1. Mohan Lohar 2(i) Bulbul Biswas .... .... … v. 1. The State of Jharkhand 2. The Additional Collector, Dhanbad 3. The Land Reform
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 5853 of 2004 ------ 1. Mohan Lohar 2(i) Bulbul Biswas .... .... …. Petitioners Versus 1. The State of Jharkhand 2. The Additional Collector, Dhanbad 3. The Land Reform Deputy Collector, Dhanbad 4. The Circle Officer, Baliapur, Dhanbad .... .... .... Respondents
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioners For the State : Mr. Kundan Kumar Ambastha, Advocate : Mr. Nawal Kishor Pandey, A.C. to S.C. (L&C)-I Order No.09 / Dated : 13.02.2024 ------ 1. Instant petition has been filed for writ of certiorari to quash the order dated 07.01.2004 passed by the Land Reform Deputy Collector, Dhanbad (R- 3) whereby and whereunder Bihar Public Land Encroachment Proceeding has been initiated against the Petitioners and further to quash the order passed in appeal by the Additional Collector, Dhanbad (R-2). 2. Petitioner no.1-Mohan Lohar purchased the land measuring an area 06 decimals from the daughter of Late Ram Prakash Mistry vide registered sale deed dated 21.09.1992 and sold 02 decimals of land to petitioner no.2 vide sale deed dated 13.03.1995. After the transfer by sale, the land was duly mutated in the name of petitioners and the rent receipt was issued. 3. Earlier for cancellation of the Jamabandi running in the name of petitioners, Cancellation Case no.2/01-02 was initiated against which the petitioners preferred W.P.(C) No.1102 of 2002 vide order dated 12.08.2002,
Decision
the writ petition was disposed of with the following observation:- “As the impugned order of cancellation of Jamabandi and letter dated 21st December, 2001 in no manner will extinguish right & title nor create any right and title in favour of any person, I am not inclined to determine the claim of possession under this writ jurisdiction. The aggrieved person, the petitioner or respondents may move before a Civil Court of competent jurisdiction title and relief possession/restoration of possession.” for appropriate including right, 4. State authorities initiated a proceeding under Section 147 of the Cr.P.C. against the petitioners and passed final order directing the petitioners to remove encroachment from the land in question. The petitioners preferred Criminal Revision No.49/2001 against the order dated 13.03.2001 and Criminal Revision No.106/2001 against the final order passed by the Circle 2 Officer, Baliapur under Section 147 of the Cr.P.C. The order was set aside in revision by Additional Sessions Judge, Xth Dhanbad vide order dated 30.11.2002 as mandatory provision of Section 147 of the Cr.P.C. was not complied with and no written statement was called for from the parties, the evidence was also not recorded in that case. 5. After the said dismissal, instant B.P.L.E. proceeding has been initiated. 6. The main plea of the petitioner is that the land was settled in favour of predecessor in interest Ram Prakash Mistry in Case No.30 of 1962-63 by Circle Inspector, Baliapur on 25.08.1962 comprising an area 0.12 acres. The petitioner had purchased the said land from the heirs and descendants of the settlee and are in continuous possessions over it. Reliance is placed on Smt. Rekha Singh & Others Versus State of Bihar and Others reported in 1992 2 PLJR 854 wherein it has been held that:- “the summary remedy for eviction under the Act can be resorted to by the Government only against the persons who are in unauthorized 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.” 7. A counter affidavit has been filed by the respondents-State authorities in which factual assertions have not been disputed. 8. The main point that has been raised in the counter affidavit is that Settlee cannot transfer the land in favour of third party. It is submitted that nature of land was Gairmazarua Aam and under the provision of Section 9 of Bihar Privileged Person Homestead Tenancy Act, 1947, the privileged tenants’ right cannot be transferred. A notification to this effect was also issued by the Government of Bihar vide Notification No.4KHNA Nite-109/76-1339/R dated 24.05.1974 wherein it was ordered that if the settlee under B.P.P.H.T. Act appears to have transferred or violated the terms of the transfer, such land shall be reverted back to the State. The land was settled in favour of Ram Prakash Mistry for his personal accommodation and for his family members and it was not minced to be transferred. 9. Existence of a fundamental or legal right is the condition precedent for issuing a writ in exercise of power under Article 226 of the Constitution. It is true that in cases of bona fide land dispute involving title, eviction cannot be 3 ordered in a summary proceeding. A suit for declaration of title can be based on the case of either possessory title or proprietary title. When a plea of possessory title is made on the basis of adverse possession or ouster, there need to be specific averment in the pleading in that regard on the ownership prior to the commencement of adverse possession and continuous assertion of hostile possession thereafter. The proprietary title can devolve by a method known to law such as inheritance, testamentary succession, registered sale deed or gift deed which needs to be specifically pleaded. 10. In the present case, proprietary title is being claimed by sale from the heirs of settlee Ram Prakash Mistry. In view of the admitted position that land was purchased from settlee, on pleadings, no triable issue survives for adjudication. Claim of title to continue in possession over the land in question, is based on an instrument of transfer which is prohibited under Section 9 of Bihar Privileged Person Homestead Tenancy Act, 1947, and Notification No. 4KHNA Nite-109/76-1339/R dated 24.05.1974. Under the circumstance, petition for issuance of writ is not merited and is accordingly dismissed. Interlocutory Application, if any, stands disposed of. Anit (Gautam Kumar Choudhary, J.)