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2013 DIGILAW 1086 (PAT)

Archana Devi @ Archana Kumari v. State of Bihar

2013-09-04

RAMESH KUMAR DATTA

body2013
Order Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner seeks quashing of the order dated 10.8.2012 passed by the Collector, Munger in Encroachment Case No.1 of 2012-13 (Appeal) by which he has dismissed the appeal filed by the petitioner against the order dated 12.6.2012 passed by the Sub-Divisional Magistrate, Sadar, Munger in Encroachment Case No. 11 of 2011-12 by which the petitioner had been directed to vacate the entire house with other structures standing on the land mentioned therein and further seeks quashing of the order dated 12.6.2012. 3. The facts of the case relevant for the decision of the present matter are that the Khas Mahal house bearing Tauzi No. 1333, Jamabandi No.44, Khata No. 41, Khesra Nos. 166, 167 and area 14 khata 15 dhurs, holding Nos. 20 and 21, Ward No.1 under Fort Area, Munger, P.S. Kotwali, District Munger was initially leased to one Nirmalendu Mukherjee and others. The stand of the petitioner is that the same was sold by the original lease holders to Smt. Rama Devi through registered sale deed dated 8.12.1981. After the said sale Rama Devi filed an application for renewal of the lease on 18.11.1991 before the Collector through the District Khas Mahal Officer, Munger. It is the further stand of the petitioner that the said Smt.Rama Devi executed a will on 22.6.1990 in favour of Smt.Pushpendar Kunwar, her daughter-in-law. Subsequently Rama Devi died on 1.6.1992 and after her death Pushpendar Kunwar became the owner of the land and house and is occupying the said land and house as an owner and is in legal possession of the same and the electrical connection, which was still in existence, was taken in her name. It is the further stand of the petitioner that Rama Devi executed a power of attorney in favour of the petitioner on 16.12.2010 which was registered at Deoghar. It is the further stand of the petitioner that Rama Devi executed a power of attorney in favour of the petitioner on 16.12.2010 which was registered at Deoghar. Although the petitioner claims that the power of attorney was to look after the property and the household properties, on a perusal of the said power of attorney it appears that practically all the rights under the lease had been transferred to the general power of attorney holder and according to the general power of attorney the petitioner was entitled to get her name mutated in the Serista of Anchal/Municipality, in the Serista of Khas Mahal for self and also to sell the property to any one so that the purchaser’s name could be mutated in the respective seristas; the petitioner was also empowered to let out the property, lease out on rent and to put someone as licensee and receive the rent and give them receipt in lieu of the payment of rent and also to get Bank loan or loan over the said property and to get the lease deed executed in her name by the Collector, Munger/Khas Mahal Authority so that the lease of the land could be obtained in her name. 4. The petitioner received a notice from the Khas Mahal authorities as to why the land and house be not acquired and also she may not be ousted from the property. The petitioner along with Rani Pushpendra Kunwar challenged the said notice by filing CWJC No. 21416 of 2011 before this Court which was disposed of by order dated 14.12.2011 with the direction of extending the time period for filing reply to the notice by further two weeks, i.e., 2.1.2012, if not already filed and the District Khas Mahal Officer, Munger was directed to hear the petitioner No.1 of the said writ application, namely, Smt.Rani Pushpendra Kunwar @ Pushpendar Kunwar, if she appears and files a representation within the same time and thereafter dispose of the matter in accordance with law expeditiously. After the disposal of the writ application the District Magistrate, Munger referred to in his order dated 9.1.2012 the extensive enquiry made in this regard by the Khas Mahal Officer and recommendation made by him to take action under Chapter 5 Clause 17 of the Bihar Khas Mahal Policy, 2011. After the disposal of the writ application the District Magistrate, Munger referred to in his order dated 9.1.2012 the extensive enquiry made in this regard by the Khas Mahal Officer and recommendation made by him to take action under Chapter 5 Clause 17 of the Bihar Khas Mahal Policy, 2011. He also considered the fact that the petitioner had filed her objection in the matter on 10.12.2011 and thereafter not filed any other objection and Smt.Rani Pushpendra Kunwar did not file any objection pursuant to the order of this Court and after rejecting the objection of the petitioner held that the petitioner is an encroacher in terms of Chapter 5 Clause 17 read with Clause 5 (gha) of Chapter 5 which refers to the prohibition made by the Government for the transfer of Government land with effect from 29.5.2008, the power of attorney being after the said cut off date and held that the petitioner is an illegal transferee and an encroacher; accordingly, he directed the petitioner to vacate the land and the constructions over the same by 25.1.2012 and further directed the Sub-Divisional Officer, Sadar to evict the petitioner in accordance with the procedure prescribed by the Bihar Public Land Encroachment Act and take the same in his possession by 26.1.2012. He further held that in terms of Clause 17 of the Bihar Khas Mahal Policy, 2011 the encroacher or any person would not be entitled to any compensation for the same. 5. Aggrieved by the aforesaid order of the District Magistrate, Munger the petitioner filed CWJC No.1138 of 2012 in which the order dated 9.1.2012 by which she had been asked to vacate the house occupied by her on 25.1.2012 was under challenge. This Court passed an interim order dated 19.1.2012 restraining the District Administration from evicting the petitioner from the house in question and leaving it open to the District Magistrate, Munger to start a proceeding for evicting the petitioner during the pendency of the said writ application. This Court passed an interim order dated 19.1.2012 restraining the District Administration from evicting the petitioner from the house in question and leaving it open to the District Magistrate, Munger to start a proceeding for evicting the petitioner during the pendency of the said writ application. I may here point out that the said order was passed on the basis of the submission of learned counsel for the petitioner that presuming that the petitioner was an encroacher on the land belonging to the State of Bihar the only way by which the petitioner could be evicted was by issuing a notice under Section 3 of the Bihar Public Land Encroachment Act without noticing that, as a matter of fact, the notice dated 13.1.2012 had been issued to the petitioner in a proceeding under the Bihar Public Land Encroachment Act being Encroachment Proceeding No.10 of 2011-12. In the said circumstances, the Sub-Divisional Magistrate, Munger by his order dated 23.1.2012 closed the earlier proceedings and a fresh proceeding was started for removal of encroachment being Encroachment Case No. 11 of 2011-12 under the Bihar Public Land Encroachment Act. In the said proceeding after much dilly-dallying the petitioner had appeared and filed reply to the show cause on 14.3.2012 taking various grounds. However, by the impugned order dated 12.6.2012 the Sub-Divisional Magistrate, Sadar, Munger referring to the Collector’s order dated 9.1.2012 and his own earlier order dated 7.3.2012 and treating them as part of his order held that the land in question is a public land, the petitioner is an encroacher over the same and directed the petitioner to remove the encroachment by 16.6.2012 and in case the same is not done then she should be forcibly removed. Learned counsel for the petitioner brought the said matter before this Court in CWJC No.1138 of 2012, which was still pending, including the fact that the petitioner was forcibly evicted from actual possession of the property on 17.6.2012 without even giving her liberty to challenge the order dated 12.6.2012 by filing appeal under Section 11 of the Act. Learned counsel for the petitioner brought the said matter before this Court in CWJC No.1138 of 2012, which was still pending, including the fact that the petitioner was forcibly evicted from actual possession of the property on 17.6.2012 without even giving her liberty to challenge the order dated 12.6.2012 by filing appeal under Section 11 of the Act. This Court by order dated 19.7.2012 held that the right to appeal is a substantive statutory right which could not be defeated by forcible eviction of the petitioner from the property of the petitioner within five days of the eviction order dated 12.6.2012 and set aside the order dated 17.6.2012 forcibly evicting the petitioner from the Khas Mahal property with a direction to the Sub-Divisional Officer, Munger to restore her possession over the said property within one week from the date receipt/production of a copy of the order. The petitioner was further directed to file an appeal against the order dated 12.6.2012 within 30 days which was to be considered by the Appellate Authority in accordance with law but before the appeal was taken up for hearing the Appellate Authority was directed to ensure that the petitioner was put in possession of the Khas Mahal property of the petitioner. The petitioner had also sought and was granted liberty to challenge the order dated 9.1.2012 of the District Magistrate in accordance with law. Thereafter by the impugned order dated 25.7.2012/10.8.2012 the Collector, Munger dismissed the appeal of the petitioner upholding the order dated 12.6.2012 of the Sub-Divisional Officer referring to the fact that the petitioner’s appeal was already pending before him and the order dated 19.7.2012 of the High Court was produced before him when the matter was being finally heard and therefore held that since the appeal was being dismissed the possession of the Government over the land and house was retained. 6. Learned counsel for the petitioner has made various submissions in the course of hearing of the writ application. However, I am not inclined to consider all of them in view of the order that I intend to pass. 6. Learned counsel for the petitioner has made various submissions in the course of hearing of the writ application. However, I am not inclined to consider all of them in view of the order that I intend to pass. The important submission of learned counsel is that the proceeding in question suffers from malice as it is at the instance of the Collector who had already passed an order dated 9.1.2012 under the Khas Mahal Policy and thereafter he controlled the proceedings before the Sub-Divisional Officer practically dictating the order that the Sub-Divisional Officer was to pass under the Bihar Public Land Encroachment Act and he himself thereafter sat in appeal as Appellate Authority to uphold the order of the Sub-Divisional Officer. Thus the submission of learned counsel for the petitioner is that the statutory right of the petitioner has been taken away by such type of exercise of power by the Collector and his subordinates and thus the impugned order and the proceedings are fit to be quashed. 7. Under the provisions of Clause 17 of the Bihar Khas Mahal Policy, 2011 it is provided that if the person in possession over the leased land does not have any relationship with the original lease holder/legal heir or transferee on the basis of any deed executed under the Indian Registration Act, 1908 either with the prior permission or even without permission then he would be an encroacher; therefore he would be evicted following the procedure prescribed under the Bihar Public Land Encroachment Act and the land including building and other constructions shall be taken into possession of the State Government without giving any compensation; thereafter the Government may either use the said land in its own possession or by auction to make fresh lease for 30 years. 8. On a consideration of the provisions of the aforesaid Clause 17 of the 2011 Policy it is evident that the first part of the said provision merely describes the status of a person who is to be considered as encroacher if the condition laid down therein is satisfied. Under the second part the procedure for eviction laid down under the Bihar Public Land Encroachment Act is to be followed. Under the second part the procedure for eviction laid down under the Bihar Public Land Encroachment Act is to be followed. It does not follow from the said provision that first of all proceeding is to be taken under Clause 17 to determine the status of a person in occupation as an encroacher and thereafter steps are to be taken under the Bihar Public Land Encroachment Act to remove the said person. 9. It is a well established proposition that statutory authorities are required to act by applying their own mind without any direction or orders of any superior authority, whether administratively or statutorily. Under the Bihar Public Land Encroachment Act the power under Section 3 for initiation of a proceeding has been given to the ‘Collector’ which term has been defined by Section 2(1) to mean the Collector of the district and includes any officer empowered by the State Government to discharge all or any other functions of the Collector under the Act. By notifications of the State Government issued from time to time the power of Collector has been vested also in the Sub-Divisional Officers, Deputy Collector In-charge Land Reforms as also the Anchal Adhikaris. Section 11 of the Act provides for appeals from every order passed under Sections 6, 7 or 8 and if such order has been passed by any officer other than the Collector of the district the appeal shall lie before the Collector or any other officer specially empowered by the State Government, whereas if such order is passed by the Collector of the district appeal would lie before the Commissioner of the division. It is thus evident that in case a proceeding under the Bihar Public Land Encroachment Act is initiated by Sub-Divisional Officer then the Collector of the district would be the Appellate Authority in the matter. A procedure in which the Appellate Authority first passes an order declaring a person as an encroacher, then directs the subordinate statutory empowered authority to start proceedings under the Bihar Public Land Encroachment Act and remove the encroacher is unknown to the law. A procedure in which the Appellate Authority first passes an order declaring a person as an encroacher, then directs the subordinate statutory empowered authority to start proceedings under the Bihar Public Land Encroachment Act and remove the encroacher is unknown to the law. The Collector of the district could himself have initiated proceedings under the Bihar Public Land Encroachment Act and in terms of Clause 17 of the Bihar Khas Mahal Policy, 2011 declared the petitioner as an encroacher and directed his removal but it was not open to him to first give a finding that the petitioner is an encroacher by initiating proceedings under Clause 17 of the Bihar Khas Mahal Policy, 2011, which in any case does not appear to have been so provided, and thereafter direct the subordinate authority against whose orders appeal lies to him to initiate proceedings without declaring a person as an encroacher. The same not only interferes with the exercise of statutory power by the person upon whom the status is conferred but has also the effect of defeating the statutory right of appeal which has always been considered by the court as a valuable right of the person affected. 10. In the light of the aforesaid discussions, I am of the view that the entire proceedings in the present matter have been conducted in a most unlawful manner defeating all statutory rights of the petitioner both at the original as well as appellate stage. The impugned order dated 12.6.2012 of the Sub-Divisional Magistrate, Sadar, Munger in Encroachment Case No. 11 of 2011-12 as also the appellate order dated 10.8.2012 passed by the Collector, Munger in Encroachment Case No. 1 of 2012-13 (Appeal) are both quashed as also the entire proceedings. 11. The writ application is, accordingly, allowed in terms of the aforesaid directions. The respondents, however, shall have liberty to initiate fresh proceedings under the Bihar Public Land Encroachment Act without taking into consideration what has been decided earlier by them. 11. The writ application is, accordingly, allowed in terms of the aforesaid directions. The respondents, however, shall have liberty to initiate fresh proceedings under the Bihar Public Land Encroachment Act without taking into consideration what has been decided earlier by them. Considering the fact that if the proceedings are again initiated at the level of Sub-Divisional Officer then the Appellate Authority would be the Collector of the district himself and such situation may not be just and fair for the petitioner considering the facts as they have transpired, it is directed that the Collector, Munger shall himself initiate the proceedings under the Bihar Public Land Encroachment Act if it is decided to initiate such proceedings again so that in case the petitioner is aggrieved by the order to be passed by him he shall have the remedy before the Commissioner, Munger. It is, however, made clear that the petitioner shall not take recourse to dilatory tactics if any such proceedings are initiated and file piecemeal objections in the matter, rather any objection that the petitioner has should be clearly filed at one go which shall be decided by the Collector by a speaking order against which the petitioner may take recourse to the statutory remedy. In case the petitioner does not co-operate it would be open to the Collector to proceed ex parte in the matter. The petitioner is restrained from challenging any freshly initiated proceeding at the interlocutory stage. It is further directed in view of the earlier direction dated 19.7.2012 of this Court in CWJC No. 1138 of 2012 that the respondents shall restore possession over the said property to the petitioner within one week from the date of receipt/production of a copy of this order.