Jharkhand High Court
Suraj Pratap Roy vs The State Of Jharkhand & Ors on 9 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
WP(C) No. 5250 of 2019
Suraj Pratap Roy ..... ...... Petitioner
Versus
The State of Jharkhand & Ors. .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO
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For the Petitioner : Mr. Sanjay Prasad, Advocate
For the Respondents-State : Mr. Kishore Kumar Singh, SC-V
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The matter is being taken up through Video Conferencing. Learned counsel
for the parties have no objection with it and submitted that audio and video
qualities are good.
Order No.08 /Dated: 09th November, 2022
Heard, learned counsel for the petitioner, Mr. Sanjay Prasad.
The petitioner Suraj Pratap Roy, son of Late Jhagaru Roy, resident of
Village-Kandra, P.O.-Motinagar, P.S. Sindri, District-Dhanbad, has preferred this
writ petition against the State of Jharkhand, without impleading any officer as party
to represent the State, the Principal Secretary, Department of Urban Development
and Housing Department, Project Building, Dhurwa, P.O. & P.S.-Dhurwa, District-
Ranchi and Municipal Corporation, Dhanbad represented through its Executive
Engineer, Dhanbad Municipal Corporation, Bank More, P.O.+P.S. Dhanbad,
District-Dhanbad on 21.09.2019 for a direction upon the respondent No.3
Municipal Corporation, Dhanbad to abstain from acting upon the Tender notice
reference no.DMC/05/25/2019-20 dated 28.05.2019 whereby and where under the
respondent has invited tender from the interested party for construction of road
from middle school to the house of Yogendra Mahato under Ward No.53, in view of
the fact the said land following under the area as described above, covers the raiyati
land of the petitioner measuring an area 1.03 acres situated at Plot no.171 and area
40 decimils Plot no.174 Khata no.6 Mouza No. 170 (Chakchitali) and said
construction has been started without due process of law.
Learned counsel for the petitioner, Mr. Sanjay Prasad has subsequently
filed supplementary affidavit dated 31.08.2022 bringing on record the copy of the
khatiyan as well as rent receipts. This Court in terms of the order dated 05.09.2022
has directed the Principal Secretary, Department of Urban Development and
Housing, Government of Jharkhand to file show-cause, as to why the statement of
fact has not been submitted before the State counsel. In the show-cause the
Principal Secretary has submitted that since the supplementary affidavit has been
filed on 31.08.2022, as such the counter-affidavit could not be filed earlier though
the writ petition has been filed in the year 2019, as because the entire pleadings
have not been made by the petitioner in one writ petition rather those are being
supplemented and supported by the supplementary affidavit, as such the counter-
affidavit has not been filed because of non-completion of the pleading by the
petitioner. The show-cause filed by the Principal Secretary, Department of Urban
Development and Housing, Government of Jharkhand is hereby accepted. Further
counter-affidavit dated 23.09.2022 has been filed by the respondent no.2 which was
sworn by respondent no.3, the Municipal Commissioner, Dhanbad. In his counter-
affidavit he has stated that though the tender was invited, however, no tender has
been approved or allotted for the said work available at serial no.26 of the
Annexure-1 to the instant writ petition and as such question of starting
construction, cannot and does not arise, consequently the writ petition is fit to be
dismissed.
Though the State has categorically stated that they have not initiated any
work but it is highly deprecable that without acquisition of land, how the State has
issued a tender.
This Court has passed an order in several cases, where the land have
never been acquired but roads have been constructed and the opinion of the Chief
Secretary, Government of Jharkhand has been sought for in W.P.(C) No.1224 of
2020 in the District of Gumla, W.P.(C) No.2847 of 2020 in the District of Koderma,
W.P.(C) No.2466 of 2020 in the District of Deoghar, W.P.(C) No.3174 of 2020 in
the District of Giridih,and today in W.P(C) NO.3675 of 2019 where the road
construction has been initiated without acquisition of the land. It is made clear that
in future if any work is being started by the public authority spending the public
money, they must ensure that the land must be acquired first, otherwise it shall be
seriously taken by this Court in view of the judgment passed in the case of
NATIONAL PROJECTS CONSTRUCTION CORPORATION LIMITED vs.
THE STATE OF JHARKHAND AND ORS. In L.P.A. No.312 of 2018 passed by
the Division Bench of this Court on 25.06.2018 of which paragraphs-6 to 9 is
quoted hereunder.
6.Thus, the State Government has not fulfilled the aforesaid two
conditions. The work of the aforesaid road construction was not completed within
a period of 18 months. Land acquisition is sovereign power vested in the State.
Land acquisition power cannot be assigned to the contractor, and hence, unless
the full site is available, full road cannot be constructed by the contractor. This
aspect of the matter was neither properly appreciated by the respondents - State
while issuing the impugned order dated 26.02.2018 (Annexure - 5), nor it was
properly appreciated by the learned Single Judge while disposing of the writ
petition being W.P.(C) No.2701 of 2018. We, therefore, quash and set aside the
order passed by the learned Single Judge in W.P.(C) No.2701 of 2018, dated
07.06.2018 as well as the impugned order dated 28.02.2018, which is at
Annexure- 5 to the memo of this Letters Patent Appeal.
7. No reply is filed of paragraph nos.15 & 17 of the writ petition, by
the State Government. Much has been argued out by the counsel for the
respondents - State that no error has been committed by the Government while
issuing the impugned order. It ought to be kept in mind that whenever any road is
to be constructed, the land site must be given to the contractor free form all
encumbrances. If the land acquisition is to be done, it ought to have been clear
prior to the notice inviting tender.
8. It has become a fashion in the State of Jharkhand - 5 - to publish a
notice inviting tender for a particular work and within the time bound, schedule
work is to be completed, without, obtaining clearance of the forest department or
without acquiring land or without providing proper and adequate police protection
in naxalite affected areas. Thus, one or other type of work is yet to be completed by
the Government, a notice inviting tender is published. This case is no exception of
such type of general behaviour of the Government.
9. In the facts of the present case land acquisition process is yet to be
completed for few patches of land. In such eventualities notice inviting tender
should not have been published at all. No work can be completed within 18 months
without the land acquisition. If such type of work is completed within 18 months of
road construction, the land acquisition should have been completed within 8
months by the State Government. Those who are living in a glasshouse beware of
throwing stones at others. Thus, if the State Government has failed to acquire the
land in question, then it should not have issued the impugned order dated
28.02.2018 (annexure - 5), hence, we also quash and set aside the impugned order.
Since the work has not been started and thus the writ petition is
infructuous.
The respondents are hereby directed not to proceed without acquisition
of the land in accordance with law.
The writ petition is hereby disposed of.
(Kailash Prasad Deo, J.)
Rohit/-
