Patna High Court
Sudama Sah And Anr. vs State Of Bihar And Ors. on 27 April, 1995
Equivalent citations: 1995(2)BLJR1334
Author: Aftab Alam
Bench: Aftab Alam
ORDER Aftab Alam, J.
1. The two petitioners in this application make an allegation that with a view to eject them from portions of Plot Nos. 2754 and 2755, respondents 2, 4, 5 and 7 came there on 16.6.94 and acting without any sanction of law and contrary to the findings and orders of the Civil Courts forcibly demolished some stalls and wooden structures constructed on the disputed lands by the petitioners.
2. It is the case of the petitioners that they were in possession of the disputed land since 1936 and each of them had constructed there six shops of wooden planks and tiled roofs in which a Homoeo Pharmacy, a tea stall, a betel shop etc. were running.
3. It appears that moves were made by the local authorities, e.g. the Motihari Municipality and the district administration from time to time to eject the petitioners from the disputed land. It further appears that the authorities maintained that the disputed land was public land through which a Nali Khem (i.e. a Kachcha drain) flowed for the drainage of refuse and waste water and the petitioners had made illegal encroachment over it by filling/covering up the drain and the petitioners were liable to be ejected from the public land in question.
4. From the record, it appears that earlier on 27.8.1962 an order was passed by the Land Reforms Dy. Collector, Motihari under the Bihar Public Land Encroachment Act, 1956, directing for the eviction of the petitioners from the disputed land. A similar order was again passed on 26.6.1966 by the Land Encroachment Officer, Motihari under the Bihar Public Land Encroachment Act, 1956. The aforesaid two orders were passed at the instance of the Motihari Municipality. At that stage, petitioners No. 1 and the father of petitioner No. 2 filed T.S. Nos. 256 and 257 of 1962 against the Commissioners of Motihari Municipality in the Court of Munsif, Motihari. In these suits, two reliefs were claimed, first, a declaration that the plaintiffs (the petitioners here) had acquired title over the disputed land by adverse possession and the second also a declaration, that the orders of eviction passed by the Revenue Courts were without jurisdiction. The suits were decreed by the trial court in favour of the petitioners. The Municipality preferred appeals. which were dismissed by a common judgment and order dated 12.1.1972 passed by the Subordinate Judge, Motihari. A copy of the judgment is the Annexure-1 and from its perusal, it appears that the question whether the disputed land was municipal land was left open in those suits with an observation that for evicting the plaintiffs (petitioners in this application) from the disputed land the Municipality would have to file a fresh suit and the question whether the land was municipal land could be examined in case such a suit was filed by the Municipality. As regard the orders of eviction it was held that both the Acts of 1950 and 1956 having been held by the Patna High Court to be ultre vires the orders passed thereunder were clearly unsustainable. The relevant extract from the judgment in appeal is as follows:
Accordingly the two orders in question must to held to be void, illegal and without jurisdiction irrespective of the fact whether the land is a public land or not. The plaintiffs cannot be evicted from the suit land on the basis of the two orders referred to above by the revenue authorities under the Land Encroachment Act. The remedy of the defendants, if any, is to file a fresh suit for eviction in Civil Court.
No further appeal was taken from the aforesaid judgment and order dated 12.1.1972 and no suit for the eviction of the petitioners was apparently filed within three years from the date of the judgment either by the Motihari Municipality or the District Board or the State of Bihar.
5. The next attempt to dislodge the petitioners appears to have been made in 1976 when the petitioners once again filed T.S. No. 14/1976 in the Court of Subordinate Judge, Motihari against the Commissioners of Motihari Municipality and others including the District Board. In this suit, the petitioners sought a declaration that they had acquired absolute right by virtue of their long, uninterrupted and adverse possession over the disputed land. The petitioners further sought a permanent injunction restraining the defendants from pulling down the structure standing on the suit land. In this suit the trial court by order dated 2.6.1977 granted an ad-interim injunction in favour of the plaintiffs. At this stage, it may also be noted that the hearing had concluded and the case was fixed for arguments before the trial court, a petition under Order 39 Rule 2A was filed by the petitioners on 11.11.1986. In this petition which was registered as Misc. Case No. 36 of 1986, it was stated by the petitioners that despite the order of ad-interim injunction dated 2.6.1977 the Municipality had written tot he Collector, Motihari to get the petitioners ejected from the disputed land and at his instance some officers of the Municipality had forcibly pulled down the wooden structures standing on the land. It is stated that the aforesaid Misc. case No. 36 of 1986 still remains pending before the trial court.
6. Finally, however, this suit was also decreed by judgment and order dated 28.2.1987. In this judgment, the Court found and held that the petitioners had been in possession of the disputed land from 1936. It disbelieved tile defendant's plea that a Kutcha Nali flowed through the land in question and the petitioners occupied the land alter filling/covering up the same. The learned Subordinate Judge appears to have further found that the suit land did not belong to the Motihari Municipality but was part of the Bettiuh Raj which had vested in the State of Bihar. It accordingly found and held as follows;
Thus, after considering the facts and circumstances of the case, oral and documentary evidence adduced by both the parties, I find and hold that there is no drain over the suit land and portion of Plot No. 2755 and it does not belong to the defendants or the defendants are not the owner of the suit land, rather, I find and hold that the plaintiffs are in continuous possession of the suit land since 1936-37 but they could not perfect their adverse possession against the defendants and the defendants are not owner of the suit land. These issues are accordingly disposed of.
On the basis of the aforesaid findings, the trial court issued a decree of permanent injunction restraining the defendants from disturbing the possession of the plaintiffs over the suit land.
7. Against the judgment and decree passed in T.S. No. 14/1976, the Motihan Municipality has preferred an appeal being T.A. No. 15/1987 which remains pending in the Court of 3rd Addl. District Judge, Motihari.
8. While the appeal remains pending, it is alleged, in this writ petition that on 16.6.1994, respondents 2, 4, 5 and 7 came over the land and forcibly demolished the structure standing there brushing aside the petitioners' protest as also the orders of the civil court which were tried to be shown to them. The petitioners filed a petition before the Appellate Court in this regard and also came to this Court in this writ petition.
9. This application was filed on 1.7.1994 and despite nine or ten adjournments granted till 27.3.1995, neither a counter-affidavit was filed on behalf of the State nor any instruction was given to the State counsel. The order sheet of this case makes a sorry reading and it appears that the matter was tried to be delayed purposefully even by indulging into prevarications. Finally, by order dated 27.3.95 the Collector, East Champaran was directed to be personally present in Court on 3.4.1995. Following this, the Collector was present in Court on 4.4.1995 when the case was next taken up, On that date also, on the request of the Collector, the case was adjourned to 17.4.1995 for filing a counter-affidavit. A counter-affidavit affirmed by the Collector was finally filed on 17.4.1995 when the case was finally heard in his presence.
10. In the counter-affidavit filed by the Collector the reliefs claimed by the petitioners as also the maintainability of the writ petition are challenged on several grounds. It is stated that the order of the Civil Courts were passed in suits in which the Motihari Municipality and not the State was one of the defendants and hence those orders were not binding upon the State or the district administration. It is further stated that! from Misc. Case No. 36/1984 filed by the petitioners under Order 39 Rule 2A, it was apparent that the petitioners had been evicted from the disputed land on 20.10.1986 and hence there was no question of their removal from the disputed land once again on 16.6.1994. It was also stated that the petitioners had come to this Court earlier in different writ petitions which were either simply withdrawn or were Withdrawn with a direction to file a petition under Order 39 Rule 2 of the Code of Civil Procedure. As regards alleged action on 16.6.94, it was stated in the counter-affidavit and the Collector also said so in answer to a question by the Court that no action as alleged by the petitioners took place on 16.6.1994 on the disputed land.
11. I am not impressed by the objections raised in the counter-affidavit. Suits were filed against the Municipality and the District Board because on those occasions the threat of eviction came from those quarters. The orders passed by the Civil Courts in the aforesaid two suits may not be binding on the State and the district administration but it would not justify the respondents swooping down on the disputed land and forcibly pulling down the structures there without so much as initiating any proceeding against the petitioners, giving them a notice or affording them an opportunity of hearing. Such an action would be further unsustainable in view of the Courts' findings that the petitioners were in possession of the disputed land since 1936 and the disputed involved complicated questions of title. As regards the structures on the disputed land having been pulled down earlier on 20.10.1986, regard being had to the nature of the structures, it is not difficult to imagine that those structures were re-erected by the petitioners after their depredation on 20.10.1986 and were, thus, in existence on 16.6.1994 on the disputed kind and according to the petitioner's allegations were once again pulled down by respondents 2, 4, 5 and 7.
12. As regards the denial of any action taking place on 16.6.1994, it would be.Significant to note that regarding the alleged action on 16.6.1994 a petition had also been filed by the petitioners before the 3rd Additional District Judge, Motihari before whom Title Appeal No. 15 of 1987 remains pending. In the reply petition filed on behalf of the appellant, Motihari Municipality the alleged action was not denied but it was unequivocally stated that the Collector, East Champaran had started a general drive under the Bihar Land Encroachment Act for the removal of encroachments from public lands and public roads in the whole of the district. It was further slated that the encroachment from the suit land had been removed by the Collector and the removal had not been done at the instance of the appellants (Motihari Municipality); rather the Collector had himself ordered and had got the encroachment removed without any request from the appellants (the Municipality).
13. In view of the statements made in the petition filed on behalf of the Motihari Municipality in the Court of the 3rd Addl. District Judge, Motihari and in view of the other facts and circumstances brought on the record of this case, including some photographs of the disputed land, the petitioners' allegation that the district administration had removed the structures from the disputed land by use of force does not appear to be wholly without substance. The use of force was apparently without any sanction of law inasmuch as no proceeding appears to have been initialed against the petitioners which could lead to their forcible eviction. In view of the aforesaid facts and circumstances it would not have been unwarranted to get an enquiry made as to whether or not the administration had tried to evict the petitioners forcibly from the disputed land on 16.6.94. I however, do not propose to issue any direction for an enquiry as it would not serve any useful purpose. I cannot, however, refrain from expressing my anxiety and uneasiness over the manner in which repeated attempts have been made to short circuit the Courts, bye-pass the due process of law and to obtain the desired results by forceful means without any regard to the rule of law. I am further of the opinion that the plea that the removal of the petitioners from the disputed land was necessary for the beautification of the town and was in the larger public interest is of hardly any relevance because an administrative action cannot be justified or defended on the basis of goodness of intentions alone. The executive is also obliged to act within the four corners of law. There is no room for benevolent despotism under our Constitution and all the administrative actions must have a legal sanction.
14. In this case, however, I accept the statements made by the Collector on oath and also verbally in Court that no action as alleged by the petitioners was taken on 16.6.94. The consequences would be that the petitioners would be deemed to be in possession of the disputed land with their wooden structures intact and no authority would interfere with the petitioner's occupation. Any interference with the petitioner's occupation would amount to a deliberate disobedience of this Court's order and would lead to legal consequences.
15. It is, however, made clear that this order shall not be construed in a manner to confer any right or interests in respect of the disputed land over the petitioners. This order does no more than restore the status quo and leaves the adjudication of the rights and interests in respect of the disputed land in the hands of the Civil Court where the appeal is already pending. This order would also not pereclude or prevent any authority from initiating a legal proceeding in respect of the disputed land under any other Act. In case the authorities are of the view that the land in question is public land over which the petitioners are in illegal occupation, it would be open to them to initiate a proceeding under Section 3 of the Bihar Public Land Encroachment Act after giving due notices to the petitioners. In that event, it would be open to the petitioners also to take all such objections and defence as may be available to them including the maintainability of such a proceeding.
16. It is once again made clear that the appeal before the 3rd Addl. District Judge, Motihari and any future proceeding that may be initiated in respect of the disputed land shall be decided on their own merits and in accordance with law.
17. This writ petition stands disposed of with the aforesaid observations, and directions.