Shambhu Prasad, aged about 49 years, son of late Rajeshwar Prasad, resident of House v. 1. State of Jharkhand through the Deputy Commissioner, East Singhbhum, P.O. & P.S.- Sakchi
Case Details
1 W.P. (C) No.3348 of 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 3348 of 2021 Shambhu Prasad, aged about 49 years, son of late Rajeshwar Prasad, resident of House No. 81, Harhar Guttu, L.B.S.M. College Road, Jamshedpur, P.O. Tatanagar Kitadih, P.S.- Bagbera, Jamshedpur, Dist- East Singhbhum, Jharkhand, PIN 831002 .... Petitioner Versus 1. State of Jharkhand through the Deputy Commissioner, East Singhbhum, P.O. & P.S.- Sakchi, Jamshedpur, Dist. East Singhbhum 2. Sub-Divisional Officer, Dhalbhum, P.O. & P.S.- Dhalbhum, Town Jamshedpur, Dist. East Singhbhum 3. Circle Officer, Jamshedpur, P.O. & P.S.- Sakchi, Jamshedpur, Dist. East Singhbhum 4. Basant Kumar Singh, S/o Amar Singh, R/o Harhar Guttu, L.B.S.M. College Road, P.O. Harhar Gutu, P.S.- Bagbera, Jamshedpur, Dist- East Singhbhum, Jharkhand …. Respondents P R E S E N T
Legal Reasoning
07.11.2023 passed by this Court in W.P. (C) No. 3348 of 2021 and consequent upon the same, a supplementary counter affidavit has been filed by the respondent nos.1 to 3 dated 30.11.2023 annexing therewith the map and the finding of the demarcation as reported in Annexure-C. 12. After going through the materials in the record, it is crystal clear that the sale deed no. 5974 dated 23.08.1986 executed by Asan Devi in favour of the mother of the petitioner goes to show that at least the petitioner has been in possession of the land marked red in the map furnished by the Circle Officer, Jamshedpur, kept at Annexure-C of the supplementary counter affidavit filed on behalf of the respondent no.3 dated 30.11.2023. So this Court is satisfied that there is bona fide dispute regarding the title of the Government in respect of the property which has been marked red in Annexure- C of the supplementary counter affidavit dated 30.11.2023. 7 W.P. (C) No.3348 of 2021 13. In view of the settled principle of law that if there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it on the basis of the summary remedy provided under Section 6 of B.P.L.E. Act. Hence, the notices kept at Annexure-6, 10 and 8 is quashed only in respect of three katha i.e. 4.95 decimals of land which has been marked red in the map furnished by the Circle Officer, Jamshedpur, kept at Annexure-C of the supplementary counter affidavit filed on behalf of the respondent no.3 dated 30.11.2023. It is made clear the notice will be in operation in respect of the remaining area out of the total area of 19 decimals. The State if so advised may file legal proceeding for eviction of the petitioner from the area marked red in the map furnished by the Circle Officer, Jamshedpur, kept at Annexure-C of the supplementary counter affidavit filed on behalf of the respondent no.3 dated 30.11.2023 by resorting to due process of law.
Arguments
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State For Resp. No. 4 : Mr. Sumeet Gadodia, Advocate : Mr. Ritesh Kumar Gupta, Advocate : Mr. Ankit Kumar, Advocate : Mr. Ashutosh Anand, AAG-III : Mr. Sharad Kaushal, AC to AAG-III : Mr. Amit Kr. Das, Advocate ….. By the Court:- 1. 2. Heard the parties. This writ petition has been filed under Article 226 of the Constitution of India with a prayer for quashing the order dated 2 W.P. (C) No.3348 of 2021 24.09.2018 passed by the respondent no.3-Circle Officer, Jamshedpur in B.P.L.E. Case No. 67 of 2015-16 (Annexure-10) for alleged violation of the principle of natural justice as without adhering to the principle of natural justice, the petitioner has been directed to remove the encroachment over the alleged public land situated at Khata No. 446, Plot No. 55, Mouza- Kitadih, Thana No. 1167 over an area of 0.19 acre. 3. In this writ petition, prayer has also been made for issuance appropriate writ/order/direction for quashing/setting aside the Notice dated 28.08.2021 (Annexure-6) wherein the petitioner has been directed to remove the encroachment pursuant to the order dated 24.09.2018 passed in B.P.L.E. Case No. 67 of 2015-16 by 30.08.2021, failing which, it has been mentioned inter alia that the encroachment would be removed by use of force. Thirdly, prayer has also been made for issue of appropriate writ/order/direction for quashing / setting aside the Notice dated 31.08.2021 (Annrexure-8) whereby, the petitioner has been directed to remove the alleged encroachment upon to the said land by 05.09.2021. 4. Mr. Sumeet Gadodia, learned counsel for the petitioner at the outset submits that though the petitioner has prayed for quashing the notice in respect of the entire area of 0.19 acres i.e. 19 decimals but the petitioner confines his prayer for quashing of the said notices in part so far as it relates to the three katha which is equivalent of 4.95 decimals of land which has been marked red in the map annexed along with report furnished by the Circle 3 W.P. (C) No.3348 of 2021 Officer, Jamshedpur, kept at Annexure-C of the supplementary counter affidavit filed on behalf of the respondent no.3 dated 30.11.2023. 5. It is submitted by Mr. Gadodia by drawing attention of this Court to Annexure-1 that the said land has been purchased by Fulpatiya Devi who is the mother of the petitioner vide registered sale deed no.5974 dated 23.08.1986 and by drawing attention of this Court to Annexure-11, it is submitted that the petitioner has been in possession of the land in question for more than 35 years and Annexure-11 which is the khatiyan shows that the land is a raiyati land hence, the present proceeding under the Bihar Public Land Encroachment Act, 1956 is not maintainable in a summary proceeding where the question of right, title and interest cannot be decided. 6. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Government of Andhra Pradesh vs. Valluri Kesava Rao & Anr. reported in (1982) 2 SCC 134, paragraph no. 8 of which reads as under :- “8. It seems to us clear from these provisions that the summary remedy for eviction which is provided for by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorised occupation of any land which is “the property of the Government”. In regard to property described in sub-sections (1) and (2) of Section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in Section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorised occupation of property which is declared by Section 2 to be the property of the Government and, to evict him therefore, expeditiously, which can only be done by resorting to the summary remedy provided by the Act. But Section 6(1) in public interest is it 4 W.P. (C) No.3348 of 2021 instant case, there which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land “for which he is liable to pay assessment under Section 3”. Section 3, in turn, refers to unauthorised occupation of any land “which is the property of the Government”. If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a 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 by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. In the is unquestionably a genuine dispute between the State Government and the respondents as to whether the three plots of land were the subject-matter of acquisition proceedings taken by the then Government of Hyderabad and whether the Osmania University, for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the property more than 12 years before the date of the suit and the University was not in possession of the property at any time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of is, complicated questions of title. That procedure therefore, not the due process of law for evicting the respondents. (Emphasis supplied) It is submitted that the said judgment was passed in respect of pari materia of the Bihar Public Land Encroachment Act contained in Section 6 of Andhra Pradesh Public Land Encroachment Act. It is then submitted that in that judgment, it has inter alia been held that if there is bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it. 5 W.P. (C) No.3348 of 2021 7. Further relying upon the judgment of Hon’ble Supreme Court of India in the case of Rame Gowda (Dead) By Lrs. Vs. M. Varadappa Naidu (Dead) By Lrs. reported in (2004) 1 SCC 769, paragraph no. 9 of which reads as under:- “9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner ….. ….. …… ….. .” 8. It is submitted by Mr. Gadodia that it is a settled principle of law that possession of a person without title would entitle him to protect his possession even as against the true owner. Hence, without resorting due process of law, the respondents cannot evict the petitioner in respect of three katha of land marked red in the map furnished by the Circle Officer, Jamshedpur, kept at Annexure-C of the supplementary counter affidavit filed on behalf of the respondent no.3 dated 30.11.2023. 9. Learned AAG-III on the other hand opposes the prayer and submits that adequate opportunity of being heard was provided to the petitioner before passing the orders and notices sought to be quashed but the State has got nothing to say about the sale deed no. 5974 undisputedly, executed on 28.03.1986 in respect of the three katha of land which has been marked red in the map furnished by the Circle Officer, Jamshedpur, kept at Annexure-C of the supplementary counter affidavit filed on behalf of the respondent no.3 dated 30.11.2023. 10. Learned counsel for the respondent no.4 submits that there is road adjacent to the area marked red in Annexure-C towards south and the notice, apart from three katha of land marked red in 6 W.P. (C) No.3348 of 2021 the map furnished by the Circle Officer, Jamshedpur, kept at Annexure-C of the supplementary counter affidavit filed on behalf of the respondent no.3 dated 30.11.2023 need not be interfered with. 11. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that perusal of the record reveals that the demarcation of the land was done in presence of the petitioner by the Circle Officer, Jamshedpur in terms of the order dated
Decision
Order accordingly. This writ petition is disposed of accordingly. The interim order granted earlier stands vacated. 14. 15. 16. 17. 18. High Court of Jharkhand, Ranchi Dated the 21st December, 2023 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)