MD KAMAL UDDIN, AGED ABOUT 48 YEARS, SON OF MD. YUSUF, R/O MANAKDIHA, P.O v. 1) THE STATE OF JHARKHAND THROUGH ITS CHIEF SECRETARY GOVT OF JHARKHAND PROJECT BHAWAN
Case Details
IN THE HIGH COURT OF JHARKHAND, RANCHI ---- W.P.(C) No. 1492 of 2023 MD KAMAL UDDIN, AGED ABOUT 48 YEARS, SON OF MD. YUSUF, R/O MANAKDIHA, P.O MANAKDIHA, PS BIRNI, DIST. GIRIDIH .... Petitioner ---- -- Versus -- 1) THE STATE OF JHARKHAND THROUGH ITS CHIEF SECRETARY GOVT OF JHARKHAND PROJECT BHAWAN PO DHURWA PS JAGARNATHPUR DIST RANCHI 2) DEPUTY COMMISSIONER GIRIDIH, PO PS DIST GIRIDIH 3) ADDITIONAL COLLECTOR GIRIDIH, PO PS DIST GIRIDIH 4) SUB DIVISIONAL OFFICER SARIYA SUB DIVISION, PO PS SARIYA DIST GIRIDIH 5) CIVIL SURGEON CUM CHIEF MEDICAL OFFICER, SADAR HOSPITAL GIRIDIH PO PS DIST GIRIDIH 6) MEDICAL OFFICER IN CHARGE PRIMARY HEALTH CENTRE PALANJIYA, PO PS BIRNI DIST GIRIDIH 7) CIRCLE OFFICER BIRNI, PO PS BIRNI DIST GIRIDIH 8) MUKHIYA, MANAKDIHA GRAM PANCHAYAT, PO GADI BARKATHA, PS BIRNI DIST GIRIDIH .... Respondents ----
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner For the State :- :- --- Mr. A.K. Sahani, Advocate Mr. Mrinal Kanti Roy, Advocate ---- 8/25.07.2024 Heard learned counsel for the petitioner as well as the learned counsel for the respondent State. 2. The prayer in this writ petition has been made for direction upon the respondents not to dispossess the petitioner from his ancestral raiyati land appertaining to plot nos.1206 and 1207 under khata no.11 in mouza Manakdiha, thana no.150 in the district of Giridih for the purpose of extension of existing primary health centre Manakdiha without acquisition of the said land and without of compensation in any manner to the petitioner. 3. Mr. Sahani, the learned counsel appearing for the petitioner submits that the aforesaid plots are the raiyati land recorded in the name of grand father of the petitioner namely, Ghashi Mallik and others and 1 W.P.(C) No. 1492 of 2023 the record of rights were finally published on 19.02.1994. He further submits that the said plot comprises of 2.24 acres. He further submits that original recorded raiyat namely Ghashi Mallik in the pages no.86 in vol.4 of Register-II and paid up to date rent up to 2020-21 and the petitioner is one of the legal heirs of the recorded raiyat. He submits that the Health Department to construct the primary health centre in mouza Manakdiha on the portion of plot no.1176 made a request and 10 decimals land was donated by the grand father of the petitioner for the said purpose and pursuant to that one primary health centre was running, however, now the said health centre is being extended and the rest of the land are being encroached by the respondent State. He further submits that by the order dated 04.09.2023 the respondent State was directed to file supplementary counter affidavit bringing on record the documents relating to donation of the land on which the respondent State has constructed the primary health centre in village Manakdiha in the district of Giridih and pursuant to that the supplementary counter affidavit has been filed wherein no document has been brought on record and only statement is made that the health centre is being ran since last 70 to 80 years and the statement is made that inspite of best efforts the respondent State has not been able to find out any document with regard to the donation of the land. He submits that in view of that
Decision
the writ petition may kindly be allowed. 4. Mr. Mrinal Kanti Roy, the learned counsel for the respondent State submits that 40 decimals land was donated by the grand father of the petitioner and within the said area the construction is made. 5. In view of above it transpires that the said land is a raiyati land and the name of grand father of the petitioner is recorded in 2 W.P.(C) No. 1492 of 2023 Register II and the rent receipt was also being issued. In paragraph no.10 of the writ petition itself it is admitted that only 10 decimals land has been donated by the grand father of the petitioner and it is alleged that now the area is being extended by the respondent State in absence of any proper proceeding and compensation and in spite of the order of a coordinate Bench the State has failed to bring on record any document with regard to the donation of land and if the statement is made that in spite of best efforts the State has not been able to find out any document to that effect and the onus lies upon the respondent State if the claim over the land of the petitioner is being made by the respondent State with regard to the said construction and the State prima facie has failed. The Hon’ble Supreme Court is ciezed with the matter in the case of Vidya Devi v. State of Himachal Pradesh and others, Civil Appeal No.6061 of 2020 wherein at paragraph no.10.6 it was held as under: “We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to “adverse” possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.” 6. In paragraph no.13 of the said judgment, the following direction has been issued which is quoted below: “13. In view of the aforesaid facts and circumstances of the present case, the respondent State is directed to pay the compensation on the same terms as awarded by the Reference 3 W.P.(C) No. 1492 of 2023 Court vice Order dated 07.07.2015 in Anakh Singh’s case (i.e. Land Reference No.1 of 2011 RBT No.01/13) along with all statutory benefits including solatium, interest, etc. within a period of 8 weeks, treating it as a case of deemed acquisition. An affidavit of compliance is directed to be filed by the State before this Court within 10 weeks. It is informed that an appeal has been preferred by Ravinder Singh s/o Anakh Singh and Ors., being RFA No.35 of 2016 which is pending before the High Court of Himachal Pradesh at Shimla. Taking note thereof, it an appeal is filed by the present appellant within 8 weeks from the date of compensation being paid to her by the State, the appeal will be treated to be within limitation, and would be decided on its own merits in accordance with law. The Respondents-State is directed to pay legal costs and expenses of Rs.1,00,0000/- to the present appellant.” 7. In view of above facts this writ petition is being disposed of directing the petitioner to file a fresh representation along with all relevant documents before the Deputy Commissioner, Giridih who will look in to the matter and re-examine the same with the help of competent authority and also provide an opportunity of hearing to the petitioner and pass the order to the effect as to within which area the said construction is being made within a period of six weeks from the date of receipt/ production of a copy of this order. 8. Till the decision of the Deputy Commissioner, Giridih in this regard, the status quo, as on today, shall be maintained. 9. With above observation and direction this petition is disposed of. 10. Pending petition if any also stands disposed of accordingly. ( Sanjay Kumar Dwivedi, J.) SI/, 4 W.P.(C) No. 1492 of 2023