refers to construction of house, Asbestos shed, hand pump etc. and
the noticee was directed to make representation before 12:00 noon on
29th October 2021 failing which RMC shall exercise powers under
section 606(2) of the Jharkhand Municipal Act, 2011. The notice dated
23rd December 2021 was a Public Notice by which the encroachers were
directed to remove the constructions.
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 23 rd
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 31 st 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 20 th 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.
20. In the aforesaid facts, we prima facie find that the demolition carried
out by RMC on 11th April 2022 was illegal and not sanctioned in law."
16. What transpired from the original records which were produced
in the Court are recorded in the order dated 9 th May 2022, the relevant
portions of which are extracted below:
"4. The original records pertaining to encroachment case have been
produced in the Court - two files are attached together. The file which
records proceedings taken for removing the encroachment contains four
pages. The proceeding for removing encroachment started on 25th
October 2021 and ended on 29th April 2022. The documents attached
with these proceedings are mainly the correspondence with the State
Government which were sent to the State Government after notice was
issued in the Letters Patent Appeals. From these files, it appears that on
4th April 2022 a proceeding was drawn to the effect that the writ petitions
filed before the Hon'ble Court have been dismissed and the stay granted
by the Court has also been vacated.
5. It is a matter of record that by 11th April 2022 a certified copy of the
order passed by the writ Court was not made available to the parties. It
does not appear from the proceedings recorded in the files that on a
communication made by the learned counsel for RMC such a proceeding
was drawn. Besides that, it is quite apparent that without going through
a copy of the judgment such a proceeding was drawn on 4th April 2022
and on the same day a decision was taken to give notice for removal of
encroachment and the same was approved by the Municipal
Commissioner. We further find that the original files which have been
produced before the Court do not contain any report on physical
verification and demarcation conducted jointly by the Anchal Amin of
Argora Anchal and Amin of RMC."
17. Plainly speaking, the demolition team had no instruction or any
sketch map of the portion of land encroached upon by Birsa Oraon, Sonu
Pascal Ekka and Suresh Tirkey and the result was that entire structure of
their houses was demolished. From the report of the Advocate
Commissioners, we gather that altogether 22 persons including 8 children
were residing in those houses and all of whom were left to take shelter
under the scorching sun. Some photographs attached with the report depict a
heart-wrenching picture. We further take note of the climatic conditions in
the State of Jharkhand that average monthly rainfall in the State of
Jharkhand, in particular Ranchi, during July-August (about 300 mm) is
much above the average rainfall across the country. Not only that, several
cases of death by lightning during rainy season are reported every year. The
victims of demolition are poor tribals whose forefathers were living there
since decades - notices were issued in the name of dead ancestors. The
report of the Advocate Commissioners shows that extensive damage to their
belongings including furnitures, utensils etc. was caused during the
demolition. So, merely providing alternative accommodation to them may
not be sufficient and the State is under a duty to provide financial support to
them so that they can rehabilitate themselves and secure basic amenities
which they lost in demolition.
18. We may refer to "Chameli Singh & others v. State of UP &
another" (1996) 2 SCC 549 wherein the Hon'ble Supreme Court has
observed as under:
"8. In any organised society, right to live as a human being is not
ensured by meeting only the animal needs of man. It is secured only
when he is assured of all facilities to develop himself and is freed from
restrictions which inhibit his growth. All human rights are designed to
achieve this object. Right to live guaranteed in any civilised society
implies the right to food, water, decent environment, education, medical
care and shelter. These are basic human rights known to any civilised
society. All civil, political, social and cultural rights enshrined in the
Universal Declaration of Human Rights and Convention or under the
Constitution of India cannot be exercised without these basic human
rights. Shelter for a human being, therefore, is not a mere protection of
his life and limb. It is home where he has opportunities to grow
physically, mentally, intellectually and spiritually. Right to shelter,
therefore, includes adequate living space, safe and decent structure,
clean and decent surroundings, sufficient light, pure air and water,
electricity, sanitation and other civic amenities like roads etc. so as to
have easy access to his daily avocation. The right to shelter, therefore,
does not mean a mere right to a roof over one's head but right to all the
infrastructure necessary to enable them to live and develop as a human
being. Right to shelter when used as an essential requisite to the right to
live should be deemed to have been guaranteed as a fundamental right.
As is enjoined in the Directive Principles, the State should be deemed to
be under an obligation to secure it for its citizens, of course subject to its
economic budgeting. In a democratic society as a member of the
organised civic community one should have permanent shelter so as to
physically, mentally and intellectually equip oneself to improve his
excellence as a useful citizen as enjoined in the Fundamental Duties and
to be a useful citizen and equal participant in democracy. The ultimate
object of making a man equipped with a right to dignity of person and
equality of status is to enable him to develop himself into a cultured
being. Want of decent residence, therefore, frustrates the very object
of the constitutional animation of right to equality, economic justice,
fundamental right to residence, dignity of person and right to live itself.
To bring the Dalits and Tribes into the mainstream of national life,
providing these facilities and opportunities to them is the duty of the
State as fundamental to their basic human and constitutional rights."
19. In the aforesaid facts and circumstances, keeping the option
open to Birsa Oraon, Sonu Pascal Ekka and Suresh Tirkey to avail of
alternative accommodation and the houses built under "Pradhan Mantri
Aawas Yojna (urban)", we deem it just and proper that the State of
Jharkhand through Urban Development Department shall pay interim
compensation of Rs.2,50,000/- (Rupees Two Lacs Fifty Thousand only) to
each family for their rehabilitation. We would, however, hasten to add that
grant of interim compensation shall not be taken as an expression of adverse
opinion as regards conduct of the individual respondents who are before us.
20. An affidavit on payment of compensation by two weeks shall
be filed by the State of Jharkhand before the next date of listing.
21. Post this matter on 18th July 2022 under the heading
"For Orders".
22. We record that Mr. Indrajit Sinha, the learned Amicus, would
not agree for any reimbursement. However, we direct the State of Jharkhand
to pay Rs. 25,000/-(Rupees Twenty Five Thousand only) to Mr. Saurav
Kumar, the learned AC to Amicus, for the time being.
23. The compilation of judgments in two sets prepared by the
learned Amicus is taken on record.
24. Let a copy of this order be given to the learned counsels for the
parties.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
SB/Nibha
