Jharkhand High Court
Rekha Devi vs The State Of Jharkhand Through Its ... on 28 June, 2024
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 469 of 2008
1. Rekha Devi, wife of Sanjay Kumar Rao
2. Rajni Devi, wife of Mukesh Rawat
3. Munki Devi, wife of Gopal Rawat ... ... Petitioners
Versus
1. The State of Jharkhand through its Secretary, Land Revenue
Department, Govt. of Jharkhand, Project Building, P.O. & P.S. Dhurva District
Ranchi
2. The Deputy Commissioner, District Dumka.
3. The Land Reforms Deputy Collector, District Dumka.
4. The Circle Officer, Jarmundi, District Dumka. ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Petitioner(s) : Mr. Navin Kumar, Advocate
Mrs. Sweta Kumari, Advocate
For the Resp.-State : Mr. RishabhKaushal, AC to GP-II
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th
Order No. 15/ Dated 28 June, 2024
This writ petition has been filed for quashing the order dated 21st March 1986 passed by the Deputy Commissioner, Santhal Parganas (Respondent No. 2) in Revenue Miscellaneous Appeal No. 253 of 1980-81 upholding the order dated 05th September 1980 of the Land Reforms Deputy Collector, Dumka passed in Land Encroachment Case No. 9 of 1980-81 (both the orders have been annexed as Annexure 6 and 5, respectively of the writ petition) by which the petitioner was asked to remove the alleged encroachment from Plot No. 515 of Mouza Basukinath.
2. The pleadings of the petitioner as in brief are as under:-
(a) The petitioner is a Zamabandi Raiyat of Mouza Basukinath having a jote of 2 ½ bighas and the plot no. 518 measuring an area of 3 dhur of Mouza Basukinath which is recorded as PartiKadim was settled in the year 1948 with the petitioner by a patta from the erstwhile Handwa Estate (Annexure -2).
Accordingly, the petitioner has got occupancy right over the land in question and after the settlement of the said land in favour of the petitioner who had come to the physical possession of the same and also used to pay the rent (Annexure 3). Further it has been stated that in the year 1980 on the receipt of the report of HalkaKaramchari and consequently of the Circle Officer (Respondent No. 4) the Land Reforms Deputy Collector (Respondent No. 3) initiated a land encroachment proceeding bearing L.E. Case No. 9 of 1980-81 with respect to aforesaid land and the petitioner was asked to show cause as to why he should not be evicted from Plot No. 518/515 measuring an area of 2 dhurs only and thereafter the petitioner on receipt of the notice filed his show cause. Further it has been stated that on 05th September 1980 the Land Reforms Deputy Collector (Respondent No. 3) passed an order directing the petitioner for removing the alleged encroachment within two days from the plot in question. Copy of the said order has been annexed as annexure 5 of this writ petition. The petitioner thereafter challenged the said order dated 05th September, 1980 passed by the Land Reforms Deputy Collector in L.E. Case No. 9 of 1980-81 vide Revenue Miscellaneous Appeal No. 253 of 1980-81 before the Deputy Commissioner, Dumka who by his order dated 21st March 1986 dismissed the Appeal upholding the order passed by the Land Reforms Deputy Collector dated 05th September 1980 in L.E. Case No. 9 of 1980-81.
(b) It is further submitted that the impugned order is bad on the face of it and in view of the fact that no proceeding was initiated under Section 4(h) of the Bihar Land Reforms Act which provides for an enquiry in respect of any proceeding including the settlement or lease of any land and just started the proceeding under the Bihar Land Encroachment Act which is bad in law. Further it has been pointed out that in similarly situated cases of several petitioners who have had an occasion to approach before the Hon'ble Patna High Court in CWJC No. 1731 of 1982 along with other batch cases where the Hon'ble Patna High Court after a reasoned order set aside the impugned orders passed in the respective cases passed by the Revenue Authorities and allowed the prayers of the petitioners in those cases. It has also been pointed out that this petitioner had also filed the CWJC No. 2703 of 1986 which was unfortunately dismissed for non-prosecution and when the restoration was filed by the petitioner at that time the Bihar was bifurcated and Jharkhand State was constituted and jurisdiction accordingly shifted to Hon'ble Jharkhand High Court and therefore the present Writ Petition was filed before this Court.
2W.P. (C).No.469 of 2008(c) In this view of the matter, it is submitted that the case of this petitioner squarely falls on the facts with the cases of all other petitioners who have got relief from Hon'ble Patna High Court in CWJC No. 1731 of 1982 along with other batch cases (Annexure -7 filed by the petitioner in a Reply to the Counter Affidavit).
3. On the other hand, Mr. RishabhKaushal, the learned AC to GP-II who has filed counter on behalf of the State submitted that there is no dispute to the fact that the similarly situated persons have had an occasion to file the writ petitions before the Hon'ble Patna High Court vide CWJC No. 1731 of 1982 and other batch cases against their respective impugned orders passed by the Land Reforms Deputy Collector and also by Appellate Revenue Authority in which all the impugned orders passed by Revenue Authorities have been set aside by the Hon'ble Patna High Court with a liberty to the State to file Civil Suit for the proper remedy. It is fairly submitted on behalf of the State that case of the petitioner also squarely falls with identical facts and circumstances of the case of those writ petitioners who have got relief from Hon'ble Patna High Court in CWJC No. 1731 of 1982 and batch cases and only the land is different pertaining to Plot No. 515/518 of the petitioner.
4. Having heard the learned counsel for the parties, perused the record of this case.
5. It is found that the petitioner is aggrieved by the Order dated 05th September 1980 passed by Land Reforms Deputy Collector, Dumka in Land Encroachment Case No.09 of 1980-81 and order dated 21st March 1986 passed by Deputy Commissioner, Santhal Pargana in Revenue Miscellaneous Appeal No.253 of 1980-81 with respect to land pertaining to the petitioner of Plot No. 515/518 of MouzaBasukinath in the District of Dumka.
6. From the order passed by the Hon'ble Patna High Court in CWJC No. 1731 of 1982 and batch cases, the Hon'ble Patna High Court has held in the similar situated facts and circumstances of this case which are not in dispute as under:
"16. The Collector under the Bihar Public Land Encroachment Act while deciding a case thereunder must record his satisfaction by determining the 3W.P. (C).No.469 of 2008 jurisdictional fact that on the date of initiation of a proceeding under the said Act, the land was a public land in terms of the provision of the said Act. Under Section 4 of the said Act, a person upon whom a notice is served under Section 3 is entitled to raise any defence which he could have raised if he was a defendant in a properly framed suit for the removal of the encroachment. Section 5 of the said Act provides for the manner as to how the hearing of a proceeding shall take place. Section 6 provides for passing of a final order. Section 8 provides that all proceeding under the said Act shall be heard and, disposed of in a summary manner. Under Section 9 of the said Act in respect of certain Class of lands as mentioned therein, the burden of proof that the land is not a public land rests upon the opposite party. Section 10 provides for a power of the Collector to summon witnesses etc. in enquiries under the said Act. Section 11 provides for an appeal. Section 16 of the said act bars the Jurisdiction of a civil court or any other legal proceeding in respect of the different provisions of the said Act as enumerated herein before, it would be evident that the legislature by reason of the provisions of the said Act intended to provide for therein the power upon the authorities to remove the encroachment in a summary manner. By necessary implication, therefore, a complicated question of title cannot be decided in a summary proceeding initiated under the provisions of the said Act. From the finding recorded by the Deputy Commissioner himself in his order impugned herein and as quoted hereinbefore, it would be evident that he, without there being any evidence on the record, purported to be only on the basis of his own experience, held that the pattas executed by Rani Sonawati Kumari were not genuine.
17. From the stand taken on behalf of the State there cannot be any doubt that it admitted the existence of the pattas executed by the Ex-proprietress of Handwa estate in favour of the petitioners. The State had further admitted that the name of the petitioners finds place in the return submitted by the ex- landlord. Presumably on the basis of the return which must have been filed in the prescribed form and upon proper verification thereof in terms of the provisions of the Bihar Land Reforms Act, 1950 and the rules framed thereunder, the names of petitioners of each writ application except that of C.W.J.C. No. 2071 of 1982 were entered in the tenants ledger. It is also admitted that the petitioners except the petitioner of C.W.J.C. No. 2071 of 1982 were paying rent to the State of Bihar, which had all along been accepted by it and rent receipts therefore were granted in their favour.
18. Further as mentioned herein-before, even the petitioners were found to be in possession during table survey of Basukinath in the year 1964. Even the proceedings were initiated against some of the petitioners under the Provisions of Bihar Public Land Encroachment Act, but the same were dropped.
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20. It is true that the statutory tribunal while determining the disputed facts has also right to determine the jurisdictional fact, but it is also well known that such tribunal cannot confer a jurisdiction upon himself by wrongly deciding such jurisdictional facts. Although the Collector in the Bihar Public Land Encroachment Act, thus was entitled to decide as to whether the land in question were public land or not, but it could not decide a complicated question of title or a matter where a serious and bonafide dispute arises with regard to the title of the land. Whether the dispute involved in a proceeding under Bihar Public Land Encroachment Act, 1956, which provides for a summary proceeding is a bona fide serious one. In my opinion, invoking of the jurisdiction by the Collector under the said Act directing ejectments of a person from the alleged public land was not warranted. In government of Andhra Pradesh Vrs. Thummala Krishna 4W.P. (C).No.469 of 2008 Raoand another (A.I.R. 1982 S.C. 1081) in similar circumstances, it has been held by the Supreme Court that if there is a bona fide dispute regarding the title of the government in any property, the Government cannot take an 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. It has further been held therein that although the duration of the encroachment is not decisive, but the same is relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima - facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law.
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22. Further in the cases in which there had been earlier proceeding under the Bihar Public Land Encroachment Act, which were dropped, the same became final and no fresh proceeding could have been initiated in respect of the self same lands. In Kali Prasad Soul Vrs. The State of Bihar and others (1969 P.L.J.R. 23) a Division Bench of this Court held that where the order passed in the earlier proceeding became final, the case of the alleged encroachment must also be taken to have finally concluded, there was no jurisdiction in the officers concerned, to re-agitate the matter in another fresh proceeding.
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26. In terms of the provisions of Bihar Land Reforms Act, 1950 if a settlement is to be annulled, a proceeding under Section 4(h) thereof has got to be taken recourse to. Obviously such a proceeding could not have been initiated against the petitioners in view of the fact that the settlement were made by the Ex-proprietress of Handwa Estate during the period 1940 to 1944. The Deputy Commissioner further committed a serious error of law in jumping of the conclusion, again without any materials on the record, that the return filed by the ex-proprietress was malafide.
27. The Deputy Commissioner further, in my opinion, misdirected himself in law in holding that the rent receipts granted could not have conferred any advantage to the petitioners as no order therefore was passed by the Collector. It stands admitted that the name of the petitioners find place in the return submitted by the ex- proprietress which must have been accepted by a competent authority and in that view of the matter, the issuance of the rent receipts being a matter of routine affair, the Karamchari, in my opinion cannot be said to have acted illegally in granting such receipt after accepting the rent therefor. It was not a case where an application was filed by the petitioners for entering their names in the Zamabandi as only in such cases, the procedure prescribed therefor are to be followed. In any event, there is nothing on the records to show that the return filed by the ex-proprietress of the Estate was not accepted by the competent authority. It also did not lie in the month of the State to say that the rent receipt having been granted without prejudice the same is not binding upon the State of Bihar.In Sardamoni Vrs. State of Bihar and others (A.I.R. 1979 Patna-106) it has been held by a Division Bench of this Court that the word 'Without Prejudice' denotes without prejudice to the right of the 3rd party but the State of Bihar is bound thereby.
28. The question as to whether the land vested in the State of Bihar pursuant to the provisions of Bihar Land Reforms Act the same being an encumbrance to the estate or not is again a complicated question of fact and lease created by the ex-proprietress can not be an encumbrance if person has acquired a raiyati or under raiyati interest; such interest is saved from vesting under the 5W.P. (C).No.469 of 2008 provisions of the Bihar Land Reforms Act. Even if by reason of grant, a tenure interest is created, the tenure holder is also entitled to show that on the date of coming into force of Bihar Land Reforms Act, he being in possession of the land in question became the statutory tenant under the State of Bihar by reason of the provisions of Section 5,6 and 7 of the Bihar Land Reforms Act, 1950.
29. Further even in a case where a tenure holder's interest has vested in the State of Bihar in terms of the Provisions of the Bihar Land Reforms Act, a proceeding under Section 4(g) of the Bihar Land Reforms Act is to be initiated if such tenure holder fails to deliver possession into the State pursuant to the provisions thereof.
30. In my view the Deputy Commissioner also misdirected himself in holding that the petitioners can notacquire title by adverse possession. Such a finding is clearly contrary to all principles of law as also contrary to the Judgment of the title suit being title suit no.48 of 1969 as mentioned herein before.
31.In Judicial Review of Administration, by Prof. S.A.De Smith it has been stated by the learned author as to what constitutes an error of law apparent on the face of the record.
"The concept of error of law 'includes the giving of reasons that are bad in law or (if there is a duty to give reasons) inconsistent, unintelligible or, it would seem, substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving, at conclusion without any supporting evidence."
32. From the discussions aforementioned it would be evident that the Deputy Commissioner posed unto himself a wrong question of law and therefore misdirected himself in law. In the case of Secretary of State Vrs. Tameside (1976-3 All England Report 665) Lord Diplock held that if an authority passing an order did not ask itself the right question and take reasonable step to acquaint itself with the relevant information to enable it to answer it correctly, the same amounts to a misdirection in law. The aforementioned decision has been quoted with approval by a Division Bench of this Court in Dr. SaymaNand Singh Vrs. State of Bihar reported in 1978 P.L.J.R. 588.
33. I am therefore of the view that the impugned orders can not be sustained. However, it goes without saying that in view of the facts and circumstances of the case, the State of Bihar may institute a civil suit in an court for ventilating its grievance if any.
34. In the result these writ applications are allowed and the impugned orders as mentioned in paragraph 1 of each petitions are hereby set aside. There will, however, be no order as to Costs."
7. In light of the aforesaid judgment passed by the Hon'ble Patna High Court, it is found that the case of the petitioner stands on the identical footing of the petitioners of CWJC No. 1731 of 1982 and other batch cases. In result, the writ petition filed by the petitioner is hereby allowed and the impugned orders dated 05th September 1980 passed by Land Reforms Deputy Collector, Dumka in Land Encroachment Case No.09 of 1980-81 and order 6W.P. (C).No.469 of 2008 dated 21st March 1986 passed by Deputy Commissioner, Santhal Pargana in Revenue Miscellaneous Appeal No.253 of 1980-81 are set aside with a liberty to the State to institute a Civil Suit for the proper remedy, to redress its grievances, if any.
8. Accordingly, this Writ Petition No. 469 of 2008 is allowed.
(Navneet Kumar, J.) Basant/S.Das 7W.P. (C).No.469 of 2008