Patna High Court
Sikandar Mandal vs The State Of Bihar on 17 October, 2022
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Nawneet Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.479 of 2022
In
Civil Writ Jurisdiction Case No.593 of 2018
======================================================
1. Sikandar Mandal Son of Late Rajendra Mandal, Resident of village -
Rampur Dehri, Nawghariya/Dhaar, P.O. Rahua via - Puraini Bazar, P.S. -
Bihariganj, District - Madhepura.
2. Prabhu Paswan, Son of Late Gogri Paswan, Resident of village - Rampur
Dehri, Nawghariya/Dhaar, P.O. Rahua via - Puraini Bazar, P.S. - Bihariganj,
District - Madhepura.
3. Munilal Mandal @ Bunilal Mandal son of Moti Mandal, Resident of village
Majaura Nawgharia (Nawtolia), P.O. Majaura, P.S. - Bihariganj, District -
Madhepura.
4. Narayan Mandal, son of Late Mangal Mandal, Resident of village Majaura
Nawgharia (Nawtolia), P.O. Majaura, P.S. - Bihariganj, District -
Madhepura.
... ... Appellant/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Revenue Department, Government of Bihar, Patna.
3. The Collector of the District Madhepura.
4. The Sub-Divisional Magistrate, Udakishunganj, District Madhepura.
5. The Anchal Adhikari/Circle Officer, Udakishunganj, District Madhepura.
6. Upendra Prasad Singh, Son of Late Shatrughan Prasad Singh, Resident of
Village - Majaura, P.S. - Bihariganj, District - Madhepura.
7. Lallan Prasad Singh, Son of Late Shatrughan Prasad Singh, Resident of
Village - Majaura, P.S. - Bihariganj, District - Madhepura.
8. Shyamanand Singh, Son of Late Shatrughan Prasad Singh, Resident of
Village - Majaura, P.S. - Bihariganj, District - Madhepura.
9. Vijay Kumar Singh, Son of Late Shatrughan Prasad Singh, Resident of
Village - Majaura, P.S. - Bihariganj, District - Madhepura.
10. Ashok Kumar Singh, son of Late Rup Kant Singh, Resident of Village -
Majaura, P.S. - Bihariganj, District - Madhepura.
11. Birendra Prasad Singh, son of Late Bindeshwari Prasad Singh, Resident of
Village - Majaura, P.S. - Bihariganj, District - Madhepura.
12. Gauri Shankar Singh, son of Late Janardan Prasad Singh, Resident of
Village - Majaura, P.S. - Bihariganj, District - Madhepura.
13. Vijay Shankar Singh, son of Late Bishwanath Prasad Singh, Resident of
Village - Majaura, P.S. - Bihariganj, District - Madhepura.
14. Suresh Ram, Son of Late Sukhdeo Ram, Resident of Village - Rampur
Dehri, Nawghariya/Dhaar, P.O. Rahua via - Puraini Bazar, P.S. - Bihariganj,
District - Madhepura.
15. Siwan Paswan, son of Late Arjun Paswan, Resident of Village - Rampur
Patna High Court L.P.A No.479 of 2022 dt.17-10-2022
2/13
Dehri, Nawghariya/Dhaar, P.O. Rahua via - Puraini Bazar, P.S. - Bihariganj,
District - Madhepura.
16. Dukhan Mandal, son of Late Bindeshwar Mandal, Resident of Village -
Majaura Nawgharia (Nawtolia), P.O. Majaura, P.S. - Bihariganj, District -
Madhepura.
17. Bindeshwari Thakur, son of Late Jagdih Thakur, Resident of Village -
Majaura Nawgharia (Nawtolia), P.O. Majaura, P.S. - Bihariganj, District -
Madhepura.
18. Sultan Mandal, son of Late Sumit Mandal, Resident of Village - Majaura
Nawgharia (Nawtolia), P.O. Majaura, P.S. - Bihariganj, District -
Madhepura.
19. Jagdish Ram, Son of Late Bhadi Ram, Resident of Village - Majaura
Nawgharia (Nawtolia), P.O. Majaura, P.S. - Bihariganj, District -
Madhepura.
20. Shambhu Paswan, son of Late Narayan Paswan, Resident of Village -
Majaura Nawgharia (Nawtolia), P.O. Majaura, P.S. - Bihariganj, District -
Madhepura.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Nafisuzzoha
For the Respondent/s : Mr.Md. Khurshid Alam (Aag12)
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 17-10-2022
This case has been mentioned for being heard out of
turn as by the order impugned in the present appeal, there
is every likelihood of the appellants / Basgit Parcha holders
to be evicted from the land, which was settled in their
favour long time back.
2. It appears that on the writ petition filed by the
respondent 02nd set, here in this appeal, who are the land
Patna High Court L.P.A No.479 of 2022 dt.17-10-2022
3/13
owners, seeking quashing of the order dated 22.04.2017
passed by the Circle Officer, Udakishunganj in Basgit
Parcha Miscellaneous Case No. 1-2014/15 arising out of
order dated 04.03.2014 / 12.08.2014 passed in Revision
Case No. 26 of 2012 by the Collector, Madhepura as also,
as a consequence to the first relief referred to above, to
direct the respondent /Officers to implement the order
passed in C.W.J.C. No. 2330 of 2010 in removing the
encroachment from the raiyati land belonging to the writ
petitioners, the learned Single Judge vide his order dated
19.07.2022opined that illegal parchas were issued on the raiyati land of the writ petitioners, which action of the State was found to be highly deplorable. Relying on an order of the Collector, Madhepura dated 11.03.2008, the issuance of parcha to the appellants herein was found to be illegal. Consequently, the learned Single Judge directed the Collector, Madhepura to examine the records including the case in the entire writ petition and make efforts in removing the encroachment from the lands of the writ petitioners by persons who have been emboldened by the Patna High Court L.P.A No.479 of 2022 dt.17-10-2022 4/13 illegal parchas, within three weeks from the date of passing of the order. The order was made peremptory in terms of a direction to the Collector, Madhepura that in case the encroachment is not removed by the next date, the Collector, Madhepura shall explain as to why the order has not been complied with.
3. There are other sequel orders passed in the writ petition, which are pending before the learned Single Judge.
4. By order dated 29.08.2022, the Collector, Madhepura was asked to appear personally on 30.08.2021 to explain as to why the raiyati land was allowed/ permitted to be captured by the persons who were wrongly given basgit parcha and rejected the argument of the appellants herein that parcha can be issued even on private land which does not belong to the Government or which has not been acquired by the Government or which has not been declared as surplus land in a ceiling proceeding. Finally, vide order dated 30.08.2022, time was granted to the District Magistrate, Madhepura on his Patna High Court L.P.A No.479 of 2022 dt.17-10-2022 5/13 report and oral submission that the land belonging to the writ petitioners have not been fully vacated by the encroachers and that it shall be done in near future. Though the personal appearance of the District Magistrate and the D.S.P., Madhepura was dispensed with by the sequel order dated 30.08.2022 but, they have been directed to file their report on the next date.
5. We do not find the rejection of the argument of the appellants herein that basgit parcha could be issued even on private land to be bad in the eyes of law. So far as that part of the order is concerned, it cannot be gainsaid that the arguments of learned counsel for the appellants was incorrect.
6. Be that as it may, we find that the in series of the orders passed by the learned Single Judge, certain basic facts which may not have been mentioned and which were required to be adjudicated before such orders could have been passed on the asking of the land owners, for removal of encroachment lock stock and barrel.
7. It appears from the records that some of the Patna High Court L.P.A No.479 of 2022 dt.17-10-2022 6/13 writ petitioners had approached the District Magistrate, Madhepura against the issuance of basgit parcha to some of the landless persons on the ground that parchas were granted to such persons who did not fall within the category of "privileged persons" to be granted parcha. Most of them, it was urged by the land owners, were not landless people and the procedure delineated in Bihar Privileged Persons Homestead Tenancy Act, 1947 was not followed.
8. On perusal of the records, the Collector, Madhepura came to the conclusion vide his order dated 11.03.2008 that the appellants herein did not come in the category of such persons, who could be granted parcha and that some of them had even encroached upon public lands, namely, road and in the process have encroached upon the private lands of the writ petitioners also. It was thus found by the Collector, Madhepura that the issuance of parcha on 26.04.2000 under the Act was not in accordance with law and, therefore, directed the Circle Officer, Udakishunganj to make a spot enquiry and Patna High Court L.P.A No.479 of 2022 dt.17-10-2022 7/13 verification and thereafter in accordance with the Act and the Rules of 1947, start a proceeding for grant of parcha to the right persons within a period of one month.
9. Pursuant to the aforesaid order passed by the Collector, Madhepura referred to above, it has been alleged in the appeal that the Circle Officer, Udakishunganj, without making proper verification, found that the appellants did not fall under the category of persons who could be granted parcha and, therefore, cancelled the same by order dated 11.07.2008.
10. This order was challenged by the appellants in C.W.J.C. No. 4730 of 2009, which was heard along with C.W.J.C. No. 2330 of 2010 preferred by the land-holders. While deciding the matter, a Single Judge of this Court vide his order dated 31.07.2012 found that earlier, a writ petition bearing C.W.J.C. No. 528/1994 was filed for removal encroachment from the public land and the respondents/Officers were directed to remove such encroachment. The land-holders had come up with a plea in that instance, that the parcha-holders had encroached Patna High Court L.P.A No.479 of 2022 dt.17-10-2022 8/13 the public land and on the call of the then M.L.A., had also encroached the private raiyati land of the writ petitioners in C.W.J.C. No. 2330 of 2010.
11. Both the writ petitions, referred to above, were heard together. So far as the writ petition preferred by the parcha-holders is concerned, their claim was non-suited on the ground of an alternative statutory remedy being available to them which had not been exhausted, namely, making suitable application before the Collector, Madhepura against the order of the Circle Officer cancelling the parcha already granted to them. The writ petition of the land-holders (C.W.J.C. No. 2330 of 2010), however was disposed of with the liberty to them to move the District Magistrate, Madhepura and Sub Divisional Officer, Udakishunganj for the needful and implementation of the order of the Collector, Madhepura and the Circle Officer, Udakishunganj, who had earlier found that the parcha-holders had made encroachment on the public as well as private lands. When the case of the parcha- holders was rejected for their not having availed the Patna High Court L.P.A No.479 of 2022 dt.17-10-2022 9/13 statutory remedy, they preferred a revision petition before the Collector, Madhepura vide Basgit Parcha Revision Case No. 26 of 2012 in which the claim of the appellants (parcha-holders) was allowed and the order dated 11.07.2008 passed by the Circle Officer, Udakishunganj cancelling the parcha, was set aside.
12. Since the District Magistrate, Madhepura found that the matter involved implementation of the orders passed by the High Court, therefore, the Circle Officer, Udakishunganj by order dated 04.03.2014/12.03.2014 was directed to start the proceeding afresh in terms of the order passed by the Collector, Madhepura dated 11.03.2008 and after spot verification and hearing the parties, take necessary decision and pass orders in accordance with Act and Rules within a period of two months from the date of passing of such order.
13. In obedience to and in compliance of the order passed by the Collector, Madhepura referred to above, the Circle Officer, Udakishunganj started the proceeding in right earnest in Miscellaneous Case No. 1/2014-15 and Patna High Court L.P.A No.479 of 2022 dt.17-10-2022 10/13 found that the appellants herein were entitled for being granted parcha which was granted to them in the past and they had been residing on the said land for last several years.
14. In the afore-noted background facts, we find that the learned Single Judge focused himself only on an additional prayer made on behalf of the writ petitioners/ land-holders that the order passed in C.W.J.C. No. 2330 of 2010 be fully implemented, namely, the encroachment on the private and public land be removed.
15. The writ petitioners/respondents here in this appeal had very categorically averred in the petition that after setting aside the order passed by the Circle Officer, Udakishunganj dated 22.04.2017, the encroachment be removed.
16. From the tenor of the series of orders passed by the learned Single Judge, we find that all these aspects have not been adverted to and a direction has been issued for removal of encroachment of land-holders. We are not aware whether the encroachment on private / public lands Patna High Court L.P.A No.479 of 2022 dt.17-10-2022 11/13 have been removed partially or the appellants were attempted to be evicted from the land which was settled to them under Bihar Privileged Persons Homestead Tenancy Act, 1947. Nowhere in the orders passed by the learned Single Judge, do we find any thing to conclude whether the apellants have been directed to be removed from the public / private lands or from the lands which till date, lawfully settled in their favour under the Bihar Privileged Persons Homestead Tenancy Act, 1947.
17. We, therefore, deem it appropriate to refer the matter to the learned Single Judge with a request that all these aspects be gone into before passing any final order with respect to eviction of the appellants in the garb of removing encroachment from public / raiyati land. We further request the learned Single Judge to put the District Magistrate and the Superintendent of Police, Madhepura to interrogatories which would clarify the issue (factual as well as legal) and take a final decision with respect to correctness of the order passed by the Circle Officer, Udakishunganj who has found that the appellants Patna High Court L.P.A No.479 of 2022 dt.17-10-2022 12/13 herein were rightly granted parcha. There is yet another aspect of the matter which ought to be gone into, namely, that the land-holders in the event of it being found that the decision to grant parcha is bad in the eyes of law, they have an alternative remedy of approaching the District Magistrate, Madhepura under Section 21 of the Act of 1947.
18. Encroachment, either on public or private land, cannot be countenanced on any score; nonetheless in the garb of removal of encroachment, rightful claim of the appellants cannot be set at naught. That would amount to emasculation of their right already granted to them. They are required to be heard before being evicted. In case it is found that there is any encroachment made by the appellants on public / private lands, that ought to be dealt with strictly with specific orders of removal of the appellants from such encroached land.
19. We have not issued notice to the respondents as we are only referring the matter to the learned Single Judge, without modifying his orders. The petition is still Patna High Court L.P.A No.479 of 2022 dt.17-10-2022 13/13 pending before the learned Single Judge. The respondents / writ petitioners, needless to state, shall be heard by the learned Single Judge over this issue, before any order is passed. It is our only concern that the appellants may not be evicted from the lands which have been settled in their favour, without the due process of law.
20. With the afore-noted observations, the appeal stands disposed of.
21. Let this order be placed before the learned Single Judge on the next date of hearing.
22. Till further/final order is passed by the learned Single Judge, the successive orders passed by him earlier shall be kept in abeyance.
(Ashutosh Kumar, J) ( Nawneet Kumar Pandey, J) Rishi / sunilkumar/-
AFR/NAFR NAFR CAV DATE N/A Uploading Date 03.11.2022 Transmission Date N/A