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2012 DIGILAW 1371 (JHR)

Binod Gope @ Binod Yadav v. State of Jharkhand

2012-09-12

APARESH KUMAR SINGH

body2012
ORDER Heard learned counsel for the parties. 2. The instant writ petition has been preferred for quashing the notice dated 11.7.2007 (Annexure-4) issued by the Circle Officer, Sadar, Hazaribagh – Respondent no. 5 directing the petitioner to remove the alleged encroachment over 7.5 decimals of land under plot no. 418 under khata no. 19 of village Sarley by 18.7.2007, failing which it would be removed by use of force. 3. It is the contention of the petitioner that earlier a proceeding under the Bihar Public Land Encroachment Act (B.P.L.E. Act), 1956 being Case no.3 of 1999 was initiated before the court of Land Reform Deputy Commissioner, Hazaribagh in respect of the alleged encroachment wherein the petitioner appeared and filed his show cause stating that he was in continuous possession over the said land for the last 60 years, where after the said proceeding was dropped by the respondent no. 4 vide order dated 9.11.1999 (Annexure-1). The petitioner, thereafter, was issued with further show cause notice under the B.P.L.E. Act for removal of encroachment against which petitioner moved this court in W.P.C. No. 5648 of 2001in which, vide order dated 26.11.2001 petitioner was asked to file show cause observing that no coercive steps shall be taken against the petitioner till the final decision (Annexure-2). It is submitted that petitioner filed his show cause but no final order was passed but petitioner has been served with notice dated 11.7.2007, which is impugned herein. It is further contended on behalf of the petitioner that the petitioner had filed title suit being T.S. No. 1 of 2004 for declaration of title over the said land as mentioned in Schedule A in the plaint and also for confirmation of possession of the plaintiff over the same with other consequential reliefs. It is submitted that, although the said suit was dismissed but the learned trial court recorded finding at page 11 in the following terms. :- “So, from perusal of entire oral as well as documentary evidences, I find that though the plaintiff has proved that he is in long possession of the suit land but mere long possession is not enough to make out the case of adverse possession”. 4. However, it is submitted on behalf of the petitioner that thereafter, first appeal being F.A. No. 38 of 2007 has been filed against the trial court judgment, which is still pending before this court. 5. 4. However, it is submitted on behalf of the petitioner that thereafter, first appeal being F.A. No. 38 of 2007 has been filed against the trial court judgment, which is still pending before this court. 5. Learned counsel for the petitioner has relied upon the judgment of the Division Bench of the Patna High Court in the case of Rameshwar Prasad & others Vrs. State of Bihar & others reported in 1991 BBCJ 708 in which it has been observed that proceeding for removal of encroachment should be kept in abeyance so long as the claim of the petitioner in relation to the title over the land also on the basis of adverse possession is not finally decided in the title suit. 6. It is submitted that appeal is continuation of the suit and the matter is still pending, therefore the impugned notice is bad in law and more so, since without initiating any proceeding, straightway notice was issued for removal of the encroachment. 7. Learned counsel for the respondent has submitted by referring to the averments made in the counter affidavit that the land in question is a 'gair majaruwa khata land' encroached by one Md. Rustam Khan and the petitioner for which a proceeding under the Act of 1956 has been initiated as the said encroachment lies on the N.H.33. It is further submitted that the petitioner's T.S. no. 1 of 2004 was dismissed vide judgment dated 26.2.2007 and as such petitioner has no right, title and possession over the said land. Therefore, the impugned notice directing for removal of the encroachment is fully justified. 8. I have heard the learned counsel for the parties and carefully gone through all the relevant materials on record including the impugned notice. It appears that in respect of the land in question the petitioner had preferred Title Suit in which the trial court had found that the petitioner was in continuous possession for long period, although the suit was dismissed. Then First Appeal has been preferred against the trial court judgment being F.A. No. 38 of 2007, which is still pending before this court. 9. Then First Appeal has been preferred against the trial court judgment being F.A. No. 38 of 2007, which is still pending before this court. 9. From the judgment of the Division Bench of the Patna High Court as relied upon by the learned counsel for the petitioner, it appears in the said case in respect of property over which claim of title based on adverse possession was in question and a Title Suit was pending adjudication, in that case it was held that a proceeding in a B.P.L.E. Case should be kept in abeyance till the disposal of the suit. It was observed that thereafter it will open to take action in accordance with law. However, in the meantime the Title Suit of the petitioner has already been dismissed. 10. However, from the impugned notice dated 11.7.2007 also the averments made in the counter affidavit it does not appears that any final order has been passed in a B.P.LE. proceeding before directing the petitioner for removal of encroachment by the impugned notice , as also directed in the earlier order dated 26.11.2001 passed in W.P.C. No. 5648 of 2001. In view of the aforesaid facts and circumstance, the notice dated 11.7.2007 cannot be sustained and accordingly, it is quashed. 11. However, it will be open for the respondents to proceed in accordance with law in the proceeding under the B.P.L.E Act of 1956 after giving proper opportunity of hearing to the petitioner. 12. This writ petition is allowed in aforesaid terms.