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2012 DIGILAW 133 (PAT)

Parmanand Singh @ Parma Singh v. State of Bihar

2012-01-23

RAVI RANJAN

body2012
ORDER Through this writ application the petitioner seeks quashing of the orders dated 10.12.2005 and 10.07.2006, whereby the respondent no. 2, the Collector, Gopalganj has directed the Circle Officer, Uchkagaon, respondent no. 5, to make spot verification and remove the encroachment and thereafter submit a report before him. 2. Though the order does not disclose that the encroachment has to be removed from which plot, however, in view of the stand of the parties and earlier order passed by this Court, it appears that the same has been directed to be removed from khesra nos. 1444 and 1445 appertaining to khata no. 2009. 3. It has been submitted on behalf of the petitioner that the land appertaining to khesra no.1444 stands recorded in the records of right as “Gair Majarua Dih Basgit Malik Land” with a note that it is rent fee land and the “Malik” would not have a right to evict the raiyat or his descendants. So far khesra no.1445 is concerned, it is stated that the same stands recorded as “Dih Basgit-house along with Saahan” in the khas possession of the landlord and upon a part thereof Hathua Raj had constructed a “Sajawali Kutchery”. It is further submitted that similar entry is regarding this land also that the land would be rent free and the landlord will have a right to evict the raiyat or his descendant(s). It is also the case of the petitioner that his ancestors had acquired possession over the aforesaid land from the ex-landlord, i.e., Hathua Raj by Sada Pattas dated 06.04.1932 and 06.07.1933 after payment of ‘Najrana’ and as such, the petitioner’s ancestors came in possession of 8 decimals of plot no.1444 and 9 decimals of plot no. 1445 both appertaining to khata no. 209. The petitioner claims that a house was constructed after coming into possession upon plot no. 1445. Thus, it is contended that the nature of the land was never as of public land. Petitioner?s ancestors and thereafter the petitioner, as claimed by him, had been residing peacefully by constructing residential house, Naad, Khuta, Palani, hand-pump and flour mill within the knowledge of all the concerned. However, an encroachment proceeding was initiated at the behest of the respondent no. 6 Bir Pratap Rai in the year 1997 registered as Encroachment Case No. 02/1997-98. It appears that the encroachment was removed and the proceeding was thereafter closed. However, an encroachment proceeding was initiated at the behest of the respondent no. 6 Bir Pratap Rai in the year 1997 registered as Encroachment Case No. 02/1997-98. It appears that the encroachment was removed and the proceeding was thereafter closed. However, Encroachment Appeal No. 15/98 was carried out against the aforesaid encroachment proceeding which was also dismissed holding that it appeared from the records that the encroachment had already been removed and the proceeding had already come to a logical conclusion and also holding that the part of plot nos. 1444 and 1445, title upon which is claimed by the petitioner, has been used by the local people as pathway. Thus, he has given further direction that if there is any encroachment on the pathway the same should also be removed and accordingly, the appeal was disposed of. The aforesaid order passed by the Collector, respondent no. 2, was challenged by filing writ application bearing C.W.J.C. No. 1318 of 1999 and the was disposed of vide order dated 06.11.2003 (Annexure 1). Relevant passage of the aforesaid order is reproduced as under:– “I have heard learned counsel for the petitioners, JC to SC IX for the State and Mr. Mritunjay Prasad Singh for respondent no. 6. In case, the Circle Officer intends to remove any encroachment in pursuance of the order passed by the Collector on 22.12.1998, in respect of the land over which the petitioners claim any right, they shall be given a notice thereof and only thereafter such an encroachment may be removed. In case, such a notice is given to the petitioners, they shall have liberty to assail the same in accordance with law. The application stands disposed of with the liberty aforesaid.” 4. From perusal of the aforesaid order, it appears that a direction was given to the Circle Officer to give a notice to the petitioner if he intends to remove any encroachment pursuant to the order passed by the Collector on 22.12.1998 and if the same is in respect of the land over which the petitioner claims any right. Only thereafter encroachment could be removed. In case, such notice is given to the petitioner he shall have liberty to assail the same in accordance with law. 5. It appears from the ordersheet of the Circle Officer, Uchkagaon that an application was filed by the respondent no. Only thereafter encroachment could be removed. In case, such notice is given to the petitioner he shall have liberty to assail the same in accordance with law. 5. It appears from the ordersheet of the Circle Officer, Uchkagaon that an application was filed by the respondent no. 6 appending therewith a copy of the aforesaid order passed by this Court for removal of encroachment from plot no. 1445 claiming that though the encroachment was removed in the earlier Encroachment Case No. 2/1997-98, however, it has again been encroached by the petitioner. Thereafter, the report was sought from the Halka Karmachari and thereafter the Circle Inspector was directed to make a spot verification and submit the verification report and the Anchal Amin was directed to measure the disputed spot. As would appear from the order dated 25.09.2004 passed by the Circle Officer, the petitioner, as per the report of the Circle Inspector, was found to be encroaching a small portion of plot no.1445, and, thus, notice was issued against him. The petitioner appeared and produced the documents in his favour and the Anchaladhikari himself had made a spot verification and a final order had been passed on 10.12.2004 holding that there has been no encroachment upon the disputed plot nos. 1444 and 1445 as there is no permanent structure thereupon obstructing any pathway. However, it has also been recorded that any pathway passing through the plot nos. 1444 and 1445 was never in existence as per the statement of the local people. The proceeding was dropped holding that there was no encroachment. However, it appears that a petition filed along with a copy of the order dated 06.11.2003 passed by this Court in C.W.J.C. No. 1318 of 1999 before the Collector, Gopalganj, respondent no. 2. Upon that by the order dated 10.12.2005 the respondent no. 5, Circle Officer, Uchkagaon was directed by the Collector to remove the encroachment immediately and he was restrained from drawing his salary unless the order is complied. Thereafter, it appears that the petitioner filed a petition for recall of the said order. Then by order dated 05.01.2006 the earlier order dated 10.12.2005 was stayed holding that it would be necessary to hear the opposite parties also on the point of encroachment. Thereafter, it appears that the petitioner filed a petition for recall of the said order. Then by order dated 05.01.2006 the earlier order dated 10.12.2005 was stayed holding that it would be necessary to hear the opposite parties also on the point of encroachment. The matter remained pending for a long period, however, on 10.07.2006 again an order was passed warning the Anchaladhikari to remove the encroachment and submit a report on 03.08.2006. This was the reason for preferring this writ application. 6. I have heard the parties and perused the records of this case. 7. Counter affidavits have been filed on behalf of respondent nos. 1 to 5 who are the State authorities as well as on behalf of respondent no. 6. A rejoinder to the counter affidavit and two supplementary affidavits have been filed on behalf of the petitioner. 8. The petitioner has raised the following issues at the time of hearing:– (i) The Collector, though has held on earlier occasion that it was necessary to hear the petitioner (opposite party before the Collector) on the point of alleged encroachment has not recorded any reason in the final order dated 10.07.2006 which led him to direct the Anchaladhikari for removal of the encroachment from the plots in dispute. (ii) The lands in question having been settled in favour of the ancestors of the petitioner in the years 1933 and 1936 by execution of Sada Pattas in favour of his ancestor and since the ancestor of the petitioner was coming in peaceful possession of the same and had constructed residential house as well as the petitioner was running a flour mill also, it was not open for the authorities to look into the title of the petitioner and direct for his eviction without assigning any reason for discarding the documents that were produced before the Collector in a summary manner. (iii) Since the Anchaladhikari, in compliance of the order dated 06.11.2003 passed by this Court in C.W.J.C. No. 1318 of 1999, had already passed final order holding that encroachment was not found upon the concerned land, the Collector was not required to re-examine the same upon an application having been filed on behalf of respondent no. 6 as no appeal having been preferred against the original order for about one year, same had attained finality. (iv) Even if treating the application filed by the respondent no. 6 as no appeal having been preferred against the original order for about one year, same had attained finality. (iv) Even if treating the application filed by the respondent no. 6 to be an appeal, the same could not have been allowed on merit by the Collector without condoning the delay being hopelessly time barred. (v) Respondent no. 6 is trying to settle his private dispute regarding right of easement by filing an application for initiation of encroachment proceeding but the same could not have been decided by the authorities as, admittedly, he had filed a suit bearing Suit No. 348 of 2000 claiming right of easement upon part of the land of plot no. 1445 by declaring it a pathway so that he could reach his house which is situated upon the plot no. 1431. However, it has been submitted that, though the respondent no. 6 claims that the plot is a public land, the State of Bihar has not been impleaded as defendant in the suit. 9. Learned counsel for the petitioner has placed reliance upon a decision of a Division Bench of this Court in Sri Kali Pd. Seal Vs. State of Bihar and others (1969 Bihar Law Journal Reports, 254) to show that if earlier proceeding has been dropped, that order having become final, the matter cannot be re-agitated in a fresh proceeding and as such, the same must be quashed. Learned counsel has also placed reliance upon the decisions of this Court in Hafiza Khatoon Vs. The State of Bihar and others (1991(1) Patna Law Journal Reports, 384), Nagendra Mistry Vs. State of Bihar and others (2000(1) Patna Law Journal Reports, 209) and Smt. Uma Devi Sinha Vs. State of Bihar and others (2001(2) Patna Law Journal Reports, 587) in support of his contention as above. 10. Learned counsel for the State, on the other hand, submitted that the Collector (respondent no. 2) was only seeking compliance of the earlier order passed by him in the year 1998 by directing the Anchal Adhikari to remove the encroachment from the plot nos. 1444 and 1445, and, thus was justified in passing such order. He has submitted that a Sada Patta produced by the petitioner is farzi one and cannot be relied upon as a proof of title and also that the land was found to be a pathway for general public. 1444 and 1445, and, thus was justified in passing such order. He has submitted that a Sada Patta produced by the petitioner is farzi one and cannot be relied upon as a proof of title and also that the land was found to be a pathway for general public. It has also been contended that both the plots are public land. 11. Similarly, learned counsel for respondent no. 6 submitted that the land concerned, being the connecting pathway and his house standing over plot no. 1431 and a public road, has been obstructed by the petitioner and he has filed a title suit for declaration of his right of easement upon the said pathway. Learned counsel also refuted the claim of the petitioner that the petitioner is coming in possession over plot no. 1445 since long. 12. However, from the perusal of the impugned order it appears that the Collector9 respondent no. 2) had stayed his earlier order on the ground that it would be necessary to hear the opposite party (the petitioner herein) on the point of encroachment. Once having done so, he was obliged to hear the parties and pass a speaking order because it is well settled that if an order is passed by the authority visiting civil consequence upon a person that must reflect some reason for reaching to a conclusion otherwise, in case that order is challenged before the superior authority or the courts, it would be difficult to find out as to what was there in the mind of the authority concerned while taking a particular view of the matter. In the present case, after the order dated 06.11.2003 passed in C.W.J.C. No. 1318 of 1999 passed by this Court, the Anchaladhikari had issued noticed to the petitioner and heard the matter and decided that there was no encroachment by anybody. However, it was observed that as per the views of the local people no part of the plot no. 1445 was not being used as public road or passage or pathway. That being the situation, the Collector, respondent no. 2, even if was exercising his power not as an appellate authority but as an original authority, was required to pass the order after considering the aforesaid order passed by the Circle Officer in compliance of the order dated 06.11.2003 passed by this Court in C.W.J.C. No. 1318 of 1999. That being the situation, the Collector, respondent no. 2, even if was exercising his power not as an appellate authority but as an original authority, was required to pass the order after considering the aforesaid order passed by the Circle Officer in compliance of the order dated 06.11.2003 passed by this Court in C.W.J.C. No. 1318 of 1999. Once having held that the petitioner was required to be heard on the point of encroachment, he was also obliged to record reasons for coming to the conclusion that there is some encroachment at the behest of the petitioner and that is required to be removed. He has not considered this aspect of the matter also as to whether respondent no. 6, under the garb of the encroachment proceeding, was seeking declaration of right of easement upon the concerned plot as it is admitted position that he has also filed Suit no. 348 of 2000 for declaration of his right of easement against the petitioner over the same plot. It is also surprising that the entries made in the record of rights regarding the concerned plots have also not been considered by the concerned authority. If the petitioner’s case is correct that the lands have been recorded in the “khas” possession of the landlord then the question as to how the same could be considered as public land would have to be answered specially in view of the claim of the petitioner that there is entry in the revenue records that the concerned lands are rent free. There has been no consideration at all of any of the aforesaid aspects in the impugned order passed by the respondent no. 2 while directing the Circle Officer to remove the encroachment and as such, the same cannot be sustained in law. Thus, in the opinion of this Court, the impugned order cannot be sustained in law. 13. As a result, the impugned order dated 10.07.2006 as contained in Annexure 3 is set aside and the matter is remitted back to the respondent no. 2 for fresh consideration on all the points raised on behalf of the parties keeping in view the law laid down by this Court in the cases as cited by the parties and also for taking notice of the factum of filing of a suit by the respondent no. 2 for fresh consideration on all the points raised on behalf of the parties keeping in view the law laid down by this Court in the cases as cited by the parties and also for taking notice of the factum of filing of a suit by the respondent no. 6 for declaration of right of easement and then for passing a speaking order in accordance with law after giving opportunity of hearing to all the concerned parties. The petitioner would be at liberty to raise all the grounds that have been raised in this writ application including the point of maintainability of the proceeding. Accordingly, this writ application stands allowed.