Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 280 (JHR)

Chandan Manna v. State Of Jharkhand

2018-02-01

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT Anubha Rawat Choudhary, J. - Heard Mr. Saibal Mitra, counsel appearing on behalf of the petitioners. 2. Heard J.C. to Sr. S.C. II counsel appearing on behalf of the respondent-State. 3. This writ petition has been filed by the petitioners for the following reliefs:- (i) For a direction commanding upon the respondent Nos. 1 to 5 to pay compensation of Rs. 2,00,000/- for the alleged illegal demolition of the half portion of the house and garage of the petitioners situated at Khata No. 3, Plot No. 693/1 measuring an area about 0.01.21 hectares about 1 Katha 16 dhur, under Ward No. 4, J.N.A.C. Jamshedpur which is said to have been demolished by the respondent Nos. 3 to 5 without initiating any proceeding under the provisions of Bihar Public Land Encroachment Act or any other Eviction Proceeding. (ii) For a direction restraining the respondents from interfering with the possession of the petitioners over the aforesaid land claiming that the petitioners have been residing on the said land since 1957 and running his Motor Repairing Shop without any interference of anybody within the knowledge of the respondents and that the petitioners perfected their right, title and interest over the aforesaid land by way of adverse possession as they are in continuous physical possession since 1957. (iii) For a direction upon the respondent No. 2 to take legal action against respondent Nos. 3 to 5 for the aforesaid demolition of the house and garage of the petitioners. 4. The counsel for the petitioners submit as under:- a. The aforesaid property falls within the Tata lease area and the petitioners claim to be in peaceful possession of the property since the year 1957 in which they are running the motor garage shop and are having one room house. b. In order to establish that they are in possession of the property since 1957, the petitioners have relied upon the license dated 23.01.1957, granted by the authorities under Bihar Shops and Establishment Act, from perusal of which it appears that it was renewed from time to time. b. In order to establish that they are in possession of the property since 1957, the petitioners have relied upon the license dated 23.01.1957, granted by the authorities under Bihar Shops and Establishment Act, from perusal of which it appears that it was renewed from time to time. c. The petitioners have relied upon the order under Section 89 of the Chotanagpur Tenancy Act,1908 in case No. 104/1988-89 between the deceased father of the petitioner namely Ganesh Chandra Manna and M/s TISCO Ltd. with respect to the said land and submitted that the Assistant Settlement Officer Jamshedpur vide order dated 24.01.1989 was pleased to record the name of the deceased father Ganesh Chandra Manna in the record of rights and declared the possession of the deceased father of the petitioners since the year 1975. d. On the basis of these documents, the petitioners claim adverse possession of the property since 1975 and submit that 30 years already elapsed in the month of March 2005 and they have perfected the title over the property by way of adverse possession. e. The petitioners claim that their possession was peaceful possession of the property till March 2007. f. At paragraph No. 10 of the writ petition, specific averment has been made by the petitioners that without any prior notice and without any proceeding for eviction, the respondent Nos. 3 to 5 demolished half portion of the constructed area, i.e. his house-cum-motor garage. g. On 10.04.2007, the respondent Nos. 3 to 5 further threatened that rest of the portion will also be demolished shortly. h. The petitioners suffered loss to the tune of Rs. 2,00,000/- on account of illegal demolition of their property. i. By referring to counter-affidavit, the counsel for the petitioners submitted that the respondents have mentioned about publication of general notice in local newspaper with regard to alleged encroachment and the specific case of the petitioners is that they were available on the spot, the general notice under the provisions of Bihar Public Land Encroachment Act and rules framed thereunder could not have been issued and it should have been specific notice against that petitioners so as to enable them to put forth their case before the authorities. j. Although the petitioners in the writ petition have claimed that the land in question is not covered under Section 2(3) of the Bihar Public Land Encroachment Act, but this point has not been argued by the counsel for the petitioners, rather the specific case of the petitioners is that proceedings under the provisions of the Bihar Public Land Encroachment Act should have been initiated against the petitioners prior to taking any action in connection with the property involved in this case. k. The petitioners have submitted that the respondents have acted illegally and without authority of law and without following any procedure established by law. l. The petitioners have not disputed the fact that so far as title of the property is concerned, it belongs to the Government. m. Counsel for the petitioners has relied upon the judgment, reported in (2010) 5 SCC 203 : (2010 AIR SCW 4544) as well as reported in 2013 (2) JCR 470 (Jhr) and 2017 (4) JBCJ 723 (HC). 5. Counsel for the respondents by referring to counter-affidavit filed in the matter referred to statements made in paragraph Nos. 14, 16, 19 and 20 denied the claim of adverse possession by the petitioners over the property. The counsel further submits that the petitioners have themselves submitted that the property belongs to Government. The respondents have taken a specific stand in the counter-affidavit at para 19 that a general notice was issued in the local newspapers for eviction from Government land, although the notice has not been annexed with the counter-affidavit. It has been submitted that no rejoinder has been filed by the petitioners. The counsel submitted that the writ court cannot decide the claim of adverse possession by the petitioners as the same is highly disputed. 6. After hearing counsel for the parties, I find no reason to grant any relief to the petitioners in the instant case and the writ petition is dismissed on account of following facts and reasons:- (a) Admittedly, the petitioners have encroached over the property and the property belongs to the Government. (b) So far as title of the petitioners on the point of adverse possession is concerned, it requires detailed examination of facts etc. which cannot be adjudicated in the writ jurisdiction. (b) So far as title of the petitioners on the point of adverse possession is concerned, it requires detailed examination of facts etc. which cannot be adjudicated in the writ jurisdiction. (c) The case of the petitioners in the writ petition that the property has been demolished without notice has been negated by the respondents in the counter-affidavit wherein it has been stated that notice in the local newspaper was issued and this factual position has neither been denied by the petitioners by filing any rejoinder nor the counsel for the petitioners has disputed this factual position during the course of argument, rather, the counsel for the petitioners has specifically argued that general notice is not proper and individual notice ought to have been issued to the petitioners as the petitioners were always present on the property. The petitioners have neither pleaded nor argued that they had no knowledge of the general notice which has been mentioned in the counter-affidavit. (d) So far as judgment, reported in (2010) 5 SCC 203 : (2010 AIR SCW 4544) relied upon by the petitioners is concerned. It has been held by the Hon''ble Supreme Court that the claim for adverse possession in connection with the Government property has to be examined very meticulously and particularly in view of the fact that many a times offices who are expected to maintain property records either due to negligence or illusion create entries in records to help private parties. Moreover, it has been specifically recorded that adverse possession for more than 30 years with respect to the Government property ought to have been with the knowledge of the Government. Prima facie from perusal of Annexure-3 to the writ petition, it appears that possession of the petitioners over the property in question was not reflecting in the map and therefore father of the petitioners filed application in the year 1984 wherein it was recorded in the order passed in the year 1989 that father of the petitioners was in possession since 1975. Even assuming that the possession of the father of the petitioners was since 1975, but by virtue of this order passed in 1989, it appears that for the first time in the year 1989 only it came to the knowledge of the Government that the father of the petitioners was claiming possession of the property since 1975. Even assuming that the possession of the father of the petitioners was since 1975, but by virtue of this order passed in 1989, it appears that for the first time in the year 1989 only it came to the knowledge of the Government that the father of the petitioners was claiming possession of the property since 1975. Reliance of the petitioners on other documents other than revenue records have no bearing in the matter. However, if on any occasion, the petitioners have to defend themselves by claiming adverse possession etc. then that would require detailed evidence which cannot be examined in the writ proceedings. (e) So far as judgments passed in the case, reported in (2013) 2 TCR 470 and 2017 (4) TBCT 723 (HC) are concerned, the admitted fact in those cases was that there has been no proceeding under Bihar Public Land Encroachment Act, but in the instant case, it is admitted position that general notice regarding removal of encroachment was issued. The specific case of the petitioners as argued by the counsel for the petitioners is that no notice has been issued to the petitioners for the purpose of eviction of the petitioners and individual notice ought to have been issued to the petitioners as the petitioners were already present on the spot. It is not the case of the petitioners that they were not aware of the general notice. Accordingly, the petitioners ought to have themselves brought on record the general notice and instead of doing so, the petitioners have filed writ petition claiming that no proceeding under Bihar Land Encroachment Act has been initiated against the petitioners. (f) It is the specific case of the respondents that a general notice has been issued in the local newspaper, although in the counter-affidavit, general notice has not been annexed. It is relevant to note here that the petitioners have not filed any rejoinder to this counter-affidavit and even in the course of argument, the counsel for the petitioners has not advanced any argument that the general notice was not issued, rather, specific case of the counsel was that the petitioners were available on the spot, the general notice under the provisions of Bihar Public Land Encroachment Act could not have been issued and it should have been specific notice against that petitioners so as to enable them to put forth their case before the authorities. The petitioners have not filed any affidavit or even orally, the counsel for the petitioners has not submitted that the petitioners were not aware of the general notice which is said to have been published in the local newspaper. This goes to show that although the petitioners were aware of the general notice but have not mentioned it in the writ petition which amounts to suppression of material facts by the petitioners before this court. 7. In the facts and circumstances of the case, I find no reason to entertain this writ petition. The writ petition being devoid of merits is accordingly dismissed. 8. However, it is made clear that, if the petitioners may so choose to get their right, title and interest over the property declared from a competent court of civil jurisdiction, the order passed by this Court will not prejudice the case of the petitioners. 9. Interim order stands vacated.