Patna High Court
Sita Devi vs The State Of Bihar on 4 February, 2021
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5690 of 2020
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Sita Devi, wife of Ras Bihari Prasad, residing at Village-Gosae Math,
Sampatchak Block, P.O.- Sonagopalpur, Patna, Bihar- 800007.
... ... Petitioner
Versus
1. The State of Bihar through its Chief Secretary
2. The Principal Secretary Department of Home, Government of Bihar, Old
Secretariat, Patna.
3. The Principal Secretary, Revenue and Land Reforms Department,
Government of Bihar, Old Secretariat, Patna.
4. The Director General of Police Bihar, Patna.
5. The Principal Secretary, Road Construction Department, Government of
Bihar, Patna.
6. The Commissioner, Patna Division, Patna.
7. The Collector Patna.
8. The Deputy Collector, Land Reforms, Patna City, Patna.
9. The Circle Officer, Sampatchak, District- Patna.
10. The Land Acquisition Officer, Patna.
... ... Respondents
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Appearance :
For the Petitioner : Mr. Puneet Siddhartha, Advocate
Mr. Ravi Kumar, Advocate
For the Respondents : Md. Khurshid Alam, AAG-12
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date : 04-02-2021
Heard Mr. Puneet Siddhartha, learned advocate for
the petitioner and Mr. Khurshid Alam, learned AAG-12 for the
State.
2. The petitioner has approached this Court invoking
the writ jurisdiction with a prayer for relief under Article 226 of
the Constitution of India to direct the respondent authorities to
Patna High Court CWJC No.5690 of 2020 dt.04-02-2021
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produce all the documents related to land acquisition
proceedings or encroachment proceedings, if any, done against
the land/property/building of the petitioner. It has been further
prayed to direct the respondent authorities to abstain from any
demolition work at Sampatchak, Patna in relation to the
property of the petitioner during the pendency of the case and to
direct the respondent authorities to not initiate any
encroachment proceedings or land acquisition proceedings
during the subsistence of pandemic created by Covid 19 virus. It
has been further prayed to direct the respondent authorities to
maintain peace and harmony amongst the citizens residing at
Sampatchak, Patna and ensure that no citizen is rendered
homeless and vulnerable to the infection of Covid 19 virus,
which could be created by demolition of their houses and to take
appropriate actions against the erring respondents for
committing misdeed, misdemeanour and illegality, particularly
for keeping the petitioner in mental distress and harassment.
3. Subsequently, the petitioner filed an interlocutory
application vide I.A. No.1 of 2020 wherein she has stated that
due to inadvertent typing error at para 1 in the writ petition, she
had made a prayer, which appeared to be made for public
interest litigation. She further contended that the petitioner is
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before this Court only to protect her personal interest
appertaining to her property and not for any public interest. She,
thus, prayed that the original writ application may, therefore, be
also read to direct the respondent authorities to stop the
demolition of property/buildings of the petitioner pertaining to
Khata No.434, Plot No.1447 situated at near Gosae Math,
Sampatchak Block, P.O.-Sonagopalpur, Patna, Bihar without
establishing title over the same by a decree of the civil court
obtained in proceedings properly initiated in accordance with
law.
4. In the writ application, the petitioner has pleaded
that she purchased a property through a registered sale deed
dated 17.04.2000 from one Bhadu Rai, son of late Santosh Rai
and came in possession of the land/property appertaining to
Khata No.434, Plot No.1447 situated at near Gosae Math,
Sampatchak Block, P.O.-Sonagopalpur, Patna. The subject land
has a area of four and a half dhur on which she along with her
family members are residing in their house. She has been
enjoying the right, title, interest and possession over the
property unhindered for two decades. The Circle Officer,
Sampatchak without issuance of any show cause notice to the
petitioner started marking houses and property of the petitioner
Patna High Court CWJC No.5690 of 2020 dt.04-02-2021
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and others living in her locality in June, 2019 stating that the
subject land has been acquired. The interference by the
respondent authorities in the right, title, interest and possession
of the petitioner without initiation of any land acquisition
proceeding and without paying a farthing in terms of
compensation to the affected raiyats is illegal, arbitrary,
unjustifiable and tantamount to interference with the statutory as
well as constitutional rights of the petitioner.
5. The petitioner has further pleaded that being
aggrieved by marking of the houses, coupled with no concrete
answer being given by the respondent authorities present on the
spot regarding any land acquisition case or encroachment
proceedings, the petitioner through her family members and
other raiyats made representations on 22.06.2019 to the
respondent authorities for restraining them from doing any
illegal acquisition before providing with compensation as
required by law. Since the representations were not being
decided by the concerned respondent authorities, the affected
persons of the locality preferred an application under Right to
Information Act before acquiring authorities, but it was
informed vide their reply to RTI dated 13.07.2019 that the
matter rests in the domain of land acquisition office. Thereafter,
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an application under Right to Information Act was preferred
before the Land Acquisition Officer, Patna regarding
information of any acquisition over the land, pursuant to which,
a reply was received on 19.08.2019 stating that no records were
found available in the land acquisition office and the same were
being searched in the District Revenue Record Room.
6. It has been further pleaded that the respondent
authorities all of a sudden during lockdown period started
demolition of houses in Sampatchak more particularly, on
07.05.2020, which was widely reported in newspaper dated 08.05.2020.
7. It has also been pleaded that the actions of the respondent authorities have led to creation of environment wherein the people in Sampatchak, Patna are living in fear, panic and terror of losing their houses without being heard.
8. Having heard the parties on 22.05.2020 through video conferencing, this Court granted time to the State of Bihar to file counter affidavit till 29th of May, 2020 and in the meantime, the parties were directed to maintain status quo in respect to the property in question. The order dated 22.05.2020 reads as under:-
"22.05.2020 Heard Mr. Puneet Sidharath, learned counsel for the petitioner and Mr. Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 6/33 Khurshid Alam, learned Additional Advocate General-12 for the State.
The petitioner has made the following prayers in para-1 of the writ petition. "1(A). A writ in the nature of mandamus or any other appropriate writ/s,order/s, direction/s for the following relief:-
I. To direct the respondent authorities to stop the demolition of property/buildings being carried out at Sampatchak, Patna. II. To direct the respondent authorities to produce all the documents related to land acquisition proceedings or encroachment proceedings, if any, done against the land/property/building of the petitioner. III. To direct the respondent authorities to abstain from any demolition work in relation to the property of the petitioner during the pendency of this case.
IV. To direct the respondent authorities to not initiate any encroachment proceedings or land acquisition proceedings during the subsistence of deadly pandemic created by Covid-19 virus. V. To direct respondent authorities to maintain peace and harmony amongst the citizens residing at Sampatchak, Patna and ensure that no citizen is rendered homeless and vulnerable to the infection of Covid-19 virus which could be created by demolition of their houses. VI. To take appropriate actions against the erring respondents for committing misdeeds, Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 7/33 misdemeanour and illegality, particularly for keeping the petitioner in mental distress and harassment.
VII. To direct for payment of compensation to people of Sampatchak, Patna, whose land/property/building has been demolished without proper acquisition or encroachment proceedings.
B. To any other relief/s to which the petitioner is found entitled to.
At the outset, learned counsel appearing for the petitioner submitted that he is not pressing the prayers made in Para- 1A(I) and (VII) of the writ petition as they are in the nature of public interest litigation. The petitioner has filed the instant case to protect her own private interest. He submitted that the petitioner had purchased a property from one Badu Rai son of late Santosh Rai on 27.04.2000 and came in possession of the land/building appertaining to Khata No.434, Plot No.1447situated at near Gosae Math, Sampatchak, Patna. The land in question has an area of 4 ½ dhurs on which the petitioner along with her family members is residing in her house. She is enjoying the right, title, interest and possession over the property unhindered for over two decades. Recently, demolition work is being carried out by the respondent Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 8/33 authorities around the house of the petitioner even without issuance of show-cause notice. The Circle Officer, Sampatchak has marked the house and property of the petitioner and others living in the locality in June, 2019 stating that the land has already been acquired by the State. He submitted that to the best of the knowledge of the petitioner, land acquisition proceeding was never ever initiated in respect of the land in question. He has further contended that the petitioner has submitted repeated representations to the authorities concerned and requested them not to demolish her house. As demolition work is being carried out in the area, the petitioner is always under the threat of demolition of her house.
Per contra, Mr. Khurshid Alam, learned Additional Advocate General-12 appearing for the State submitted that it would be apparent from the pleading of the petitioner itself that the land in question had already been acquired in the year 1961-62. The authorities have also apprised the petitioner regarding the land having been acquired in the year 1961-62. Any subsequent purchase of land by the petitioner from Badu Rai is a nullity in the eyes of law and because of that he would have no right to continue over the land in question. However, Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 9/33 he contended that since the copy of the writ petition has been served upon him only yesterday, he would seek instructions into the matter and file counter-affidavit as early as possible and positively before 29th May, 2020.
List under the same heading on 29th May, 2020.
Till then, the parties shall maintain status quo as of today in respect of the property of the petitioner as mentioned above."
9. In compliance with the aforesaid order dated 22.05.2020, a counter affidavit has been filed on behalf of respondent nos. 7 to 10 wherein it has been pleaded that Encroachment Case No.6 of 2019-20 has been initiated against the encroachers upon public land and notice dated 28.09.2019 has been issued to the encroachers including Ramakant Prasad, son of the petitioner to submit the supportive documents with regard to the land in question. It is also pleaded that the respondent authorities have not carried out any demolition work on the said land but most of the encroachers have started removing structure/encroachment from said land by themselves.
10. As per the counter affidavit filed on behalf of respondent nos. 7 to 10, a land acquisition proceeding was Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 10/33 initiated with regard to different mauzas including Sonagopalpur vide LA Case No.45 of 1962-63. Since the matter relates to the year 1962-63, the details with regard to the said land could not be traced out in the Land Acquisition Office, Patna. On the basis of the aforesaid facts, the respondent nos. 7 to 10 have pleaded that they have not committed any illegality in the matter and will take further action in accordance with law in the aforesaid encroachment case.
11. A supplementary counter affidavit has also been filed by respondent nos. 7 to 10 wherein it has been pleaded that the status quo order dated 22.05.2020 passed by this Court has been maintained and demolition work has not been carried out with regard to the land in question. It is further pleaded that the Circle Officer has submitted detailed report of Circle Amin with regard to the land in question pertaining to Mauza-Sona Gopalpur, Thana No.124, Khata No. 434, Plot No. 1447, area-4 dhoor and 10 dhurki and other related document. As per the said report, Jamabandi No.2126 has been created with regard to the said land with effect from 2009-10 and it has come from earlier Jamabandi No.126. The name of earlier jamabandi raiyats is not clear as the said Jamabandi No. 126 is in a dilapidated condition. It is further pleaded in the supplementary counter Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 11/33 affidavit that the land in question was acquired vide LA Case No.45 of 1962-63. The payment details of the khatiyan have been made available by the Road Construction Department, but since all the pages are not available, the details with regard to the payments of Plot No. 1447 are not clear. However, it is clear from the map that the acquisition of land of Plot No.1447 has also been done. It is also pleaded that in the measurement report submitted by the Circle Amin, it has been mentioned that 784 Sq. ft. of land has been acquired in the said Plot No.1447 and the applicant had made construction over 189 sq. ft. of the acquired land of the road. The said measurement has been shown on the basis of map made available by the Road Construction Department, Bihar, Patna. It is reiterated that Encroachment Case No.6 of 2019-20 has been initiated against the encroachers and notice dated 28.09.2019 has been issued to the encroachers including Sri Ramakant Prasad, son of the petitioner to submit supportive document with the regard to the land in question.
12. Mr. Puneet Siddhartha, learned counsel appearing for the petitioner submitted that it is wrong to say that Jamabandi No.2126 has come from earlier Jamabandi No.126. He contended that respondent nos. 7 to 10 are trying to mislead Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 12/33 the Court by making frivolous submissions. He contended that the petitioner purchased the property in question from her father-in-law, late Bhadu Rai through registered sale deed dated 27.04.2000 and since then, she is in possession of the property in question. He contended that Jamabandi No. 2126 has come from Jamabandi No.366/A which was registered in the name of the petitioner's father-in-law for which malguzari rent has been paid up to the year 2000 by late Bhadu Rai and, thereafter, the malguzari rent is being paid by the petitioner.
13. Mr. Siddhartha further contended that the respondent-State had never acquired land of the petitioner in question. The respondents are trying to establish their claim over the land of the petitioner in most casual manner with help of map whereas under the Land Acquisition Act, a map, which is only a proposal of acquisition, cannot be considered as a valid document to establish acquisition of property/land by the State. He also contended that that the petitioner has come to know through the counter affidavit filed by the respondent nos. 7 to 10 that an Encroachment Case No.6 of 2019-20 has been instituted vide alleged notice dated 28.09.2019 issued in the name of her son Ramakant Prasad.
14. Mr. Khurshid Alam, learned Additional Advocate Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 13/33 General-12 appearing on behalf of respondents contended that the legislature has prescribed a procedure to be followed for removal of encroachment. The respondents have issued notice in prescribed form requiring encroachers including the son of the petitioner Ramakant Prasad to appear and explain as to why the encroachments made by them be not removed. The encroachers have been directed to submit supportive document with regard to the land in question. Under such circumstance, it was incumbent upon the petitioner to have appeared before the concerned authority and contested the matter. He contended that the petitioner has got an equally efficacious statutory remedy under the Bihar Public Land Encroachment Act, 1956 (for short 'the Act'). Hence, this Court should not entertain her application filed under Article 226 of the Constitution of India. He also contended that a proceeding under Article 226 of the Constitution of India is not an appropriate forum to seek a relief, if such relief is based on disputed questions of fact. For the said proposition, he has placed reliance on The Union of India and Ors. vs. Ghaus Mohammad [AIR 1961 SC 1526]; DLF Housing Construction (P) Ltd vs. Delhi Municipal Corporation and Ors. [AIR 1976 SC 386]; and State of Rajasthan vs. Bhawani Singh and Ors. [1993 supp (1) SCC Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 14/33 306].
15. In reply, Mr. Puneet Siddhartha, learned counsel appearing on behalf of the petitioner, on the other hand, contends that there is no bar for the High Court to enter into disputed question of fact in a proceeding under Article 226 of the Constitution of India. He contended that merely because a question of fact is raised, this Court would not be justified in asking the petitioner to seek relief by way of civil suit against the State. In support of his proposition, he has relied on the decisions of the Supreme Court in Real Estate Agencies vs. State of Goa and Ors. [2012 (12) SCC 170]; ABL International Ltd. and Anr. vs. Export Credit Guarantee Corporation of India Ltd. and Ors. [2004(3) SCC 553]; Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Ors. [1998 (8) SCC 1] and Smt. Gunwant Kaur and Ors. vs. Municipal Committee, Bhatinda and Ors. [1969 (3) SCC 769].
16. It is well settled by now that it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India despite existence of an alternative remedy. However, the High Court ought not interfere if there is an adequate efficacious alternative remedy available to the Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 15/33 petitioner and the petitioner has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India.
17. In Harbanslal Sahania and Anr. vs. Indian Oil Corporation Ltd. and Ors. [2003(2) SCC 107], the Supreme Court held that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies:-(i) where the writ petition seeks enforcement of any Fundamental Rights; (ii) where there is a failure of principles of natural justice or; (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
18. In Nivedita Sharma vs. Cellular Operators Association of India [2011 (14) SCC 337], the Supreme Court held that the petitioner must exhaust its alternative remedy before the State Commission and should not directly come to the High Court for challenging the judgment of district forum.
19. Similarly, in Commissioner of Income Tax vs. Chhabila Dass Agrawal [2014 (1) SCC 603], the Supreme Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 16/33 Court held that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation subject to certain exceptions. The Supreme Court further held that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self- imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law.
20. In Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Ors. (supra), the Supreme Court in para 15 to 20 held as under:-
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 17/33 wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case- law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.
16. Rashid Ahmed v. Municipal Board, Kairana [AIR 1950 SC 163], laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting Writs. This was followed by another Rashid case, namely, K.S. Rashid & Son Vs. The Income Tax Investigation Commissioner AIR 1954 SC 207 which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances.
17. A Specific and clear rule was laid down in State of U.P. vs. Mohd. Nooh 1958 SCR 595 = AIR 1958 SC 86, as under:
"But this rule requiring the exhaustion Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 18/33 of statutory remedies before the Writ will be granted is a rule of policy convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."
18. This proposition was considered by a Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs. Bombay vs Ramchand Sobhraj Wadhwani & Anr. AIR 1961 SC 1506 and was affirmed and followed in the following words:-
"The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 19/33 be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus per-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court".
19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. vs Income Tax Officer Companies Distt. I AIR 1961 SC 372 laid down :
"Though the writ of prohibition or certiorari will not issue against an executive author- ity, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy pro- ceedings and unnecessary harassment. The High Court will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction under section 34, Income Tax Act".
20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 20/33 alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."
21. The legislature has prescribed a procedure to be followed for removal of encroachment. Section 3 of the Act prescribes initiation of the proceedings of encroachment. It reads as under:-
"3. Initiation of the proceedings.-(1) If it appears to the Collector from an application made by any person or upon information received from any sources that any person has made or is responsible for the continuance of any encroachment upon any public land, the Collector may cause to be served upon such person a notice in the prescribed form requiring him to appear on a date which shall not be less than two weeks from the date of service of notice to show cause:--
(a) Why he should not be restrained from making such encroachment by issue of injunctions; or
(b) Why such encroachment should not be removed.
(2) Under clause (a) of sub-section (I) the Collector shall have power to issue temporary injunction at any stage to restrain such Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 21/33 encroachment till the disposal of the proceeding or till further orders or he may pass such orders as he deems proper for preventing such encroachment:
Provided that where the encroachment on public land is in the nature of exposure of articles for sale, or opening temporary booth for vending, the Collector may without the formality of issuing a notice as required under sub-section (1) order for its immediate removal or cause it to be removed immediately and for the purpose he may use such force as is necessary in the case:
Provided further that where the encroachment on public land is of such a nature as the Collector considers its immediate removal essential for the safety of general public or for the safety of any other structure on the public land and the notice cannot be served without unnecessary delay upon the person responsible for the encroachment or his representative owing to his absence or for any other reason, he may order the removal of encroachment or if necessary cause it to be removed immediately and may use such force for the purpose as is necessary.
(3) If the person who has made or is responsible for the continuance of the encroachment is not known or cannot be Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 22/33 found, the Collector may cause notice to be affixed in the neighbourhood of the alleged encroachment requiring any person interested in the same to show cause by the date specified in the notice why the encroachment should not be removed and it shall not be necessary to name any person in such notice."
22. Any person on whom a notice is served under Section 3 of the Act or any person, who is interested in the encroachment, may appear before the Collector and raise any defence. Thus, a party against whom a proceeding under Section 3 of the Act has been initiated has been given same status as of defendant in a properly framed suit for removal of the encroachment.
23. Further, Section 4 of the Act reads as under:-
"4. Defence.- Any person on whom notice is served under Section 3 or any person interested in the encroachment may appear before the Collector and raise any defence which he could have raised if he was a defendant in a properly framed suit for the removal of the encroachment."
24. From a reading of Section 4 of the Act, it would be evident that a proceeding under Section 3 of the Act has been initiated against the son of the petitioner by the Collector for Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 23/33 removal of encroachment vide Encroachment Case No. 6 of 2019-20.
25. Section 5 of the Act provides procedure for hearing of the proceeding. It provides that Collector shall hear the parties on the date specified in the notice. It reads as under:-
"5. Hearing.- On the date specified in the notice served under Section 3, the matter shall be heard, unless the hearing is adjourned by the Collector to a future day, and the Collector shall hear the applicant if any, the person on whom the notice has been served and any other person who may be interested either in the encroachment or in the removal thereof and take such other evidence as may be adduced in that behalf:
Provided that, if the person on whom notice has been served under section 3 or any other person interested in the encroachment, fails to appear and show cause on the date specified in the notice, or any other date to which the hearing may be adjourned, the matter shall be heard, ex-parte."
26. Section 6 of the Act confers power upon the Collector to pass final order after hearing the persons concerned and taking evidence, if any, under Section 5 and after making such enquiry as he may deems necessary in the matters of Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 24/33 proceeding initiated for removal of encroachment, which reads as under:-
"6. Final order of the Collector.- (1) In all cases not covered by the provisos to sub- section (2) of Section 3, the Collector shall after hearing the persons concerned and taking evidence, if any under section 5 and after making such enquiry as he deems necessary the Collector may, as the circumstances of the case requires--
(a) either drop the proceeding, or
(b) make the temporary injunction issued under sub-clause (a) of sub-section (1) of Section 3 absolute against the person making encroachment of the public land, or [(c) [Clause (c) Omitted by Amendment Act 17 of 2012]
(d) where the temporary encroachment on public land has been removed by the person making encroachment after some time the Collector shall order payment of damages for the use of the land during the period of encroachment. The amount of damages shall be calculated according to the prescribed procedure, or
(e) in the cases not covered by the foregoing sub-clauses, the Collector shall direct the person making encroachment of the public Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 25/33 land to remove the encroachment within specified period which shall not in any case be more than two weeks in case the encroachment is not removed within the specified time the crops standing or all types of structures existing on the encroached land shall be forfeited by the Collector:
Provided if any landless person encroached up to 12 1/2 dec. of public land before the 10th October 1955, no action shall be taken against him under this Act.
Explanation.--In this proviso landless person means a person whose source of livelihood is agricultural or agricultural labour and who either does not possess any land or does not possess more than one acre of land.
[(2) If any person does not comply with the orders passed by the Collector under this section, he shall be punishable with imprisonment for a term which may extend to one year or with fine up to Rs. 2000/- (twenty thousand) or with both.] (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offence under this section shall be cognizable.]"
27. Thus, the statute provides for a procedure for doing things in a particular manner.
Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 26/33
28. The petitioner may appear in the proceeding and put forward her case in order to satisfy the Collector under the Act that she is not an encroacher and even after hearing her if the Collector comes to a conclusion that she is an encroacher and passes an order for removal of encroachment, she would still have a remedy of appeal under Section 11 of the Act, which reads as under:-
"11. Appeals.- (1) From, every order passed under Sections 6, 7 or 8 an appeal shall lie--
(i) if such an order is passed by any officer other than the Collector of the district, to the Collector of the district or to any officer specially empowered by the State Government, by notification in the official Gazette;
(ii) If such order is passed by the Collector of the district, to the Commissioner of the Division.
(2) An appeal under this section shall be preferred within 30 days of the passing of the order appealed against;
Provided that an appeal may be admitted after the said period when the appellate authority is satisfied that the appellant had sufficient cause for not preferring the appeal within such period.]"
29. Also, the parties have a remedy of review under Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 27/33 Section 13 of the Act on account of any mistake or error in the course of any proceeding under the Act, which reads as under:-
"13. Appeals.-Any order passed under this Act may, after giving the parties reasonable opportunity of being heard, be reviewed by the officer who made the order, or by his successor-in-office, on account of any mistake or error in the course of any proceeding under this Act."
30. Thus, in view of the ratio laid down by the Supreme Court and availability of an equally efficacious statutory remedy to the petitioner for redressal of her grievance, this Court would not like to grant any relief to the petitioner in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.
31. Moreover, the Court would also not like to enter into adjudication of disputes relating to title, as it is of the opinion that a procedure under Article 226 of the Constitution of India is not an appropriate proceeding for adjudication of disputes relating to title.
32. In Union of India and Ors. vs. Ghaus Mohammad (supra), a constitution Bench of the Supreme Court held in para 7 as under:-
"7. The question whether the respondent is a Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 28/33 foreigner is a question of fact on which there is a great deal of dispute which would require a detailed examination of evidence. A proceeding under Article 226 of the Constitution would not be appropriate for a decision of the question. In our view, this question is best decided by a suit and to this course neither party seems to have any serious objection. As we propose to leave the respondent free to file such a suit if he is so advised, we have not dealt with the evidence on the record on the question of the respondent's nationality so as not to prejudice any proceeding that may be brought in the future."
33. In State of Rajasthan vs. Bhawani Singh and Ors. (supra), the Supreme Court clearly held that disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ jurisdiction. Para 7 of the said judgment reads as under:-
"7. Having heard the counsel for the parties, we are of the opinion, that the writ petition was misconceived insofar as it asked for, in effect, a declaration of writ petitioner's title to the said plot. It is evident from the facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 29/33 into or adjudicated in a writ petition."
34. In DLF Housing Construction (P) Ltd vs. Delhi Municipal Corporation and Ors. (supra), the Supreme Court held that in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved, the writ court is not the proper forum for seeking relief. Para 18 of the said judgment reads as under:-
"18. In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course for the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. On this short ground while setting aside the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The appellants may, if so advised, seek their remedy by a regular suit."
35. It is true that in ABL International Ltd. and Anr. vs. Export Credit Guarantee Corporation of India Ltd and Ors. (supra), the Supreme Court has held that merely because Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 30/33 some disputed question of fact arise for consideration, same cannot be a ground to refuse to entertain writ petition in all cases as a matter of rule. However, while saying so, the Supreme Court in para 28 held as under:-
"28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] .) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction." (emphasis mine)
36. In Smt. Gunwant Kaur and Ors. vs. Municipal Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 31/33 Committee, Bhatinda and Ors. [1969 (3) SCC 769] relied upon by the petitioner also, the Supreme Court in para 14 held as under:-
"14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 32/33 because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons." (emphasis mine)
37. Having seen the ratio laid down by the Supreme Court in the aforesaid decisions, I am of the considered opinion that if a disputed questions of fact can be determined on the basis of affidavit or on documents, the High Court may entertain writ application under Article 226 of the Constitution of India and decide the dispute. In a given case, it may also examine witnesses. However, when the petition raises question of fact of a complex nature, which may require oral evidence to be taken, it would not be appropriate to determine the issue in writ jurisdiction. The issue of title raised by the petitioner in the instant case is of complex nature, which can only be determined by way of filing a suit and leading evidence before a court of competent jurisdiction.
38. In that view of the matter also, I am not inclined to entertain the instant application under Article 226 of the Constitution of India.
39. Accordingly, the writ petition is dismissed. The Patna High Court CWJC No.5690 of 2020 dt.04-02-2021 33/33 order of status quo passed by this Court on 22.05.2020 stands vacated.
40. The petitioner, if so advised, may participate in Encroachment Case No.6 of 2019-20 initiated by the respondent authority, but respondents may proceed with the encroachment case against the petitioner only after serving a fresh show cause notice in the prescribed form requiring her to appear on the date, so fixed, which shall not be less than two weeks from the date of service of notice, as the same is a mandatory requirement. The petitioner would also be at liberty to approach the competent court of civil jurisdiction by way of filing proper suit so far as title of the property in question is concerned, if so advised (Ashwani Kumar Singh, J.) sanjeet/-
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