Patna High Court - Orders
Dr. Arshad Sharful Haque vs The State Of Bihar on 15 September, 2022
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1592 of 2021
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Dr. Arshad Sharful Haque
... ... Petitioner/s
Versus
The State of Bihar
.. ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. P. N. Shahi, Advocate.
Mr. M. M. Khan, Advocate
For the Respondent/s : Mr. Sajid Saleem Khan SC-25
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CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
4 15-09-2022Heard the parties.
The petitioner has made the following prayer in the writ petition:-
A) For issuance of an order or direction to the respondent authorities to protect the valuable constitutional right of the petitioner to have property and enjoy the same, and restrain the private respondent neither interfere nor encroach the petitioner Raiyati Land pertaining to Khata No- 275, Khesra No. 184 Area- One Acre 35 dismil situated at mauza Kumhrar P.S- Agam Kuan.
B) For directing the respondent authorities to remove the erected wall from the petitioner's land pertaining to Khata No- 275, Khesra No-184 Area- One Acre 35 dismil situated at mauza Kumhrar P.S- Agam Kuan, which is erected there on in very hot haste manner in collusion with the police. C) For any other relief(s) which is deem fit and proper as well as petitioner deserves in the eye of law.
Khata No. 275, Plot No. 184 area 1.35 acre in situated at mauza Kumharar, P.S. Agam Kuan, District Patna stands in the name of Seikh Rashidul Haque son of Khalilul Patna High Court CWJC No.1592 of 2021(4) dt.15-09-2022 2/8 Haque. The present petitioner is the grandson of the recorded tenant. After death of the recorded tenant who was the grand- father of the petitioner and his father the lands were duly mutated in the name of the petitioner and his brother. Petitioner along with his brother were paying rent to the Government of Bihar and getting rent receipt.
At the time of survey due to mistake of the survey employees, a wrong entry was made with regard to the Khata No. 275 and Khesra No. 184 as name of one Sanichar Gope entered as sikmidaar of the land in remarks column.
It has been contended by the petitioner that Sanichar Gope was not a sikmidaar of the petitioner rather he used to be the Brahit (Barahil) of the recorded tenant and there was no practice of sikmidaari customs in that locality/village. As such, there was no question of sikmidaari right over the land of the petitioner. Later on, sons of Sanichar Yadav, namely, Sahvir Yadav and Raghuvir Yadav as well as sons of Sahvir Yadav namely Kamla Yadav, Rambabu Yadav (father of the private respondent no.7) Shama Yadav and Shyam Sundar Yadav realizing the factum of wrong entry made by the survey officials in preparing the records of rights executed a registered deed of relinquishment on 29.03.1964 and after executing the said deed Patna High Court CWJC No.1592 of 2021(4) dt.15-09-2022 3/8 they relinquished their right whatever they got it mistakenly in favour of the grandmother of the petitioner and grandfather of the petitioner and since there was no claim put up by the heirs of Sanichar Gope at any point of time.
Thereafter, land acquisition proceedings were initiated for construction of residential colony namely Bihar Vitta Sewa Grih Nirmal Samitee for the same i.e. Plot No. 184 under Khata No. 275 along with other plots of the petitioners were acquired. Though award amount of Rs. 12,33,901.24 was prepared in the name of Ghulam Sharful Haque, father of the petitioner but later on, in view of the order passed by the Hon'ble Supreme Court dated 18.08.2004, Plot No. 184 area one acre 35 dismal was released and that too was in favour of the petitioner's father by notification dated 23.06.2011. As the possession of the Plot No. 184 was not taken by the requisitioning department as such prior to the acquisition, the land remained in peaceful possession of the petitioner's family.
All of a sudden, private respondents i.e. Respondents Nos. 6 and 7, namely, Nawab Lal Yadav and Ram Avdhesh Yadav (both sons of Ram Babu Yadav) started encroachment over petitioner's Raiyati land by raising some construction over the Raiyati land of the petitioner which was Patna High Court CWJC No.1592 of 2021(4) dt.15-09-2022 4/8 released in favour of the petitioner pursuant to the order of the State. The petitioner gave an application to the local police station on 28.08.2018 for immediate action for restraining and injuncting the Respondent Nos. 6 and 7. Thereafter, the police submitted a report to the Sub-Divisional Magistrate, Patna City upon which a case bearing Misc. Case No. 570 of 2018 was initiated and thereafter, one boundary wall was constructed by the Respondent Nos.6 and 7 and the police connived with Respondent No.6 and 7 and reported that the boundary wall of 7 feet has been constructed on eastern side.
The Sub-Divisional Magistrate, Patna City dropped the aforesaid Misc. Case No. 570 of 2018, and dismissed the claim of the petitioner.
It has been submitted by the learned counsel for the petitioner that the Respondent Nos.7 is a life convict and has been released after serving the sentence.
It has been further submitted by the petitioner that the local police is in connivance with the criminals and is not taking any action against them who are not allowing to the petitioner and his brother to enjoy the property which has been released by the Supreme Court and the same has been notified by the State of Bihar.
Patna High Court CWJC No.1592 of 2021(4) dt.15-09-2022 5/8 Learned Senior Counsel has also submitted that once predecessor-in-interest of the Respondent Nos. 6 and 7 had executed a registered deed of relinquishment, the Respondent Nos. 6 and 7 cannot claim any right over the land in question and only on the basis of muscle power, they cannot be allowed to encroach upon the property of the petitioner.
He further submits that the State Authorities are there to protect the life and property of common citizens but these days, they have been sitting over the complaints of common citizens and in most of the cases, they have been giving report that it is a civil dispute although the party who is trying to encroach and capture the land of innocent citizens, don't have any legal right. This activity has become common in Bihar which has given boost to land capture by criminals.
This Court cannot ratify this illegal activity being perpetuated by the Respondent Nos. 6 and 7.
The Respondent Nos. 6 and 7 had appeared yesterday. A prayer was initially made by the learned counsel for the Respondent Nos. 6 and 7 that they want to file counter affidavit but after seeing the records and orders of the Supreme Court and the consequential letter of the State of Bihar, learned counsel for the Respondent Nos. 6 and 7 has rightly submitted Patna High Court CWJC No.1592 of 2021(4) dt.15-09-2022 6/8 that he has no more arguments to make.
In these circumstances, this Court has to do justice in the matter and can pass appropriate interim order for restoration of possession. The Court will have to come to the aid of a person who is being threatened and he is weak in most of the cases. The offender wants to take advantage of the delay in our judicial system. This Court cannot direct the petitioner to suffer at the hands of the encroachers. The judgments of the Delhi High Court in the cases of (1.) Anju Devi Vs. Commissioner of Police reported in 1994 SCC OnLine Del 327; (2.) Vijay Khanna Vs. Union of India reported in 1998 SCC OnLine Del 846; (3.) Waf Alalaulad Vs. Sundardas Daulatram and Sons reported in 1996 SCC OnLine All 176=AIR 1996 All 355, have been relied by the petitioner.
Allahabad High Court has considered the restoration of possession to the person in writ petition who had suffered at hand of encroachers and shall be dispossessed from his property by grabbing the same by terrorizing the person in possession. No person can be deprived of his right to life, liberty and property by terrorizing moreover when a person approaches the police and the police does not act and directly or indirectly helps the person terrorizing the owner of the land/property, this Patna High Court CWJC No.1592 of 2021(4) dt.15-09-2022 7/8 Court cannot be a mute spectator. Allahabad High Court in the case of Jai Prakash Vashisht v. Addl. District Magistrate, reported in 1995(26) All LR 46 has, in this connection, laid down as under:-
"Illegal house grabbing seems to be rapidly becoming the order of the day in many places in Uttar Pradesh. This Court will be failing in its duty if it does not voice its protest against these brazen acts of lawlessness. A man's house is said to be his castle. But when the castle is invaded illegally by a mob of anti social elements who beat up the inhabitants, throw them out and illegally occupy the same, it is the matter of great concern for all law abiding citizens. Several instances of such illegal house grabbing have lately come to the notice of this Court, and reports about them have been published widely by the newspapers."
Similar is the situation in this State. The land and houses of the people are being encroached/captured by criminals by terrorizing and manhandling them and by use of force and the administration and the police fail to act and provide protection to the lawful owners and it is only when the lawful owners/citizens who are not being protected by the State, approach this Court then this Court has no other option but to act and direct for the possession to be restored.
The Supreme Court in the case of Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, (1989) 4 SCC 131: AIR 1989 SC 2097 had held that no person can forcibly be dispossessed from property even by the owner except by recourse to law. If a person sought his right to approach this Court to protect his possession it is the duty of this Court to Patna High Court CWJC No.1592 of 2021(4) dt.15-09-2022 8/8 issue appropriate order, direction or writ in the nature to protect the possession of the property of such a person.
In the present case, it is an admitted position that the petitioner has been dispossessed by use of force by the Respondent Nos. 6 and 7. Though the petitioner is a rightful owner of the land and the Respondent Nos. 6 and 7 have no right, title or interest over the land in question, moreover the grandfather of the respondents had already executed deed of relinquishment.
Considering these circumstances and in view of the above, the petitioner has a right to have possession of the land in question from which he has been illegally dispossessed.
In view of the above discussions, the Superintendent of Police, East, Patna is directed to remove the encroachment from the land of the petitioner by Sunday (25.09.2022) and file his personal compliance affidavit by Monday (26.09.2022).
List this case on the next Monday (19.09.2022) for further hearing.
(Sandeep Kumar, J) Guddu/-
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