M/s Chirkunda Rolling Mills v. The State of Jharkhand

3. The brief facts of the case is that the petitioner established a Rolling Mill in the year 1972 consequent upon the sanctioning of land at plot no. 91, measuring an area of 2.53 Acres. The sanction was accorded as per the proposal for settlement of the land. The petitioner paid 10% of the proposed salami. The respondent no. 3 ordered respondent no. 4 to hand over the said land for establishing the Rolling Mill and thus, permissive possession of the said land was taken over by the proprietor of the petitioner and thereafter, the petitioner made huge investment incurring substantial amount of money on the said land. After taking possession of the land, the sole proprietor of the petitioner pursued for settlement of the land through a letter to the respondent no. 2. In view of the recommendation for settlement of the land, Salami was fixed and yearly rental of Rs. 6325/- was also fixed. The petitioner has complied with all sorts of formalities. The petitioner further pleaded that the respondents with malafide intention are taking action against the petitioner for vacating the land-in-question even though the petitioner is entitled for the settlement of the land–in-question and at this stage, the respondents cannot deny the settlement of the land.

4. It is next submitted that though the respondents of this writ petition, have taken the plea that BPLE Case no. 1/2016-17 has been initiated by the Circle Officer, Nirsa; but the petitioner contended that no notice in connection with BPLE Case no. 1/2016-17 has ever been issued to the petitioner, nor received by the petitioner.

5. It is next submitted that the entire case record of the BPLE Case no. 1/2016-17 is false and fabricated and prepared in closed room office of the respondents. The petitioner came to know about the notice dated 23.07.2016 from the workman by which, the petitioner has been ordered to vacate the said land within a week, failing which, action 2 W.P.(C) No. 5142 of 2016 under Section 6(2) of the BPLE Act would be taken but the said notice does not bear any signature nor any provision of law has been mentioned to have been violated. It is next pleaded by the writ petitioner that though on 08.07.2016 in the order sheet of BPLE Case no. 1/2016-17, it has been stated that the notice was served upon the writ petitioner who was the opp. party of the said BPLE case but the mode of service has not been stated, hence, it is submitted by learned counsel for the petitioner that the prayer as made in this writ petition be allowed.

6. Learned counsel for the respondent -State on the other hand, vehemently opposes the prayer made in this writ petition. Learned counsel for the respondent -State submits that this is the second journey of the petitioner for this prayer. Earlier for the self-same prayer for settlement of the land, the petitioner filed WP (C ) 3835 of 2013 but on

09.02.2015, the petitioner withdrew the writ petition and the said writ petition was dismissed as withdrawn and without any change on the facts of the case, again for the self-same prayer in this writ petition has been filed by making some additional prayers. Hence, it is submitted that the prayer of the petitioner for direction to the respondent no. 2 to 5 to pass the order for settlement of the land is barred by principle of constructive res-judicata.

7. So far as the prayer regarding quashing of the final order passed in BPLE Case no. 1/2016-17 on the ground that notice was not served upon the writ petitioner in the said BPLE Case no. 1/2016-17 is concerned, it is submitted by learned counsel for the respondent that in para 20 of the amended writ petition, the writ petitioner himself has mentioned that there is reference in the order sheet dated

08.07.2016 that the notice was served upon the writ petitioner. It is next submitted by learned counsel for the respondent- State that assuming for the sake of argument 3 W.P.(C) No. 5142 of 2016 though not admitting that the notice was not served upon the writ petitioner, then the writ petitioner has the alternative remedy under Section 11 of the Bihar Public Land Encroachment Act, 1956 to file an appeal but instead of doing that, as the petitioner knowing pretty well that there is no merit in his contention which can give him success in an appeal under Section 11 of the aforesaid Act, has filed this writ petition, alleging disputed fact of notice being not served upon the petitioner and the order itself shows that the notice has been validly served upon the petitioner hence, on the basis of such disputed fact, certainly the prayer to quash the BPLE Case no. 1/2016-17 cannot be allowed.

8. So far as the prayer for quashing the notice dated 23.07.2016 Annexure 6 of this writ petition is concerned, it is submitted by learned counsel for the respondent- State that there is no illegality in the said notice. It is next submitted by learned counsel for the respondent- State that the undisputed fact remain that the land in question is a land of Gairabad Khata hence, the same cannot be settled in favour of the petitioner and as the petitioner earlier filed writ petition being WPC No. 3835 of 2013 which was dismissed as withdrawn, so it was incumbent upon the petitioner to vacate the land voluntarily and having not done so, the Circle officer has not committed any illegality, in calling upon the petitioner to vacate the land of which, admittedly, he is not the owner or else the proceeding the provisions of the Bihar Public Land Encroachment Act would be initiated against him. It is then submitted that thus there is no illegality in the said notice either. It is lastly submitted that thus this writ petition being without any merit be dismissed.

9. Having heard the submissions made at the Bar and after going through the materials available in the record, it is 4 W.P.(C) No. 5142 of 2016 pertinent to mention here that the undisputed fact remain that earlier the petitioner filed WPC no. 3835 of 2013 seeking relief of direction upon the respondent to pass orders to dispose of the application / representation of the petitioner as contained in Annexure 7 of this writ petition, hence, this writ petition with the self-same prayer, which has already been dismissed by the co-ordinate Bench of this court in WPC no. 3835 of 2013, without any change in the facts and circumstances of the case, in the considered opinion of this Court is not open for the petitioner to be agitated again in this writ petition.

10. So far as the prayer of the petitioner to quash the order dated 09.08.2016 passed in BPLE Case no. 1/2016-17 is concerned on the ground that the notice of the said case was not served upon him is concerned, as has rightly been submitted by learned counsel for the respondent State that the petitioner has the alternative remedy of filing the appeal under Section 11 of the Bihar Public Land Encroachment Act. Whether or not, the notice under the BPLE Case no. 1/2016-17 was served upon the petitioner, is a disputed question of fact. Though the petitioner claims that the notice was not served but the respondent- State drawing the attention of the court to the order dated

08.07.2016 passed in BPLE Case no. 1/2016-17 contended that therein it has been categorically mentioned that the notice has been served upon the writ petitioner in the said BPLE Case no. 1/2016-17. Keeping in view the fact that whether or not the notice was served upon the petitioner, is a question of disputed fact, the same cannot be agitated in this writ petition. More so, when there is the alternative remedy under Section 11 of the Bihar Public Land Encroachment Act, of filing the appeal. Under such circumstances this court is not inclined to allow the prayer 5 W.P.(C) No. 5142 of 2016 to quash the order dated 09.08.2016 in BPLE Case no. 1/2016-17, as prayed for in this writ petition.

11. So far as the prayer for quashing the notice dated 23.07.2016 is concerned, the undisputed fact remains that the land in question is a Gairabad land. The undisputed fact also remains that the petitioner is not the owner of the land nor he has title over the land. The undisputed fact remains that the Circle Officer is an officer responsible for looking after the land belonging to the State.

12. Under such circumstances, consequent upon the dismissal of the earlier writ petition bearing WPC No. 3835 of 2013 filed by the petitioner, this Court do not find any illegality in the order of the Circle Officer calling upon the petitioner, to vacate the land; and further intimating that failing which, action will be taken under the provisions of the Bihar Public Land Encroachment Act.

13. Therefore this Court is of the considered view that there is no merit in this writ petition. Accordingly, the same is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 13th June, 2024 Smita /AFR 6 W.P.(C) No. 5142 of 2016