Uday Kumar v. State Of Bihar — 1975 DIGILAW 192 (PAT)

Judgment 1. This appeal is directed against an order under Sec. 6 of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as andapos;the Actandapos;) directing the appellant to remove the encroachment from a piece of land measuring 25 ft. X 30 ft. that is, 750 sq. ft. in area to the north of the Elphinston Cinema House and to the south of the premises occupied by the Patna Electric Supply Undertaking in the City of Patna to the north-east of Gandhi Maidan by the 15th of March, 1975. 2. The proceeding, it appears, was started at the instance of the Deputy Collector incharge Land Reforms, Patna, and was registered as Land Encroachment Case No. 116 of 1974-75. According to the authorities the said land belonged to Khas Mahal of the Government and the petitioner had encroached upon it without any settlement from the Government. 3. The case of the appellant was that he had taken settlement of that piece of land from the authorities of the Patna Municipal Corporation and had paid a sum of Rs. 1687.50 paise. He claims that the land is flank of a road and, as such, the Patna Municipal Corporation had authority to settle it with the appellant. The learned Deputy Collector Incharge Land Reforms has rejected this plea of the appellant and held that as the land belonged to Khas Mahal, the Patna Municipal Corporation could not settle the land with the appellant and on the basis of that settlement the appellant could not claim any right to the land. Accordingly, he has passed the order which is the subject-matter of this appeal. 4. Mr. Basdeo Prasad, appearing on behalf of the appellant, has urged two points in support of the appeal. Firstly, he has submitted that in a case like the present one where the settlement was made in favour of the appellant by the Corporation-a statutory authority, the Act was not applicable and, at any rate, a proceeding under the Act could not be initiated without making the Patna Municipal Corporation a party to the proceeding. Firstly, he has submitted that in a case like the present one where the settlement was made in favour of the appellant by the Corporation-a statutory authority, the Act was not applicable and, at any rate, a proceeding under the Act could not be initiated without making the Patna Municipal Corporation a party to the proceeding. He has also contended that in view of the provisions of Section 79 of the Patna Municipal Corporation Act, 1951 (hereinafter referred to as andapos; the Corporation Actandapos;) the Patna Municipal Corporation has authority to settle the land with the appellant, and, if there was any dispute with regard to the title of the land, that could be decided only by the Collector of the district as provided in Section 75 of the Corporation Act. Section 79 of the Corporation Act exempts private property or property vested in other local authority, but, according to the case of the respondent-State, this property belongs to the State and thus vested in it. Mr. Prasad attempted to urge that as the property was part of a street, it will come under clause (a) of Section 79. On the materials on the record, we are not satisfied that the land settled with the appellant is a street or part of a street. From the petition filed by the appellant which has been made Annexure - 3 to the memorandum of this appeal, it appears that he himself described the land settled with him as lying to the north of the Elphinston Cinema and south to the premises occupied by the Patna Electric Supply Company. He did not claim in that petition that it was a street or a road or a flank of a road or street. It is, therefore, not possible to accept the contention of Mr. Basdeo Prasad at the appellate stage that the land settled with the appellant was a street. On behalf of the State, an extract from the Patna City Municipal survey records has been filed showing that the land in dispute was recorded as the land of the Secretary of State for India in Council. Extracts from the survey records of rights have also been filed which show that the Land was recorded as belonging to Kaishar-Hind. From the documents, it appears that the property was vested in the State. Section 9 of the Act lays down. " ...... Extracts from the survey records of rights have also been filed which show that the Land was recorded as belonging to Kaishar-Hind. From the documents, it appears that the property was vested in the State. Section 9 of the Act lays down. " ...... Where the land is recorded in any public or other official book, register or record or survey under the Bengal Survey Act, 1875 (Bengal Act V of 1875), or other local or special law as belonging to the Government, local authority, public undertaking, educational institution or railway company...... the burden of proving that the land is not public land or has ceased to be public land shall lie on the person who raises such a defence". In the circumstances, it was for the appellant to prove that the land belonged to the Patna Municipal Corporation and the appellant has not been able to discharge the onus. So far as Section 75 of the Corporation Act is concerned, that applies only to Municipal street, park or market. It has already been held that the land in dispute is not a Municipal street and it is not the case of the appellant that it is a Municipal park or market. That section cannot apply to this land. Accordingly we find no substance in this contention of Mr. Prasad. 5 Mr. Prasad has secondly contended that as the procedure laid down under the Act was not followed, the order is bad. In support of this contention, he has drawn our attention to Sec.3 of the Act which provides for a notice in a prescribed form requiring the person who has encroached to show cause on a date to be specified in the notice why "encroachment shall not be removed" and that "such date shall not be less than thirty days from the date of the service of the notice". He has also drawn our attention to Sec.6 of the Act which lays down that "after hearing the persons concerned and taking other evidence, if any, under Sec. 5 and after making such further enquiry as he deems necessary, the Collector may, as the circumstances of the case require" pass orders of the nature contemplated under that section. He has also drawn our attention to Sec.6 of the Act which lays down that "after hearing the persons concerned and taking other evidence, if any, under Sec. 5 and after making such further enquiry as he deems necessary, the Collector may, as the circumstances of the case require" pass orders of the nature contemplated under that section. According to the own case of the appellant, he did appear in the proceeding after a notice upon him was served injuncting him from proceeding with the encroachment any further and he filed a show cause. That show cause has already been referred to and, as stated earlier, has been made Annexure - 3 to the memorandum of appeal. It was show cause meant not only to object to the order of injunction but it was a show cause to the proceeding for encroachment itself. In the circumstances, it is not open to the appellant to urge that the proceeding is bad for want of notice. It is well settled that if a person appears in a proceeding and actively participates therein, it is not open to him to urge that the proceeding is without jurisdiction for want of notice. If any authority is needed, reference may be made to the well-known judgment of Rankin, C. J. in Chandra Nath Bagchi V/s. Nabadwip Chandra Dutt (AIR 1931 Cal 476). In spite of the judgment of the Privy Council in Raghunath Des V/s. Sundar Das Khetri (AIR 1914 PC 129) that in the absence of a notice under Order 21, Rule 22 of the Code of Civil Procedure the sale will be held without jurisdiction, it was held in the aforesaid case by Rankin, C. J. that as the judgment-debtor after receiving notice under Order 21, Rule 66 had appeared in the execution proceeding and participated therein, he could not urge that the sale was bad for want of notice under Order 21, Rule 22 of the Code. The appellant, therefore, cannot claim in this case that the order is without jurisdiction as no notice required by sub-section (1) of Sec.3 of the Act was issued or served upon him. The appellant, therefore, cannot claim in this case that the order is without jurisdiction as no notice required by sub-section (1) of Sec.3 of the Act was issued or served upon him. The appellant also cannot make a grievance that Sec. 6 of the Act was not complied with for it appears from the order itself that the appellant was fully heard before the order was passed and all the contention advanced on his behalf have been considered in the order. It is not the case of the appellant that he wanted to lead any evidence and he was refused the opportunity to lead such evidence. Therefore, there has been no violation of Sec. 6 of the Act and the order of the Deputy Collector Incharge Land Reforms who is a Collector within the meaning of the term as defined in the Act cannot be held to be bad. Thus, there is no substance in this contention either. 6. In the result, the appeal fails and is dismissed but in the circumstances of the case without costs.