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2005 DIGILAW 1021 (PAT)

Shyam Sundar Dhudhwawala v. State Of Bihar

2005-11-29

BARIN GHOSH

body2005
Judgment 1. In this Writ Petition, a challenge has been thrown to the order dated 30th June, 2004 passed by the Collector, Patna in L.E. Appeal No. 4 of 2002-2003 whereby the order dated 19th February, 2003 passed by the Circle Officer in Encroachment Case No. 8/2002-2003 was confirmed. 2. There is no dispute that the structure which had been directed to be removed is situate on the Khas Mahal land of the Government of Bihar. It is the case of the petitioner that the grandfather of the petitioner, after purchase of a piece of land, applied to the Patna Administration Committee for granting permission to construct house and after grant of permission initiated house construction in 1946. It is the further contention of the petitioner that in front of the land so purchased, a piece of vacant Khas Mahal land bearing Survey Plots No. 115, 156, 157 & 158, Khata Nos. 126 & 868, Thana No. 6 in the same Mauza was available. It is also the case of the petitioner that on an area of 2.5 Kathas of the said piece of vacant Khas Mahal land, the grand father of the petitioner constructed a few pucca rooms and used them as Godown. It is stated that on 3rd December, 1963, Patna Municipal Corporation granted permission to construct pucca structure on the said land. The petitioner has relied upon the permission that was so granted. The permission appears to have been granted by the Assistant Engineer, Patna Municipal Corporation whereas in terms of Section 233 of the Patna Municipal Corporation Act, 1951, only the Chief Executive Officer of the Patna Municipal Corporation could grant permission to erect or re-erect. Apart from that, the petitioner has relied upon a letter issued by the Executive Officer, Patna, Water Board granting approval of the plan for house connection. The permission speaks of new domestic connection whereas admittedly the structures were godowns. That apart while the plan for such domestic connection was approved, the letter of approval did not indicate the premises. The petitioner is also relying on documents pertaining to deposit of municipal rates and taxes. These documents do not specify the premises for which such rates and taxes had been deposited. In one of those receipts, the Circle and Mohalla is one and in another the Circle and Mohalla is other. The petitioner is also relying on documents pertaining to deposit of municipal rates and taxes. These documents do not specify the premises for which such rates and taxes had been deposited. In one of those receipts, the Circle and Mohalla is one and in another the Circle and Mohalla is other. It was the case of the petitioner before the authorities concerned that the petitioner is in possession of the land in question since more than 30 years, and as such has perfected his right, title, interest and possession by adverse possession under Article 111 of the Limitation Act, 1963 . This has not been accepted and accordingly the same is being reagitated in the instant writ petition. The case of possession is founded on the construction of the structure. 3. On record, there is no evidence that the petitioner was in possession of the land in question for more than 30 years before the date of commencement of the encroachment proceedings, except the permission granted by the Patna Municipal Corporation, as mentioned above. Apart from the fact that the said permission is an invalid permission granted by a person not competent to grant the same, but even assuming that the said permission is acceptable as a valid permission, that only permitted construction but cannot be treated to be an evidence of construction. Then again what was permitted to be constructed has not been recorded in the permissio and the approved plan has not been produced. It is any bodys guess as to when such construction was made on the basis of the said permission granted on 3rd December, 1963. 4. As aforesaid, approval of the plan for water connection talks about a domestic connection and not of a commercial connection, which can be had for godowns. The said approval does not refer to any particular premises. The said document, therefore, is no evidence that as on the date of grant of the said approval i.e. 21st December, 1963, the structure was in existence. The rates and taxes said to have been deposited by the petitioner or his family members, as aforesaid, do not suggest that the same were deposited in respect of the structure with which we are concerned. Those may be for the structure which has been constructed on the land purchased by the grandfather of the petitioner. The rates and taxes said to have been deposited by the petitioner or his family members, as aforesaid, do not suggest that the same were deposited in respect of the structure with which we are concerned. Those may be for the structure which has been constructed on the land purchased by the grandfather of the petitioner. Even assuming those relate to the structure with which we are concerned, but one of them having been issued on 18th March, 1989 and the other on 14th July, 2002, it is not established that the struclure was in existence for more than 30 years, before initiation of the encroachment proceedings. 5. In order to establish accretion of right by adverse possession, the claimant is required to demonstrate that he is in uninterrupted peaceful continuous use, enjoyment and possession of the land in question and such use, enjoyment and possession was open, hostile and adverse to the person entitled in law to possess the same. In relation to such a claim, complicated questions of facts and law arise. In such view of the matter, in a summary proceedings initiated under the Land Encroachment Act, if it appears, prima facie, that such case has been made out, it is now well settled that the same should not be concluded therein for such a forum is not convenient to settle such complicated questions of law and facts, and it would be appropriate to leave the matter to be decided by a full trial. 6. As aforesaid, there is no, prima facie, evidence on record to suggest that the petitioner may have been in possession of the land in question for the period for which he was required to continuously use, enjoy and possess the same, i.e. for a period in excess of 30 years before the land encroachment proceeding was initiated, as admitted by him, and as such there is no reason to interfere with the order. 7. The learned counsel for the petitioner submitted, upon placing reliance on the Special Bench judgment of this Court rendered in Brij Bhukhan Kalwar & Ors. V/s. The State of Bihar & Ors., (AIR 1955 Patna page-1) that a private individual can acquire and perfect title to a land belonging to the State by being in adverse possession of the same for more than the statutory period. V/s. The State of Bihar & Ors., (AIR 1955 Patna page-1) that a private individual can acquire and perfect title to a land belonging to the State by being in adverse possession of the same for more than the statutory period. In that case, the Court was not considering whether conceptually it is possible for an individual citizen to acquire title to a land belonging to the State by adverse possession. Although for the reasons, as indicated above, it is not a fit case to decide whether conceptually the same is possible but I would make an endeavour to look at the law to ascertain whether, in fact, the law permits the same. 8. There is no dispute that in our country there was and still is a concept of right to property. This right is that right which is recognized by law. There is no dispute that law of this country recognizes tangible, intangible, moveable as well as immovable properties. There cannot be any dispute that a right to an immovable property is a recognized right. The question, however, is what is the extent of such recognition. In order to find out the answer to that question, one is required to look at the recognized right of the State in an immovable property. In order to do so, one is required to ascertain what the "State" means. Simply put, "a State" is a society ruled by law living on an earmarked surface of the planet Earth." That surface alone is not the "State". The society as well as that earmarked surface of the Earth is the "State". Both of them together is the "State". 9. When the rule of law governing the State authorizes each member of the society to have a say in the matter of making such rule of law either individually or collectively or directly or indirectly, the State is a domestic State. The Government of such a State is authorized to govern the State and accordingly is empowered to govern the society as well as the surface of the earth upon which the State has been established. Conceptually, therefore, the entire land of a democratic State belongs to that society. Each member of such society is collectively and individually in possession of such land. Conceptually, therefore, the entire land of a democratic State belongs to that society. Each member of such society is collectively and individually in possession of such land. When the society by use of the rule of law made by it authorizes an individual member of such society to be in exclusive possession of a part of such land, such an individual member of the society becomes entitled to exclusive possession thereof. This, in the common parlance, is known as the right of property of that individual in that land. In order to acquire such property right, he is required to obtain grant from the State. If no such grant is given in respect of a piece of land belonging to the State to an individual, each member of the society comprising the State individually as well as collectively is in possession of such land. If that is the concept then question of one member of such society claiming adverse possession by being in possession without a grant cannot claim right to possess on the basis of adverse possession for he cannot claim adverse possession against himself. The concept that the land belongs to the Government is inappropriate. The Government is merely an agent of the State. The land, in fact, belongs to the State, and the State i.e. the society is entitled to possess the same. Conceptually, therefore, it does not appear to me that a member of the society comprised in a democratic State can claim title by adverse possession of a land belonging to the State. 10. The Writ Petition fails and the same is dismissed.