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2018 DIGILAW 829 (JHR)

Vishal Palsania v. State of Jharkhand

2018-04-11

RAJESH SHANKAR

body2018
ORDER : The present writ petition has been filed for quashing of the notice dated 2.09.2015 issued under Section 3 of Bihar Public Land Encroachment Act, 1956 ( in short ‘Act, 1956’) under the signature of the Circle Officer, Jamshedpur (respondent no. 2). It has been further prayed for quashing the order dated 03.10.2015 passed by the respondent no.2 in B.P.L.E Case No. 33 of 2015-16, whereby the petitioner has been directed to remove the encroachment within fifteen days. Further prayer has been made for quashing of the order dated 21.01.2016 passed by the Deputy Commissioner-cum-District Magistrate, East Singhbhum (respondent no. 1) in BPLE Appeal No. 60 of 2015-16, whereby the appeal preferred by the petitioner has been rejected and the order dated 03.10.2015 passed by the respondent no.2 in B.P.L.E Case No. 33 of 2015-16 has been upheld. 2. The factual background of the case, as stated in the writ petition, is that the petitioner is in occupation of a piece of land measuring 80’ X 50’, Plot No. 3547, Ward No. 17, Khata No. 55 (hereinafter to be referred as the ‘land in question’) by virtue of an agreement to sale executed by one Kunti Mundari in the month of February, 2012. The petitioner constructed a Pucca house over the said land and also took an electric connection from the electricity department. A notice dated 02.09.2015 was issued by the respondent no. 2 in the name of ‘Palsania Cherry Garden’ in purported exercise of power under section 3 of the Act, 1956, directing it to appear on 16.09.2015. Finally the respondent no.2 passed an order on 03.10.2015, holding that the construction of the petitioner has been made upon the government land. Aggrieved by the said order, the petitioner filed an appeal, being B.P.L.E Appeal No.60 of 2015-16, before the Deputy Commissioner, East Singhbhum, which was dismissed vide order dated 21.01.2016, holding that the land in question is recorded in the name of Anabad Bihar Sarkar (now Jharkhand Sarkar). 3. The learned counsel appearing on behalf of the petitioner submits that no notice under Section 6(2) of the Act, 1956 was served upon to the petitioner. It is further submitted that Kunti Mandari from whom the petitioner got the possession of the said land was in occupation of the land in question since 1982 i.e. more than 30 years. Thus, she had acquired adverse possession over the said land. It is further submitted that Kunti Mandari from whom the petitioner got the possession of the said land was in occupation of the land in question since 1982 i.e. more than 30 years. Thus, she had acquired adverse possession over the said land. It is further submitted that the notice issued under section 3 of the Act, 1956 was vague in which no plot number was mentioned and as such the petitioner could not appear in the encroachment proceeding initiated by the respondent no.2. It is also submitted that the respondent no.1 did not provide any opportunity of hearing to the petitioner before dismissing the appeal. The petitioner is a bonafide purchaser of the land in question and he is in possession over the same by making construction thereupon. Thus the petitioner cannot be said to be an encroacher of the land in question. It is wrong to say that the land in qustion is a public land, rather the same is raiyati land which has been purchased by the petitioner. 4. The learned counsel for the respondent submits that the land in question is a public land and as such Kunti Mandari had no legal right to transfer the said land in favour of the petitioner. It is further submitted that the petitioner did not appear before the respondent no.2 with valid document(s) of the land in question and as such the impugned order dated 03.10.2015 was passed directing the petitioner to remove the encroachment. It is further submitted that in the appeal also, the petitioner did not appear before the appellate authority (the respondent no.1) in terms of the order dated 21.01.2016 and as such the same was disposed of confirming the order of the respondent no.2. 5. Heard the learned counsel for the parties and perused the materials available on record. The thrust of the argument of the petitioner is that he is in occupation of the land in question by virtue of an agreement to sale dated 15.02.2012, executed by Kunti Mundari, and as such the encroachment proceeding initiated against the petitioner was not tenable. It is well settled that no right or title vests by virtue of an agreement to sale which can only be used for enforcing specific performance of the intention of the executant to sell. 6. In the case of Jharkhand State Housing Board & Ors. vs. Dr. It is well settled that no right or title vests by virtue of an agreement to sale which can only be used for enforcing specific performance of the intention of the executant to sell. 6. In the case of Jharkhand State Housing Board & Ors. vs. Dr. Brajendra Prasad Verma, reported in 2013(3) JLJR 234 , the Division Bench of this Court has held as under:- “11. So far as intervener application being IA No. 3156 of 2008 is concerned, it is liable to be dismissed for several reasons. The applicant-D.K Verma, by virtue of alleged agreement to sale cannot get any right, title or interest in the property as agreement of sale creates no right, title or interest in the property, which is well settled law. Agreement of sale gives only right to purchase the property. That right to purchase the property entitles the prospective purchaser to purchase the property but that right if is not exercised properly in time by showing his readiness and willingness to purchase the property cannot be enforced even by filing suit for specific performance of contract. ….” 7. The next limb of the argument of learned counsel for the petitioner is that his predecessor in interest was in occupation of the land in question for more than 30 years and as such he acquired title by adverse possession. However, no document has been brought on record by the petitioner in support of the said contention and as such I do not find any substance in the same. 8. It is also contended by the learned counsel for the petitioner that the notice issued by the respondent no.2 in purported exercise of section 3 of the Act, 1956 did not contain the plot number, thus the impugned notice is vague. Curiously enough, it is not the case of the petitioner that the said notice was not received by him, rather the petitioner has specifically stated in Para-9 of the writ petition that notice issued under Section 3 of the Act, 1956 was received by him on 09.09.2015. However, the petitioner did not bother to appear before the respondent no.2 with requisite documents in support of his case. Thus it cannot be said that no opportunity of hearing was provided to him before passing the impugned order for removal of encroachment. However, the petitioner did not bother to appear before the respondent no.2 with requisite documents in support of his case. Thus it cannot be said that no opportunity of hearing was provided to him before passing the impugned order for removal of encroachment. So far as the contention of the petitioner that the appellate authority has dismissed the appeal of the petitioner without affording any opportunity of hearing to him is concerned, the respondents have stated in the counter affidavit that after filing of the appeal, the petitioner did not appear before the appellate authority and, thus, the impugned order dated 21.01.2016 has been passed on the basis of the materials available on record. Moreover, the petitioner has also not brought on record any document before this court to prima facie suggest his valid possession and title over the land in question. Therefore, no relief can be granted to the petitioner in exercise of the power under Article 226 of the Constitution of India. 9. Under the aforesaid circumstance, the writ petition is dismissed being bereft of sufficient materials on record. Petition dismissed.