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2013 DIGILAW 1143 (PAT)

Pramila Singh v. State Of Bihar

2013-09-19

JAYANANDAN SINGH

body2013
ORDER : This is the second round of litigation between the parties before this Court. Petitioners had earlier filed C.W.J.C.No.10125 of 2013 challenging the order of the D.C.L.R., Sadar Patna in Land Dispute Resolution Case No.93 of 2011-12 and the order of the Commissioner passed in Land Dispute Appeal Case No.173 of 2012. Matter was taken up by this Court on 15.5.2013 when the learned counsel for the respondents raised an objection that against an order of the Divisional Commissioner, remedy was available before the Tribunal constituted in terms of Section 9(1) of the Land Tribunal Act. The said writ application was accordingly disposed of directing the petitioners to file their appeal before the Tribunal within two weeks and status quo was directed to be maintained till the first date of hearing by the Tribunal. 2. Petitioners accordingly filed their appeal before the Tribunal, but the Tribunal did not entertain it on the ground that the matter related to public land encroachment and hence was not covered by the Act and therefore it had no jurisdiction to entertain such an application. In the circumstances, they filed MJC No.3436 of 2013 for modification of the said order passed in the writ matter. The MJC was heard on different dates and by order dated 11.7.2013 this Court considered that it would be appropriate that a proper measurement of the plots is made in presence of the parties by a survey knowing pleader commissioner so that the dispute between the parties may be put at rest finally. Accordingly, this Court directed the District Judge, Patna to appoint an experienced survey knowing pleader commissioner to hold measurement of the plots from fixed points, demarcating the same in presence of the parties and identify the share of the parties on the plot and submit a report. Accordingly, measurement was held and a report was submitted in this Court. Report of the Pleader Commissioner was kept on record and MJC was accordingly dismissed by order dated 25.7.2013. On that day, learned counsel for the petitioners prayed for one month time to enable the petitioners to take appropriate steps in view of the said report of the pleader commissioner. 3. It appears that thereafter petitioners filed appeal against the said order before a Division Bench. On that day, learned counsel for the petitioners prayed for one month time to enable the petitioners to take appropriate steps in view of the said report of the pleader commissioner. 3. It appears that thereafter petitioners filed appeal against the said order before a Division Bench. The Division Bench found that there was inherent contradiction in the order dated 11.7.2013, by which MJC was allowed and the writ application was restored to its original file and the order dated 25.7.2013 by which MJC was dismissed. The Division Bench observed that the remedy of the appellants against order of the Bihar Land Tribunal lay under Public Land Encroachment Act or in a writ application before this Court. Hence, orders passed on 11.7.2013 and 25.7.2013 in MJC was held without jurisdiction. With the said observations, the appeal was dismissed. 4. In view of the said observations of the Division Bench, petitioners have filed the present writ application. From the pleadings in the writ application, it appears that the petitioners claimed that by a registered sale deed dated 12.6.1982 they had purchased two plots, namely, plot nos. 1457 and 1459 in Mauza Mainpura, P.S. Patliputra, in the district of Patna. Subsequently, in the wake of unprecedented flood in the town in 1975, respondents proposed construction of a drain in the area. Accordingly, land acquisition proceeding was initiated for construction of drain which involved said plot no.1459 of the petitioners also. Proceeding was held and land was acquired and drain was constructed. But by construction of this drain their survey plot no.1459 was got bifurcated with a bigger part falling on the south of the drain and a smaller part falling on the north of the drain. It is submitted that on the bigger part in the south, they constructed their residential house and on the smaller part in the north they constructed shops. It is stated that beyond their part of plot no.1459 on the northern side of the drain a house was constructed in 1987 by the vendor of respondent no.8, which was encircled by 10 ft. high pucca boundary wall also. This house was purchased by respondent no.8 on 3.7.2010. 5. It is stated that beyond their part of plot no.1459 on the northern side of the drain a house was constructed in 1987 by the vendor of respondent no.8, which was encircled by 10 ft. high pucca boundary wall also. This house was purchased by respondent no.8 on 3.7.2010. 5. Relevant facts pleaded in the writ application is that northern wall of their shops belong to them but in a dispute between the petitioners and the vendor of respondent no.8 they acceded the same to him with a right to use southern surface of the wall. It is stated that in the sale deed executed by the vendor in favour of respondent no.8 an excess of 2 dhurs and 18 dhurkies of land beyond the boundary wall was wrongly shown. However, vendor of respondent no.8 was never in possession of the said land. The dispute arose when respondent no.8 purchased the house and filed an application before the Circle Officer for measurement, which was registered as Measurement Case No.45 of 2011-12. Measurement was done but without any further action file was closed by the Circle Officer. Thereafter, respondent no.8 filed an application before the D.C.L.R. under the provisions of Land Disputes Resolution Act (hereinafter to be referred to as ‘the Act’), which was registered as Land Dispute Resolution Case No. 93 of 2011-12. The said application was finally allowed by the D.C.L.R. by order dated 20.3.2012, against which petitioners filed an appeal before the Commissioner under the provisions of the Act. Appeal was, however, dismissed by the Commissioner by order contained in Annexure-11. In the circumstances, proceeding held by the Circle Officer of measurement, the said order of the D.C.L.R. and the said order of the Commissioner have been challenged by the petitioners in this writ application also. 6. The main submission of learned counsel for the petitioners is that the D.C.L.R. and the Commissioner had no jurisdiction to entertain the dispute as admittedly it involved alleged encroachment of public land also. Hence, any application filed by the respondent no.8 did not come within the ambit of Section 4 and Schedule 1 of the Act. He submits that in the Amin’s report it had come that besides the land of respondent no.8 some public land had also been encroached upon by the petitioners. Hence, any application filed by the respondent no.8 did not come within the ambit of Section 4 and Schedule 1 of the Act. He submits that in the Amin’s report it had come that besides the land of respondent no.8 some public land had also been encroached upon by the petitioners. Hence, if any action was required to be taken against the petitioners, it was only possible under the provisions of Bihar Public Land Encroachment Act and not otherwise. He further submits that even in case of alleged encroachment of a private land, D.C.L.R. can entertain an application only if a complaint is made before him of threat of dispossession or actual dispossession. He further submits that as per the case of the petitioners, shops were built in 1984 and as per sale deed of respondent no.8, house was built later on. Hence, it was a bonafide dispute of title which the authorities, in view of sub-section (5) of Section 4 of Bihar Land Disputes Resolution Act, were not empowered to entertain. He submits that respondent no.8 had never raised the question of dispossession in his application. 7. Respondent no.8 has appeared in person and has filed detailed counter affidavit. He has annexed large number of documents and has made statements on oath in much detail. However, this Court is of the view that all those details are not required to be looked into and considered in the matter. 8. From the pleadings of the petitioners in the writ application, this is clear that they are not raising any case of having come in possession of any part of land of respondent no.8 nor are they claiming title over it, perfected on account of adverse possession on the same. Their entire case is that, after construction of the drain, some part of their plot no.1459 was left out in the northern side, on which they had constructed shops. From the order of the D.C.L.R., it appears that notice of the application was sent to them but they did not receive the same. Hence, notice was published in the newspapers. Ultimately, they appeared in the proceeding and time was granted to them to file reply, which they did not do nor did they appeared in the proceeding thereafter. As such, D.C.L.R. proceeded with ex-parte hearing of the matter. Hence, notice was published in the newspapers. Ultimately, they appeared in the proceeding and time was granted to them to file reply, which they did not do nor did they appeared in the proceeding thereafter. As such, D.C.L.R. proceeded with ex-parte hearing of the matter. He examined the documents produced by respondent no.8 before him and came to the conclusion that the petitioners had encroached upon the land of respondent no.8. It is true that the D.C.L.R. also casually noticed that the Government Amin, who had measured the plot on the orders of the Circle Officer had reported that some Government land had also been encroached upon by the petitioners. But this Court finds that the D.C.L.R. did not pass any order directing the petitioners to vacate the Government land or to any authority of the Government to get the Government land vacated in accordance with law. 9. Petitioners have filed supplementary affidavit in the case bringing on record memo of appeal which they had filed before the Commissioner. From the memo of appeal also this Court finds that their entire case is that they have built up four shops on their own part of plot no.1459, which was left out on the northern side of the drain. Order of the Commissioner in appeal is Annexure-11. From this order, it appears that the case of the petitioners was considered by the Commissioner in detail and he found that there was a conscious attempt by the petitioners to delay the proceeding. He found that they had deliberately not appeared before the D.C.L.R. and before him also, on one pretext or the other, they were trying to linger the matter. He found that the Amin in his report had reported that some land of respondent no.8 was encroached upon by the petitioners. He found that their case was that they are in possession of their part of plot no.1459. He perused the lower court records and also casually noticed that the Amin in his report had also mentioned that there was some encroachment on some Government land also. He also noticed that the entire case of respondent no.8 was that his raiyati land was being encroached upon by the appellants-petitioners. In the circumstances, he found no error in the order of the D.C.L.R. and therefore he has rejected the appeal. 10. He also noticed that the entire case of respondent no.8 was that his raiyati land was being encroached upon by the appellants-petitioners. In the circumstances, he found no error in the order of the D.C.L.R. and therefore he has rejected the appeal. 10. In view of clear stand of the petitioners that they had built their four shops on their own part of plot no.1459 to which respondent no.8 had not raised any claim, it is clear that there is no dispute of title between the parties. In fact, it is only a case of demarcation with regard to the alleged left out part of plot no.1459 of the petitioners on the northern side of the drain and the boundary of the land of respondent no.8 after that. For this purpose, this Court had earlier directed for measurement of the plot by a survey knowing pleader commissioner, which was done and his report is available with the counter affidavit of respondent no.8. Learned counsel for the petitioner accepts that the petitioners were present in the measurement, but now he challenges the correctness of the said measurement. If that is so, nothing prevented petitioners from taking steps for fresh measurement of the land by any competent authority. But for that reason they cannot question the correctness of the order of the D.C.L.R. affirmed by the Commissioner in appeal. 11. Submissions of learned counsel for the petitioners that the dispute as raised by respondent no.8 before the D.C.L.R. is not covered by section 4 and Schedule 1 of the Bihar Land Disputes Resolution Act, 2009 is also misconceived. Section 3 of the Act gives overriding effect to the procedure prescribed under this Act over any proceeding under the six Acts mentioned therein. This includes Bihar Tenancy Act, 1885 also. Section 4 lays down jurisdiction of the authority under the Act to resolve the disputes as classified under the clauses therein. Clause (a) of Section 4 does deal with unauthorized and unlawful possession of the settlee; Clause (b) provides for restoration of possession; Clause (c) provides for threatened dispossession of legally entitled settlee and clause (d) provides that the matters contained in clauses (a), (b) and (c) shall also be applicable pertaining to raiyati land. Clause (a) of Section 4 does deal with unauthorized and unlawful possession of the settlee; Clause (b) provides for restoration of possession; Clause (c) provides for threatened dispossession of legally entitled settlee and clause (d) provides that the matters contained in clauses (a), (b) and (c) shall also be applicable pertaining to raiyati land. On this basis, learned counsel for the petitioners has advanced his submissions that respondent no.8 did not set up a case before the D.C.L.R. of unlawful dispossession or threatened dispossession. But he has completely missed to notice clause (h) of this Section, which specifically mentions boundary disputes also as one of the matters within the jurisdiction of the authorities under the Act. As noticed above, consistent case of the petitioners is that their shops are existing on the left over land of plot no.1459 on the northern side of the drain. Case of respondent no.8 is that some of the land occupied by their shops is his left over land in northern side of plot no.1459. In the circumstances, apparently the dispute is a boundary dispute and not a dispute of any title or of threatened dispossession. This Court, therefore, finds that the application of respondent no.8 was maintainable before the D.C.L.R. and the D.C.L.R. and the Commissioner were well within their jurisdiction to entertain the same on merits and pass orders. 12. As pointed out above, though the petitioners have pleaded that they have built their shops in 1984, but they have nowhere pleaded, either before this Court or before the Commissioner, that the shops included some land of respondent no.8 also and they had perfected their title through adverse possession. Thus, it is clear that they have not set up any dispute of title over the alleged land or part of the land of respondent no.8 covered by the shops. 13. In the circumstances, this Court finds no merits in the submissions of learned counsel for the petitioners. Writ application is accordingly dismissed. 14. Before parting with this case, it may be pointed out that in the writ application as well as in the appeal before the Commissioner, petitioners had taken a stand that, after their appearance before the D.C.L.R. through a learned counsel, they had entrusted their documents to him for filing an affidavit. However, he did not do it, on account of which the D.C.L.R. proceeded ex-parte and passed orders. However, he did not do it, on account of which the D.C.L.R. proceeded ex-parte and passed orders. The Commissioner has found that the petitioners have been making all efforts to delay the matter and therefore their conduct was not bonafide. This Court finds that it has become fashionable for the parties to casually level allegations against the counsels for their any laches and throw all blame on the counsels to get some advantage from the Court. Petitioners have not named the learned counsel whom they had allegedly entrusted their documents for filing affidavit before the D.C.L.R. nor they have disclosed as to why they have not filed a complaint before the Bar Council against the said learned counsel. Therefore, plea of the petitioners that, due to laches on the part of their counsel they did not appear before the D.C.L.R., appears to this Court only a ploy to get some advantage in the matter at different levels. 15. However, to prevent the petitioners from suffering irreparable loss by forcible demolition of their shops by the Government machinery, any step for demolition of their shops shall be taken by the respondents only after giving them seven days notice to vacate the same voluntarily or to get an interim order from any competent court of law.