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2012 DIGILAW 1638 (PAT)

Tara Kuer v. State of Bihar

2012-12-06

CHAKRADHARI SHARAN SINGH

body2012
JUDGMENT This writ application under Article 226 of the Constitution of India has been filed challenging the order dated 15.5.1992 (Annexure-2) passed in Encroachment Case No. 57 of 1991-1992 (State of Bihar vs. Brija Singh) by the Circle Officer (Anchal Adhikari), Rafiganj, whereby and where under the Circle Officer, while holding that the writ petitioners have encroached upon a public land having nature of "Bhind" (embanked ground around a tank) by making temporary/permanent construction has directed the petitioners to remove the encroachment within fifteen days from the date of the order, failing which they would be liable for appropriate action under various statutory provisions. The appeal preferred against the order of the Circle Officer dated 15.5.1992 (Annexure-2) was dismissed by the District Magistrate-cum-Collector, Aurangabad in Appeal Case No. 9 of 1992, by the order dated 8.12.1992 (Annexure-3) which is also under challenge in the present writ application. 2. The disputed lands, as per the statement made in the writ petition are Plot No. 891 (Area 4½ decimals) and Plot No. 1098 (Area 1½ decimals and 10¼ decimals) situate at Village-Khadwan, P.S. Rafiganj, Dist.-Aurangabad. 3. This writ application was filed on 4.2.1993 and vide order dated 8.2.1993 passed in this case, status quo in relation to the lands in question was directed to be maintained. The application was admitted on 29.3.1993 with an order that the interim order passed in this case shall continue. During the pendency of the writ application petitioner no. 1 Bangali Prasad Singh died, leaving behind his wife and three sons who have been substituted in place of late Bangali Prasad Singh. 4. The petitioners have claimed title over the land in question and have denied that there has been any encroachment on a public land in view of the facts stated in the writ application. As per their plea, originally the lands in question were recorded in cadastral survey as Gairmazarua Aam and was under the Tekari Estate. The lands were settled by the Ex-land lady Rani Sayeeda Khatoon to the grandmother of the petitioners in the year 1945 through Parwana. Land receipts were granted and after vesting of Zamindari the lands were recorded in the revenue record of the Government of Bihar and accordingly, land receipts had been granted to grandmother of the petitioners. It is their case that up-till-date the petitioners are in peaceful possession over the lands. Land receipts were granted and after vesting of Zamindari the lands were recorded in the revenue record of the Government of Bihar and accordingly, land receipts had been granted to grandmother of the petitioners. It is their case that up-till-date the petitioners are in peaceful possession over the lands. The petitioners have stated that landlady did not file return to the Government of Bihar at the time of vesting of Zamindari and, therefore, the Government of Bihar accepted the grandmother of the petitioners Mandodar Kuer as raiyat as she was found in possession over the land and Jamabandi was created in her name and rent was accepted. As per their case, a pucca house was constructed over the land and room of the said house was let out for Health Centre in the year 1965. The Government of Bihar has been paying rent to the petitioners for the said room accommodating the Health Centre. 5. It would transpire from records that earlier a notice was sent to the petitioners by the Circle Officer, Rafiganj for removal of encroachment over the land Challenging the action a writ application was filed vide CWJC No. 2461 of 1992 which came to be disposed of by this Court with an observation that the petitioners shall be given opportunity to show their all documents and file show cause before the Circle Officer, Rafiganj and in the light of that order the present proceeding leading to the impugned order was initiated. Before the Circle Officer the petitioners relied upon the Parwana and the fact that they had been continuing in peaceful possession over the land. The Circle Officer however, doubted the very correctness of parwana and after considering the report of the Anchal Amin and on spot verification came to a finding that the land in question was of the nature "Bhind" of the tank situated in the Village-Khadwan. 6. It transpires" from the impugned order dated 15.5.1992 (Annexure-2) that proceeding under the Land Encroachment Act was initiated at the instance of one Braj Kishore Pandey who was not impleaded as party respondent in the present writ application at the time of its filing. 6. It transpires" from the impugned order dated 15.5.1992 (Annexure-2) that proceeding under the Land Encroachment Act was initiated at the instance of one Braj Kishore Pandey who was not impleaded as party respondent in the present writ application at the time of its filing. The said Braj Kishore Pandey filed an application under Order I Rule 8 and Order I Rule 10 of the Code of Civil Procedure for intervening into the present case, by adding him as party which was allowed by this Court by order dated 29.3.1993, while admitting the writ application. 7. Opposing the prayer of the writ petitioners it has been stated in the intervention application that after passing of the order dated 15.5.1992 (Annexure-2) by the Circle Officer and the appellate order dated 8.12.1992 (Annexure-3) by the District Collector, Aurangabad the petitioners had filed a Title Suit No. 178 of 1992 in the Court of Subordinate Judge-I, Aurangabad along with an application for grant of injunction. In the said suit the intervener applicant filed an application for addition of party under Order I Rule 10 of the Code of Civil Procedure. It is pleaded that the learned Subordinate Judge heard the matter on the prayer for injunction but before any order could be passed the petitioners, who were plaintiffs in the said Title Suit No. 178 of 1992 filed an application on 9.2.1993 seeking permission of the Court to withdraw the suit which permission was granted on 10.2.1993 by the said learned Subordinate Judge. These facts stated by the intervener-respondents have not been disputed as no reply has been tiled on behalf of the petitioners. 8. Referring to these statements the plea of the respondents in their intervention application is that having not succeeded to obtain an injunction order in the Title Suit No. 178 of 1992, by suppressing true, correct and material facts, this writ application was filed without making the applicant as party-respondent to the writ application, though he had contested the claim of the petitioners at all stages. 9. No counter affidavit has been filed on behalf of the State of Bihar. 10. Mr. 9. No counter affidavit has been filed on behalf of the State of Bihar. 10. Mr. Dhrub Kumar, learned Senior Counsel appearing on behalf of the petitioners has contended that the land, though Gairmazurua Aam, could be validly settled by the landlord and in the present case the ex-landlord settled the land in favour of the grandmother of the petitioners and therefore they have valid right, title and interest over the land. He secondly submits that the title over the land perfected also because of adverse possession as the petitioners continued in peaceful possession over the land for many twelve years. He has lastly contended that unless Jamabandi was cancelled, proceeding under the Land Encroachment Act could not have been initiated. 11. Mr. Dhrub Kumar has placed reliance on a Division Bench judgment of this Court reported in 1970 PLJR 7 (Md. Ahsan VS. State of Bihar) to contend that the landlord has got right to settle even Gairmazurua Aam land and as such the settlement of land by the ex-landlord cannot be questioned. He has also relied upon a Government Circular dated 23.9.1953 to support his plea that the Gairmazurua Aam land could be settled by the ex-landlord. For the same purpose he has referred to letter No. B/E-20-32/633156R, dated 22.3.1963 issued by the Government of Bihar. 12. Mr. Akhileshwar Prasad Singh, learned Senior Counsel appearing on behalf of the intervener-respondent has however strenuously contended that the ex-landlords did not have any authority/right to settle Gairmazurua Aam land. He has submitted, with reference to statements made in the intervention application that the petitioners have not approached this Court with clean hands and are guilty of suppressing material facts from this Court, which disentitle them from any relief under discretionary writ jurisdiction. 13. Mr. J.S. Arora, learned Standing Counsel No. 6 appearing on behalf of the State of Bihar, countering the claim of the writ petitioners contends that the petitioners changed their stand at different stages to suit their convenience. According to him, on the one hand the petitioners claim title over the property, whereas on the other they are claiming such title through adverse possession. He has contended that as the matter involves serious disputes over the questions of fact, the same cannot be decided under Article 226 of the Constitution of India. 14. According to him, on the one hand the petitioners claim title over the property, whereas on the other they are claiming such title through adverse possession. He has contended that as the matter involves serious disputes over the questions of fact, the same cannot be decided under Article 226 of the Constitution of India. 14. Since the specific case as narrated in the impugned order passed in Encroachment Case is that the land over which the encroachment is alleged to have been found is of the nature "Bhind" i.e. embanked ground around a public tank in Village-Khadwan, the question in the present case is not simple as to whether ex-landlord could settle gairmazurua land or not. As has been held by the Division Bench of this Court in case of Md. Ahsan vs. State of Bihar (supra) which has been relied upon by the petitioners, that right of the landlord to settle even Gairmazurua Aam land is subject to customary rights of the villagers, if any, which they might have had over the land. In the present case there is specific assertion in the intervention application that the said land is actually used for agricultural purpose by the villagers, they take their bath, the water collected in the tank is the only source to extinguish the fire particularly in summer. It is thus contended that the said land had been under public use by the villagers of Village-Khadwan. Further, the correctness of Parwana issued by the ex-landlady, which is the foundation of claim of title over the lands, itself is under challenge. 15. The above noted facts would go to indicate that there are two basic disputes which are required to be adjudicated upon. Firstly, as regards the title of the petitioners over the lands in question on the strength of parwana and secondly, whether the Gairmazurua Aam land in question could be settled by the ex-landlord, as such right of settlement was subject to customary rights of the villagers which they might have had over the land. These are disputed questions of fact. Though there is no universal rule or principle which debars the writ Court from entertaining adjudication involving disputed question of facts, the High Court under Article 226 of the Constitution of India, normally would not entertain a dispute which would require it to adjudicate conflicting claims of the parties based on disputed facts. These are disputed questions of fact. Though there is no universal rule or principle which debars the writ Court from entertaining adjudication involving disputed question of facts, the High Court under Article 226 of the Constitution of India, normally would not entertain a dispute which would require it to adjudicate conflicting claims of the parties based on disputed facts. The writ Court may refuse to interfere, if in the process of determination disputed question of facts or title would require to be adjudicated. 16. On the basis of the materials on record and rival submissions made on behalf of the contesting parties, I am of the view that the case involves disputed questions of fact which cannot be adjudicated upon under writ jurisdiction of this Court and is, therefore, fit to be dismissed. I order accordingly. In the facts and circumstances of the case, I grant liberty to the petitioners to approach competent Court of civil jurisdiction for declaration of their title over the lands in question in their favour, if they so desire. 17. This Court, at the same time, deprecates the conduct of the petitioners in approaching this Court under prerogative writ jurisdiction without stating full facts; rather the petitioners suppressed certain materials fact at the time of filing of the writ application. As has been noted above, the Title Suit No. 178 of 1992 was filed in the year 1992. In the said Title Suit filed after the appellate order of the Collector (Annexure-3), prayer for injunction was made. This is also not in dispute that the intervener in the present writ petition tiled an application for addition of party in Title Suit No. 178 of 1992. The present writ application was filed on 4.2.1993 without stating any fact as regards pendency of the suit before the Court of Subordinate Judge, Aurangabad. On 8.2.1993 the interim order of status quo was granted. On 9.2.1993 a petition was filed in said Title Suit No. 178 of 1992 for withdrawal of the same• which permission was granted on 10.2.1993. On 26.2.1993 a supplementary affidavit was filed on behalf of the petitioners in the present writ application. In the said supplementary affidavit dated 26.2.1993 also the petitioners did not disclose any fact about filing of Title Suit No. 178 of 1992 or its withdrawal on 10.2.1993. 18. This writ application is accordingly, dismissed with liberty as aforesaid. On 26.2.1993 a supplementary affidavit was filed on behalf of the petitioners in the present writ application. In the said supplementary affidavit dated 26.2.1993 also the petitioners did not disclose any fact about filing of Title Suit No. 178 of 1992 or its withdrawal on 10.2.1993. 18. This writ application is accordingly, dismissed with liberty as aforesaid. There shall be no order as to costs.