1. Shiv Shankar Barai, aged about 72 years, son of Late Dadhan Barai 2 v. 1. State of Jharkhand 2. Chief Secretary Government of Jharkhand, Projec
Case Details
1 W.P. (C) No.4773 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 4773 of 2023 1. Shiv Shankar Barai, aged about 72 years, son of Late Dadhan Barai 2. Chintaman Barai, aged about 56 years, son of Late Dadhan Barai 3. Mahabir Barai, aged about 68 years, son of Late Dadhan Barai 4. Umesh Kumar, aged about 50 years, son of Late Dadhan Barai 5. Indu Devi, aged about 54 years, wife of Late Prabil Barai All residents of Village –Garilong, P.O. and P.S. –Tandwa, District –Chatra (Jharkhand) .... Petitioners Versus 1. State of Jharkhand 2. Chief Secretary Government of Jharkhand, Project Building, Dhurwa, P.O. and P.S. –Dhurwa, District –Ranchi. 3. Secretary Urban Development Department, Government of Jharkhand, Project Building, Dhurwa, P.O. and P.S. –Dhurwa, District –Ranchi 4. Deputy Commissioner, Chatra, P.O., P.S. and District –Chatra 5. Sub-Divisional Officer, Simariya, P.O. and P.S. –Simariya, District –Chatra 6. Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Chatra, P.O., P.S. and District –Chatra. 7. Circle Officer, Tandwa, P.O. and P.S. –Tandwa, District -Chatra …. Respondents P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the Respondents : Mr. Kundan Kr. Ambastha, Advocate : Mr. Ashutosh Anand, AAG-III ….. By the Court:- 1. 2. Heard the parties. This Writ Petition has been filed under Articles 226 of the Constitution of India with the prayer for issuance of an appropriate 2 W.P. (C) No.4773 of 2023 writ/direction restraining the respondent-authorities from taking coercive steps against the petitioners for their dispossession from the Raiyati lands measuring an area of 0.89 Acres appertaining to Plot No. 1121 of Khata No. 161, situated at Mouza Garilong, P.O. and P.S. –Tandwa in the District of Chatra. 3. The case of the petitioners in brief is that the said land was settled by the ex-landlords to the predecessor in interest of the petitioners by virtue of Sada Hukumnama coupled with grant of rent receipts followed by delivery of possession in the year, 1943 and the settlee came in peaceful possession over the said land and after his death, the petitioners are in possession of the said land. It is the further case of the petitioners that demand with respect to the said land was opened in the name of Dadhan Barai and petitioners are paying rent regularly to the Revenue Authority in respect of the said land and the same amounts to acknowledging the possession over the said land by the respondents. Hence, an indefeasible right, title, interest and possession has accrued to the petitioners but the respondent- authorities without taking recourse of law are bent upon forcibly dispossessing the petitioners from the said land and with the said intention, the Zila Prarishad, Chatra floated a tender in the Daily Newspaper on 13.04.2023 for construction of wall of Secretariat and the contractor dug the land which exclusively belonged to the petitioners. The respondents have stacked bricks and sand over the land in question and digging the land of the petitioner without taking recourse of law. The petitioners filed a representation before the concerned authority but to know effect. 3 W.P. (C) No.4773 of 2023 4. It is submitted by the learned counsel for the petitioners relying upon the Judgment of Hon’ble Supreme Court of India in the case of Kalara Kharian & Ors. Vs. Bhairo Nagasia @ Ganesh Nagesia & Ors., reported in (2005) 3 JCR 211 (Jhr), in which in a Second Appeal, the coordinate Bench observed as under in paragraph no.8:- “8. From the perusal of record, it appears that the suit land was surrendered by virtue of registered deed of surrender dated 2.4.1938. The said deed has been marked as Exhibit 4. It further appears that the ex-landlord, after coming into possession and remaining in possession of the said land for about six years, settled the land by virtue of sada settlement in favour of the plaintiffs. The said sada settlement is followed by continuous rent receipts, Exhibit 2 series. In Mt. Ugni and Anr. v. Chowa Mahto and Ors., AIR 1968 Patna 302 (FB), it has been held that any sada settlement followed by actual possession and acceptance of rent creates a valid settlement in favour of the settllee-raiyat. xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx” And submits that Sada Settlement followed by continuous rent receipt and actual possession and acceptance of rent creates a valid settlement in favour of the settlee-raiyat. It is further submitted by the learned counsel for the petitioners that the respondent no.4 –Deputy Commissioner, Chatra has not annulled the transfer made by the ex-landlord in favour of the predecessors of the petitioners in exercise of the powers conferred upon it by Section 4(h) of the Bihar Land Reforms Act, 1950. Drawing attention of this Court to para-3 of the supplementary affidavit, it is submitted by the learned counsel for the petitioners that the respondents are speedily making construction over the land and drawing attention of the Court to annexure-6 and 7 series submits that the respondents have already made construction of wall over the said land. Hence, it is submitted that the respondents be restrained from making further construction. 4 W.P. (C) No.4773 of 2023 5. The learned AAG-III on the other hand vehemently opposes the prayer for restraining the respondents. Drawing attention of this Court to the counter affidavit filed in this case, it is submitted by the learned AAG-III that this writ petition is not maintainable as highly disputed question of facts are involved and further the petitioners have played fraud upon the Court by placing false and forged Hukumnama and rent receipts. It is then submitted that neither the petitioners nor their predecessors were ever in possession over the land at any point of time and the land in question has been in continuous possession of the State Government which is used in the interest of common public. It is next submitted by the learned AAG- III that the Government or any of its Officers never issued any rent receipt with the recommendation of any competent authority in favour of the petitioners. It is further submitted that the land in question has been demarcated in the name of Satvahini in the Register-II. It is then submitted that the land in question is used for general public as Marriage Mandap, Panchayat Bhawan and worship place of Satvahini and the same is duly constructed and standing over the said land. It is next submitted that the petitioners are trying to illegally occupy and grab the land belonging to the State Government by hook or crook and this writ petition is a part of the said strategy of the petitioners. Hence, it is submitted that this writ petition being without any merit be dismissed. 6. Having heard the rival submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that truly disputed questions of fact are involved in 5 W.P. (C) No.4773 of 2023 this writ petition. Further, admittedly the respondents are of possession of the said land of having made substantial construction of walls over the same. The respondents have in no uncertain manner have averred that the Sada Hukumnama, on the basis of which the petitioners claimed their ownership over the land in question is a forged one. The respondents in no uncertain manner have pleaded that Government has never issued any rent receipt on the basis of the order of any competent officer. 7. Under Such circumstances, this Court is of the considered view that as the writ petition involves questions of disputed facts, the same cannot be adjudicated in a writ petition. So far as the Judgment of Kalara Kharian & Ors. Vs. Bhairo Nagasia @ Ganesh Nagesia & Ors. (supra) is concerned, in order to take advantage of that judgement, the petitioner has to establish that (i) (ii) he is in possession of the land, establish that there was a valid Hukumnama executed by the owner of the property concerned in favour of the petitioner or his predecessors in interest (iii) established that there is valid rent receipt issued by the State in favour of the petitioner 8. But in this case as already indicated above in this judgement, the petitioner has admitted the fact that the respondents are in possession of the land and they have made a substantial construction of boundary wall over the land; thus in view of the admission of the petitioner that he is not in possession of the land in question and since the respondents disputes the veracity of the 6 W.P. (C) No.4773 of 2023 Hukumnama purportedly executed in his favour by the ex-landlord and also the genuineness of the rent receipts; and such disputed fact cannot be adjudicated in a writ petition; so the facts of this case are disputed, hence the judgement in the case of Kalara Kharian & Ors. Vs. Bhairo Nagasia @ Ganesh Nagesia & Ors. (supra) would not be of any help to the petitioners more so when the Judgment is passed in a Second Appeal and not in a writ petition. 9. The petitioners if so advised, may file a civil suit before the competent court of law. 10.
Decision
This writ petition is disposed of with the aforesaid observation. High Court of Jharkhand, Ranchi Dated the 2nd January, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)