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[Right To Shelter] Even Encroachers Are Protected From State Action Which Violates Procedure Established By Law: Jharkhand HC

LIVELAW NEWS NETWORK
15 Aug 2022 2:18 PM GMT
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The Jharkhand High Court recently observed that the right to shelter is a fundamental right of every citizen under the Constitution and any infraction of this right by State action must invite judicial intervention to protect the occupants of a dwelling house.

A division bench comprising Justices Shree Chandrashekhar and Ratnaker Bhengra observed:

"The right to shelter is a fundamental right of every citizen under the Constitution and any infraction of this right by State action must invite judicial intervention to protect the occupants of a dwelling house. Across the world, the law recognises rights of even an encroacher to be protected from State action which is not in consonance with the procedure established by law. Except in a very few exceptional kind of cases such as encroachments on public roads and pavements, the issue of illegal constructions and encroachments is not a simple one and invariably the Courts are confronted with contentious issues which cause delays in rendering decisions. But then, this is the procedure in law we have chosen for ourselves."

The observation was made in an appeal preferred against dismissal of two writ petitions challenging a public notice for removing encroachments over the lands allegedly belonging to Ranchi Municipal Corporation.

The petitioners had claimed title over the land stating that their ancestors' names are recorded in the cadastral survey record of rights. It was also submitted that the impugned notices were issued in violation of principles of natural justice

The writ court had refused to entertain the matter, stating that the aforesaid claim cannot be considered under extraordinary writ jurisdiction.

Nine days thereafter, Ranchi Municipal Corporation (RMC) issued a notice to the appellants for removal of alleged illegal structures within 48 hours. The body claimed that the expression "municipal property" in section 606 of the Jharkhand Municipal Act 2011 cannot be limited to streets, footpaths and parks only and shall mean and include all properties owned by RMC.

The provision stipulates:

(1) No person shall cause any encroachment or obstruction on any municipal property such as a street or footpath or park without specific permission of an officer of the municipality duly uthorized to grant such permission. Any person causing such encroachment or obstruction on any municipal property as aforesaid shall, on conviction, be punishable with fine which may extend to five thousand rupees.
(2) The Municipal Commissioner or the Executive Officer shall have power to remove any encroachment and obstruction on the municipal property if it is not authorized, or if it objectionable or obstructs traffic.

The High Court noted that sub-section (1) and sub-section (2) to section 606 are not isolated provisions and they have to be read together in conjunction with each other and once section 606 is read as a whole "it becomes clear that the Municipal Commissioner or the Executive Officer shall have powers to remove any encroachment and obstruction over street, park etc. However, there is no procedure prescribed under the Jharkhand Municipal Act, 2011 for removing encroachment from other municipal properties . Therefore, RMC is required to follow the rules of natural justice even where there is no dispute as regards right, title and interest over the encroached lands."

It further observed that the Jharkhand Municipal Act, 2011 clearly lay down a procedure for proceeding against a violator.

Section 284 and other provisions indicate that cognizance of an offence can be taken by the Court only upon a complaint in writing made by any officer duly authorized.

Section 610 provides that no Court shall proceed to the trial of any offence punishable by or under this Act except on the complaint of, or upon information received from the Municipal Commissioner or the Executive Officer or any person authorised by him by general or special order in this behalf.

The Court was of the view that the aforesaid provisions provide sufficient guidelines and procedure to RMC wherever it intends to proceed under Section 606(2) and thus concluded that the aforesaid notices were issued with oblique motives and its actions lack bonafide.

Court said that no one can raise a claim of ownership over streets, footpaths or parks. Mere stray or even intermittent acts of trespass do not give any right against the true owner, and a casual act of possession would not have the effect of interrupting possession of the rightful owner. Therefore, the encroachments over streets, footpath, park etc. stand on a different footing, particularly because of inconvenience caused to the general public.

However, the alleged encroachments by the appellants are not on any public road and RMC does not even claim that the lands in question vested in the Municipality by virtue of section 291.

"The expression due process of law may take different colors in different situations but when such expression is used to question ejectment from settled possession the stated expression would mean that a person in settled possession cannot be ejected without a Court of law having adjudicated upon his rights qua true owner."

In view of the above, the court was not inclined to accept the plea that RMC has powers to remove any encroachment over the municipal property merely by a notice providing 48 hours' time.

"No such power for removing the encroachments over the municipal property by a simple notice has been conferred by the Legislature either to the Municipal Commissioner or the Chief Executive Officer or any other officer of the municipality, except acting in accordance with the procedure established by law."

In view of the above, the impugned notices were quashed and the Court parted with following remarks:

"In a country like India which professes high democratic values, the Constitution of India stands like a lighthouse illuminating life aspirations of the people of India that every State action must follow the procedure established by law. RMC being an instrumentality of the State under Article 12 of the Constitution of the India is governed by the rule of law in a welfare State and cannot arrogate to itself a status beyond what is provided by the Constitution."

Case Title : Suresh Tirkey v The Governor With Connected Matters

Citation: 2022 LiveLaw (Jha) 77

Click Here To Read/Download Judgment

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