Quashed

Ram Lakhan Singh v. the Ranchi Municipal Corporation through Municipal Commissioner

Jharkhand HC12 Jan 2022WPC/2864/2021

Case brief

AI extract

What is this about?

The High Court quashed an order directing demolition of a building passed ex-parte without an adequate opportunity of hearing and remanded the matter for passing a fresh reasoned order in compliance with natural justice principles.

What did the court decide?

Impugned order dated 23.07.2021 quashed and set aside; matter remanded to pass fresh reasoned order after providing due opportunity of hearing; no coercive step for demolition till fresh order is pass

Ram Lakhan Singh Vs the Ranchi Municipal Corporation… — Property and Title | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No. 2864 of 2021

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Ram Lakhan Singh ….. Petitioner

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Versus

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The Ranchi Municipal Corporation, through the Municipal Commissioner, Ranchi

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The Municipal Commissioner, Ranchi Municipal Corporation, Ranchi

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The State of Jharkhand

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The Deputy Commissioner, Ranchi

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The Circle Officer, Nagari, Ranchi ….. Respondents

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CORAM

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HON’BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioner: Ms. Ritu Kumar For the RMC: Mr. L. C. N. Shahedeo -----

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03/12.01.2022 The case is taken up through Video Conferencing.

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The present writ petition has been filed for quashing the order as contained in memo No. 763 dated 23.07.2021 passed by the respondent No.2 in U.C. Case No. 171/2021 (Annexure-6 to the writ petition) whereby the order of demolition of the petitioner’s house has been passed on the ground that he has not shown the sanctioned map of building by the Ranchi Municipal Corporation and also without considering the facts that the same has been constructed over his Raiyati land and the Ranchi Municipal Corporation, after proper verification of construction of the building, has given Holding No. 0450002774000A5.

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Ms. Ritu Kumar, learned counsel for the petitioner, submits that the petitioner’s son, namely, Pankaj Kumar Singh has constructed a house over his Raiyati land appertaining to Khata No. 65, Plot No. 688, Khesra No. 8, measuring an area of 1.5 Decimals, situated at New Bandhu Nagar, Birsa Chowk, Hinoo, Ranchi. He has also paid the Holding Tax to the respondent-RMC till March, 2022. He has also been provided electricity connection and has been regularly paying the electricity bill for the said house. He has also been allotted P.D.S license to run a fair price shop from the said house, which is valid till March, 2023. Learned counsel for the petitioner while assailing the impugned order dated 23.07.2021, submits that the petitioner was never informed about initiation of any un-authorized construction case against him, much less

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providing opportunity of hearing to him in order to satisfy the respondent No.2 that he has not made any un-authorized construction over the said land. However, the respondent No.2 vide the impugned order dated 23.07.2021, has directed demolition of the said house within 15 days from the date of the said order, failing which the same would be demolished by use of force imposing cost of demolition upon the petitioner. On perusal of the impugned order dated 23.07.2021, it would be evident that the petitioner was not heard by the respondent No.2 and the same was passed ex-parte. It is further submitted that similar matter has already been decided by this Court vide order dated 09.08.2021 passed in W.P.(C) No. 2883/2021 quashing the order dated 23.07.2021 passed by the respondent No.2 in respective un-authorised construction cases instituted against the petitioners of the said case and remanding the matter to the respondent No.2 to pass fresh reasoned orders in accordance with law after providing due opportunity of hearing to them. Hence, the present case may also be disposed of in terms with the order dated 09.08.2021 passed by this Court in W.P.(C) No. 2883/2021.

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Mr. L. C. N. Shahedeo, learned counsel appearing on behalf of the respondent-RMC, submits that the impugned order dated 23.07.2021 would itself indicate that during spot verification made by the inspection team of the Ranchi Municipal Corporation, Ranchi on 05.04.2021, the petitioner had not shown the approved building plan subsequent to which the said un-authorized construction case was registered and notice was issued to him on 15.06.2021 calling upon him to put forth his defence. Moreover, final notice was also published in the local daily newspapers on 21.07.2021 intimating him to submit reply in the said un-authorized construction case on 22.07.2021. Since the petitioner did not appear and produce the sanctioned map of the building in question in the said un-authorized construction case despite publishing final notice addressed to him, the respondent No.2 had no option, but to pass the impugned order dated 23.07.2021 exercising powers under Sections 436 and 437 of the Jharkhand Municipal Act, 2011.

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Heard learned counsel for the parties and perused the contents of the writ petition. The contention of the petitioner is that the respondent No.2 has not provided him an opportunity of hearing before passing the impugned order dated 23.07.2021 directing him to demolish the construction made over his Raiyati land within 15 days of the order. So far as the notice dated 15.06.2021, as mentioned by the respondent No.2 in the impugned order dated 23.07.2021 is concerned, the specific case of the petitioner is that the said notice was never served upon him.

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Be that as it may.

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On perusal of the impugned order dated 23.07.2021, it appears that vide final notice dated 21.07.2021 published in daily newspapers, the petitioner was called upon to put forth his case before the respondent No.2 on the next date i.e. 22.07.2021. Thus, even if it is assumed that the notice dated 21.07.2021 published in the daily newspapers addressed to the petitioner was deemed to have been validly served, asking him to appear on the very next date with his defence in the said un-authorized construction case can be said to be arbitrary and un-reasonable. The respondent No.2 while publishing the notice in the newspapers should have provided the petitioner reasonable time to appear in the said un-authorized construction case to put forth his defence. Moreover, the respondent No.2 in the impugned order dated 23.07.2021 has not said anything on merit, rather he has only mentioned certain provisions of Jharkhand Municipal Act, 2011 and about issuance of the notice upon the petitioner. In last paragraph, he has directed the petitioner to demolish the building within 15 days of the order. The claim of the petitioner is that he has not made any unauthorized construction over his Raiyati land and as such the impugned order dated 23.07.2021 passed by the respondent No.2 without affording any opportunity of hearing to him, definitely caused serious prejudice to his interest over the building/structure in question.

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The Hon’ble Supreme Court of India in the case of Asha Sharma Vs.

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Chandigarh Administration & Ors. reported in 2011 SCC On Line SC

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1176 has held as under:-

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“14. Action by the State, whether administrative or executive, has to be fair and inconsonance 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 defer 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.”

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Decision taken by an administrative authority adversely affecting the right

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of a person must show impartiality and fairness. The said order should also contain the reasons for arriving at a particular conclusion so that if the person feels aggrieved with the same, he may challenge it in the higher Courts of law assailing the reasons mentioned therein. Justice should not only be done, but must be seen to be done. Even if there is no rule to govern an administrative action, the authorities exercising the discretion are bound to follow the rule of fairness by providing due opportunity of hearing to the concerned persons whose civil rights are involved in any proceeding. In the present case, the manner in which the impugned order has been passed by the respondent No.2 certainly appears to have been done in undue haste and with a pre-occupied mind. Since the impugned order dated 23.07.2021 does not contain any finding on merit directing demolition of the structure/house in question and that the same appears to have been passed without any application of mind as well as without providing opportunity of hearing to the petitioners, the same cannot be sustained in the eyes of law. Accordingly, the impugned order dated 23.07.2021

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passed by the respondent No.2 in the said un-authorized construction case is hereby quashed and set aside. The matter is remanded to the respondent No.2 to pass a fresh reasoned order in accordance with law in the said un-authorized construction case after providing due opportunity of hearing to the petitioner/his representative. The respondent No.2 is directed to take up this case as soon as the third wave of Covid-19 pandemic subsides and the work in the office normalises. The petitioner/his representative shall appear before the respondent No.2 on a 15 days’ notice and file his reply. Till the fresh order is passed by the respondent No.2, no coercive step shall be taken against the petitioner for demolition of the building in question.

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The present writ petition is disposed of with the aforesaid direction.

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(RAJESH SHANKAR, J)

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Satish/A.F.R

Ram Lakhan Singh v. the Ranchi Municipal Corporation through Municipal Commissioner

Case brief

What is this about?

What did the court decide?

Ram Lakhan Singh v. the Ranchi Municipal Corporation through Municipal Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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