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2012 DIGILAW 1623 (PAT)

Harendra Kumar Singh v. State Of Bihar

2012-12-05

AJAY KUMAR TRIPATHI

body2012
ORAL ORDER Two petitioners have approached the High Court for quashing of the notice, dated 28.02.2007, issued under sub-section (2) of Section–6 of the Bihar Public Land Encroachment Act, 1956, by the Collector, Munger. By virtue of this notice, the petitioners were asked to vacate the encroachment from Plot No. 42 and 43, located in Tauzi No. 1333, P.S. – Kotwali, District – Munger. As per the notice, the land in question is a public land, which has been illegally encroached upon by the petitioners. 2. When the Writ was taken up on 08.03.2007, the Learned Single Judge passed an order of stay based on the submission and circumstances under which the impugned notice came to be issued. 3. As per the petitioners their father Late Bindeshwari Prasad Singh purchased 5 Katha of land with standing structure as per Khas Mahal Measurement equivalent to 3596 sq. ft., having rental of Rs. 4/-, consisting of Jamabandi No. 8, Khas Mahal Khesra No. 42 (part) under Tauzi No. 1333 in Fort Area Munger Municipality. 4. It is the case of the petitioners that originally the property in question was purchased by Late Rai Bahadur Udit Narayan Singh, father of Lalitheshwar Prasad Singh and grandfather of Kameshwar Singh and Bisheshwar Singh, vide registered sale-deed dated, 8th of June, 1928. He died inte estate, leaving behind Laliteshwar Prasad Singh, the only son and other legal heirs, like grand sons etc. Heirs of Late Laliteshwar Prasad Singh executed the sale-deed in the name of the father of the petitioners vide registered sale-deed dated 09.01.1963, which was registered on 18.01.1963. The sale-deed has been annexed as Annexure- 1, which has been registered at Calcutta. 5. Since the date of purchase, the father of the petitioners came in possession of the land and house and resided therein. After the death of father of the petitioners, they came in possession of the house and residing peacefully thereafter. Petitioners applied for mutation, but except for mutation under the name of one Tara Devi, who was a similar purchaser, their cases had remained pending in all these years. In fact, there were 14 persons, who had purchased land from of the same plot and Tauzi, and father of these two petitioners was also one of the purchaser. 6. Petitioners applied for mutation, but except for mutation under the name of one Tara Devi, who was a similar purchaser, their cases had remained pending in all these years. In fact, there were 14 persons, who had purchased land from of the same plot and Tauzi, and father of these two petitioners was also one of the purchaser. 6. Submission has been made in the Writ Application that the petitioners had even applied for renewal of lease on 03.12.1974, which is pending. Then came a notice demanding exorbitant salami for the property in question, vide Annexure- 4, dated 27.07.2002. Petitioners responded thereto, but no final decision has been communicated till date. In the meantime, a proceeding under the Land Encroachment Act was initiated, which culminated into the notice, contained in Annexure – 8, which is part of I. A. No. 1452 of 2007. 7. State was directed to file a detailed counter affidavit, as to under what circumstances they chose to deal with the petitioners, as if they were encroachers on a government land, which required their eviction under the law. Affidavit has now been filed, stating that the Writ has not been filed with clean hands. There is deliberate suppression of facts and actual position has not been stated by the petitioners truthfully. That by itself should be enough to reject their Writ Application without extending any relief to them. 8. A Khas Mahal land, situated in Munger town, bearing Khata No. 43 and 42, having an area of 1 acre 82 dismals was given on lease to one Rai Bahadur Udit Narayan Singh, resident of Sakarpura, District – Begusarai for the purpose of building a dwelling house for himself. The lease deed was executed on 20.12.1932 for a period of 30 years. 9. There was specific clause in the lease-deed that the lessee shall not transfer, assign, sub-let or part with the possession of demised land and premise or any part thereof. There was even a clause that the residential building in question must come up within a period of 12 months or else the lease was liable for cancellation. Annexure- A is the copy of the lease-deed, dated 20.12.1932. 10. There was even a clause that the residential building in question must come up within a period of 12 months or else the lease was liable for cancellation. Annexure- A is the copy of the lease-deed, dated 20.12.1932. 10. The lessee, namely, Rai Bahadur Udit Narayan Singh in complete violation of the terms and conditions of the lease did not construct any building, as such, except some structure over the lease land on one pretext or the other. The lease finally expired on 20.12.1962. He initiated an application for renewal of the lease, which was registered as Lease Renewal Case No. 61-62. But while the process was on, it was pointed out to the authority that in complete violation and breach of clause-2 of lease-agreement, without any previous sanction of the Collector, the lessee had sold the lease land to 14 different persons, by way of sale-deeds surreptitiously executed and registered in Kolkata. When these facts emerged, the Collector, Munger initiated proceeding and sought permission from the Department of Revenue and Land Reforms for resumption of the Khas Mahal Land, as well as take possession thereof. It was in this background that land encroachment proceeding against all these so called purchasers including the petitioners was initiated. Notices were issued under the Land Encroachment Case No. 1 of 2006-2007. The Collector, thereafter taking into the facts and inputs into consideration passed the order for removal of encroachment. 11. It is the stand of the respondent-State that when terms and conditions of the lease are unambiguous, the lessee had no business to do what he did and any sale-deed executed for alienation of the leased Khas Mahal Land, was a deed, which was void ab initio, coupled with the fact that the deed was intentionally registered at Calcutta to avoid knowledge of such illegal transfer or alienation. In the above circumstances, the petitioners did not deserve any leniency or indulgence by this Court. 12. Learned Sr. Counsel, representing the petitioners submits that there are series of decisions, which have been rendered by the High Court that even if it is a case of Khas Mahal Land, an eviction cannot be resorted to in the manner in which it is sought to be done. May be intervention of a Civil Court would be required for evicting a person in possession of Khas Mahal Property. May be intervention of a Civil Court would be required for evicting a person in possession of Khas Mahal Property. In this regard, reliance has been placed in the case of Ashwani Kumar Gupta versus State of Bihar, reported in 2000(2)PLJR 221 and Dr. Tribhuwan Singh versus State of Bihar, reported in 2004(1)PLJR778. 13. The position taken by the petitioners is seriously contested by the State. They placed reliance on the case of Md. Mehandi Imam versus State of Bihar, reported in 2001(3)PLJR762. Emphasis is on para 21, which is reproduced hereinbelow: “Having heard counsel for the parties and appreciating the rival contentions raised at the bar, it is held that the petitioner after termination of the lease deed in the year 1975 was liable to be evicted by initiating a proceeding under the Act and in the given case, therefore, there was no requirement for resumption of the land in question, as prescribed under Rule 22 of the Khas-Mahal Manual.” 14. Yet another decision is of a Division Bench in the case of Md. Mehandi Imam versus State of Bihar, which was a decision in appeal against the Learned Single Judge’s Order. The Division Bench has expressed its opinion in support of Learned Single Judge and the manner in which resumption of possession after expiry of lease of Khas Mahal Land could be done. It is significant to note the observation of the Division Bench emerging from paragraph 6 to 9. 15. Counsel, representing the State further submits that section 2 (iii) of the Public Land Encroachment Act gives the definition of a public land. Similar definition is available in Rule 1 of the Khas Mahal Manual. Therefore, the land in question is a public land and resumption on behalf of the State is envisaged after the expiry of the lease many-many years and these petitioners are not even lessees but a purchaser of the Khas Mahal land under dubious and controversial circumstances. 16. The various propositions, which have been pressed into service on behalf of the parties, will have to be tested in the emerging facts and situation in the present case. The Court is convinced that the petitioners have not stated the correct position in their Writ Application. The property in question was a Khas Mahal Land, which was on lease by way of a lease-deed in favour of Late Rai Bahadur Udit Narayan Singh. The Court is convinced that the petitioners have not stated the correct position in their Writ Application. The property in question was a Khas Mahal Land, which was on lease by way of a lease-deed in favour of Late Rai Bahadur Udit Narayan Singh. The lease expired on 20.12.1962 and soon after expiry of the lease a series of sale-deeds by the so called legal heirs of the original lessee came to be executed. The deeds dated 9th of January, 1963 were registered at Calcutta and not in Bihar, which was to ensure that the local Revenue Authorities were not alerted on the illegal transaction and to ensure that no objection could be raised by any authority. 17. The so called sale-deeds had been executed after the expiry of the lease and that too contrary to the terms and conditions of the lease. The series of judgments, which have been placed by the petitioners in support of their case, have no application to them, because in those cases action was sought to be taken against original lessees. Since the petitioners are neither lessee nor sub-lessee, but claiming right, title or interest by virtue of a deed or document of sale, which per se seems to be invalid, then the benefits of the law as laid down by the High Court in the Judgments relied upon by the petitioners has no applicability. Neither the lessee nor any of his legal heirs are before the Court, seeking any protection from an arbitrary action of the State, but it is the so called claimants who are claiming right, title and interest on a wishy-washy kind of sale-deed, who wants to be treated akin to the original lessee. If the deed is void ab initio then no right, title or interest can accrue in favour of the petitioners. The Court has no hesitation in recording that the deed was a sham, which could never create any right in favour of the so called purchasers as lessee had no right, title or interest to alienate in favour of the petitioners or their father. Attention of the Court has also been drawn by the State to a decision in the case of State of Maharashtra versus Pravin Jethalal Kamdar, reported in AIR 2000 SC 1099 . Para 6 of the said judgment has relevance to the present case, so is reproduced herebelow: 6. Attention of the Court has also been drawn by the State to a decision in the case of State of Maharashtra versus Pravin Jethalal Kamdar, reported in AIR 2000 SC 1099 . Para 6 of the said judgment has relevance to the present case, so is reproduced herebelow: 6. As already noticed, in Bhim Singhji's case, ( AIR 1981 SC 234 ) (supra) Section 27(1) insofar as it imposes a restriction on transfer of any urban or urbanisable laid with a building or a portion of such building, which is within the ceiling area, has been held to be invalid. Thus, it has not been and cannot be disputed that the order dated 26th May, 1976, was without jurisdiction and nullity. Consequently, sale deed executed pursuant to the said order would also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of plaintiff having sought such a declaration is of no consequence. When possession has been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be 12 years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are nullity. In Ajudh Raj v. Moti S/o Mussadi, (1991) 3 SCC 136 : (1991 AIR SCW 1576 : AIR 1991 SC 1600 ) this Court said that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eyes of law and is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. The contention that the suit was time barred has no merit. The suit has been rightly held to have been filed within the period prescribed by the Limitation Act. 19. If these are the factual and legal aspects, which emerge after perusing the records and hearing the counsels, then the Court is not left with any option but to hold that the petitioners have no right, legally accruing to them from any transaction which they entered with the original lessee to the detriment of the interest of the State. 19. If these are the factual and legal aspects, which emerge after perusing the records and hearing the counsels, then the Court is not left with any option but to hold that the petitioners have no right, legally accruing to them from any transaction which they entered with the original lessee to the detriment of the interest of the State. The petitioners have also not been truthful and fair in their averments in the Writ Application filed before this Court as certain vital facts were suppressed in the manner in which they have acquired a so called right or title in terms of Annexure- 1 to the Writ Application, the equity is not in their favour. Therefore, the Court would be compelled to draw support from the observation of the Division Bench, in case of Mehandi Imam (supra), especially paragraph 13 of the said decision, which can be relied upon in the given facts and circumstances of the case. 20. The Writ Application has no merit. It is dismissed.