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2014 DIGILAW 990 (PAT)

Chandra Shekhar Singh v. State of Bihar

2014-09-12

JYOTI SARAN

body2014
Order Heard Mr. Raj Kumar Rajesh, learned counsel for the petitioner and Mr. Manish Kumar learned G.P.8 for the State. 2. The petitioner prays for issuance of writ in the nature of mandamus commanding the respondent to vacate his land bearing Khata No. 322 Khesra No. 1572 having an area of 49.77 acres situated in Mauza Jhiliya in the District of Jamui which according to the petitioner has been forcibly utilized by the respondents for construction of a road under the Pradhan Mantri Gramin Sarak Yojana to the extent of 2.75 acres. 3. It is the case of the petitioner that the grand father of the petitioner had taken a settlement of 176.96 acres of land under a Hukumnama executed in the year 1939 by the erstwhile Zamindar Mr. F.A. Chirestien and by virtue whereof the grand father of the petitioner took possession of the land. It is stated that the land was mutated in the name of the grand father and subsequently in the name of the father and has been entered in Register-II maintained in this regard by the Land Revenue Department. It is further the case of the petitioner that in the year 1959, a proceeding under Sections 144 and 145 was initiated by one Dasi Singh giving rise to case No. 252 of 1959 Tr.No.151 of 1961 and the possession of the father of the petitioner was confirmed by the Judicial Magistrate 1st Class, Jamui vide order passed on 1.9.1961. It is further the case of the petitioner that a portion of land was also acquired by the State by resorting to ceiling proceedings. 4. It is thus the contention of the petitioner that right since the settlement of the land in the year, 1939 his forefathers have acquired title and have been in the possession thereof. In support of such contention the petitioner has placed on record the copy of the Hukumnama which apparently is a registered document placed at Annexure-1 to the interlocutory application bearing I.A.No.4796 of 2014, the rent receipt issued by the ex-landlord in the name of the father of the petitioner as well as the revenue receipts issued by the Revenue Department in the year 2012 and land possession certificates. 5. 5. When the respondents proceeded to construct a road under the Pradhan Mantri Gramin Sarak Yojana running between Maheshwari Bandarmara to Tetariya which intended to pass through Plot No.1572 of the petitioner to the extent of 2.75 acres, that he immediately raised an objection and a legal notice was served on the respondent authorities including the Executive Engineer, the Chief Engineer, Rural Works Department as well as the other authorities of the said department and the District Magistrate, Jamui. A copy of such notice is placed at Annexure-2 and has been acknowledged by the Deputy Collector Incharge District Legal Section, Jamui who vide letter dated 5.6.2012 has required the Executive Engineer to look into the matter. Thus the objection of the petitioner raised within the time is apparent and stands confirmed by the letter of the Deputy Collector bearing Memo No. 456 dated 5.6.2012 placed at Annexure-3. 6. Since the respondents despite the legal notice being served upon them yet proceeded to construct the road, that the petitioner approached this Court through C.W.J.C. No. 17692 of 2012 and a Bench of this Court vide order passed on 21.9.2012 required the District Magistrate, Jamui to consider the matter after holding enquiry and pass appropriate order before laying the road in question. Since despite the direction of this Court requiring the respondents to put a hold on the construction of the road until the disposal of the matter by the District Magistrate, the construction of the road continued, the petitioner moved this court in contempt jurisdiction giving rise to M.J.C.No.134 of 2013. While the contempt application was pending consideration before this Court that the District Magistrate vide order passed on 3.10.2013 rejected the contention of the petitioner while questioning his very title over the land in question. In view of the order passed by the District Magistrate, Jamui which has been placed on record vide Annexure-4 to the interlocutory application, the contempt application was disposed of vide order passed on 9.10.2013 granting liberty to the petitioner to question the same in accordance with law. This order passed in M.J.C.No.134 of 2013 has been placed at Annexure-5 of the interlocutory application. It is in view of the subsequent developments that the petitioner filed interlocutory application No.4796 of 2014 seeking to amend the prayer made in the writ petition and for permission to question the order dated 3.10.2013 passed in Misc. Case no. This order passed in M.J.C.No.134 of 2013 has been placed at Annexure-5 of the interlocutory application. It is in view of the subsequent developments that the petitioner filed interlocutory application No.4796 of 2014 seeking to amend the prayer made in the writ petition and for permission to question the order dated 3.10.2013 passed in Misc. Case no. 26 of 2012 by the District Magistrate, Jamui. 7. In the nature of the dispute as it stands, the prayer made in I.A. No. 4796 of 2014 is allowed and the petitioner is permitted to question the same in the present proceeding. I.A. No. 4796 of 2014 is allowed. 8. Since the pleadings are complete hence this Court has proceeded to consider the matter with a view to its final disposal. 9. Mr. Raj Kumar Rajesh, learned counsel for the petitioner has submitted that even when the order of this Court required the respondents to restrain themselves until disposal of the grievance of the petitioner by the District Magistrate, yet in complete defiance they went ahead with the construction and have completed the road. It is with reference to the documents placed on record appended in the interlocutory application submitted that despite there being no doubt as regarding the title of the petitioner over the Plot No.1572 yet the District Magistrate wholly illegally and acting without jurisdiction has taken over the mantle of the Civil Court to determine the issue of title and which finding in fact is de hors the evidence on record. 10. It is contended by Mr. Raj Kumar Rajesh that since the petitioner has raised objection to the construction of the road and had also approached this Court within the shortest possible time, the defiance of the respondents in constructing the road, requires an intervention. 11. A counter affidavit has been filed by the State and Mr. Manish Kumar learned counsel for the State supporting the stand of the respondents has submitted that since the road was already existing on the alignment since 2003 with no objections forthcoming from the petitioner, there was no illegality on the part of the respondents in the construction of the road in question. Manish Kumar learned counsel for the State supporting the stand of the respondents has submitted that since the road was already existing on the alignment since 2003 with no objections forthcoming from the petitioner, there was no illegality on the part of the respondents in the construction of the road in question. In fact it is the stand of the respondents that the petitioner initially did not raise any objection and has allowed the road to be constructed but after the completion of the road, he has tried to gain advantage by filing the writ petition for securing financial benefits. In so far as the order of the Collector is concerned, it is stated that the opinion of the Collector is based on materials on record. Mr. Manish Kumar has also relied upon the judgment of the Supreme Court reported in AIR 2011 SC 2542 (Syed Maqbool Ali V. State of U.P. and Anr.) more particularly paragraph 6 to submit that this Court would not enter into disputed issue of fact while exercising extra ordinary jurisdiction under Article 226 of the Constitution of India. 12. It is the contention of Mr. Manish Kumar that the petitioner if so aggrieved has his remedy before the Civil Court but a writ remedy in disputed facts is not available to the petitioner. 13. I have heard learned counsel for the parties and I have perused the materials on record. 14. It is a clear case of defiance by the respondents. There is every material on record to prove that the petitioner objected at the appropriate moment. Even if there was a Kachcha road running over the plot in question, that certainly did not vest any right in the respondents to utilize it on a permanent basis without obtaining the written consent of the land holder. That an objection was raised at the proper time is manifest from the legal notice placed at Annexure-2 and though the copy thereof is undated but the service thereof stands admitted in the letter of the Deputy Collector Incharge District Legal Section, Jamui bearing Memo No.456 dated 5.6.2012 requiring the Executive Engineer to look into the matter. It is thus manifest that as until 5.6.2012 the road was yet to be constructed. It is thus manifest that as until 5.6.2012 the road was yet to be constructed. Since despite the legal notice, the respondents did not pay any heed the petitioner moved this Court in C.W.J.C.No.17692 of 2012 and which was disposed of on 21.9.2012 with a direction to the petitioner to appear before the District Magistrate who shall get an enquiry conducted by a Circle Officer and pass appropriate order within reasonable time of one month and until such time the road in question was not to be laid. What is manifest from the records is that despite this position the respondents proceeded with the road forcing the petitioner to move this Court again in contempt jurisdiction giving rise to M.J.C.No.134 of 2013 and when hurriedly the District Magistrate, Jamui disposed of the claim of the petitioner on 3.10.2013 in Misc. Case No. 26 of 2012 thus rendering the contempt application infructuous. It is thereafter that this writ petition which was pending on the date, was sought to be amended as discussed hereinabove and which prayer has been allowed. 15. The sequence of events which I have discussed hereinabove leave no room for confusion that the respondent authorities including the Executive Engineer, the Assistant Engineer and all other authorities connected with the construction of the road in question which passes through the plot of the petitioner bearing No. 1572 have tried to overreach the order of this Court. The disposal of contempt application would in no manner undermine their illegal actions. The petitioner having objected to the construction at the very inception of such construction, his objection should have been respected by the respondents. Thus the construction of road in so far as it runs over the plot of the petitioner bearing no. 1572, cannot be upheld and is held an illegal construction rather an encroachment over the property of the petitioner without following the due process of law. 16. In so far as the order of the District Magistrate is concerned, it is patently illegal and contrary to the evidence on record. Surprisingly, the District Magistrate Jamui performing quasi judicial functions even while taking note of the undisputed legal position has given an opinion which runs contrary to the materials discussed by him. 16. In so far as the order of the District Magistrate is concerned, it is patently illegal and contrary to the evidence on record. Surprisingly, the District Magistrate Jamui performing quasi judicial functions even while taking note of the undisputed legal position has given an opinion which runs contrary to the materials discussed by him. The District Magistrate has taken note of the Hukumnama executed in the year 1939 and even when the Hukumnama is a registered document as is manifest from Annexure-1 to the interlocutory application yet he does not bother to verify this position. The District Magistrate has taken note of the fact that the name of the father of the petitioner stands entered in Register-II and that they are in possession of the entire 49.77 acres of Plot No. 1572. He has also taken note of the report of the Circle Officer bearing No. 701 dated 21.9.2013 in which the possession of the petitioners have been confirmed. The petitioner had enclosed all these documents before the Collector but apparently in view of the contempt proceedings staring at his face, that he has passed the order on 3.10.2013 in Misc. Case No. 26 of 2012. 17. As I have already observed the registered Hukumnama, the land possession certificate, revenue receipts have all been enclosed by the petitioner to support his title and ownership of his land. The petitioner has also enclosed the report of the revenue Karamchari placed at Annexure-6 to the writ petition and even the report of the Circle Officer dated 21.9.2013 taken note of by the Collector in his impugned order placed at Annexure-B to the counter affidavit reflects that the name of the father of the petitioner is entered in Register-II and a Jamabandi is running in their name. What I find from the order of the Collector is that he has raised doubts as to how the name of the father of the petitioner entered in the revenue records. What I find from the order of the Collector is that he has raised doubts as to how the name of the father of the petitioner entered in the revenue records. Such question would not be open for the Collector to adjudicate for the legal position is that once the name of the father of the petitioner runs in the revenue records supported by Hukumnama with the possession of land held by them, until such time that it is declared by a court of competent civil jurisdiction that the petitioner is not title holder to the land, the Collector exercises no such jurisdiction to give any opinion as to the title of the petitioner over the land in question. The order of the Collector dated 3.10.2013 passed in Misc. Case No. 26 of 2012 being de hors the legal position and the materials on record it cannot be upheld and is accordingly set aside. 18. This would bring this Court back to the main issue regarding the forceful intrusion by the respondents over the land of the petitioner and this Court would refer to the very judgment relied upon by Mr. Manish Kumar rendered in the case of Syed Maqbool Ali (supra) reported in AIR 2011 SC 2542 where in paragraph 6 the Supreme Court even while discussing the extent of jurisdiction of the High Court under Article 226 of the Constitution on disputed matters, has also held that when an aggrieved establishes that the State has highhandedly taken over his land without recourse to the necessities of acquisition and has deprived him of his property without authority of law, the holder may seek his remedy in writ proceedings. 19. This Court is tempted to reproduce not only the portion relied upon by the learned counsel for the State but the other portion of the paragraph 6 as well which completely supports the claim of the petitioner. “……………..Further the High Court should be satisfied that the case warrants the exercise of the extraordinary jurisdiction under Article 226 of the Constitution of the India, and that the matter is one where the alternative remedy of suit is not appropriate. “……………..Further the High Court should be satisfied that the case warrants the exercise of the extraordinary jurisdiction under Article 226 of the Constitution of the India, and that the matter is one where the alternative remedy of suit is not appropriate. For example, if the person aggrieved and the State are owners of adjoining lands and he claims that the State has encroached over a part of his land, or if there is a simple boundary dispute, the remedy will lie only in a civil suit, as the dispute does not relate to any highhanded, arbitrary or unreasonable action of the officers of the State and there is a need to examine disputed questions relating to title, extent and actual possession. But where the person aggrieved establishes that the State had highhandedly taken over his land without recourse to acquisition or deprived him of his property without authority of law, the landholder may seek his remedy in a writ petition. When a writ petitioner makes out a case for invoking the extra ordinary jurisdiction under Article 226 of the Constitution, the High Court would not relegate him to the alternative remedy of a civil court, merely because the matter may involve an incidental examination of disputed questions of facts. The question that will ultimately weigh with the High Court is this : Whether the person is seeking remedy in a matter which is primarily a civil dispute to be decided by a civil court, or whether the matter relates to a dispute having a public law element or violation of any fundamental right or to any arbitrary and high-handed action. (See the decisions of this court in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd – 2004(3) SCC 553 and Kisan Sahkari Chini Mills Ltd. v. Vardan Linkers – 2008(12) SCC 500 ].” 20. (See the decisions of this court in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd – 2004(3) SCC 553 and Kisan Sahkari Chini Mills Ltd. v. Vardan Linkers – 2008(12) SCC 500 ].” 20. In the circumstances discussed hereinabove, there could be only one conclusion and that would be to direct the respondent authorities including the District Magistrate, Jamui, the Executive Engineer, Rural Engineering Works Division, Jamui, the Assistant Engineer and the other authorities connected with the construction of the road, to take all possible steps for removal of the same in so far as it intrudes over the plot No. 1572 of Khata No. 322 at Mauza Jhilia in the District of Jamui belonging to the petitioner and restore it to its original position until and unless they are able to arrive at an amicable settlement with the petitioner on such terms and conditions that the petitioner would agree or upon payment of compensation as per the official rate/value of land prevailing in the area. 21. Any such action to be taken by the respondent should be completed within three months from the date of receipt/production of a copy of this order. 22. The writ petition is allowed with the directions aforementioned.