In Civil Writ No. 9422 of 2022- PATN HC-Patna High Court reprimands Bihar State authorities for demolishing 95 houses in Rajiv Nagar area without following due process of law
Justice Sandeep Kumar [25-05-20223]

Read Order: Satyendra Rai v State of Bihar

Simran Singh

New Delhi, May 27, 2023:  The Patna High Court, while exercising its civil writ jurisdiction, directed:

1. The Chief Secretary, Government of Bihar, to enquire into the matter within 6 months and identify the delinquent officials who refused to perform their duties and accordingly recommend as to the suitable action to be taken against them in accordance with law.

2. The petitioners whose houses had been demolished without considering their cases were   individually entitled to interim compensation of INR 5 Lakhs each who could file their claim for damages in an appropriate forum and the same should be decided within 1 year of its filing.

3. The petitioners whose houses had been demolished could not be evicted from the land on which they had constructed their houses unless they were provided flats as envisaged under Clause 3.2 of Digha Acquired Land Settlement Scheme, 2014 (Digha Land Settlement Scheme, 2014)[1] 

4. The State had to individually hear the writ petitioners in accordance with law under the Bihar Public Land Encroachment Act, 1956 (Bihar Encroachment Act)

5. If the State evicts the residents of Nepali Nagar then the State was bound to follow the Digha Acquired Land Settlement Act, 2010 (Digha Land Settlement Act, 2010), Digha Land Settlement Scheme, 2014 and Digha Acquired Land Settlement Rules, 2014 (Digha Land Settlement Rules, 2014)[2] 

6. The Bihar State Housing Board (Housing Board) was directed to take a decision on all pending applications filed under the Digha Land Settlement Scheme, 2014 for ex-gratia amount within 1 month.

A batch of petitions were filed questioning the illegal demolition of the house in Nepali Nagar or Rajiv Nagar. In the year 1974, the Supreme Court had upheld the acquisition proceedings in favour of the Housing Board for the 1024.52 acres of land in the aforementioned area named as Digha Housing Colony. However, the housing board was directed to pay compensation for a sum of INR 17.42 crores which the farmers were yet to receive. As the process of awarding compensation got delayed and the majority of the farmers were denied payment of compensation for their lands, they started selling their plots to various cooperative societies or individuals who constructed houses and started living therein out of which some had even constructed commercial buildings as well.

The State Government, in order to resolve the dispute and to settle the plots in favour of the residents of Nepali Nagar, had come up with Digha Land Settlement Act, 2010 and Digha Land Settlement Scheme, 2014 which provided for settlement of land in favour of unauthorised occupants which would be done after realising the settlement charge at the Minimum Value Register rate.

The first proviso to Section 7 of the Digha Land Settlement Act, 2010 stated that unauthorised occupants who had constructed portion in form of dwelling houses or commercial buildings would be entitled for ex-gratia payment as well as an additional amount for the constructed areas was to be determined by the Housing Board and approved by the Government. The second proviso imposed an obligation on the Housing Board to ear-mark a compact area for settlement in favour of only those unauthorised occupants who had constructed only their residential houses. The third proviso further provided that unauthorised occupants would not be entitled to settle in the area described in Section 7, except in the area which had been earmarked by the Housing Board for the said purpose.

Thereafter, the Digha Land Settlement Rules, 2014 had been framed for enforcement of the Digha Land Settlement Act, 2010. As per the aforesaid Rule, the unauthorised occupants were required to apply, within 60 days of publication of the notice, to the Housing Board in a prescribed form for settlement of their respective plots of land and for ex-gratia payment. The Housing Board contended that the cut off date was extended from time to time and the last extension was granted till 31-05-2018.

The demolition began on 03-07-2022 pursuant to the order dated 20-06-2022 but the notice dated 25-04-2022 did not mention the name of any person to whom the notice had been issued to but only mentioned the plot numbers and the nature of encroachment. It had been directed that the land belonged to the Housing Board and had been encroached according to Section 6(i) of Bihar Encroachment Act, and the noticees were directed to remove the encroachment within a week. It was warned that in case, they refused or were unable to do so, the lands in question would be vacated by use of force. As many as 90 houses or buildings were forcefully demolished when all the Government offices and the Courts were closed and without following the due process of law.

The petitioner contended that the the order dated 20-06-2022 passed b the Court of Circle Officer, Patna Sadar was illegal, without following the due process of law and without any service of notice under the Bihar Encroachment Act. The Court restrained the respondent authorities from proceeding further with demolition of the dwelling houses vide order dated 04-07-2022 and further vide order dated 14-07-2022 directed to restore the electricity and water supply as well.

Issue of maintainability

The Court stated that the conditions precedent for maintaining a writ petition for issuance of writ of mandamus were:

1. The petitioner must show that there was a legal right leading to the performance of the legal duty against whom writ of mandamus was sought for.
2. It may be issued to compel something to be done which imposed a legal duty.
3. It is only granted to compel the performance of duties of public nature.
4. The Court may/will as a general rule and in exercise of its discretion, refuse a writ of mandamus when there was an alternative specific remedy at law which was not less convenient/beneficial and effective.

The Bench referred to the Clause- 3.2 of the Digha Settlement Scheme, 2014 which unequivocally showed that the Housing Board would provide permanent residence (flats) to the erstwhile land owners or their transferees within the ear-marked area of proposed township to be constructed by the Housing Board and inaction on the part of the Housing Board amounted to not only deprivation of a chance to get flats but also amounted to violation of the fundamental rights of the erstwhile land owners or their transferees. Further, issuance of demolition notice without first attempting to re- settle or provide alternative accommodation to the land owners or their transferees was in complete violation of the due process of law as guaranteed under the Digha Land Settlement Scheme, 2014. The action of the respondent authorities in not implementing the scheme of the State Government amounted to depriving the petitioners of their statutory rights to permanent residence guaranteed under the Digha Land Settlement Scheme, 2014.

The court thus, opined that the writ petitioners were able to bring their case within the principles of issuance of a writ of mandamus since the State Government and the Housing Board had failed to act in discharge of their duties of public in nature.

Issue of applicability of the Digha Land Settlement Act, 2010, the Digha Land Settlement Scheme, 2014 and Digha Land Settlement Rules, 2014

Through the Digha Land Settlement Act, 2010, the unauthorised occupants were to be regularised by way of final settlement of plots after payment of penalty by them. The various provisions of the aforementioned act were intended to protect the substantive rights of erstwhile land owners and transferees.  There existed a protective intendment of the legislation i.e. which furthers the purpose for which the Settlement Act had been enacted.

The Digha Land Settlement Scheme, 2014 prescribed provision for regularising houses of 600 acres of the encroached land by charging a penalty. It also prescribed  for requisitioning around 400 acres of land by paying ex-gratia amount to the land owners. The Scheme further provided that permanent residence (flats) would be provided to the residents settled in 400 acres of land, in the earmarked area as per Clause-3.2 of the Digha Land Settlement Scheme, 2014.

The Court was of the view that on conjoint reading of the Act, the Scheme and the Rules, it had independently recognised and defined the right of the unauthorised occupants. “Adequate housing as provided under the Scheme to the unauthorised occupants was not merely a shelter in form of four walls and roof but also included fundamental elements necessary for unauthorised occupants of the locality to live with peace and safety.”

The Bench noted that the writ petitioners had started living in the disputed land over a period of almost two decades. “If the State Government would have paid attention at the right time and in the right direction then the situation, as highlighted before this Court in the present litigation, could have been averted”

The Court was of the view that there could be no denial to the fact that everyone  had  the right to adequate standard of living, health and well-being for himself as well as his family including fooding, clothing, housing, medical care and necessary services. The protection of life guaranteed by Article 21 of the Constitution of India encompassed within its ambit the right to shelter which was an inseparable component of meaningful right to life.

In the present case the Court stated that the State had undertaken as an obligation to provide permanent residence (flats) in the earmarked area of proposed township. However, the Bench was  not at all impressed with the submission that the petitioners were encroachers and they in no way  could  enforce the right to shelter for the purpose of protecting their unlawful possession. The petitioners were not encroachers as they had a right to permanent residence being both; statutory as well as human right, which was to be enforced under the Constitution of India.

The court viewed that the covenants in the scheme and the provisions of the statute had to be treated as beneficial statute and it could not be subjected to a strict interpretation. The scheme of beneficial legislation had to be respected and could not be allowed to be overridden by anyone far less than the State and it should receive a liberal construction.

Issue of validity of the Cut-off Date:

The Bench stated that the Supreme Court in a catena of cases, with regard to cut off date, had held that the fixation of the cut-off date was within the domain of the Executives and normally the Court should not interfere with the same unless it appeared that the same had been fixed arbitrarily and indiscriminately. Therefore, the Court must exercise judicial restraint and ordinarily leave it to the wisdom of the Executive authorities to fix the cut-off date. Thus, the Court was of the view that once the executive had fixed the cut-off date for grant of benefit to the eligible persons, this Court should not interfere with the same. However, extending benefits of permanent residence (flats) in the earmarked area of proposed township was legally justifiable. “The interpretation of the beneficial legislation and the clauses of the settlement scheme should be in consonance with social justice against the hair-splitting interpretation based on blind law and this Court held that all the unauthorised occupants of the area residing under 400 acre of land of Nepali Nagar before the cut off date were also eligible to be considered for beneficial benefits of permanent residence (flats)…”

Issue of Legitimate Expectation

The Bench referred to the doctrine of legitimate expectation and stated that in the present case a sanction had been issued by the State Government to provide permanent residence (flats) in the earmarked area to the unauthorised occupants which had entitled the writ petitioners with legitimate expectation. The duty was to act fairly on the part of the public authorities which entitled every petitioner to have legitimate expectation to be treated in a fair manner

Issue of Legality and Validity of the Show Cause Notice dated 25-04-2022 and the order dated 20-062022

The court noted that, a general notice for removal of encroachment was issued to the petitioners which was not in proper format either. In terms of the Bihar Encroachment Act, the issuance of notice was not sufficient, rather the service was essential before proceeding in the matter and passing final order. In the present case, neither any individual notice was issued or served nor the public notice was pasted on the wall accompanying with the signature of two witnesses. Further, the opportunity of hearing was not given to the affected persons.

The Bench stated that there was a violation of principle of natural justice. Therefore, the contention of the petitioners merits acceptance as there was failure to comply with the procedure prescribed under the Bihar Encroachment Act. "The State Government was in hurry and had not given any chance to the petitioners to prefer appeals against the order dated 20-06-2022. The provision of appeal was not mere a formality under the Act and the authorities could not be allowed to act in such a hurried manner like a private litigant and in such a manner so that petitioners did not have any right of appeal. It was an admitted fact that to deny the right of appeal, the demolition was carried on 02-07-2022 and 03-07-2022 i.e. on Saturday and Sunday.”

Issue of Demolition

The Bench noted that the exercise of demolition was carried by the authorities of the State on 02-07-2022 and 03-07-2022 without considering all the options with the State Government to provide permanent residence (flats) in the earmarked area which was unreasonable, unjust and unfair. It was in violation of the due process of the law and had been brought to the notice of this Court that the Patna District Administration and police personnel reached the venue with bulldozers  to demolish the alleged illegal structures. It was stated that 95 constructed structures had been demolished and an area of about 50 acres had been taken over by the district administration.

The Bench stated that when the final order was passed ordering for demolition of houses under the Bihar Encroachment Act, the petitioners ought to have given some time for vacating the land in question and/or for making alternative arrangement. “The demolition exercise of the State Authorities on the basis of an illegal order passed in a proceeding in which the provisions of law including the service of notice etc. was not at all followed, was illegal. The punitive bulldozer demolition was blatantly illegal, unconstitutional and unauthorised and could not be permitted in a State governed by the rule of law.”

The Court stated that “for the last 30 years when the Housing Board has been in possession of the area of 400 acres in Nepali Nagar, illegal constructions have been allowed to be made. This has happened right under the nose of the State including the Bihar State Housing Board and the Rajeev Nagar Police Station. The State has chosen to demolish the so-called illegal constructions of unauthorized occupants but the State has been silent as to the action taken against its own officials who were there to safeguard the interest of the State. Not even a whisper has been made in the counter affidavit filed on behalf of the State and the Housing Board as to what action has been taken against the officials of the Housing Board and the Police officials of Rajeev Nagar Police Station for allowing the residents to make construction over the said land. This inaction on the part of the State Government against its own officials and police personnel emboldens them not to obey the law for extraneous reasons. It is for the State Government to take a decision as to what action should be taken against its own officials i.e. civil and police officials including the officials of the Bihar State Housing Board responsible for their dereliction of duties.”

In view of the above facts, the Bench quashed the notice dated 25-04-2022 and the order dated 20-06-2022 passed in Encroachment Case and set aside the entire proceeding that had been conducted without following the procedure as provided under the Act.