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2014 DIGILAW 1249 (JHR)

Md. Ezaz @ Raja Babu v. State of Jharkhand

2014-12-12

SHREE CHANDRASHEKHAR

body2014
JUDGMENT SHREE CHANDRASHEKHAR, J. 1. The present writ petition has been filed seeking a direction for restraining the respondents from illegally interfering with the possession of the petitioner in respect of land situated at Mouza No. 166, Khata No. 19, Plot No. 1692 at Govindpur, Dhanbad and for a direction restraining the respondents from taking coercive step, dispossessing the petitioner from the property in question. 2. Briefly stated, the facts disclosed in the writ petition are summarised hereunder:- The petitioner claims to have purchased a piece of land vide Sale Deed No. 2174/1908 dated 14.02.2011 from Motilal Parmanik, Subodh Chandra Bhandari, Smt. Monika Devi, Kartik Parmanik, Smt. Renuka Devi and Konika Devi. The land situated at Mouza No. 166, Khata No. 19, Plot No. 1692 admeasuring 4.3 decimal at Govindpur, Dhanbad was recorded in the name of the one Sharda Napit and Dhiru Napit in the Cadastral Survey Record of Right and till 2011, rent receipt was issued in the name of Dhiru Napit. The said Dhiru Napit and Sharda Napit surrendered their interest with respect to land appertaining to Plot Nos. 1537, 1538 and 1691 through Deed of Surrender No. 3253 dated 21.09.1934, in favour of Raja Thakur Chandra Mohatri Singh, who transferred his right, title and interest in favour of Banglu Charan Dutta through Deed No. 3273 dated 24.09.1934. The vendors of the petitioner filed a case for declaration of title and recovery of possession with respect to the property in question, which is the scheduled property in Sale Deed dated 14.02.2011. The case was registered as Title Suit No. 192/2001-02, which was decreed vide order dated 24.08.2004 by the Sub-Judge IV, Dhanbad. Thereafter, Execution Case No. 3/19/2006-07 was filed by the vendors of the petitioner for issuance of writ of delivery of possession of the decretal land. The report submitted by the Nazir in the Execution Case discloses that the delivery of possession of the decretal land was handed over to the decree-holders on 23.01.2011 and thereafter, vide Sale Deed dated 14.02.2001, the land in question was transferred by a registered sale deed to the petitioner. On 06.11.2014, one Rajendra Prasad Tiwari, District Education Officer visited the premises of the petitioner and directed the petitioner to vacate the premises informing the petitioner that the said land was already acquired by the government. On 06.11.2014, one Rajendra Prasad Tiwari, District Education Officer visited the premises of the petitioner and directed the petitioner to vacate the premises informing the petitioner that the said land was already acquired by the government. The petitioner was informed that the Deputy Commissioner, Dhanbad has passed an order, and in compliance thereof, the District Education Officer directed the petitioner to vacate the premises. The respondent no.2Deputy Commissioner, Dhanbad without issuing any show-cause notice and without following due process of law threatened the petitioner to evict him from the land in question with the help of police force. The petitioner obtained the document of the Land Acquisition Case No. 04/1954-55, which discloses that Plot No. 1692 was not the subject matter in the acquisition proceeding and even the name of the owner of Plot No. 1692 has been wrongly mentioned. The petitioner has purchased the land in question from the legal heirs of the recorded tenant. The land in question was never acquired nor any notice was issued to the recorded tenant and even the compensation has not been paid to the recorded tenant or any other person. 3. A counter-affidavit has been filed on behalf of the respondent no.4 stating that the land in question at Mouza No. 166, Khata No. 19, Plot No. 1692 at Govindpur, Dhanbad was acquired vide Land Acquisition Case No.04/1954-55 for the purpose of construction of Basic Training School at Dhanbad. The acquisition proceeding was published in gazette by the State of Bihar. The total area acquired was 7.04 acres including the land in question for which, compensation was paid to the land owners. Vide Gazette Notification No. 654 dated 01.02.1954, the acquisition was notified in the Bihar Gazette (Part-II) dated 10.02.1954. The total area of Plot No. 1692 is 5 Decimal only. With respect to Plot No. 1692, compensation has been paid to one Banglu Charan Dutta on 31.01.1956. In Title Suit No. 192 of 2001, the actual owner of Plot No. 1692 was not a party nor the State was a contesting party. The revenue record discloses that the name of Banglu Charan Dutta is recorded in Khatiyan. It is denied that no proceeding was initiated rather, the Deputy Commissioner and the competent authority issued several notices for eviction of the petitioner. The revenue record discloses that the name of Banglu Charan Dutta is recorded in Khatiyan. It is denied that no proceeding was initiated rather, the Deputy Commissioner and the competent authority issued several notices for eviction of the petitioner. Measurement of the land in question was taken in presence of the Magistrate and in presence of the petitioner and after following due process of law, the petitioner has been evicted. The petitioner and other persons illegally encroached upon the land of the school and therefore, the school could not be fully constructed, even after lapse of more than 60 years. It is disputed that the Motilal Parmanik is the actual land owner, who has allegedly executed the sale deed with respect to land in Plot No. 1692, in favour of the petitioner. In view of letters dated 24.05.2013 and 25.06.2013 of the Area Education Officer, Govindpur, which indicate that the land of the school has been encroached by the antisocial elements and a news report was also published in the daily newspaper. In the aforesaid facts, a detailed enquiry report was prepared on the direction of Deputy Commissioner dated 10.07.2013 and a proceeding under the Public Land Encroachment Act was initiated vide Land Encroachment Case No. 15/2013-14. On 17.07.2013, notices were issued to the petitioner however, he refused to accept the same and therefore, it was affixed on 20.08.2013 on the building constructed on the encroached land thereafter, final order was passed on 30.09.2014 and the Magistrate was deputed for removing the encroachment. 4. Heard the learned counsel appearing for the parties and perused the documents on record. 5. The learned counsel for the petitioner submits that the manner in which the building standing on the land in question was demolished, reflects the malafide action on the part of the respondent-authorities. The writ petition was mentioned before this Court on 20.11.2014 and the writ petition was listed in the supplementary cause list dated 21.11.2014 however, the respondents deliberately and intentionally demolished the building with a view to render the writ petition infructuous. The writ petition was mentioned before this Court on 20.11.2014 and the writ petition was listed in the supplementary cause list dated 21.11.2014 however, the respondents deliberately and intentionally demolished the building with a view to render the writ petition infructuous. The petitioner is the rightful owner of the land in question, who after the execution of Sale Deed dated 14.02.2011, came in peaceful possession of the property in question and therefore, the least which was required from the respondent-authorities, before taking any coercive action against the petitioner, was to issue a show-cause notice to the petitioner, which has not been issued to the petitioner. The letters and telegram allegedly issued to the petitioner were never served upon the petitioner. The petitioner had no knowledge of the Encroachment Case No. 15/2013-14. Relying on decisions in State of U.P. and Others vs. Maharaja Dharmander Prasad Singh Others, AIR 1989 SC 997 and Anamallai Club vs. Government of Tamil Nadu and Others, (1997) 3 SCC 169 , it is submitted that the respondent-authorities could not have demolished the building without following due process of law. 6. Per contra, Mr. Atanu Banerjee, learned G.A. submits that the writ petition has been filed on the basis of forged and fabricated documents. The petitioner has asserted that he purchased the property in question on 14.02.2011 and thereafter, rent receipt was issued in his name however, the document filed as Annexure-2 to the writ petition discloses that the rent receipt was issued on 07.02.2011, that is, prior to registration of the alleged sale deed. The learned G.A. further submits that the petitioner has not acquired any valid right, title or interest over the land in question, which has already been acquired for public purpose way back in the year, 1954-55. The encroachment has been removed after following due process of law and no fundamental right of the petitioner has been infringed. In the writ petition, there was not even a prayer seeking stay of order dated 30.09.2014 and therefore, it is wrong to contend that to render the writ petition infructuous, the authorities hurriedly demolished the building. The averment in the writ petition discloses serious dispute as to title of the petitioner allegedly acquired vide Sale Deed dated 14.02.2011, which cannot be adjudicated in the present proceeding and therefore, this writ petition is liable to be dismissed on that count alone. 7. The averment in the writ petition discloses serious dispute as to title of the petitioner allegedly acquired vide Sale Deed dated 14.02.2011, which cannot be adjudicated in the present proceeding and therefore, this writ petition is liable to be dismissed on that count alone. 7. I have carefully considered the submission of the learned counsel for the parties and perused the documents on record. 8. In support of his claim, the petitioner has produced copy of a sale deed and a rent receipt dated 07.02.2011 issued in the name of Dhiru Napit. The petitioner has stated that the Dhiru Napit and Sharda Napit had surrendered their interest in favour of Raja Thakur Chandra Mohatri Singh on 21.09.1934. According to the petitioner himself, the land came in possession of one Banglu Charan Dutta and Title Suit No. 192/2001-02 were instituted by Motilal Parmanik and others. In the writ petition, it has nowhere averred by the petitioner why the rent receipt was issued in the name of Dhiru Napit. The petitioner has annexed only one receipt dated 07.02.2011. Only some of the vendors of the petitioner are parties in the title suit. The title suit was filed in the year, 2001 however, in the writ petition, there is no detail disclosed with respect to possession over the land in question in the last 60 years. It is also not disclosed how the land in question came in possession of the defendants of Title Suit No. 192/2001-02. The petitioner has nowhere stated that he purchased the land and building constructed thereon. No detail with respect to the building and the year of construction have been disclosed in the writ petition. The petitioner has not disclosed the name of the tenants, the nature of the tenancy, the date of the induction of the tenants and the date on which the tenants were allegedly inducted in different shops besides, who among the predecessor-in-interest of the alleged vendors of the petitioner or the defendants of Title Suit No. 192/2001-02 constructed the building. The writ petition is lacking in all necessary details. On a mere pretention of acquiring title through registered sale deed dated 14.02.2001, the petitioner has filed the present writ petition. The respondents have specifically pleaded that Plot No. 1692 was acquired vide Land Acquisition Case No. 04/1954-55 and compensation has been paid to the recorded raiyat. The writ petition is lacking in all necessary details. On a mere pretention of acquiring title through registered sale deed dated 14.02.2001, the petitioner has filed the present writ petition. The respondents have specifically pleaded that Plot No. 1692 was acquired vide Land Acquisition Case No. 04/1954-55 and compensation has been paid to the recorded raiyat. In the writ petition, the petitioner has only stated that in the land acquisition case, name of owner of Plot No. 1692 is wrongly mentioned. A proceeding under the Jharkhand Public Land Encroachment Act was initiated against the petitioner in which, notices were issued to the petitioner however, the petitioner has denied service of notice upon him. The petitioner himself has disclosed that on 06.11.2014, he got knowledge of order passed by the Deputy Commissioner. The writ petition was filed on 12.11.2014 however, it was mentioned for urgent hearing only on 20.11.2014. The sale deed dated 14.02.2011 is only an evidence with respect to execution of a deed between two parties and receipt of consideration by the vendor. Even by a registered sale deed, a vendor cannot transfer a property in which, he himself has got no title. The respondent-State of Jharkhand has specifically denied right of the vendors of the petitioner in the land in question. I further find that the writ petition involves serious disputed questions of fact. 9. I find no merit in this case and accordingly, this writ petition is dismissed.