Partly allowed

Deepak Prasad v. State of Jharkhand And Ors.

Jharkhand HC8 Feb 2023WPC/4314/2007

Case brief

AI extract

What is this about?

The court quashed an appellate order in a public land encroachment case because the Deputy Commissioner who decided the appeal was the same official who previously issued an illegal eviction direction. Following the principle from Ashok Kumar Yadav, the court found a reasonable likelihood of bias and remanded the matter to the present Deputy Commissioner for a fresh hearing.

What did the court decide?

The appellate order dated 4.6.2007 and the subsequent appeal order in B.P.L.E. Appeal No.38 of 2007-08 were set aside. The matter was remanded to the present Deputy Commissioner to decide the appeal a

Deepak Prasad Vs State of Jharkhand And Ors. — Pension and Retirement Benefits | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No. 4314 of 2007

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Deepak Prasad

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Sanjay Prasad

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Arun Kumar,

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Ajay Kumar

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Malti Devi, wife

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Rita Prasad, daughter

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All are sons, wife and daughter of late Ramesh Prasad, Resident of Gunomay Colony, Mango, P.O. & P.S. – Mango, Town Jamshedpur, District – East Singhbhum … … Petitioners Versus

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State of Jharkhand

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Deputy Commissioner, Singhbhum East, Jamshedpur.

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Sub-Divisional Officer cum Collector, under the BPLE Act, Singhbhum East, Jamshedpur … … Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioners : Mr. Indrajit Sinha, Advocate : Mr. J.N. Upadhyay, Advocate : Ms. Anjali Sinha, Advocate For the Respondents : Mr. Rakesh Kr. Shahi, Advocate

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16 /08.02.2023 Heard Mr. Indrajit Sinha, learned counsel appearing on behalf

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of the petitioners along with Mr. J.N Upadhyay, Advocate and Ms. Anjali Sinha, Advocate.

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2. Heard Mr. Rakesh Kumar Shahi, learned counsel appearing on behalf of the respondents.

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3. This writ petition has been filed for the following reliefs:

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“To quash the entire proceeding initiated as against the petitioner under the Public Land Encroachment Act including the order dated 4.6.2007, whereby and whereunder the learned Land Reforms Deputy Collector, Dhalbhum at Jamshedpur, has passed an order under Section 6 of the Bihar Public Land Encroachment Act (hereinafter referred as B.P.L.E. Act) in B.P.L.E Case No.77/2006, holding that the petitioner is an encroacher and he is remove the entire establishment in question.

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And

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Further writ quashing the notice dated 12.7.2007 passed in B.P.L.E. Appeal No.38/2007—08, whereby and whereunder the Appellate Authority i.e., the Deputy Commissioner upheld the order passed by the L.R.D.C. in B.P.L.E. Case No.77/2006.

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And

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Further writ directing to the respondents to renew the lease of the petitioner which has been kept pending by the concerned respondents.

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And

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During the pendency of the writ application, no coercive steps should be taken against the petitioner.”

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4. Learned counsel for the petitioners submits that the petitioners has challenged the order passed in Bihar Public Land Encroachment Act in B.P.L.E. Case No.77 of 2006 as well as the appellate order passed in B.P.L.E Appeal No.38 of 2007 whereby the appeal has also been dismissed.

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5. The learned counsel submits that the writ petition can be disposed of on a short point.

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6. While referring to the factual background of the BPLE proceedings, he has referred to Annexure- 8 page 36 and submitted that it was the then Deputy Commissioner Mr. Nitin Madan Kulkarni, who had initially issued a direction to get the premises vacated which was occupied by the petitioner. The said order was under challenge in writ petition being W.P.(C) No.182 of 2006 and was set aside primarily on the ground that such order was violative of Articles 14 and 21 of the Constitution of India. He submits that thereafter proceedings under B.P.L.E Act was initiated and the petitioners participated in the proceedings and order was passed against him vide order dated 04.06.2007 (Annexure – 13) and aggrieved by the order, the petitioner filed appeal being B.P.L.E Appeal No.38 of 2007-2008.

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7. The sole point for consideration is that the appellate authoritythe Deputy Commissioner was the same person i.e Mr. Nitin Madan Kulkarni, who had passed the earlier direction as contained in Annexure-8 which was set-aside by this Court in the aforesaid writ petition. The learned counsel submits that this fact has been brought on record by filing a supplementary affidavit dated 29.03.2011. He has referred to para 8 of supplementary affidavit. He submits that a reply to the supplementary affidavit was also filed and in the reply at para 6 of the affidavit dated 22.06.2011 only the name of the Deputy Commissioner has been corrected to be as Nitin Madan Kulkarni and not Nitin Mohan Kulkarni.

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8. The learned counsel submits that in view of the admitted fact that the person, who had issued the initial letter dated 23.12.2005 (Annexure-8) to evict and whose order was set aside by this Court in writ jurisdiction, was the appellate authority to decide the appeal. The learned counsel submits that the element of bias cannot be ruled out. He has also submitted that the principle is well settled that justice is

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not only to be done, but should also be seen to have been done. The learned counsel submits that considering this aspect of the matter, the writ petition be disposed of. However, he submits that so far as the present Deputy Commissioner is concerned, he can hear the appeal afresh and decide the matter.

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9. The learned counsel for the petitioners has relied upon the judgment passed by Hon'ble Supreme Court reported in (1985) 4 SCC 417 para 16 to submit that the exact element of bias need not be established, even reasonable likelihood of bias is sufficient to invalidate the process.

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10. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that admittedly, the order dated 23.12.2005, which was issued by the then Deputy Commissioner directing the other State authorities to get the premises (which was occupied by the petitioner) evicted, was set aside by this Court in W.P.(C) No.182 of 2006 and thereafter, the proceedings under B.P.L.E was initiated and order was passed against the petitioner, the petitioner filed appeal and co-incidentally the appeal was decided by the same person-the Deputy Commissioner, who had passed the aforesaid order dated 23.12.2005, which was set-aside in W.P.(C) No.182 of 2006 holding that the action was violative of Articles 14 and 21 of the Constitution of India. It was only after the order was passed in the writ petition, the proceedings under B.P.L.E Act was initiated and at the appellate stage, the same person decided the appeal against the petitioner.

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11. Considering the aforesaid fact situation, this Court is of the considered view that the existence of element of bias cannot be completely ruled out as the initial instruction contained in the letter dated 23.12.2005 to get the premises vacated was issued by the same person and was found to be illegal and was set-aside by this Court.

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12. In the judgement passed by the Hon’ble Supreme Court in the case of Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417 , it has been held in para 16 that one of the fundamental principles of our jurisprudence is that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias it is “in accordance with natural justice and common sense that the justice likely to be so biased

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should be incapacitated from sitting”. It has also been held that the question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. It has been held that the basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. The Hon’ble Supreme Court also held that this rule is not confined to cases where judicial power stricto sensu is exercised but it is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a Welfare State where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner.

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13. This Court is of the considered view that reasonable likelihood of the bias in the present case cannot be ruled out as the appellate authority was the same person at whose instance the letter dated 23.12.2005 was issued. 14. Accordingly, the appellate order passed in B.P.L.E. Appeal No.38 of 2007-08 by the then Deputy Commissioner, Jamshedpur is set aside. The matter is remanded back to the present Deputy Commissioner to decide the appeal afresh after granting an opportunity of hearing to the parties without being prejudiced by the earlier appellate order.

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15. The petitioner will appear before the appellate authority on 01.03.2023 along with a representation, a copy of this order and a copy of the writ records. The appellate authority will dispose of the appeal by a reasoned order within a period of three months from

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01.03.2023. The petitioner is directed to co-operate in the appellate proceedings.

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16. This writ petition is disposed of with the aforesaid observations and directions.

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17. Pending interlocutory application, if any, is closed.

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18. Let a copy of this order be communicated to the Deputy Commissioner, Jamshedpur.

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Saurav/

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(Anubha Rawat Choudhary, J.)

Deepak Prasad v. State of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

Deepak Prasad v. State of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

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