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2021 DIGILAW 791 (JHR)

Rashmi Singh v. State of Jharkhand

2021-09-23

RAJESH SHANKAR

body2021
ORDER : 1. The present writ petition is taken up through video conferencing. 2. The present writ petition has been filed for quashing the order dated 04.09.2020 passed by the Deputy Commissioner, Ranchi (the respondent no. 3) in Encroachment Appeal No. 6R 15 of 2020-21 whereby the appeal preferred by the petitioner against the orders as contained in notices dated 26.06.2020 and 10.07.2020 issued by the Circle Officer, Nagri, Ranchi (the respondent no. 4) in Land Encroachment Case No. 37 of 2017-18, has been dismissed upholding the orders as contained in aforesaid notices issued by the respondent no. 4. 3. The factual background of the case as stated in the writ petition is that one Kedar Nath Singh (landlord of the petitioner) purchased land under Khata No. 383, Plot No. 260, Sub-Plot No. 260/1B, area 25 decimals in village Pundag, Thana No. 228, District Ranchi (hereinafter to be referred as “the said land”) through registered sale deed dated 10.06.1983. Earlier, the ex-landlord namely Shri Bara Lal Kandrap Nath Shahdeo had executed a registered Kabuliat vide Deed No. 6048 dated 15.10.1947 in favour of Bal Govind Mahto and the same was confirmed through Hukumnama dated 07.10.1948. The ex-landlord filed return showing the name of Bal Govind Mahto as raiyat and subsequently the name of said Bal Govind Mahto was entered in Register-II. The landlord of the petitioner namely Kedar Nath Singh purchased the aforesaid land through registered sale deed dated 10.06.1983 from the sons of Late Bal Govind Mahto and came in possession of the same. The said land was mutated in the name of Kedar Nath Singh vide Mutation Case No. 150R 27/1993-94. The jamabandi of the said land was also opened in his name and he paid the rent to the Government. Subsequently, another land adjacent to the said land measuring an area of about 1.25 decimals was also purchased by Kedar Nath Singh who entered into a rent agreement with the petitioner in the year 2013-14 for running a Dhaba in the name and style of “Haryali Dhaba” which is presently closed due to Covid-19 pandemic. In the meantime, two notices dated 26.06.2020 and 10.07.2020 were issued by the respondent no. 4 to the petitioner’s Dhaba in Land Encroachment Case No. 37 of 2017-18 under Section 6(2) of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 (in short “the Act, 1956”). In the meantime, two notices dated 26.06.2020 and 10.07.2020 were issued by the respondent no. 4 to the petitioner’s Dhaba in Land Encroachment Case No. 37 of 2017-18 under Section 6(2) of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 (in short “the Act, 1956”). The said notices were served to the caretaker of the said Dhaba on 11.07.2020 whereby encroachment made over the land situated at Mauza-Pundag, Thana No. 228, Gairmajurwa Khata No. 383, Plot No. 260, measuring an area (Part) 20 decimals (hereinafter to be called as “the land in question”) was directed to be removed till 15.07.2020 failing which penal actions were to be taken. At that point of time, the petitioner was trapped with her family members at Muzaffarpur in lockdown due to Covid-19 pandemic and as such she made representation dated 14.07.2020 before the respondent no. 4 through Whatsapp and a copy of the same was also sent to the respondent no. 3 through email. Earlier, the petitioner had preferred writ petition being W.P. (C) No. 1974 of 2020 for quashing the order contained in notice dated 26.06.2020 issued by the respondent no. 4, however the same was disposed of with a liberty to the petitioner to prefer appeal before the respondent no. 3. Thereafter, the petitioner filed Encroachment Appeal No. 06R 15 of 2020-21 before the respondent no. 3, however was dismissed vide impugned order dated 04.09.2020. Hence, the present writ petition. 4. The learned counsel for the petitioner submits that the respondent no. 3 failed to appreciate that the respondent no. 4 while conducting with the said encroachment case, did not follow the mandatory provisions of the Act, 1956. It is further submitted that the respondent no. 3 also failed to appreciate that the respondent no. 4 did not issue notice to the landlord of the petitioner who is the owner of the land in question and also did not provide opportunity of hearing to him and as such he violated the provisions of Section 5 of the Act, 1956. After issuance of notice in the newspaper on 11.09.2018, the landlord namely Kedar Nath Singh submitted all records with respect to the said land and requested for correction of his name wrongly mentioned as Kedar Nath Munda as well as for issuance of rent receipts thereafter, but the respondent no. After issuance of notice in the newspaper on 11.09.2018, the landlord namely Kedar Nath Singh submitted all records with respect to the said land and requested for correction of his name wrongly mentioned as Kedar Nath Munda as well as for issuance of rent receipts thereafter, but the respondent no. 4, without giving any opportunity of hearing and considering the documents filed by him, straightway passed the order for removal of encroachment from the land in question on which the said “Hariyali Dhaba” was situated. It is also submitted that summary proceeding for eviction under the Act, 1956 can be resorted by the Government only against the persons who are in unauthorized occupation of any land which is the property of the Government i.e. public land. The land over which the encroachment is alleged to have been done has been registered through sale deed and mutation has also been made in favour of Kedar Nath Singh. The respondent authorities cannot demolish the building constructed over the said land without following due procedure of law and observing the principles of natural justice. The respondent authorities also cannot decide title of the land unilaterally in their favour and evict a person summarily on the basis of such decision. 5. Learned AC to GA-V appearing on behalf of the respondents submits that the said land is Gairmajurwa and has vested in the State by virtue of the provisions of the Bihar Land Reforms Act, 1950 being a public land. Ex-landlord of Mouza-Pundag namely Bara Lal Kandrap Nath Shahdeo had formed a trust namely “Devi Chintamani Trust” in the year 1948 and filed jamindari return in the name of said trust in which the name of six raiyats were mentioned, however the name of Bal Govind Mahto was not in the list of settlees and as such the landlord of the petitioner has got no legal right over the said land. It is further submitted that the Government of Jharkhand has issued notification contained in memo no. 2074/R dated 13.05.2016 under the signature of Chief Secretary directing all the Deputy Commissioners for cancellation of doubtful jamabandi running in the entire State of Jharkhand after proper enquiry. It is further submitted that the Government of Jharkhand has issued notification contained in memo no. 2074/R dated 13.05.2016 under the signature of Chief Secretary directing all the Deputy Commissioners for cancellation of doubtful jamabandi running in the entire State of Jharkhand after proper enquiry. It is also submitted that the Department of Revenue, Registration and Land Reforms, Government of Jharkhand, issued letter dated 10.07.2018 pursuant to the decision taken on 03.07.2018 by Cabinet Secretariat and Vigilance Department, Government of Jharkhand, Ranchi for cancellation of ongoing illegal/ doubtful jamabandi. A committee formed for the said purpose inspected different plots of Khata No. 383, Mouza-Pundag, Thana No. 228, Ranchi on 10.05.2017 and found encroachment of different plots situated within the said Khata. Thereafter, the respondent no. 4 after calling a report from the Anchal Amin, Deputy Revenue Inspector and Circle Inspector issued notices against 153 encroachers of Khata No. 383 by publishing the same in daily Hindi Newspapers on 10.09.2018 in which the name of petitioner’s landlord figured at S. No. 76. Thereafter, the respondent no. 4 passed the order as contained in notice dated 26.06.2020 after providing adequate opportunity of hearing to the petitioner. It is further submitted that the appeal preferred by the petitioner has also been dismissed by the respondent no. 3 by observing that the said land is a public land. 6. Heard learned counsel for the parties and perused the materials available on record. The petitioner is aggrieved with the orders as contained in notices dated 26.06.2020 and 10.07.2020 issued by the respondent no. 4 in Land Encroachment Case No. 37 of 2017-18 whereby her Dhaba has been directed to be removed from the said land treating it to be an encroachment over a public land. The said notices issued by the respondent no. 4 were also confirmed by the respondent no. 3 in Encroachment Appeal No. 6R 15/2020-21. 7. The main contention of the learned counsel for the petitioner is that a summary proceeding of eviction cannot be resorted to for ousting of the petitioner since she has been in possession of the said land by virtue of a lease deed executed by the landlord for the purpose of running her Dhaba. 7. The main contention of the learned counsel for the petitioner is that a summary proceeding of eviction cannot be resorted to for ousting of the petitioner since she has been in possession of the said land by virtue of a lease deed executed by the landlord for the purpose of running her Dhaba. The petitioner has also contended that the said land is a purchased property of her landlord in whose name jamabandi of the same has also been opened and he is paying rent thereof to the State of Jharkhand. 8. In the case of Government of Andhra Pradesh vs. Thummala Krishna Rao and Another, (1982) 2 SCC 134 , the Hon’ble Supreme Court has held as under:- “9. The view of the Division Bench that the summary remedy provided for by Section 6 cannot be resorted to unless the alleged encroachment is of “a very recent origin” cannot be stretched too far. That was also the view taken by the learned Single Judge himself in another case which is reported in Meharunnissa Begum vs. State of A.P. (1970) 1 ALT 88 which was affirmed by a Division Bench [Meherunnissa Begum vs. Govt. of A.P. AIR 1971 AP 382 : (1971) 1 ALT 292 : ILR 1972 AP 44]. It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona-fide. Facts which raise a bona-fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bona-fide claim to the property requiring an impartial adjudication according to the established procedure of law. 10. But duration of occupation is relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bona-fide claim to the property requiring an impartial adjudication according to the established procedure of law. 10. The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary enquiry contemplated by Sections 6 and 7 of the Act. The long possession of the respondents and their predecessors-in-title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddin from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. Maybe, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily.” 9. In the case of Rekha Singh and Others vs. State of Bihar and Others, 1992 SCC Online Patna 203 : (1992) 2 PLJR 854 , the learned Division Bench of Patna High Court (Ranchi Bench) has held as under:- “7. It has been well settled by now that the summary remedy for eviction finder the Act can be resorted to by the Government only against the persons who are in unauthorised occupation of any land which is “the property of Government.” If there is a bona-fide dispute regarding the title of the Government to any property, the Government cannot take unilateral decision in its own favour that the property belongs to it and, on the basis of such decision take recourse to the summary remedy provided for evicting the person who is in possession of the property under a bona-fide claim or title. 8. In the instant case, unquestionably, the petitioners have a bona-fide claim to litigate and they cannot be evicted save by the due process of law. 8. In the instant case, unquestionably, the petitioners have a bona-fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed under the Act is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process for evicting the petitioners. 9. The facts which raise a bona-fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary course of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is in occupation of a property for a considerable length of time can be taken, prima facie, to have a bona-fide claim to the property requiting an impartial adjudication according to the established procedure of law.” 10. It is thus well settled that an encroachment proceeding is a summary remedy for eviction of an encroacher of public land, however the said remedy cannot be resorted to evict a person who has bona-fide claim of title over the said land and in such case the proper course of law is to resort to civil remedy. 11. This Court in the case of Ujjal Kanti Banerjee and Others vs. State of Jharkhand and Others, 2017 (3) JLJR 621 , has also held that the proceeding under the Act, 1956 being summary proceeding cannot be resorted to by the authorities when the occupants of the land have been in open and continuous possession for several years through their predecessor-in-title. 12. In the case in hand, it transpires that the petitioner is in possession of the land in question by virtue of a lease deed executed by Kedar Nath Singh who had purchased the said land by virtue of registered sale deed and continued to have possession of the same for more than 35 years without any hindrance and disturbance from the respondent-State. The learned counsel for the respondents disputing the title of the landlord of the petitioner has though contended that the said land is a public land, however he has failed to show any order of competent court of law declaring the sale deed of the landlord of the petitioner as null and void. The learned counsel for the respondents disputing the title of the landlord of the petitioner has though contended that the said land is a public land, however he has failed to show any order of competent court of law declaring the sale deed of the landlord of the petitioner as null and void. I am of the view that the summery proceeding initiated by the respondents to evict the petitioner from the land in question cannot be said to be proper recourse since the petitioner is not an encroacher over the said land rather, she is the lessee of Kedar Nath Singh who has bona-fide claim of title over the said land. 13. In view of the aforesaid discussion, the order dated 04.09.2020 passed by the respondent no. 3 in Encroachment Appeal No. 6 R15 of 2020-21 is set aside. Orders as contained in notices dated 26.06.2020 and 10.07.2020 issued by the respondent no. 4 in Land Encroachment Case No. 37 of 2017-18 are also set aside. The State Government is, however, at liberty to avail the civil remedy claiming its right, title and interest over the land in question. 14. The writ petition is, accordingly, allowed with aforesaid observation.