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2023 DIGILAW 182 (JHR)

Gitendra Thakur v. State of Jharkhand

2023-02-16

RAJESH SHANKAR

body2023
JUDGMENT : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order dated 16.09.2021 passed by the respondent No. 2 in Encroachment Appeal Case No. 03 of 2016-17 (Annexure-13 to the writ petition) whereby the said appeal preferred by the petitioner has been dismissed directing the respondent No. 4 to remove the alleged encroachment from the petitioner's raiyati land appertaining to part area of Khata No. 77, Plot No. 44, Mouza-Gorhimal, P.S+District-Godda, Thana No. 503, measuring an area of 0.0379 Acre [hereinafter referred to as ‘the said land’] within two months from the date of the order. Further prayer has been made for quashing the notice dated 14.03.2016 (Annexure-10 to the writ petition) issued by the respondent No. 4 in Land Encroachment Case No. 01/16 whereby the petitioner was directed to remove the alleged encroachment from the said land. 2. Learned counsel for the petitioner submits that the land appertaining to Jamabandi No. 74, Plot Nos. 44 & 42, Mouza-Gorhimal, P.S+District-Godda originally belonged to Raja Krityanand Bahadur Singh and others of Rajya Bandeli Estate, Godda. The said land was settled in the name of the petitioner's grandfather, namely, Shiv Shankar Thakur by way of ‘Kurfanama’ dated 15.04.1949 and thereafter he came in absolute exclusive possession of the same by paying rent to the ex-landlord i.e. Rajya Bandeli Estate for which rent receipts were also issued in his favour. After vesting of the intermediary estate, the ex-landlord filed return of various plots showing the said plots in possession of the petitioner's grandfather, who applied for mutation of Plot No. 42, which is adjacent to Plot No. 44 and the same was allowed vide order dated 27.09.1965 passed in Mutation Case No. 43 of 1965-66. Meanwhile, one Jagdish Prasad Srivastav made a complaint before the respondent No. 3 on 09.09.1964 against the petitioner's grandfather for initiating a proceeding under Section 144 of Cr. P.C. alleging inter alia that Plot No. 44 was illegally purchased by him and construction over the same was also being made by trying to close down the drain passing through the said plot, water of which flowed into a ‘Pokhar’ at Plot No. 46. On the basis of the said allegation, one complaint Criminal Misc. Case No. 375 of 1964 was initiated in the Court of the respondent No. 3. On the basis of the said allegation, one complaint Criminal Misc. Case No. 375 of 1964 was initiated in the Court of the respondent No. 3. Thereafter, an enquiry was conducted and a report dated 01.12.1964 was submitted by the Sub-Inspector of Police, Godda Police Station in the said Court stating that there was no trace of any ‘Nala’ (drain) over Plot No. 44 whereas there was existence of ‘House’ and ‘Khalihan’ of the petitioner's grandfather since long and the same was also under his possession. On the basis of the report dated 01.12.1964, Criminal Misc. Case No. 375 of 1964 was dropped. Jagdish Prasad Srivastava again made objection during field bujharat operation stating that Plot No. 44 was recorded as ‘Danr’ in the last survey which was illegally purchased by the petitioner's grandfather and others. The said case was registered as Bujharat Dispute Case No. 02 of 1967 in the Court of the respondent No. 4 which was decided vide order dated 18.05.1967 holding that a ‘Nala’ had been left out in southern side of the house of the petitioner's grandfather providing outlet of rain water. It was further held that Plot No. 44 was in continuous possession of the petitioner's grandfather. Another complaint was made before the respondent No. 4 on 29.04.1975 by one Rani Bala Devi, wife of Jagdish Prasad Srivastava alleging that there was a drain adjacent to the ‘Pokhar’ at Plot No. 46 which was encroached by influential persons. On the basis of the said complaint, Land Encroachment Case No. 17 of 1975-76 was instituted whereupon an enquiry was conducted and it was found that there was no trace of ‘Danr’ (drain) over Plot No. 44 which had been in possession of the petitioner's grandfather since long. The said land encroachment case was finally dropped vide order dated 31.05.1976. Thereafter, Jagdish Prasad Srivastava filed an application before the respondent No. 3 against the father and the uncle of the petitioner, namely, Gangadhar Thakur and Bharati Thakur respectively alleging inter alia that they had encroached a ‘Nala’ passing over Plot No. 44 flowed into a ‘Pokhar’ at Plot No. 46 which had been utilized by the raiyats of Mouza-Gorhimal. The said case was registered as Criminal Misc. The said case was registered as Criminal Misc. Case No. 99 of 1984 and the same was also rejected vide order dated 01.05.1985 observing that there was no trace of ‘Nala’ existing over Plot No. 44 and the said land had been in absolute continuous possession of the petitioner's ancestors prior to the year 1964. Jagdish Prasad Srivastava again filed a petition for initiation of proceeding under Section 147 of Cr. P.C. which was allowed vide order dated 11.12.1986. Aggrieved with the said order, the petitioner's ancestors approached the Patna High Court in Criminal Misc. Case No. 8580 of 1987 which was allowed vide order dated 13.01.1988 holding that entire history of litigation showed that the applications filed repeatedly for the same cause and having lost in the Courts of the respondent Nos. 3 & 4, any further proceeding under Section 147 Cr. P.C. would be an abuse of process of the Court. Even after the said order of the Patna High Court, another proceeding under Section 144 of Cr. P.C. was initiated on an application filed by Samar Srivastava, son of Jagdish Prasad Srivastava which was registered as Criminal Misc. Case No. 28 of 1989, however, the said case was dismissed vide order dated 16.05.1989. 3. It is also submitted that the petitioner as well as his predecessors-in-interest have been in continuous, absolute and uninterrupted possession of the said land. The petitioner's father-Late Gangadhar Thakur died on 22.06.2011 and the said land devolved upon the petitioner and other legal heirs. Suddenly, the petitioner received a notice dated 25.02.2016 issued by the respondent No. 4 in Land Encroachment Case No. 01 of 2016 calling upon him to appear before the said respondent on 10.03.2016 and to show cause as to why the alleged encroachment made over 0.0379 Acre of the land of Gorhimal Gairmazurwa Khata No. 77, Plot No. 44 be not removed. Pursuant to the said notice, the petitioner appeared before the respondent No. 4 through his counsel and submitted all the relevant documents including the entire litigation history, however, the respondent No. 4 did not consider the submission made on behalf of the petitioner and served another notice dated 14.03.2016 to him for removing the alleged encroachment from the said land. Pursuant to the said notice, the petitioner appeared before the respondent No. 4 through his counsel and submitted all the relevant documents including the entire litigation history, however, the respondent No. 4 did not consider the submission made on behalf of the petitioner and served another notice dated 14.03.2016 to him for removing the alleged encroachment from the said land. Thereafter, the petitioner filed a writ petition being W.P.(C) No. 1673 of 2016 before this Court for quashing the notice dated 14.03.2016 which was disposed of vide order dated 30.03.2016 with liberty to the petitioner to approach the appellate authority within a period of three weeks from the date of the order and further directed the appellate authority to consider the case on its own merit. Thereafter, the petitioner preferred an appeal under Section 11 of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 [hereinafter referred to as ‘the Act, 1956’] before the appellate authority i.e. the respondent No. 2 which was registered as Encroachment Appeal No. 03 of 2016-17. The said appeal was however dismissed vide order dated 16.09.2021 directing the respondent No. 4 to remove the alleged encroachment within a period of two months from the date of the order and to ensure intimation to the appellate authority regarding compliance of the said order. 4. It is further submitted that the petitioner/his ancestors had been in absolute, uninterrupted and exclusive continuous possession of the said land for more than 65 years and thus he has absolute right, title and interest over the same. Earlier also, a land encroachment case being Land Encroachment Case No. 17 of 1975-76 was instituted against the petitioner's ancestors with respect to the said land which was decided in their favour holding inter-alia that there was no encroachment over the same and they were in exclusive possession of the said land since long. The said decision was in the knowledge of all concerned and thus initiation of another encroachment proceeding against the same land is barred by the principle of res-judicata. Learned counsel for the petitioner further submits that the aforesaid litigation history would clearly suggest that there is no encroachment over public land and the petitioner is being deliberately harassed by the respondent authorities. Otherwise also, a summary proceeding relating to title of the land cannot be conducted under the provisions of the Act, 1956. Learned counsel for the petitioner further submits that the aforesaid litigation history would clearly suggest that there is no encroachment over public land and the petitioner is being deliberately harassed by the respondent authorities. Otherwise also, a summary proceeding relating to title of the land cannot be conducted under the provisions of the Act, 1956. The respondent No. 2 however while hearing the appeal in a land encroachment case, entered into a disputed question of title which was beyond its jurisdiction. A proceeding under the Act, 1956 is not maintainable in view of the fact that the State has recognized the petitioner as raiyat. The petitioner and his ancestors were deliberately harassed in multiple land encroachment proceedings with respect to the same land. 5. Per-contra, learned counsel for the respondents submits that the said land is a public land which has been encroached by the petitioner. Hence, the respondent No. 4 rightly initiated the land encroachment proceeding against the petitioner and issued notice under Section 6(2) of the Act, 1956 for his eviction from the said land. 6. It is further submitted that pursuant to the order dated 30.03.2016 passed by this Court in W.P. (C) No. 1673 of 2016, the matter was enquired by the respondent No. 4, who reported the respondent No. 2 that the said land was recorded in the last Survey ‘Parcha’ as ‘Nala’ (drain) which was encroached by the petitioner to the extent of 0.0379 Acre. Section 36 of the Santhal Pargana Tenancy Act, 1949 [hereinafter referred to as ‘the Act, 1949’] provides that ‘rivulets’ or ‘Nalas’ on the boundaries of villages, burning and burial grounds, camping grounds, land bearing boundary marks, public roads, village paths, ‘Jaherthan’ and other places of worship shall not to be settled as well as reclaimed or cultivated or converted for any other purpose by any raiyat. It has been further provided that no proprietor, landlord, village headman or ‘mulraiyat’ shall appropriate these for their own use, nor shall they settle these with any raiyat. Thus, the respondent No. 2 has rightly passed the impugned order dated 16.09.2021 dismissing Encroachment Appeal No. 03/2016-17 preferred by the petitioner and affirming the order dated 14.03.2016 passed by the respondent No. 4 under Section 6(2) of the Act, 1956 in Land Encroachment Case No. 01/2016 for removal of the alleged encroachment from the said land. Thus, the respondent No. 2 has rightly passed the impugned order dated 16.09.2021 dismissing Encroachment Appeal No. 03/2016-17 preferred by the petitioner and affirming the order dated 14.03.2016 passed by the respondent No. 4 under Section 6(2) of the Act, 1956 in Land Encroachment Case No. 01/2016 for removal of the alleged encroachment from the said land. The petitioner has claimed his right and title over the said land only on the basis of the settlement by way of ‘Kurfanama’ made by the then landlord, namely, Raja Krityanand Bahadur Singh of Rajya Bandeli Estate, Godda which is not a registered document. Hence, it cannot be taken into consideration for the purpose of claiming right, title and interest over the said land. 7. It is also submitted that the said land is ‘Gair Majarua’ and nature of the same is ‘Nala’ which cannot be converted for cultivation and other purposes without approval of the respondent No. 2 as provided under Section 35 of the Act, 1949. The respondent No. 4 has reported that the petitioner's name has not been mentioned in the revenue records and hence his entire claim is not admissible under the Act, 1956. 8. Heard learned counsel for the parties and perused the relevant materials available on record. The petitioner is aggrieved with the order dated 16.09.2021 passed by the respondent No. 2 in Encroachment Appeal No. 03/2016-17 whereby the appeal preferred by the petitioner has been dismissed and the respondent No. 4 has been directed to remove the alleged encroachment from the said land. 9. The thrust of the argument of learned counsel for the petitioner is that the said land is not a public land, rather the petitioner has lawful right, title, interest and possession over the same and hence initiation of the land encroachment proceeding is not maintainable. It is further submitted that the land encroachment proceeding itself is a summary proceeding for removal of encroachment made over public land and when there is bonafide dispute of title, the appropriate recourse is to invoke the civil remedy. The complainant and his family members have been desperately trying to evict the petitioner from the land in question by initiating multiple proceedings, however, they have not succeeded and the petitioner/his ancestors have been continuing with the possession of the same since long. 10. The complainant and his family members have been desperately trying to evict the petitioner from the land in question by initiating multiple proceedings, however, they have not succeeded and the petitioner/his ancestors have been continuing with the possession of the same since long. 10. The claim of the respondents is that in last survey settlement, the said land has been recorded as ‘Nala’ which cannot be settled to any person in view of Section 35 of the Act, 1949 and thus the petitioner cannot claim any right over the said land. 11. It appears that earlier a land encroachment proceeding vide Land Encroachment Case No. 17 of 1975-76 was initiated for the same land at the instance of Rani Bala Devi w/o Jagdish Prasad Srivastava alleging that the said land was recorded in the government record as ‘Nala’ over which the petitioner's ancestors had made the alleged encroachment. In the said case, the respondent No. 4 observed that earlier the Officer In-charge, Godda Police Station had submitted enquiry report in Cr. Misc. Case No. 375 of 1964 stating that there was no trace of ‘Nala’ over the said land. He further referred to the order passed in Bujharat Dispute Case No. 2 of 1967 wherein during enquiry, it was found that the said land was in possession of the petitioner's grandfather since long and there was no trace of ‘Nala’ over the same. The said land encroachment proceeding was dropped by the respondent No. 4 vide order dated 31.05.1976 which attained finality as the same was not challenged before the superior Courts. 12. Again Land Encroachment Case No. 1 of 2016 was instituted against the petitioner alleging that he had encroached the said land to the extent of 0.0379 Acre and the respondent No. 4 vide the impugned notice dated 14.03.2016 issued under Section 6(2) of the Act, 1956, directed the petitioner to remove the alleged encroachment from the said land. Thereafter, Encroachment Appeal Case No. 03/2016-17 was filed by the petitioner before the respondent No. 2, but the same was dismissed vide order dated 16.09.2021. On perusal of the impugned order dated 16.09.2021, it appears that the appellate Court has passed the same on the ground that as per the last survey settlement, the nature of the land was ‘Nala’ and in view of Section 36 of the Act, 1949, ‘Nalas’ cannot be settled to any person. 13. On perusal of the impugned order dated 16.09.2021, it appears that the appellate Court has passed the same on the ground that as per the last survey settlement, the nature of the land was ‘Nala’ and in view of Section 36 of the Act, 1949, ‘Nalas’ cannot be settled to any person. 13. In the case of Maheshwari Devi v. State of Bihar, 1988 BLJ 1051 , it has been held by the Patna High Court that in a case where earlier land encroachment proceeding under the Act, 1956 has been dropped, no fresh land encroachment proceeding can be initiated in respect of the same land as the earlier order attains finality. In the aforesaid case, the Court referred earlier Division Bench judgment rendered in the case of Kali Prasad Seal v. State of Bihar, 1969 PLJR 23 wherein it was held that there was no jurisdiction to re-agitate the matter in another fresh proceeding where the order passed in the earlier proceeding had become final. 14. Learned counsel for the petitioner puts reliance on a judgment rendered by this Court in the case of Rashmi Singh v. State of Jharkhand, (2021) 4 JLJR 322 wherein it has been held as under:— “8. In the case of Government of Andhra Pradesh v. Thummala Krishna Rao, (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 v. State of A.P. (1970) 1 ALT 88 which was affirmed by a Division Bench [Meherunnissa Begum v. 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. 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. 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 v. State of Bihar, 1992 SCC Online Pat 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”. 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. 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 bonafide 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 v. State of Jharkhand, (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. 11. This Court in the case of Ujjal Kanti Banerjee v. State of Jharkhand, (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. 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.” 15. In the present case, the petitioner has contended that the said land was settled in the name of his ancestors in the year 1949 and since then they have been in continuous possession of the same. It has further been contended that after vesting of the Jamindari, the ex-landlord filed return showing the petitioner's ancestors in possession of the said land. It appears that one Jagdish Prasad Srivastava and his family members instituted various proceedings challenging the right, title, interest and possession of the petitioner/his ancestors over the said land, however, they failed in all those proceedings. Moreover, a land encroachment proceeding earlier initiated against the petitioner's ancestors for the same land was also dropped and hence the present encroachment proceeding is barred by the principle of res-judicata. 16. Moreover, a land encroachment proceeding earlier initiated against the petitioner's ancestors for the same land was also dropped and hence the present encroachment proceeding is barred by the principle of res-judicata. 16. On perusal of the pleadings and the documents filed by the petitioner, this Court finds that the petitioner/his ancestor has been in continuous possession of the said land since long by virtue of settlement made by the ex-landlord and hence there is bonafide dispute of title between the petitioner and the respondent-State which can only be determined by a competent Court of civil jurisdiction. An encroachment proceeding is summary in nature which is resorted to evict a person who has encroached a public land. The factual plea taken by the respondents that there was a ‘Nala’ over the said land has not been established in an earlier enquiry conducted in another proceeding. 17. In view of the aforesaid discussions, the impugned order dated 16.09.2021 passed by the respondent No. 2 in Encroachment Appeal No. 03 of 2016-17 as well as the impugned notice dated 14.03.2016 issued by the respondent No. 4 under Section 6(2) of the Act, 1956 are hereby quashed. The State Government is however at liberty to avail the civil remedy claiming its right, title and interest over the said land. 18. The present writ petition is accordingly allowed with aforesaid observation.