Writ petition seeking quashing of notices alleging encroachment by the Housing Board was dismissed. The High Court held that factual determination of encroachment is precluded in writ jurisdiction.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 2871 of 2018
Vijay Kumar Nilam
... … Petitioner
Versus
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
----- For the Petitioner : Mr. Santosh Kumar Jha, Advocate For the Housing Board : Dr. Ashok Kumar Singh, Advocate -----
Order No. 07
Dated: 01.06.2020
The present writ petition has been taken up today through Audio/Video conferencing.
The present writ petition has been filed for quashing the notice vide letter no. 99 dated 11.03.2016 (Annexure-2 to the writ petition), notice vide letter no. 233 dated 23.06.2016 (Annexure-4 to the writ petition), demand notice no. 23 dated 09.01.2018 (Annexure-5 to the writ petition) as well as the notice issued in Eviction Suit No. 413 of 2018 dated 18.05.2018 (Annexure-7 to the writ petition) including all the proceedings and steps undertaken pursuant thereto by the respondents for the alleged encroachment of land by the petitioner. The petitioner has further prayed for imposing penalty on the respondents for misusing their power and payment of an exemplary compensation in favour of the petitioner for the agony and trauma suffered by him. 2. The factual background of the case as stated in the writ petition is that the petitioner received a notice vide letter no. 99 dated 11.03.2016 issued by the respondent no. 2 directing him to remove the alleged encroachment from HIG Plot No. H-16 of Dhanbad Housing Colony, Hirapur. The petitioner submitted show cause to the said respondent explaining all the facts. However, the said respondent again issued notice vide letter no. 233 dated 23.06.2016 directing the petitioner to remove the alleged
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encroachment. Thereafter, the petitioner got a legal notice issued to the concerned respondents to repair the public drain after removing all encroachments over the same and to stop torturing and harassing him mentally. The respondent no. 2, however, again issued a demand notice no. 23 dated 09.01.2018 for the alleged encroachment done by the petitioner. The petitioner made representation before the Deputy Commissioner, Dhanbad and forwarded copies of the same to the other concerned respondents, however, the petitioner was served with a notice dated 18.05.2018 issued in Eviction Suit No. 413 of 2018 instituted by the respondent- Jharkhand State Housing Board, Dhanbad Division, Dhanbad in the Court of Competent Authority, Jharkhand State Housing Board, Ranchi.
3. The learned counsel for the petitioner submits that the eviction notice was served upon the petitioner by the concerned respondents having fully aware of the fact that by any stretch of imagination, it is impossible to encroach a small portion of plot separated by a very wide drain and to make it part of his own land on the other side of the said drain. It is submitted that the action on the part of the respondents in issuing repeated notices as also institution of eviction case is gross misuse of the official power vested with them causing serious torture, harassment and mental agony to the petitioner. It is also submitted that from the measurement report of the Circle Officer, Dhanbad, it would be evident that the petitioner has not made any encroachment on the land of the Housing Board.
4. The learned counsel appearing for the respondentHousing Board submits that there is 20 ft. wide drain on the land of Jharkhand State Housing Board in its colony at Hirapur, Dhanbad which is located at the southern end of the land of the Jharkhand State Housing Board which provides an outlet for the drainage of Doctor’s Colony. The petitioner has forcibly taken a portion of the said drain within his compound by erecting a wall inside the same and created a serious obstruction on the flow of water passing through this drain at the point where the wall has been created by the petitioner in an unauthorized manner. Due to the encroachment made by the petitioner, the drain has become narrow and has curved
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at the point where the said unauthorized construction has been made by the petitioner. The encroachment has also reduced the net available area of Plot No. H/16 of the Jharkhand State Housing Board Colony at Hirapur, Dhanbad. On the objection made by the local officials of the Jharkhand State Housing Board, Dhanbad before the District Administration with regard to the encroachment, the Circle Officer, Dhanbad deputed Anchal Amin to do the measurement at site and to demarcate the land of the Jharkhand State Housing Board. The petitioner’s representative refused to show the relevant documents for verifying the area of the land purchased by the petitioner and thus did not co-operate in the measurement. The Circle Officer, Dhanbad during the site inspection found that the entire 20 ft. wide drain falls within the land of the Jharkhand State Housing Board at Hirapur, Dhanbad. The impugned notice has been issued under Section 83A and Section 59 of the Jharkhand State Housing Board Act, 2000 and eviction case has been instituted against the petitioner by the competent authority as contemplated under the relevant provisions of the Act, 2000.
5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has sought quashing of several notices issued by the respondent no. 2 directing the petitioner to remove the encroachment made over the land of the respondentJharkhand State Housing Board, Dhanbad. It has been submitted by the learned counsel for the petitioner that the said notices have been issued just to harass the petitioner with an ill motive and for providing undue advantage to the allottee of Plot No. H/16 because the encroachment on the drain made by the allottee of Plot No. H/16 was removed by the local administration at the instance of the petitioner and the residents of Doctor’s Colony in the year 2014.
6. In the case of “Union of India & Anr. Vs. VICCO Laboratories” reported in (2007) 13 SCC 270, the Hon’ble Supreme Court held as under:
31. Normally, the writ court should not interfere at the stage of issuance of show-cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the
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authorities concerned and to satisfy the authorities concerned about the absence of case for proceeding against the person against whom the show-cause notices have been issued. Abstinence from interference at the stage of issuance of show-cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule. However, the said rule is not without exceptions. Where a show-cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show-cause notice. The interference at the showcause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out.
7. In the aforesaid case, it has been held that the writ court ordinarily should not interfere at the stage of issuance of show cause notice. No factual adjudication is required to be done under writ jurisdiction at the said stage. Unless the petitioner prima facie shows that the notice has been issued without jurisdiction and/or the same is abuse of the process of law, the writ petition should not be entertained.
8. To appreciate the contention of the learned counsel for the petitioner, I have perused the record of the case. In the report submitted by the Circle Inspector to the Circle Officer, Dhanbad who had inspected the site in question, it has been stated that the actual area of Plot No. H/16 is 80 ft. X 50 ft. = 4000 sq.ft., however, on measurement of the boundary wall of the said plot, it was found that the length of the boundary in the eastern side is 70 ft. and in the southern side of the said boundary, there is a drain which includes 10 ft. land of the said plot. It has further been reported that in the southern side of the said drain, the house of the petitioner is situated. When the boundary of the petitioner was measured, it was found to be 4756.5 sq.ft. On demanding the relevant documents of the land, one of the family members of the petitioner failed to produce the same. Since the petitioner did not produce the document of title of his land, the Circle Inspector reported that it was necessary
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to call for the relevant documents from the petitioner which resulted in issuing the impugned notices to the petitioner. The petitioner has failed to show any legal infirmity in the impugned notices so as to warrant any interference under extraordinary writ jurisdiction of this Court. Moreover, by now only notice has been issued to the petitioner in Eviction Case No. 413 of 2018 and he has been directed to file show cause reply against the allegation levelled against him and thus, he has ample opportunity to represent his case before the respondent no. 3 – the Competent Authority, Jharkhand State Housing Board, Ranchi. The petitioner is claiming that he has not encroached the land of the respondent-Housing Board, Dhanbad and the Board on the other hand has stated that the petitioner has encroached upon the drain which belongs to it. The said factual determination cannot be made under the writ jurisdiction.
9. In view of the reasons as aforesaid, the present writ petition is dismissed. The petitioner is, however, at liberty to appear before the respondent no. 3 with all relevant documents in support of his claim which shall be dealt with by the respondent no. 3 in accordance with law while passing the final order.
(Rajesh Shankar, J.)
Manish/A.F.R.
2 issues framed by the court
Whether the show-cause and eviction notices alleging encroachment issued by the Housing Board are liable to be quashed under writ jurisdiction or if the matter requires factual adjudication before the
Whether the issuance of repeated notices constitutes abuse of process of the court warranting writ intervention.
Colour shows how this judgement treated each authority
Union of India & Anr. Vs. VICCO LaboratoriesReferred¶6
(2007) 13 SCC 270 · Who else cites this
Vijay Kumar Nilam
The Chairman, Jharkhand State Housing Board
Rajesh Shankar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court