Shiv Deo Singh v. State or Bihar — 1989 DIGILAW 110 (PAT)

JUDGMENT B. P. Singh, J.-In these two writ applications the parties are the same and the impugned order also is a common order disposing of both the matters, namely, B. P. L. E. case no. 1740/72 and B. P. L. E. case no 145 of 1976-77 disposed of by the Collector under the Bihar Public Land Encroachment Act, respondent no. 2. The impugned order is Annexure-6 in C. W. J. C. No. 681 of 1982 (R) and is Annexure-6 in C. W. J. C. No. 725 of 1982 (R). By the impugned order it has been held that the petitioner is an encroacher upon public land and a direction has been made against him for removing the encroachment. I may only observe that C. W. J. C. No. 725/82 (R) was filed on 27.5.82 and was admitted for hearing on 1.7.1982. It appears that petitioner no. 1 Sri Deo Singh filed another writ application which was originally registered as C. W. J. C. no. 186/85 (R). That writ application was filed on 19.2.85 but when the matter ultimately came up before the court for admission, by order dated 22.3.85 the petitioner prayed that writ application may be treated as an application under section 151 read with articles 226 and 227 of the Constitution of India filed in C. W. J. C. 725 of 1982 (R). That prayer was allowed. The aforesaid application has been treated as an application in C. W. J. C. No. 725/82 (R). I find that in this application many facts have been stated which relate to various plots of land; some of them are not even subject matter of the instant two writ applications nor are those plots concerned with the two land encroachment cases which gave rise to the instant writ applications. Many other facts not relevant for the disposal of the instant writ applications have been stated in that application. It must, therefore, be clarified at this stage that B. P. L. E. case no. 1740/72 giving rise to C. W. J. C. 681/82 (R) is concerned with revisional survey plot nos. 2927 and 2935 which have been recorded in the new survey as plot no. 3491 under khata no. 118 of ward no. 12 of Mouza Golmuri in the town of Jamshedpur. Similarly B. P. L. E. case no. 145 of 1976-77 relates to revisional survey plot no. 2927 and 2935 which have been recorded in the new survey as plot no. 3491 under khata no. 118 of ward no. 12 of Mouza Golmuri in the town of Jamshedpur. Similarly B. P. L. E. case no. 145 of 1976-77 relates to revisional survey plot no. 2923 corresponding to new survey plot no. 3488 of Mouza Golmuri. The instant two writ applications are, therefore, concerned with only these two plots of land, namely, new survey plot nos. 3491 and 3488 of Mouza Golmuri. 2. The relevant facts in C. W. J. C. No. 681 of 1982 (R) are that respondent no. 2 namely, the Collector under the Act issued a notice on 5.8.81 to the petitioners asking them to appear and show cause why the aforesaid case be not disposed of on the basis of material available on record. It appears from this notice that respondent no. 2 had received the record of the aforesaid case upon transfer and from the record he found that the petitioner had not taken any steps in the matter after the 8th of January. 1973 and, therefore, the matter had remained pending on account of the petitioner's not filing their show cause or appearing for the hearing of the matter. In response to the aforesaid notice which has been annexed as Annexure-4 to the writ petition, the petitioners filed their show cause, on 5.5.82 which is Anncxue-5. In their show cause, the petitioners stated that the proceeding u/s. 3 of the Bihar Public Land Encroachment Act (in short, to be stated as Act) was not maintainable. The land in-question was not public land and never belonged to M/s. Tata Iron & Steel Co. Ltd. (in short, to be stated as TISCO), nor did it vest in the State of Bihar under the provisions of the Bihar .and Reforms Act. According to them, the land in-question which is a part of new survey plot no. 3491 was raiyati land which had been recorded in the name of the petitioners in the recent survey operations. They claimed to have been paying rent to the State of Bihar and to have been in possession of the land in-question in lawful exercise of their raiyati right. It was further contended in their show cause that the case between M/s TISCO, respondent no. They claimed to have been paying rent to the State of Bihar and to have been in possession of the land in-question in lawful exercise of their raiyati right. It was further contended in their show cause that the case between M/s TISCO, respondent no. 3 and the State of Bihar arising out of the Bihar Land Reforms (Amendment) Act 1972 was pending in the Supreme Court of India and since that matter was pending, it had not been decided as to whether the lands vested in the State of Bihar under the Bihar Land Reforms Act. An objection was alia raised that respondent no. 2 had no jurisdiction to decide any matter which did not relate to a public land or in respect of any land belonging to TISCO, respondent no. 3. Th. petitioners claim that along with their show cause they had also filed documents in support of their case. 3. The impugned order Annexurc-6 dated 8.5.82 was passed by respondent no. 2 holding that the land in-question was public land since it had vested in the State of Bihar under the provisions of the Bihar Land Reform. Act. It was further held that the petitioner were encroachers upon the land which was public land. 4. Against the order of respondent no. 2, dated 8.5.82 Civil Writ Jurisdiction case no. 681 of 1982 was filed by the petitioners. In their writ application, the petitioners claimed to have sale, exclusive and continuous possession of the lands in question. They claimed to have acquired the same from the descendants of the recorded raiyats and also to have constructed a substantial structure thereon in which they have been residing with their family for several years. It has further been stated that in the recent survey record of rights in or about the years 1970-72, the lands have been recorded in the names of the petitioners as new survey plot no. 3491. It is the plea of the petitioners that since they were in actual possession of the lands in question at the time of vesting under the provisions of the Bihar Land Reforms (Amendment) Act, 1972, they applied for assessment of fair and equitable rent u/s. 6 of the Bihar Reforms Act being Revenue Miscellaneous Case no. 9 of 1972-73. The aforesaid case is• still pending in view of the pendency of writ petition no. 9 of 1972-73. The aforesaid case is• still pending in view of the pendency of writ petition no. 301 of 1973 before the Supreme Court of India. They have then referred to the facts of Title Suit no. 497 of 1969 instituted by respondent no. 3 and have contended that the land in-question in the instant writ application is not subject matter of that suit and hence orders passed in that suit can have no effect. It is then stated that the land officer of respondent no. 3, TISCO lodged a report on 10.10.72 before the Officer-in-charge of Golmuri Police Station. On 24.10.72 B. P. L. E. case no. 1740/72 was started and the petitioners were called upon to show cause why the alleged encroachment over portion of plot nos. 2935 and 2927 measuring 33' X 20' be not removed. According to the petitioners since respondent no. 3, TISCO had challenged the provisions of the Bihar Land Reforms (Amendment) Act, 1972 before the Supreme Court of India and the aforesaid writ application was pending wherein an order of stay had been passed on 12th of March, 1973 restraining respondent no. 1 from enforcing any of the provisions of the said Bihar Land Reforms (Amendment) Act, 1972, no further action could be taken in the aforesaid encroachment case. However, respondent no. 2 issued another notice on 5.8.81 Annexure-5 calling upon the petitioners to submit their show cause and be present at the hearing of the application. The petitioners filed their show cause in response to the aforesaid notice and also filed documents in support of their show cause. The grievance of the petitioners is that without affording them any opportunity to adduce evidence in support of their show cause, respondent no. 2 passed the impugned order on the 8th of May, 1982. 5. The relevant facts of the case so far as they relate to C. W. J C. No. 725 of 1982 (R) are that on the reports made by the Anchal Adhikari, Jamshedpur to the Sub-divisional Officer on 2.2.77 and 21.2.77, the S. D. O. called for a report from the Town Administrator of M/s. TISCO, respondent no. 3. The report of the Town Administrator was to the effect that the petitioners were trying to grab plot no. 3488. 3. The report of the Town Administrator was to the effect that the petitioners were trying to grab plot no. 3488. The Land Reforms Deputy Collector issued a notice on 22.2.77 calling upon the petitioners to show cause why they should not be directed to remove the encroachment measuring 50 X 43 on plot no. 3488. By the same notice. further construction on the aforesaid plot was stayed. The petitioners claimed to have filed a show cause on 17.7.77 which is Annexure-4 to the writ application. The show cause filed by the petitioners is a very cryptic show cause in which they stated that the land in-question was raiyati land and not public land. It was further stated that the petitioners had filed rent receipts certified copy of record of rights, certified copy of mutation and order-sheet in support of their contention that the land in-question was raiyati land of the petitioners. The petitioners also contended in their show cause that in view of stay of the operation of the provisions of the Bihar Land Reforms (Amendment) Act, 1972 there was nothing to prove that the land of TISCO or other raiyats vested in the State of Bihar. This is all that is stated in the show cause which the petitioners claimed to have filed and which is Annexure-4 to the writ application. Respondent no. 2 by the same common order directed the petitioners to remove the encroachment from the land in-question. That order has been annexed as Annexure-5 in this writ application. 6. The writ application filed by the petitioners against the order passed in B. P. L. E. Case no. 45 of 1976-77 has been registered as C. W. J. C. 725 of 1982 (R). The facts stated in the C. W. J. C. 681 of 1982 are similar to the facts stated in C. W. J. C. 725 of 1982 (R). It is that the petitioners were in sole, exclusive and continuous possession of the lands comprised within R. S. Plot no. 2923 corresponding to new survey plot no, 3488 of Mouza Golmuri. They have acquired the land from the descendants of the recorded raiyats and had also constructed a substantial structure thereupon and had been residing in the said structure with their• family. 2923 corresponding to new survey plot no, 3488 of Mouza Golmuri. They have acquired the land from the descendants of the recorded raiyats and had also constructed a substantial structure thereupon and had been residing in the said structure with their• family. In the recent survey record of rights in or about the year 1970-72, the land had been recorded in the name of the petitioners as new survey plot no. 3488 under Khata no. 125 of ward no. 12. It is claimed that petitioners being in khas possession of the land at the time of the vesting under the Bihar Land Reforms (Amendment) Act, 1972, they applied for assessment of fair and• equitable rent u/s. 6 of the Bihar Land Reforms Act being Revenue Miscellaneous case no. 9 of 1912-73 which was pending in view of the pendency of the writ petition in the Supreme Court of India filed by M/s. TISCO, respondent no. 3 challenging the constitutional validity of the Bihar Land Reforms (Amendment) Act. 1972. There is a statement in paragraph 6 of the writ application that respondent no. 3, TISCO had instituted a Title Suit no. 497 of 1969 in the court of Munsif, Jamshedpur impleading the petitioners as defendants therein. In that suit; the petitioners have appeared and filed written statement. But it is stated that the subject matter of the suit did not include the land in-question namely R. S. Plot no. 2923. It is then stated that on the basis of reports dated 2.2.77 and 21.2.77 submitted by Anchal Adhikari, Jamshedpur addressed to the S. D. O. the latter called for a report from the Town Administrator of TISCO, respondent no. 3 who recorded that the petitioners were trying to grab the lands of plot no. 3488 (old plot no. 2923) of village Golmuri in the town of Jamshedpur. The petitioners have then stated that respondent no. 3, TISCO has challenged the provisions of the aforesaid Bihar Land Reforms (Amendment) Act. 1972 before the Supreme Court in Writ Petition DO. 301 of 1973. In the writ application, the Supreme Court had passed an order of stay on 12th of March, 1973 restraining the State of Bihar from enforcing any of the provisions of the aforesaid Bihar Land Reforms (Amendment) Act. 1972 before the Supreme Court in Writ Petition DO. 301 of 1973. In the writ application, the Supreme Court had passed an order of stay on 12th of March, 1973 restraining the State of Bihar from enforcing any of the provisions of the aforesaid Bihar Land Reforms (Amendment) Act. The order of stay was later modified to the extent that in respect of properties in the actual physical possession of the State of Bihar the same shall continue in its possession. It is then stated that in view of the aforesaid stay orders the proceedings under the Land Encroachment Act remained pending as the lands involved were admittedly in the actual physical possession of respondent no. 1 (State of Bihar). However, respondent no. 2 issued a show cause notice on 22.2.1977 calling upon the petitioners to show cause why they should not be directed to remove the encroachment over plot no. 3488 (new) over an area measuring 50' X 43' and also restraining the petitioners from proceeding' with the construction work till further orders. The petitioners filed their show cause Annexure-4 to which reference has been made earlier in this judgment. The petitioners also claimed to have filed documentary evidence in support of their show cause. Thereafter, the impugned order Annexure-5 in this writ application which is the same as Annexure-6 in the connected writ application was passed by the respondent no. 2 on 8th of May, 1982 directing him to remove the alleged encroachment. 7. A counter-affidavit has been filed in C. W. J. C. 681 of 1982 (R) on behalf of respondents 1 and 2. It has been stated in the counter-affidavit that the writ petitioners have suppressed material facts and have placed before the Court distorted facts. An objection has been raised that in view of the disputed questions of fact, this Court should not exercise its jurisdiction under Articles 226 and 227 of the Constitution of India. In relation to R. S. Plot no. 2923 it is stated that this plot formed part of vacant land in possession of TISCO, respondent no. 3 and it was recorded in the last survey in the name of respondent no. 3, TISCO in R. S. khata no. 28 as unabad malik. Sofar as . R. S. Plot no. In relation to R. S. Plot no. 2923 it is stated that this plot formed part of vacant land in possession of TISCO, respondent no. 3 and it was recorded in the last survey in the name of respondent no. 3, TISCO in R. S. khata no. 28 as unabad malik. Sofar as . R. S. Plot no. 2935 is concerned it was recorded in the year 1937 at the time of the last survey in possession of one Bhagwan Manjhi as tenant under respondent no. 3, TISCO. A proceeding u/s. 50 of the Chotanagpur Tenancy Act was taken by respondent no. 3 numbered as T. A. Misc. case no. 9/43-44 in which an order was passed in favour of respondent no. 3, TISCO. Pursuant to that order, possession was given to respondent no. 3-TISCO through court on 4.5.44. By reason of order passed u/s 50 of the Chotanagpur Tenancy Act, right, title and interest of, Bhagwan Manjhi stood extinguished and respondent no. 3, TISCO continued in possession of the land since then. It has been denied that the petitioner acquired the lands from the descendants of the recorded raiyats or that they had been residing since then after constructing the substantial building thereon. So far as recent survey operations are concerned, it has been stated that there has been no final publication of the record of rights which was still pending. Therefore, the reliance placed upon by the petitioners upon the entry said to have been made in the recent survey operations was misconceived and misleading since the final record of rights had not yet been published. Photostat copy of the certified copy of the writ of delivery of possession in T. A. Misc. case no. 9/43-44 and the receipt of delivery of possession to respondent no. 3 have been filed as Annexures A and A/1 to the counter-affidavit. It has further been stated that in Revenue Misc. case no. 803 of 1965-66, respondent no. 3, M/s. TISCO was found to be in possession of T.S. Plot no. 2935 and that order was confirmed by the Addl. Deputy Commissioner in Revenue Misc. Appeal no. 40 of 1967-68 by judgment, dated 29.5.68, Annexure-B. It has further been denied that the petitioners were in khas possession of the land in question at the time of vesting of Zamindari under the Bihar Land Reforms (Amendment) Act, 1972. 2935 and that order was confirmed by the Addl. Deputy Commissioner in Revenue Misc. Appeal no. 40 of 1967-68 by judgment, dated 29.5.68, Annexure-B. It has further been denied that the petitioners were in khas possession of the land in question at the time of vesting of Zamindari under the Bihar Land Reforms (Amendment) Act, 1972. It is asserted that at that time respondent no. 3 was in possession. It has further been stated that no rent has been fixed in the names of the petitioners. So far as these two plots are concerned, namely, plot nos. 2929 and 2.935 (old), it is stated that Title Suit no. 497/69 had no concern with these plots. It has then been averred in paragraph 11 that the Supreme Court has already vacated the stay order by its order dated 16.8.82. The petitioners had filed their show cause and fully participated in the proceeding and, therefore, the statements made by them to the contrary in paragraphs 13 to 15 of the writ application were denied. 8. Rejoinder-affidavit has been filed on behalf of the petitioners in which it is stated that in the land encroachment case, the respondents had not adduced any evidence oral or documentary. It is further stated that in the deed of surrender dated 11.1.43 whereby respondent no. 3, TISCO claims to have come in possession of the lands, the plot nos, 2935 and 2923 are not subject matter of such surrender. It is also stated that Title Suit no. 497 of 1969 is still pending. 9. Two questions arise for consideration in the instant writ applications. Firstly, whether the petitioners have title to the lands in question or they are mere encroachers and secondly whether the lands in question are public land. 10. I have deliberately stated the pleadings in some detail referring to the show cause filed on behalf of the petitioners in the land encroachment proceeding before respondent no. 2. In both the cases petitioners claimed to be raiyats of the land in question. They claimed to have come in possession of the land long ago and they further claimed that they had acquired these lands from the descendants of the recorded raiyat. No rent receipts have been filed in respect of these three plots namely R. S. plot nos. 2935 and 2927 (plot no. 3491 new) and R. S. Plot no. 2923 (new survey plot no. No rent receipts have been filed in respect of these three plots namely R. S. plot nos. 2935 and 2927 (plot no. 3491 new) and R. S. Plot no. 2923 (new survey plot no. 3488). The impugned order of respondent no. 2 refers to the filing of rent receipts .in respect of some plots. But those rent receipts do not relate to these plot numbers. They relate to plot nos. 2928, 2960 and 2982 which are not subject matter of these writ applications. The petitioners claimed to have acquired these lands from the descendants of the recorded raiyat. Neither in the show cause filed before respondent no. 2 nor in the writ application filed in this court have they disclosed the nature of the transaction by which they purchased the land in question. It is not known whether they purchased the lands from the raiyats or whether they obtained the lands by any other means. No document of title has been produced by them. Not only this, it is not known when they acquired the land because they have not mentioned anywhere as to the approximate year in which they acquired the hind from the recorded raiyats. Indeed the names of the descendants from whom the lands are said to have been acquired are also not disclosed either in their show cause or in the writ applications. Annexure-l to both the writ applications are the entries in the record of rights based on the recents survey operations in or about the years 1970-72. The respondents have contended that since there has been no final publication of the record or rights, the petitioners could not get any help from Annexure-1. Presumption, if any, attaches to the final publication of the record of rights and not to any draft publication. I had asked learned counsel appearing on behalf of the petitioners as to whether in the final publication their names have been included as against the lands in• question. Learned counsel stated that he could not give any reply in the absence of instruction. 11. So far as title to the land is concerned, it is quite apparent from the facts stated above that the plea of the petitioners is as vague as it can be and there is; therefore nothing to substantiate their claim that they really acquired the land from the recorded raiyats. 11. So far as title to the land is concerned, it is quite apparent from the facts stated above that the plea of the petitioners is as vague as it can be and there is; therefore nothing to substantiate their claim that they really acquired the land from the recorded raiyats. In the absence of any documentary evidence, the claim of the petitioners to title in the lands in question must be rejected. I have no manner of doubt that the petitioners have no title to the plots of land in question and they are mere encroachers. It is not clear when, but at some stage they occupied the lands in question without any semblance of a title. 12. In Land Encroachment Case no. 1740/72 giving rise to C. W. J. C. 681/82 (R), the petitioners have stated in paragraph 14 of the writ application that in support of their show cause they had filed certain documents, namely, the rent receipts, entry of the petitioners' name in the current survey record of rights and certified copy of the order in Title Suit no. 1487/66 and in Miscellaneous case no. 6/69. So far as rent receipts are concerned, I have already observed that those rent receipts do not relate to the plots of land in-question. So far as the entry in the current survey record of rights is concerned, it was not disputed that no final publication has been made. Even the presumption attaches only to the final publication of the record of rights and not to any draft publication. The certified copy of the order of Title Suit no. 1487/66 can also be of no help to establish the title of the petitioners as found by Collector under the Act. The judgment in Title Suit no. 1487/66 was set aside ill appeal by the Addl. District Judge in Title Appeal no. 67 of 1967. The petitioners cannot rely upon a judgment and decree which has been set aside in appeal. So far as the certified copy of the order dated 25.6.69 in Miscellaneous case no. 6/69 is concerned, the order relates to a proceeding u/s. 146 (1) of the Code of Criminal Procedure. So far as plots involved in this writ application are concerned they were not the subject matter of Miscellaneous case no. 6 of 1969. That order also can obviously be of no help to the petitioners. 6/69 is concerned, the order relates to a proceeding u/s. 146 (1) of the Code of Criminal Procedure. So far as plots involved in this writ application are concerned they were not the subject matter of Miscellaneous case no. 6 of 1969. That order also can obviously be of no help to the petitioners. It can, therefore, be concluded that so far as documents filed by the petitioners in support of their show cause are concerned, none of the documents support the title of the petitioners to the plots of land in question. 13. In B. P. L. E. case no. 145 of 1976-77 giving rise to C. W. J. C. 725 of 1982 (R), the only plot of land involved is R.S. Plot no. 2923 (new S. P. 3488). In paragraph 14 of the writ application; the petitioners have referred to the documents filed by them before the Collector under the Act in support of their show cause. The first document referred to is the new survey record of rights showing the names of the petitioners, recorded against new S. P. No. 3488. As observed earlier, this is not a final publication and hence is of no value to the petitioners. They have then referred to the certified copy of the order in Mutation case no. 81 of 1971-72. This is really an application for fixation of rent and the proceeding is still pending. In this view of the matter, this document is of no assistance to the petitioners. Lastly the petitioners have referred to the certified copy of the order dated 25.6.69 in Misc. case no. 6/69. This Miscellaneous case relates to a proceeding u/s. 146 (1) of the Code of Criminal Procedure. No doubt one of the plots involved was R. S. Plot no. 2923 corresponding to new survey plot no. 3488. The order of the learned Munsif u/s. 146 (1) of the Code of Criminal Procedure declared possession of the petitioners in respect of the plot in question as on the date of the initiation of the proceeding u/s. 145 Cr. P. C. that is, in the year 1967. The Collector under the Act has dealt with this document at length and has held that the finding in Misc. case no. 6/69 was greatly influenced by the finding recorded in the Title Suit no 1487/66. P. C. that is, in the year 1967. The Collector under the Act has dealt with this document at length and has held that the finding in Misc. case no. 6/69 was greatly influenced by the finding recorded in the Title Suit no 1487/66. Later the judgment and decree in T. S. No. 1487 of 1966 was set aside in Title Appeal no. 67 of 1967 by the Addl. District Judge. Hence, apart from the fact that the finding u/s. 146 (1) of the Code of Criminal Procedure could not support the title of the petitioners, but only their possession, the setting aside of the decree passed in even the basis on which that order was passed was subsequently removed by Title Suit no 1487 of 1966. It is, therefore, apparent that none of the documents relied upon by the petitioners support their title to the plot of land in question. I have, therefore, no hesitation in coming to the conclusion that there is no material disclosed either in their show cause or in the writ applications upon which the petitioners can even claim prima facie title to the plots or land in question. The documents relied upon by them are alia of no assistance as discussed earlier. 14. I may, however, notice the fact that in the writ application being C.W.J.C. No. 725/ 82(R) in paragraph 6 it has been stated that respondent no. 3 had instituted Title suit no. 497/69 in the court of Munsif at Jamshedpur in which the petitioners are the defendants. That 9uit is still pending but R.S. Plot no. 2923 did not form subject matter of that suit. I, however, find that in their application which has been treated as an application under section 151 of the Code of Civil Procedure read with Articles 226 and 227 of the Constitution of India, in paragraph 9 it has been stated that the respondent no. 3, TISCO has filed Title Suit no. 497/69 for a declaration that the defendants of that suit (petitioners herein) had no right, title and interest in plot nos. 2923 and 2959. The averments in paragraph 9 of this application are clearly contrary to the averments made in paragraph 6 of the writ application. This only shows the care that the petitioners have bestowed while stating facts in the writ application. However, if R.S. Plot no. 2923 (new survey plot no. 2923 and 2959. The averments in paragraph 9 of this application are clearly contrary to the averments made in paragraph 6 of the writ application. This only shows the care that the petitioners have bestowed while stating facts in the writ application. However, if R.S. Plot no. 2923 (new survey plot no. 3488) is subject matter of Title Suit no. 497/69 pending in the court of Munsif, Jamshedpur, that suit must proceed in accordance with law and must be decided on the merits of the claims of the rival parties. 15. I cannot help observing that the copy of the impugned order filed in both the writ applications is not a correct copy of the order passed by the Collector under the Act. One is bound to be misled by the copy of the impugned order annexed to the writ applications. Since I had some difficulty in appreciating the said order. I had to refer to the original record of the case and from the original order I found that the copies produced by the petitioners with the writ applications were inaccurate and misleading. Some part of the order is not at all to be found in the copies filed by the petitioners. Moreover, the number of the matters/cases given in the copy furnished by the petitioners is to a great extent incorrect and if one were to proceed on the basis of copies furnished by the petitioners, one was bound to be misled. This is rather unfortunate. 16. It was contended by learned counsel appearing on behalf of the petitioners that intricate and complicated questions of title could not be gone into by the Collector under the Act since the proceeding under the Act is a summary proceeding. I have found that the petitioners have not even a semblance of title to the plots in question. No question, therefore, of complicated and intricate questions of title arises in the instant case. If the petitioners had produced some evidence which even prima facie established title of the petitioners, the submissions urged by the learned counsel could I have been seriously considered. That not being the case, there is no factual basis for the aforesaid submission. It further appears from the record that only in or after the year, 1972 the petitioners started raising some structures over the encroached portions of the plot. That not being the case, there is no factual basis for the aforesaid submission. It further appears from the record that only in or after the year, 1972 the petitioners started raising some structures over the encroached portions of the plot. This is apparent from Annexure-1 filed by the petitioners themselves in which plot no. 3491 was recorded as 'parti' and plot no. 3488 as 'doni' in the years 1970-1972. Even the reports which gave rise to' the proceedings under the indicate that only after the year 1972, the petitioners started constructing upon the encroached portions of the lands in question. It is also on record that in Title Suit no. 497 of 1969, for disobeying the order of injunction, petitioner no. 1 was ordered to be detained in civil prison and that order was upheld by the Supreme Court as well. 17. The next question is as to whether plots of land in question are 'public land' within the meaning of the Act. According to respondents 1 and 2 who have filed their counter affidavit in C. W.J.C. No. 681 of 1982 (R), R. S. Plot no. 2927 was recorded in the name of respondent no. 3 in the revisional survey record of rights published in the year, 1937. Only in respect of plot no. 2935, one Bhagwan Manjhi has been recorded as a tenant. However, the proceedings u/s. 50 Chotanagpur Tenancy Act was taken by respondent no. 3 TISCO and in that proceeding respondent no. 3 TISCO got possession of the land and the right, title and interest of the tenants was extinguished. This was done fully in accordance with the provisions of section 50 of the Chotanagpur Tenancy Act. The actual delivery of possession was made on 4.5.44. It has further been claimed that even at the time of vesting of the Zamindari under the provisions of the Bihar Land Reforms (Amendment) Act, 1972, respondent no. 3 was in possession of the land in question. Respondent no. 2, the Collector under the Act has found these facts to be correct and it is held that since the lands in question vested in the State of Bihar under the provisions of the Bihar Land Reforms (Amendment) Act, 1972, the lands were public land within the meaning of the Act and hence he had jurisdiction to pass the impugned order. I may take judicial notice of the fact that the writ petition pending before the Supreme Court of India wherein respondent no. 3 had challenged the constitutional validity of the Bihar Land Reforms (Amendment) Act, 1972 has since been withdrawn. This bas been brought to the notice of this court in a large number of cases. One must, therefore, proceed on the basis that Bihar Land Reforms (Amendment) Act, 1972 is a valid piece of legislation and has taken effect after the stay order passed by the Supreme Court of India was vacated. 18. So far as petitioners are concerned, in their show cause filed before respondent no. 2 in C.W.J.C. No. 681/82 (R) they have contended that the lands did not belong to respondent no. 3 nor did it vest in the State of Bihar under the provisions of the Bihar Land Reforms Act. But it has again been contended in paragraph 5 of the show cause that since the writ petition filed by respondent no. 3 was pending before the Supreme Court of India, the question as to whether the land vested in the State of Bihar or not had not been decided. In fact, their plea appears to be, as is clear from paragraphs 7 and 8 of the show cause submitted by them, that till the matter was finally decided by the Supreme Court, it could not be said that the lands vested in the State of Bihar. Learned counsel for the petitioners submitted that since the lands had been acquired under the provisions of the Land Acquisition Act for the purpose of respondent no. 3, the provisions of the Bihar Land Reforms Act do not apply and hence it cannot be said that the plots of land vested in the State of Bihar. In view of the order I propose to pass, I need not express any opinion on this question. He secondly submitted that in view of the stay order passed by the Supreme Court staying the operation of the Bihar Land Reforms (Amendment) Act, 1972, the proceeding under the Act on the assumption that the plots of land in question were public land was wholly without jurisdiction. This submission does not hold good in view of the disposal of the writ petition. This submission does not hold good in view of the disposal of the writ petition. Thirdly he submitted that in view of the fact that the lands were originally recorded in the name of one Bhagawan Manjhi unless it was established that the right of that Bhagwan Manjhi came to an end, the land could not acquire the nature of a public land. So far as this submission is concerned, it can be disposed of at this stage since there is a clear finding that respondent no. 3 took proceeding u/s. 50 of Chotanagpur Tenancy Act and obtained the lands from the recorded raiyat as early as in the year 1944. The fourth submission advanced by the learned counsel was that in view of the order passed by the Addl. Collector Annexure-6 in C.W.J.C. 725/82 (R) that land did not vest in the State of Bihar, the petitioner must be taken to be the raiyat of the plot in question so long as the order was not set aside. This order is dated 27.10.84. This was filed for the first time in this Court and had not been considered by the authorities under the Act. The petitioner cannot be permitted to challenge the order of the Collector under the Act passed in exercise of quasi-judicial ~authority on the basis of some document which was not produced before the authority obviously because the validity of exercise of such authority must be judged only by reference to the material before it and not by reference to any thing which it had no occasion to consider. Moreover, I find from that order that the findings recorded therein are contrary to the case of the petitioners in the instant writ application. The Addl. Collector had found in his order Annexure-6 that the petitioners were carrying on cultivation on the land in-question and that the land was agricultural land. The petitioners had, therefore, acquired occupancy rights and that in the recent survey khatian, the lands had been recorded in their names. He had, therefore, come to the conclusion that by reason of he amendment, the petitioners as raiyats had become tenants and shall pay rent to the' State. This proposition of law is also incorrect as would appear from the judgment of the Supreme Court to which reference will be made later in this judgment. For all these reasons, this submission must also by rejected. This proposition of law is also incorrect as would appear from the judgment of the Supreme Court to which reference will be made later in this judgment. For all these reasons, this submission must also by rejected. 19. The fifth submission of the learned counsel was that the finding that there were sewage pipes underneath the construction sought to be raised by the petitioners, was not supported by any evidence on record. It is not necessary for me to go into this question, because if the land is public land, it matters little whether there are sewage pipes underneath. The 6th submission urged by the learned counsel was that respondent no. 3 had not filed any documents as stated in the impugned order of the Collector under the Act and therefore, consideration of such document was irrelevant and extraneous. It is not possible to accept this submission of the petitioner when there is a categoric statement in the order of the Collector that the pal ties had filed documents in support of their respective cases. Lastly it was submitted that the impugned order bad been passed without giving any opportunity to the petitioners to establish their case and was, therefore, in violation of the principles of natural justice. This submission must also be rejected since it is quite apparent that the petitioner filed his show cause in the proceeding and part in the proceeding. Now that the order has gone against him, such a plea has been raised. 20. However, the question that still survives consideration is as to whether the lands in question are public land. It appears that in view of the stay order granted by the Supreme Court in the writ petition filed by respondent no. 3 challenging the constitutional validity of the Bihar Land Reforms (Amendment) Act, 1972, large number of such writ applications were admitted in this Court on the ground that since the provisions of the Act could not be enforced in view of the stay order passed by the Supreme Court, proceedings under the Bihar Public Land Encroachment Act in respect of such land could not proceed on the assumption that such lands vested in the State of Bihar. Since the stay order was in force, such writ applications were admitted in this Court. Now that the writ application preferred by respondent no. Since the stay order was in force, such writ applications were admitted in this Court. Now that the writ application preferred by respondent no. 3 has been withdrawn, it must be held that the Bihar Land Reforms (Amendment) Act, 1972 is a valid piece of legislation and that under the aforesaid Act vesting has taken place in the State of Bihar. It is, however not clear from the record as to whether the plots in question have vested in the State of Bihar under the provisions of the Act. This matter still requires to be investigated and for this purpose a remand is warranted. I may, however, make the legal position dear. 21. Under the Bihar Land Reforms Act if the plots of land have vested in the State of Bihar, the State of Bihar is entitled to actual possession of the plots of lands which have so vested. It is erroneous to assume that the trespassers or encroachers who were in possession of the plots of land in question on the date of vesting can continue as tenants under the State of Bihar. The Supreme Court in the case of Gurucharan Singh v. Kamla Singh (A.I.R. 1977 Supreme Court 5) observed as follows : "There is a disturbing feature about this case. We have already indicated how there is an apparent indifference on the part of the State in securing its rights granted by the Act. Here is a case where the defendants, first party, are rank trespassers and have no evident equity in their favour. Section 4 (f) declares that tile Collector shall be deemed to have taken charge of the estates and interests vested in the State. This means he has a public duty to take charge of lands vested in the State. Surely, a responsible public officer like the Collector, charged with a duty of taking delivery of possession of lands which by virtue of the vesting the State is entitled to take direct possession of, will proceed to dispossess the trespasser. In this case, defendants, first party, are trespassers and the plaintiff being out of the pale of section 6, the State is entitled to the direct possession of the suit lands. We expect the Collector to do his duty by section 4 (g). In this case, defendants, first party, are trespassers and the plaintiff being out of the pale of section 6, the State is entitled to the direct possession of the suit lands. We expect the Collector to do his duty by section 4 (g). Counsel for the respondents drew our attention to rule 7-H. "7-R. How to deal with cases in which proprietor, etc., not found in possession on the date of vesting-If the Collector holds on the report of enquiry held under Rule 7-E or 7-F that the outgoing proprietor or tenure-holder, or his temporary lessee or mortgagee, was not in possession of the lands or buildings referred to in Rule 7-C, he shall fix the fair rent or ground-rent thereof in the manner prescribed in these rules and the person who may be found to be in possession of such land or buildings shall thereupon be liable to pay the rent or ground-rent so fixed to the State Government with effect from the date of vesting.' Although we need not elaborately study the implications of this provision, it is fairly clear that this rule does not confer any right or equity to be in possession in favour of a trespasser. All that it does is to make the man in possession, be he trespasser or not, 'liable to pay the rent or ground-rent so fixed to the State Government with effect from the date of vesting.' It is the liability to pay rent that is created, not the equity to claim possession. After all, the land reform measure is intended to conserve as much land as is available in the hands of the State and any trespasser who distorts this claim and snatches possession, cannot benefit by his wrong. May be, there are special circumstances which may persuade the State to give possession of any land either to its erstwhile proprietor or to one who has been in long possession rightly or wrongly. We do not make any observation in that behalf but point out that prima facie S. 4 (f) and (g) and Rule 7-H attract the jurisdiction of the State and its revenue authorities. We do not make any observation in that behalf but point out that prima facie S. 4 (f) and (g) and Rule 7-H attract the jurisdiction of the State and its revenue authorities. The policy of the Act includes the State taking over and managing lands not saved by Sections 5, 6 and 7 and are not found to be in possession of the proprietor so that the eventual distribution to the landless and the like may be worked out smoothly." 22. In view of the authoritative pronouncement of the Supreme Court, if it is found that the plots of land vested in the State of Bihar under the provisions of Bihar Land Reforms Act, it is the duty of the Collector under the Act to fake possession of the lands which by virtue of the vesting, the State is entitled to take direct possession of for this purpose he can invoke the provisions of the Bihar Public Land Encroachment Act. It is also clear that the trespasser found in possession does not ipso facto become a tenant under the State of Bihar. He only becomes liable to pay rent to the State of Bihar for the period during which he continued in possession after the vesting of the land in the State of Bihar. It is open to the State of Bihar to deal with such lands as owner thereof, and there is no compulsion on the part of the State to settle the land with the persons found in possession thereof as trespassers. In the instant case, the petitioners have failed to produce any evidence in support of their title. Even if their possession is assumed, that does not confer any right or equity upon them to be treated as tenants under the Bihar Land Reforms Act. Whether the lands in question have vested or not in the State of Bihar under the Bihar Land Reforms Act, is a matter with which respondent no. 3 and the State of Bihar are primarily concerned. 23. I, therefore, remand this matter to the Collector under the Act only for the limited purpose of finding, after hearing all the parties concerned including respondent no. 3, as to whether the plots involved in the instant two writ applications have or have not actually vested in the State of Bihar under the Bihar Land Reforms Act. 23. I, therefore, remand this matter to the Collector under the Act only for the limited purpose of finding, after hearing all the parties concerned including respondent no. 3, as to whether the plots involved in the instant two writ applications have or have not actually vested in the State of Bihar under the Bihar Land Reforms Act. If he finds that the plots have vested in the State of Bihar, the proceeding under the Bihar Public Land Encroachment Act will be fully justified, and he will pass appropriate orders for the removal of the encroachments. If, however, he comes to the conclusion that the plots in question never vested in the State of Bihar, he shall leave the parties to seek their remedy before an appropriate forum. This writ application is allowed to the extent that impugned order (Annexure-6 in C.W.J.C. 68l/82 (R) and Annexure-5 in C.W.J.C. 725/82(R) is set aside and the matter remanded to the Collector under the Bihar Public Land Encroachment Act, Jamshedpur/Deputy Collector in-charge Tata Zamindari to record a finding as to whether the plots in question have actually vested in the State of Bihar and, then, to pass appropriate orders in accordance with the directions contained in this judgment.