Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16022 of 2007 ====================================================== Bihar State Housing Board through its Managing Director, 6, Mangles Road, P.S. Secretariat, District Patna Versus 1. Md.Quamrul Hoda son of late Md. Abu Sayeed, resident of L.I.G. House No. LH/32, at Shree Krishna Nagar, Patna, 2. The Competent Authority, Bihar State Housing Board, Patna, 3. The Joint Secretary-cum-Appellate Authority, Building Construction .... .... Petitioner Department, Government of Bihar, Patna, 4. The State of Bihar, .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Anshuman Singh, Advocate M/s Pratik Sinha and Ritu Raj, Advocates For the Respondent No. 1 M/s Amaresh Kumar Sinha and For the State: Prashant Kumar, Advocates Mr. A.K. Keshari, AAG XI with Mr. Ujjwal Kumar Sinha, AC to AAG XI ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN ORAL ORDER 12 06-05-2013 I have heard learned counsel for the petitioner-Bihar State Housing Board as well as the respondent no. 1 and the State. The petitioner-Bihar State Housing Board(hereinafter to be referred to as “the Board”) seeks quashing of the order dated 22.02.2007 passed in Appeal No. 4/06 contained in Annexure 6 passed by the respondent no. 3, i.e., the Joint Secretary-cum- Appellate Authority, Building Construction Department, Government of Bihar, Patna, and also quashing of the order dated 20.04.2005 passed in Eviction Case No. 30/2001 by the Competent Authority under the Bihar State Housing Board Act, 1982(hereinafter to be referred to as “the Act” for the sake of
Legal Reasoning
Patna High Court CWJC No.16022 of 2007 (12) dt.06-05-2013 2 brevity). By the aforesaid orders, the Competent Authority has dismissed the eviction case and the appellate authority has also dismissed the appeal chiefly on the ground of limitation. Short facts which would be necessary for determination of the lis between the parties stand enumerated as under:- The petitioner made absolute sale in favour of the respondent no. 1 vide the deed of absolute sale executed in the month of March 1993 transferring House No. LH/32 standing upon the plot of an area of 2993 sq. ft. with specific boundary described in the sale deed itself. The boundary has also been shown in the map attached with the sale deed also showing the dimension/area of the plot as well as the house. From the map and the boundary described in the sale deed it appears that on the eastern side there existed 21‟6‟‟ wide road whereas on all other sides the land is bound by separate plots being plot no. LH/19 in the western side, LH/33 in the northern side and LH/31 in the southern side. It is admitted position that all the aforesaid plots existing on the northern, southern and western boundary have been allotted and transferred to separate persons who are in possession thereof. However, after about seven years of transfer a notice was issued upon the respondent no. 1, Md. Quamrul Hoda, to remove encroachment of about 28.1 sq. ft. of the land belonging Patna High Court CWJC No.16022 of 2007 (12) dt.06-05-2013 3 to the Board which the respondent no. 1 has allegedly encroached in the eastern side and which was part of the road no. 1. A sketch map was also attached with the aforesaid notice showing encroachment of about 9 ft. of the part of the aforesaid road. When the petitioner did not remove the alleged encroachment, the petitioner-Board took the recourse of filing a case before the Competent Authority under section 59 of the Act. The aforesaid case was dismissed vide the impugned order dated 24.02.2005, as contained in Annexure 4, holding that in view of the recitals of the concerned deed of transfer as well as some order passed in C.W.J.C. No. 652 of 1999 no effective order can be passed under section 59 of the Act for removal of encroachment or eviction of encroachers as admittedly the land concerned has been transferred in favour of the opposite party through a deed of absolute sale and he is in possession thereof as a title holder. It has been further found that from the map attached to the sale deed it appears that the width of the road is 21‟6” only and in front of the constructed house about 40 ft. vacant land has also been transferred which is existing between the aforesaid road and the transferred house. Thus, the Competent Authority has come to the conclusion that the case of the petitioner-Board that the width of the road is 40ft. is not tenable in view of the description given in the sale deed itself. Patna High Court CWJC No.16022 of 2007 (12) dt.06-05-2013 4 The petitioner, thereafter, preferred an appeal under section 60 of the Act before the appellate authority which has dismissed the appeal on the ground of the same having been preferred much after the period of limitation provided in the statute. During the pendency of this case upon the orders of this Court the land concerned was measured in presence of the parties and report has been submitted by the Anchal Amin showing that the petitioner is in possession of about 166 sq. ft. of land in excess, however, no discrepancy has been found in the boundary of the plot concerned.
Legal Reasoning
Learned counsel for the petitioner-Board has submitted that since the respondent no. 1 is in possession of the excess land, such encroachment should be directed to be removed or he should be directed to pay the consideration amount for such excess land. However, there is no such prayer in the writ application as it appears from the averments made in the writ application that a relief has been sought by the Board, apart from quashing of the impugned orders, for eviction of the respondent no. 1 from unauthorized occupation of the land of the road in front of LH/32 which is an area of 28.62 sq. meters. It is also clear that from the report of the Amin it does not appear at all that there is any encroachment by the petitioner on the road side, i.e., on the eastern Patna High Court CWJC No.16022 of 2007 (12) dt.06-05-2013 5 boundary of plot no. LH/32 held by the petitioner. On consideration of rival contention following points emerge in this case for determination:- (i) Whether the appellate authority has erred in holding that the appeal was time barred and thereafter proceeded to dismiss it? (ii) Whether the appellate authority should have condoned the delay in view of the proviso to sub-section (1) of Section 60 of the Act since there was sufficient material on record to show that the delay was bona fide and the same was fit to be condoned? (iii) Whether the original authority has erred in holding that there is no encroachment upon the road and the case does not come within the ambit of the statute concerned as there is absolute sale deed in favour of the respondent no. 1? (iv) Whether a direction can be given to the respondent no. 1 for payment of further consideration amount as he is holding the land in excess? Since Issue Nos. (i) and (ii) are related and inter-twinned they are being considered together. The appellate authority has held in the impugned order (Annexure 6) that the appeal suffers from inordinate delay and learned counsel for the petitioner has not been able to point out Patna High Court CWJC No.16022 of 2007 (12) dt.06-05-2013 6
Decision
from the averments made in the writ petition also that the delay of 458 days was even explained for consideration of this Court. It has also not been stated that any petition explaining the delay was filed before the appellate authority or not. Though the memorandum of appeal has been appended as Annexure 5 to the writ petition but even that does not disclose any explanation regarding the delay in preferring the appeal. Though it appears that orally some point was urged before the appellate authority regarding some delay which had occurred in the process of filing of the appeal and the delay in constitution of the Tribunal etc. but that has not been found tenable by the appellate authority. In view of the fact that there is no explanation given in the writ petition also disclosing the delay due to any bona fide reason in preferring the appeal aforesaid, the Issues are decided against the petitioner as the petitioner could not point out any error apparent in the appellate court‟s order holding that the appeal is time barred. However, even coming to the merit of the case also, learned counsel for the petitioner could not impress upon this Court that on merit also the original authority erred in dismissing the case under section 59 of the Act inasmuch as the finding of the Competent Authority that the concerned road has been shown as 21‟6” wide only and 40 ft. of vacant land has been shown in front Patna High Court CWJC No.16022 of 2007 (12) dt.06-05-2013 7 of the house which was also transferred to the petitioner which is reflected from the map attached to the sale deed itself, appears to be correct as after perusing the same it tallies with the description given in the sale deed. I also find that the concerned land bound as per the boundary shown in the sale deed was transferred to the respondent no. 1 showing 21‟6” wide pre-existing road in the eastern boundary of the concerned plot. Even from the report submitted by the Anchal Amit, there is nothing to show that there is any encroachment by the respondent no. 1 as on the eastern side, a road of 21‟6” has been shown in that report which exactly tallies with the map attached with the sale deed. So far the land in excess which has been found by the Anchal Amin is concerned, from the report it appears that there is no encroachment on the eastern side and the dimension of the width of the plot from northern side to the southern side also more or less tallies with the dimension shown in the map attached with the sale deed. In fact, in the eastern part of the plot it is about 5” less than what has been shown in the map attached with the sale deed. Thus, if at all, there is excess of land in possession of the respondent no. 1, the excess land must be on the western side. From the boundary which has been shown in the sale deed as well as in the report of the Anchal Amin, it does not appear that the Patna High Court CWJC No.16022 of 2007 (12) dt.06-05-2013 8 petitioner-Board is existing in any side of the boundary except the road of the sold plot. In the western side, in fact, plot no. LH/19 has been shown which has admittedly been transferred to some person through a registered sale deed by the petitioner-Board and he must be in possession of the same. Since the petitioner-Board is not in such boundary of the plot, in my opinion, it cannot claim that its excess land has been encroached by the respondent no. 1. The person holding the plot no. LH/19 has not made any complaint regarding encroachment of any land by the respondent no. 1. That apart, it is widely accepted proposition that if there is any conflict between the boundary and the area of a plot which has been transferred, so long the boundary is undisturbed that would prevail and it has to be construed that the area bound by the aforesaid boundary has actually been transferred to the concerned transferee. In this regard, a reference is made to a decision of the Privy Council in The Palestine Kupat Am Bank Co-operative Society Ltd. V. Government of Palestine and others (AIR(35) 1948 Privy Council, 207). Learned counsel for the respondent no. 1 has also placed reliance upon a decision rendered by the Madras High Court in Dharmakanny Nadar Siviseshamuthu and others v. Mahalingam Nadar Gopalakrishna Nadar and others (AIR Patna High Court CWJC No.16022 of 2007 (12) dt.06-05-2013 9 1963 Madras, 147) holding that when the property sold is part of a definite survey number and in the sale deed the exact boundaries of the part sold are given and the area mentioned is only approximate, the description by boundaries should prevail in ascertaining the actual property sold under the document. More or less similar view has been taken by the Apex Court in Sheodhyan Singh and others v. Mst. Sanichara Kuer and others (AIR 1963 Supreme Court, 1879) and in Subhaga and others v. Shobha andothers {(2006) 5 Supreme Court Cases, 466} holding that the property can be identified either by the boundary or by another other specific description. If the boundary is identifiable then even if there is other discrepancy, the boundary should prevail. The clear picture that has emerged in the present case is that on the eastern boundary of the land of the respondent no. 1 there exists a 21‟6‟‟ wide road whereas on all other sides the land is bound by separate plots owned and possessed by private person and not the „Board‟. From the impugned order as contained in Annexure 4 as well as the report of the Anchal Amin after its comparison with the sale deed it appears that there is no encroachment by the respondent no. 1 in the manner as claimed by the petitioner-Board. Accordingly, the issue nos. (iii) and (iv) are Patna High Court CWJC No.16022 of 2007 (12) dt.06-05-2013 10 also decided against petitioner. Thus, it is held that the Competent Authority has correctly held that in view of the absolute sale deed in favour of the respondent no. 1, it was not a fit forum for deciding the issue concerned and, thus, no direction can be given for eviction of the purchaser from the land in question under section 59 of the Act. Accordingly, this writ application stands dismissed. (Dr. Ravi Ranjan, J) SC/-