Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4979 of 2005 ====================================================== 1. (a) Nawal Kishori Devi, W/O Late Surendra Singh (the original petitioner). (b) Pratibha Singh. (c) Sobha Singh. (d) Anup Rai. (e) Seema Devi. (f) Mona Devi. (g) Guddi Devi. All are daughters of late Surendra Singh (the original petitioner) and are residents of Village- Pachrukhi Bazar, P.O. + P.S. - Pachrukhi, District- Siwan. .... .... Petitioner/s Versus 1. The State of Bihar. 2. Collector, Siwan. 3. Additional Collector, Siwan. 4. Sub-divisional Officer, Siwan. 5. Deputy Collector Land Reforma, Siwan. 6. Circle Officer, Pachrukhi Block, Siwan. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Shashi Shekhar Dwivedi, Sr. Advocate with Mr. Ranjan Kr.Dubey Mr. Naresh Prasad-1 Ms. Shalini For the Respondent/s : Mr. Sanjay Kumar, SC-12. Mr. S.S.Shabhar Hussain Mr. Jahan Ara For the Intervener/s: Mr. Chitragupt Prasad ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN C.A.V. ORDER 19 18-11-2013 The petitioners have filed the writ petition seeking the following reliefs: (a) The entire proceeding in Case No.1 of 2004-05 as well as the order of cancellation of Jamabandi of the petitioners vide order dated 11.4.2005 passed by Collector, Siwan, as evidenced by the order-sheet Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 2 dated 11.4.2005, be quashed. (b) The consequent order dated 11.4.2005 for demolition of the house of the petitioners and their forcible ejectment as evidenced by order dated 11.4.2005, be quashed. (c) The resultant notice dated 13.4.2005 issued by Circle Officer, Pachrukhi threatening to demolish the house and shop of the petitioners be quashed. (d) Any other relief/reliefs to which the petitioners may be deemed entitled to, may also be granted to them. An interlocutory application bearing I.A. No.2986 of 2005 is on the record of the proceedings containing a prayer for amendment of the reliefs by incorporating a direction for payment of compensation to the extent of rupees ten lacs for illegal demolition of the house of the petitioners by the respondents but neither the said interlocutory application is duly affidavited nor bears the certification of the Oath Commissioner, hence the same is rejected. The facts of the matter in issue briefly stated is that the petitioners through their ancestor claim settlement of a piece of land bearing Khata No.170, plot no.2621 having an area of 19 dhurs, although the total area of the plot is 5 kathas 18 dhurs. It is the case of the petitioners that the land initially was recorded
Legal Reasoning
Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 3 in the Dih-Basgeet Khata of the ex-landlord of Banaras, namely, Shiv Prasad Gupta and is contiguous north to the raiyati plots of the petitioners bearing plot nos.2624 and 2623 and is cul-de-sac, meeting in a dead end. It is the case of the petitioners that the erstwhile landlord decided to settle the piece of land admeasuring 19 dhurs with Dinanath Singh, the father of the original petitioner and the father-in-law/grand-father of the present petitioners. Accordingly on 5 Fagun 1350 Fasli, the ex- landlord Shiv Prasad Gupta through his Mukhtare-Aam Shiv Murti Pathak executed a Sada Patta in favour of Dinanath Singh with respect to 19 dhurs of land on a Nazarana of Rs.19/- and a rental of Rs.1 and 121/2 Annas. On the same day receipt was also granted by the landlord. The petitioners have enclosed a copy of the Sada Patta as Annexure-5, the extract of the rent collection register as Annexure-6 and the receipts issued as Annexure-7 series. The Sada settlement was translated into a registered settlement executed on 8.7.1948 and a copy whereof has been brought on record vide Annexure-17 to a supplementary affidavit filed on 9.5.2008. (There is also Annexure-17 series to a counter affidavit filed by the petitioners in response to the show cause of respondent no.6 filed on 25.4.2008 but the same are copies of the postal receipts). It is further the case of the petitioners that following Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 4 the vesting of the estate in the year 1956 the ex-landlord submitted his returns in favour of the settlee Dinanath Singh and a Jamabandi was created in his name following which Dinanath Singh started paying rent to the State of Bihar and was issued rent-receipts all along, copies of some of which have been placed on record vide Annexure-8 series. Since a part of the land was being used for residential purpose while a part thereof was being used for commercial purpose, a notice was issued by the Circle Officer, Pachrukhi, District- Siwan giving rise to Case No.26 of 2000-01 under section 23(4) of the Bihar Tenancy Act, 1885 for enhancement of the rent by virtue of the commercial utilization of the plot and following which the rent was enhanced and fixed at Rs.660.60 per annum since 2002. The said rent is also being paid by the petitioners all along. It is contended by the petitioners that initially at the instance of the enemies a proceeding was initiated against the settlee Dinanath Singh giving rise to L.C. Case No.92 of 1960- 61 but vide order passed on 5.10.1971, the Deputy Collector Land Reforms, dropped the proceedings vide Annexure-11. It is further their case that another proceeding was initiated against the original petitioner late Surendra Singh at the instance of persons with vested interest giving rise to Land Encroachment Case No.44 of 1979-80 and vide order passed on 8.2.1979 the Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 5 Circle Officer admitted that due to personal rivalry the issue of encroachment was being raised repeatedly. The Circle Officer further accepted that the land in question was settled with Dinanath Singh, the ancestor of the petitioners by the erstwhile Jamindar and that he was continuously paying rent to the State since then. It has also been admitted by the Circle Officer as back as on 8.2.1979 that a very old house of Dinanath Singh was existing on the disputed land. It was, however, observed that apart from the house, the said Dinanath Singh had encroached a portion and which he was asked to vacate vide Annexure-12. 26 years thereafter a third proceeding was initiated against the son of Dina Nath Singh, namely, Surendra Singh and others on charge of encroachment giving rise to Encroachment Case No.19 of 1995-96. The Circle Officer, Pachrukhi vide order passed on 28.12.1996 dropped the proceedings upon appreciation of the fact that a residential house was standing on the plot and that a Jamabandi was already running in the name of the alleged encroacher Surendra Singh, the original writ petitioner. It was, however, observed that steps be taken for cancellation of the Jamabandi standing in the name of the alleged encroachers including the original writ petitioner Surendra Singh, before any order be passed in the encroachment proceeding. Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 6 In the meanwhile some members of general public charging encroachment by a number of persons, moved this Court in CWJC No.13314 2003 requiring a direction to the official respondents to take steps for removal of encroachment on the Siwan-Chapra main road connecting the railway station at Pachrukhi by the private respondents to the writ petition including the original writ petitioner Surendra Singh. The said writ petition is pending consideration before this Court. A letter was received by the Circle Officer Pachrukhi seeking his comments on the writ petition and vide letter dated 10.9.2004 (Annexure-14) he informed the Deputy Collector, District Legal Cell, Siwan that a proceeding for cancellation of Jamabandi had been registered by the Deputy Collector, Land Reforms, Siwan bearing Case No.1 of 2004-05 and that until final orders are passed therein, it would not be lawful to remove the encroachment. Consequent upon the registration of the Jamabandi Cancellation Case No.1 of 2004-05, the Circle Officer on the basis of the materials on record recommended for cancellation of Jamabandi and forwarded the matter to the Deputy Collector, Land Reforms for necessary orders vide order passed on 2.7.2004 who in turn vide order passed on 15.7.2004 while recommending the cancellation of the Jamabandi of the persons Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 7 named therein including the original writ petitioner Surendra Singh, forwarded the records for necessary orders to the Additional Collector and the Additional Collector, Siwan vide order passed on 31.3.2005 forwarded the records to the Collector with his recommendation for cancellation of Jamabandi. The Additional Collector while noticing the contention of the petitioners regarding settlement by the ex-landlord held the same illegal in absence of any papers submitted by the petitioners and others in support of their contention and taking into consideration that the land was recorded in the Khatiyan as a Gairmazrua-Parti Kadeem, recommended for cancellation of the Jamabandi and which was approved by the Collector vide order passed on 11.4.2005. Copies of the order passed by the statutory authorities form Annexure-1 to the writ petition. Following the order dated 11.4.2005, a notice was issued by the Circle Officer in the encroachment proceedings bearing Encroachment Case No.19 of 1995-96 (Annexure-2) requiring the petitioners to remove the encroachment failing which the same would be removed by the authorities. It is in the aforementioned circumstances that the writ petition was filed for the reliefs as described hereinabove. The writ petition was filed on 20.4.2005 and was taken up for consideration on 26.4.2005 when a Bench of this Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 8 Court while staying the demolition of the house/shop of the petitioners required the State Counsel to file affidavit. The matter was thereafter taken up on 11.7.2005 and when it was informed by the petitioners that the house/shop of the petitioners had been completely demolished. The Bench while expressing displeasure over the manner in which the State had proceeded in the matter, directed for placing the records of CWJC No.13314 of 2003 filed by the members of the local public alleging encroachment against the writ petitioners and others who also had filed an intervention application in the present proceeding. The matter was thereafter taken up on 12.7.2005 when the Circle Officer was directed to be personally present along with the
Decision
show cause on 18.7.2005. The writ petition was thereafter taken up for consideration on 18.7.2005 when the Circle Officer filed a show cause demonstrating the service of notice on the petitioners for removal of encroachment on 15.4.2005 itself, i.e. even earlier to the filing of the writ petition. The Bench noticed that the writ petition though filed on 20.4.2005 but it did not contain any statement regarding acceptance of the notice issued by the Circle Officer dated 13.4.2005 requiring the encroachers to remove their encroachment. In view of the circumstances, that the notice for removal of encroachment was served on the original writ petitioner prior to the filing of the writ petition, no Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 9 further action was taken against the Circle Officer, Pachrukhi. The matter has remained pending in this Court at the same stage. This Court has heard Mr. Shashi Shekhar Dwivedi, learned senior counsel appearing for the petitioners, Mr. Sanjay Kumar No.1, learned Standing Counsel No.12 for the State and Mr. Chitragupt Prasad for the interveners. During the pendency of the writ proceedings the original writ petitioner had deceased and was substituted vide order passed on 18.2.2013. Mr. Shashi Shekhar Dwivedi, learned senior counsel appearing on behalf of the petitioners has raised the following issues for consideration, namely: (a) In view of the law laid down by this Court as reported in AIR 1983 Patna page 121 (Khiru Gope Vs. Land Reforms Deputy Collector) the Collector had no power to cancel the Jamabandi. (b) Despite the specific stand taken by the original petitioner that the land in question had been settled with his father by the ex-landlord and despite the records being in custody of the respondents, the respondent-Collector without making any attempt to verify the factual position, has held the Jamabandi illegal even when two earlier proceedings in L.C. Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 10 Case No.92 of 1960-61 and Encroachment Case No.44 of 1979-80 initiated against the father of the original petitioner had been dropped. (c) The Circle Officer while dropping the proceedings in Encroachment Case No.44 of 1979-80 had admitted the fact of settlement of the disputed land with the father of the original petitioner by the ex-landlord and about the receipts being issued by the State. (d) In view of the law laid down by this Court reported in 1959 BLJR 311 (Musammat Husanbano vs. The State of Bihar) a settlement of a Gairmazrua-am land by an Ex-Jamindar if continued until vesting of the estate in the year 1956 under the provisions of the Bihar Land Reforms Act, 1950, creates a legal right in the settlee. Raising the aforementioned issues he submits that it is a matter of record that the settlement was made by the ex- landlord initially by a Sada Patta which was followed by a registered settlement as back as in the year 1948 and since thereafter the father of the original writ petitioner, namely, Dina Nath Singh had been in occupation over the disputed land having possessory right thereon and had been paying rent continuously initially to the ex-landlord and after the vesting of Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 11 the estate, to the State of Bihar. He thus submits that not only the petitioners and their ancestors have perfected their title over the disputed land, the existence of residential house and structures thereon which also finds mention in the order of the Circle Officer dated 8.2.1979 (Annexure-12) referring it as an old house, the action of the respondents in directing cancellation of Jamabandi and which was followed by the order of removal of encroachment in the Encroachment Proceeding No.19 of 1995- 96, is wholly illegal and an abuse of statutory powers. He further submits that though the encroachment proceedings were dropped vide order passed on 28.12.1996 but even in absence of an order reviving the proceedings, the same was revived and the orders for removal of encroachment was passed and also implemented. The arguments of Mr. Dwivedi have been contested by the learned State Counsel as well as the counsel for the interveners. Mr. Sanjay Kumar, learned Standing Counsel No.12 with reference to paragraph 4 of the counter affidavit, has submitted that the land in question is recorded in the revisional survey khatiyan as a Dih-Basgeet Rasta and was being used by the general public as such. It was contended that since the petitioners had made an encroachment on the said public land to the extent of 19 dhurs by constructing a house, and tried to legalise the same by opening an invalid Jamabandi, the Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 12 respondents had initiated a proceeding for removal of encroachment and upon realizing that there was a Jamabandi running against the name of ancestor of the petitioners and some others, registered a separate proceedings for cancellation of Jamabandi giving rise to Case No.1 of 2004-05. It is submitted with reference to the order impugned (Annexure-1 series) that since the original writ petitioner failed to produce any document to support his contention, the statutory authority had no other option but to cancel the Jamabandi and once the Jamabandi was cancelled, the petitioners being held encroachers were served notice on 13.4.2005 for removal thereof and upon their failure to do so, the encroachment was removed. Learned counsel with reference to a Division Bench pronouncement of this Court reported in 1993 (2) PLJR 255 (Sitaram Choubey vs. The State of Bihar) submitted that the proper course for the petitioners in the circumstances where the land is recorded in the Khatiyan as a public land, would be to approach the competent court of civil jurisdiction for seeking a declaration in their favour. The arguments of the State Counsel finds a supportive voice in the argument of counsel appearing for the interveners. Mr. Chitragupt Prasad with reference to two Division Bench judgments of this Court reported in AIR 1937 Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 13 Patna page 388 (Muhammad Waliul Haq vs. Ludput Upadhya) and page 669 ((Sheikh Amiruddin vs. Sonelal Jha) submitted that since the settlement of a Gairmazrua-am land has been held to be illegal, no right can be derived by the petitioners by virtue of the settlement, if any, made by the erstwhile intermediary and in which view there is no infirmity in the orders impugned. The arguments of the State Counsel and the counsel for the interveners were responded to by Mr. Dwivedi with reference to two judgments, one of which was passed by a Special Bench of this Court in Brij Bhukhan Kalwar reported in AIR 1955 Patna page-1 and the other by the Supreme Court in the case of Government of Andhra Pradesh reported in AIR 1982 SC page 1081. On the strength of the said two judgments it was canvassed by Mr. Dwivedi that the courts have held that a title can also be perfected on public land by passage of time and in such event the State is not empowered to interfere with the right so derived by a settlee, by way of a summary proceedings initiated under the provisions of the Bihar Public Land Encroachment Act, 1956. I have heard learned counsel for the parties and have perused the materials on record. The facts speak for themselves in the present writ proceedings. There is a Sada Patta dated Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 14 1350 Fasli which would mean of the year 1943, executed by the ex-intermediary in favour of Dinanath Singh, the father of the original writ petitioner. The matter did not rest there and a formal registered deed of settlement was executed in the year 1948. The two settlement deeds are on the record of the writ proceedings at Annexure-5 to the writ petition and Annexure-17 to the supplementary affidavit respectively. The two settlement deeds have not been contested by the State as being a forged or fabricated document, except a bald denial at paragraph 9 of the counter affidavit. The two orders followed by the receipts issued by the ex-landlord and the State Government after the vesting of the estate, are conclusive evidence regarding settlement of the disputed land with the petitioners by the ex-landlord. This fact has been candidly admitted by the Circle Officer in the second round of proceeding bearing Encroachment Case No.44 of 1979- 80. The existence of an old house at that stage was also mentioned by the Circle Officer in his order dated 8.2.1979. The proceedings appended at Annexures 11, 12 and 13 manifest that the petitioners and their ancestors have been subjected to repeated proceedings at the hands of the respondent-authorities at the instance of some one or the other. That the land in question was settled by the ex-landlord in favour of the petitioners’ ancestors was admitted by the Circle officer at the Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 15 stage of Encroachment Case No.44 of 1979-80. Thus where the entire records relatable to the settlement are in possession of the respondents, it was for the respondents to satisfy themselves after calling for the same from the District Records Office. The very presence of the deed of registered settlement (Annexure- 17) issued by the District Records Office, Siwan is sufficient indication that the respondents have proceeded in an illegal and in an arbitrary manner. The only ground taken by the State as well as the interveners herein is that the land is in the nature of Gairmazrua-am land being a public Rasta and is recorded as such in the revisional survey khatiyan. The issue thus is whether the existence of an entry in the survey records of rights on its own is sufficient to interfere with the rights perfected by the petitioners over the disputed land by passage of time and even assuming that the said aspect did confer any semblance of right in the respondents, to proceed against the petitioners, whether it could be enforced either by way of a summary proceeding under the Bihar Public Land Encroachment Act or by taking recourse to cancellation of Jamabandi under the Bihar Tenants’ Holdings (Maintenance of Records) Act, 1973 or the Land Reforms Act, 1950. The answer has to be in the negative. The reasons are two- fold. Firstly, an entry in a survey records of right even if carrying a persuasive value, is not a conclusive evidence Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 16 regarding title and secondly, the documentary evidence of settlement made as back as in the year 1948 being indisputably in existence with rent receipts being issued by the ex- intermediary followed by the State, the respondents after a lapse of almost 50 years could not have initiated a proceeding alleging encroachment by the petitioners more so when they themselves had dropped an earlier proceedings in Encroachment Case No.44 of 1979-80 after admitting to the settlement by the ex-landlord with the father of the original petitioner. The Circle Officer having admitted to the settlement by the Ex-landlord in his order dated 8.2.1979 passed in Encroachment Case No.44 of 1979-80, it was wholly mala-fide on his part to have recommended for cancellation of Jamabandi on the ground of absence of documents relatable to settlement. The factual position being as such, whether in the garb of removal of encroachment from a public land, could the respondents demolish the house of the petitioners. This issue stood settled as back as in the year 1955 by the Special bench of this Court in the case of Brij Bhukhan Kalwar (supra) when it was held that a title perfected even on a Gairmazrua-am land, upon expiry of the prescribed period, could not be interfered with by way of summary proceedings under the Bihar Public Land Encroachment Act, 1956. The same view was also opined by the Supreme Court in the Case of Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 17 Government of Andhra Pradesh (supra). Thus after a lapse of almost 50 years since the settlement and after dropping two proceedings initiated in this regard, certainly it was most mala- fide for the respondent-authorities to have initiated the third proceedings in Land Encroachment Case No.19 of 1995-96. The judgments of this Court of the Special Bench and of the Supreme Court on this issue clearly render the proceedings illegal and without jurisdiction. In so far as the issue of the right of ex-intermediary to settle the public land is concerned, the issue stands answered in the judgment of this Court rendered in the case of Musammat Husanbano (supra). This brings this Court to the main issue raised by the petitioners questioning the action taken by the authorities in initiating proceeding for the cancellation of Jamabandi bearing Case No.1 of 2004-05 and impugned at Annexure-1 to the writ proceedings. There cannot be a contest on the legal position that neither under the Bihar Tenants’ Holdings (Maintenance of Records) Act, 1973 nor under the Bihar Land Reforms Act, 1950, there is any provision for cancellation of Jamabandi. Although the Bihar Land Reforms Act in its section 4 does provide for cancellation of settlement but that is distinct to a cancellation of Jamabandi and the manner is prescribed for such Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 18 exercise. This issue came up for consideration as back as in the year 1978 when this Court in the case of Harihar Singh reported in 1978 BBCJ 323 held that the authorities have no jurisdiction to cancel the Jamabandi and remove the names of the settlee from the tenants register. A Division Bench of this Court in the case of Khiru Gope (supra) while taking note of the two earlier judgments of this Court reported in 1978 BBCJ 323 (Harihar Singh vs. The Additional Collector) and 1979 BBCJ 605 (Jamaluddin Ahmad vs. S.D.O.) held that where the settlee claims settlement under a Hukumnama, there was no authority vested to the Collector to cancel the Jamabandi made in favour of a settlee from an ex-intermediary, the effect whereof would be to cancel the settlement by the ex-intermediary. The Jamabandi in the present case having been created pursuant to a registered settlement, certainly the action of the Collector in directing cancellation of the Jamabandi is in the teeth of the Division Bench pronouncements of this Court. The remedy for the State authorities, if any, certainly was not by way of executive action under the statutory powers rather rested before the civil court of competent jurisdiction for a proper declaration. For the reasons aforementioned the entire proceedings arising out of Case No.1 of 2004-05 initiated for cancellation of Jamabandi including the order of cancellation of Patna High Court CWJC No.4979 of 2005 (19) dt.18-11-2013 19 Jamabandi dated 11.4.2005 passed by the Collector, Siwan as well as the consequential orders passed in Encroachment Case No.19 of 1995-96 against the petitioners, are rendered illegal, contrary to the statutory provisions and the judicial pronouncements of this Court and are thus set aside. For the same reasons the entire proceedings in Encroachment Case No.19 of 1995-56 in so far as the petitioners are concerned, is held illegal and set aside. This writ application is allowed with costs quantified at Rs.50,000/- (Fifty thousand) only payable by the State. The order passed in the writ proceeding, however, would not preclude the parties hereto to take recourse to the remedies as may be available to them in law. The petitioners if so advised, would be at liberty to file an appropriate application before an appropriate forum for seeking damages/compensation from the State, for the loss suffered. SKPathak/- (Jyoti Saran, J)