1. Sudarshan Mandal, aged about 70 years, s/o late Surajdeo Mandal 2. Manoranjan Mandal v. 1. The State of Jharkhand 2. The Deputy Commission
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A No. 372 of 2022 ------- 1. Sudarshan Mandal, aged about 70 years, s/o late Surajdeo Mandal 2. Manoranjan Mandal, aged about 66 years, s/o late Surajdeo Mandal 3. Kajal Mandal, aged about 55 years, s/o late Suradeo Mandal 4. Prakash Chandra Mandal, aged about 45 years, s/o late Surajdeo Mandal 5. Bijay Kumar Mandal, aged 45 years, s/o late Parsuram Mandal Sl. No. 1 to 5 all r/o Village-Dhokhara, PO-Damodarpur, PS- … Appellants Dhansar, District-Dhanbad Versus 1. The State of Jharkhand 2. The Deputy Commissioner, Dhanbad, PO & PS-Dhanbad, District-Dhanbad 3. The Circle Officer, Dhanbad, PO & PS-Dhanbad, District- Dhanbad 4. The Manager, Milk Supply Scheme, Dhanbad, PO & PS-Dhanbad, District-Dhanbad having his works at Bhuda, village: PS: Seraidhela, District-Dhanbad 5. Ranjeet Kumar Mandal, aged about 42 years, s/o late Parsuram Mandal 6. Sunil Kumar Mandal, aged about 39 years, s/o late Parsuram Mandal 7. Mithila Devi, aged about 66 years, wife of late Parsuram Mandal Sl. No. 5 to 7 all r/o village-Dhokhara, PO-Damodarpur, PS-Dhansar, District-Dhanbad ...Respondents CORAM: HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellants : Mr. Mahesh Tewari, Advocate Mr. Ritesh Kumar Mahto, Advocate For the State : Mr. R. K. Shahi, AC to SC (L&C)-I ------- Per, Shree Chandrashekhar, J. 7th December 2023 This Letters Patent Appeal challenges the order dated 4th July 2022 passed in W.P.(C) No. 4994 of 2005. 2.
Decision
The writ petitioner came to this Court with the following prayers: 1. That by way of instant writ application, the Petitioner prays for issuance of a writ in the nature of mandamus commanding upon the Respondents to stop construction work over 6 (six) decimals of land of Plot No. 911, 913 of Khata No.-1 which is an exclusive possession of 2 L.P.A No.372 of 2022 the Petitioner after acquisition of 25 decimals of land vide L.A Case No. -20/1961-62. And/Or Be pleased to pass such order/orders, direction/directions, as Your Lordships may deem fit and proper in the facts and circumstances of the case. 3. During pendency of the writ petition, the original writ petitioner, namely, Smt. Kalawati Devi passed away and in her place Sudarshan Mandal, Manoranjan Mandal, Kajal Kumar Mandal, Prakash Chandra Mandal, Bijay Kumar Mandal, Ranjeet Kumar Mandal, Sunil Kumar Mandal and Mithila Devi were substituted. 4. The case pleaded by the writ petitioner is that by a registered sale deed dated 7th November 1959 a piece of land at Mauza Bhuda in Thana No. 48 within Khata No.1 comprised under Plot Nos. 911 and 913, area about 31 decimals, was purchased by Smt. Kalawati Devi who happened to be the mother of the appellant nos.1 to 4 and grandmother of the appellant no.5. Sometime in the year 1961, the State Government decided to acquire land for a dairy project under Mudha Milk Supply Scheme vide L.A Case No. 20 of 1961-62. In that acquisition proceeding, 25 decimals of land out of the lands comprised under sale deed dated 7th November 1959 were acquired but 6 decimals land remained in exclusive possession of Smt. Kalawati Devi and six shops were constructed thereon. This is the case pleaded before the writ Court that the respondents tried to encroach upon 6 decimals of land which was in possession of the writ petitioner and they also tried to construct a boundary wall without any authority of law. 5. The writ Court dismissed W.P.(C) No. 4994 of 2005 observing as under: “So far Land Acquisition Act, 1894 is concerned, the legislature at that time has not visualized that in the year 1908 another separate legislation of Chotanagpur Tenancy Act will come and thus, the legislature has not incorporated the said provisions in Land Acquisition Act, 1894 as both are harmonious, as such no prejudice has been caused to the petitioners. The Chotanagpur Tenancy Act Act, 1908 is only for the protection of rights of the people of Chotanagpur and thus, the Deputy Commissioner under Section 46 of the Chotanagpur Tenancy Act is held responsible for any such transaction, so that he can protect the right of the citizen of the Chotanagpur area. Once land is acquired by the State, which is welfare State, this Clause is not applicable with 3 L.P.A No.372 of 2022 regard to the Land Acquisition Act, 1894 as both are harmonious and there is no chance of any exploitation of the citizen by the State itself. Accordingly, the objection, which has been raised by Mr. Mahesh Tewari, learned counsel for the petitioners with regard to Section 46 of the Chotanagpur Tenancy Act is hereby rejected. Accordingly, the writ petition is dismissed with liberty to the petitioners, that they may file an application under Section 30 of the Land Acquisition Act for apportionment of their share and State shall decide the same within a period of 30 days from the date of filing of the same in accordance with law. I.A. No. 4509/2022 stands closed.” 6. Challenging the writ Court’s order dated 4th July 2022 passed in W.P.(C) No. 4994 of 2005, Mr. Mahesh Tewari, the learned counsel for the appellants submits that the writ Court without adverting to the Constitutional rights of the appellants under Article 300A of the Constitution of India and the law in this behalf dismissed the writ petition without even addressing the prayer made therein. Mr. Mahesh Tewari, the learned counsel for the appellants refers to section 17 of the Land Acquisition Act, 1894 to put forth a contention that even those 25 decimals of land which were acquired under L.A Case No. 20 of 1961-62 are vacant and no possession in respect thereof was taken by the respondents and while so the acquisition must be deemed to have lapsed. 7. The respondents have taken an objection primarily on the ground that about 10 acres of lands were acquired under L.A Case No. 20 of 1961-62 which included 31 decimals of land out of which the original writ petitioner received the compensation for 25 decimals of land to the tune of Rs.435.56/-. It is further stated that the original writ petitioner did not appear before the Land Acquisition Officer with relevant documents and the compensation amount for 6 decimals of land was deposited in the Treasury. The respondents have also pleaded that the appellants have no right, title or interest over 6 decimals of land under Plot Nos. 911 and 913. 8. There is no absolute rule of law that a petition under Article 226 of the Constitution of India shall not be entertained by the writ Court because one party has raised a dispute on facts or, that, some questions of fact may fall for determination while considering the right to relief of the aggrieved party. This is also a well-settled proposition in law that the decision of the High Court to entertain or not to entertain a petition under Article 226 of the 4 L.P.A No.372 of 2022 Constitution of India against a particular State action is fundamentally discretionary and the limitations on exercise of such discretionary jurisdiction are self-imposed. The powers under Article 226 of the Constitution of India are extraordinary, plenary and without any fetters but, at the same time, it is widely accepted that exercise of the powers under Article 226 of the Constitution of India should confirm to the judicially evolved rules and principles. One of such rules is that the claim raised by the petitioner should be determined on the basis of the factual position acknowledged by the respondent. This is so because the High Court in exercise of its powers under Article 226 of the Constitution of India would ordinarily act upon indisputed facts and not adjudicate a matter where the foundational facts are disputed. This is the prime reason a writ petition involving questions of right, title, interest and possession over landed property is not entertained [refer, “Dwarka Prasad Agarwal (D) by Lrs & Anr. v. B.D. Agarwal & Ors.” (2003) 6 SCC 230]. 9. As it is apparent from the pleadings before the writ Court that serious questions of fact regarding acquisition, payment of compensation and possession have been pleaded by the rival parties and such facts cannot be decided in a writ proceeding. In a writ proceeding, the Court is also required to examine whether there is any element of public law involved or the writ petition merely addresses a private cause. In fact, the prayer made in the writ petition was not at all maintainable. It is well settled that a mandamus shall lie only where the applicant establishes that he has a legal right in law and the respondents have failed to discharge their legal duty [refer, “Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College, Bihar Sharif & Ors.” AIR 1962 SC 1210]. Furthermore, in our opinion, the reliance placed by the learned counsel for the appellants on “Indore Development Authority v. Manoharlal & Ors.” (2020) 8 SCC 129 is completely misplaced and after more than half a century this Court cannot make a declaration that the acquisitions in L.A Case No. 20 of 1961-62 have lapsed and, that too, when compensation was received by the predecessor of the appellants. 5 L.P.A No.372 of 2022 10. In view of the rival contentions which involve serious disputed questions of fact as regards possession of the appellants the writ petition was rightly dismissed. We find no merit in this Letters Patent Appeal and, accordingly, L.P.A No. 372 of 2022 is dismissed. However, the appellants shall be at liberty to move a Court of competent jurisdiction within next 12 weeks and during this period no coercive action shall be taken by the respondents in respect of 6 decimals land comprised under Plot Nos. 911 and 913, at Mauza Bhuda in Thana No. 48 within Khata No.1, Plot Nos. 911 and 913. (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Amit N.A.F.R