Jharkhand High Court
Shyama Kant Lala) vs State Of Jharkhand on 13 June, 2023
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1315 of 2006
Kiran Lala @ Kiran Bala Lala, widow of late Shyama Kant Lala,
Resident of: - Kasturba Nagar, (Behind MADA Office), Luby Circular
Road, Post Office - Dhanbad, Police Station - Dhanbad, District -
Dhanbad. (Substituted vide order dated 08.11.2017 in place of late
Shyama Kant Lala) ... ... Petitioner
Versus
1. State of Jharkhand
2. Deputy Commissioner (DC), Dhanbad, District : Dhanbad
3. Additional Collector (AC), Dhanbad, District: Dhanbad
4. Deputy Collector Land Revenue (DCLR), Dhanbad, District:
Dhanbad
5. Circle Officer - cum - Anchal Adhikari, Baghmara, - cum -
Collector under BPLE Act, Baghmara, P.O: Baghmara, District:
Dhanbad. ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. V.P. Singh, Sr. Advocate : Mr. Rajesh Lala, Advocate For the Resp.-State : Mr. Sandeep Verma, A.C. to Sr. S.C. III
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10/13.06.2023 Heard learned counsels for the parties.
2. This writ petition has been filed for the following reliefs:
"(a). For quashing of the Impugned Order dated 01.02.2006 [Annexure-32] passed by the Deputy Commissioner, Dhanbad [Respondent No.2] passed in BPLE Appeal No.1 of 1989 where by and where under the said Appeal filed by the Petitioner [Appellant] has been dismissed and the Circle Officer, Baghmara [Respondent No.5] has been directed to take necessary action for evicting the alleged encroachment on the said land and has further been pleased to direct that Additional Collector that he will ensure that Mutation and Thoka is cancelled in respect to the land in question and the said land is restored to the Government, only on the basis of a ground taken by the Respondent No.2 that Mutation has been carried out after vesting of the land with Government, but that is error of record.
(b). For quashing part of the Ex-parte Order dated 19.12.1988 [Annexure-24] passed in BPLE Case No.19 (IX) of 1981-82 passed by Anchal Adhikari, Baghmara -Cum- Collector under BPLE Act [Respondent No.5], with respect to land belonging to the Petitioner appertaining to the Plot No.768, Area: 0.13 decimal, of Mouza:2
Phularwartand No.31, Thana No.310, Khata No.01, Jamabandi No.269, Police Station: Baghmara, District: Dhanbad.
(c). For a further writ, order or direction restraining the Respondents from acting pursuant to the impugned Order dated 01.02.2006 [Annexure-32] passed in BPLE Appeal No.1 of 1989 by Respondent No.2 and impugned Order-dated 19.12.1988 [Annexure-24] passed in BPLE Case No.19 (ix) of 1981-82 by Respondent No.5 and restraining the Respondents from taking any steps for interfering with the possession of the Petitioner."
Arguments of the Petitioner
3. Fact of the case as per the Petitioner : -
a. Plot No.768, Area 0.26 Acres in Khata No.1, Mauza Phularitand No.310, P.S. Baghmara, District Dhanbad was the Bakast Mallik Land [Self Cultivation Land] / Abad Malik / Khas Land of the Ex. Landlord of Nawagarh Raj-Estate, namely Raja Nilkant Narayan Singh (herein after referred to as the Zamindar) and was so recorded in Survey Record of Right [Khatiyan] prepared in the Year 1924-25 [Annexure-1 & 2] in the name Raja Nilkant Narayan Singh.
b. Kishundeo Singh was the Chaprasi [Guard] of the Zamindar. In the Year 1932, the Zamindar made Oral Raiyati Settlement of the entire Plot No.768, Area 0.26 Acres in Khata No. 1, Mouza Phularitand, Mouza No.310, P.S. Baghmara, District Dhanbad along with Plot No.850, Area 0.36 Acres of the said Mouza, i.e. Total 0.62 Acres, on raiyati terms on issuance of the rent receipt followed by delivery of possession over the said lands in favour of Kishundeo Singh. Kishundeo Singh constructed a small hut in a southern portion of Plot No.768 and started living therein with the members of his family and was also doing cultivation over the rest portion of the said lands. After death of Kishundeo Singh (chaprasi of the zamindar), his grand-daughter Smt. Phul Kumari Devi continued in possession over the said land and became raiyat and continued the cultivation over the said lands. c. In order to give legality to said oral settlement, the zamindar issued a Hukumnama No.1762 dated 31.05.1952 [Annexure-3] in favour of Smt. Phul Kumari Devi [Grand-daughter of said Kishundeo Singh-the chaprasi of zamindar] who got her name mutated and started paying rent to the Zamindar. Thus, Phul Kumari Devi possessed Title of a Raiyat over the aforesaid plots and continued the cultivation over the said lands. d. Phul Kumari Devi entered into an "Agreement for Sale" in the year 1953 of the English Calendar with the original petitioner [husband of the present petitioner] with respect to 0.13 Acre 3 (Northern Portion) out of total 0.26 Acre of the aforesaid Plot No.768 and put the original petitioner in possession upon payment of substantial consideration amount and the original petitioner continued in possession. But before the Sale Deed could have been executed by Smt. Phul Kumari Devi, she died. e. The original petitioner acquired a valid Raiyati Title and possession over the said land and also perfected his title by adverse possession as being in continuous and uninterrupted possession over the said land since 1953 and through his predecessor-in-interest, namely Kishundeo Singh (chaprasi of the zamindar) and Phul Kumari Devi (grand-daughter of Kishundeo Singh) who were in possession since 1932.
f. There was serious dispute regarding the aforesaid plot between Niranjan Mishra and the Original Writ Petitioner and a proceeding under Section 144 Cr.P.C. was drawn vide M.P. Case No.122 of 1962 and it was subsequently converted into a proceeding under Section 145 Cr.P.C., vide Order dated 24.02.1962. The said proceeding was decided in favour of the original petitioner and his possession over the said plot was confirmed vide Order dated 26.03.1964.
g. The original petitioner filed an application before the Circle Officer, Baghmara for Mutation of his name in the Register-II maintained by State and for opening Jamabandi / Thoka in his favour with respect to the said Land. Mutation Case No.7 (ix) 1964-65 was instituted on 17.11.1964 and vide Order dated 06.06.1966 [Annexure-7] the Mutation application was allowed in favour of the original petitioner and the Circle Officer, Baghmara was directed to issue "Correction Slip" in his favour. h. Niranjan Mishra filed Title Suit No.204/64 for declaration of his title and for recovery of possession of the part of aforesaid plot in question. Title Suit 204/1964 on serious contest was ultimately decided by the Munsif 2nd Court, Dhanbad by Judgment dated 26.05.1969 [Annexure-8] confirming the title & possession of Shyama Kant Lala over plot in question.
i. Thereafter Niranjan Mishra filed Title Appeal No.40 of 1969 but the same was dismissed for default, vide Order dated 30-06-1972 [Annexure- 9] by the Learned District Judge, Dhanbad. j. Since the name of original petitioner was not entered in Register- II and separate Jamabandi / Thoka was not created in his favour, as such, he once again filed another Mutation Case No.236 (IX) 77-78 before the Circle Officer, Baghmara and vide Order dated 19.09.1978 [Annexure-10] mutation was allowed on basis of the Order dated 06.06.1966 passed in previous Mutation Case No.7
(ix) 1964-65 and accordingly the "Correction Slip" was directed to be issued. Thus, Correction Slip dated 19-09-1978 [Annexure- 11] has been issued in favour of the original petitioner.
4Accordingly Rent [Annexure- 12 Series] has been realized from the original petitioner.
k. Double storied building was constructed over the plot in question by the Original Writ Petitioner and accordingly Circle Officer, Baghmara recommended for Fixation of Tikuri Rent under Section 9(3) of the Bihar Estate Manual and Section-21 of the CNT Act and the case was numbered as Tikuri Rent Fixation Case No.1(ix) of 1982-83 [Annexure-13]. Choukidari Rent has also been collected from the original petitioner on grant of Chowkidari Rent Receipts [Annexure-14 Series]. l. The original writ petitioner having perfected his right, title, interest and possession over the property in question, transferred the same by Registered Deed of Gift dated 03.04.1981 [Annexure-15] in favour of his wife Smt. Kiran Bala Lala (the present petitioner) which was duly accepted. The name of the present petitioner has been duly mutated by Order dated 03.03.1988 passed in Mutation Case No.65(IX) 87-88 (Annexure-16 & 17] and the rent receipts [Annexure-18 Series] have been issued in the name of Smt. Kiran Bala Lala (the present petitioner). The State of Bihar did not prefer any appeal against the orders passed by the Authorities in the Mutation Proceedings and the same is final, binding and conclusive. The name of the original petitioner has been recorded in Revisional Record of Rights [Khatiyan] [Annexure-19 & 20].
4. CAUSE OF ACTION OF THE PRESENT PROCEEDINGS UNDER BIHAR PUBLIC LAND ENCROACHMENT ACT, 1956 i. All of a sudden BPLE Case No.19 (x) 81-82 was initiated against the original writ petitioner by the Circle Officer, Baghmara on the report of the Halka Karamchari & Circle Inspector that the Land in question is of "Gair Abad Khata" [Annexure-21, 22 & 23] and the original writ petitioner has constructed Pakka Building over it and the date of encroachment is for last 10 years [i.e., since 1971].
ii. At the relevant time of initiation of BPLE Proceeding, the plot in question was registered in the name of Smt. Kiran Bala Lala (the present petitioner), vide Gift Deed dated 03-04-1981 executed by the original writ petitioner followed by mutation in her favour and issuance of rent receipts in her favour by State. Moreover, no notice was ever served in the aforesaid BPLE Proceeding to the original writ petitioner or to his wife- the present petitioner. iii. It is the case of the writ petitioner that three Witnesses were examined before the Circle Officer, Baghmara, Dhanbad in the aforesaid BPLE Proceeding. PW-1 stated that the Land in question is Government Land acquired under the Land Ceiling 5 but no document was proved or produced in support of the aforesaid contention. It is the further case that without there being any document on record indicating that the land in question has been acquired under Ceiling Act, the Circle Officer, Baghmara passed Order dated 19.12.1988 in BPLE Case No.19
(ix) 81-82 [Annexure-24] for removal of encroachment. It has been submitted that such order is illegal, invalid and without jurisdiction. It has been argued that the land of the present proceedings was neither the public land on the date of initiation of the BPLE Proceeding nor had vested as a public land in the State of Bihar.
iv. Only after passing of the Ex-parte Order dated 19-12-1988 in BPLE Case No.19 (ix) 81-82, the Circle Officer issued Notice dated 19-12-1988 in Form-II [Annexure-26] for removal of encroachment under Section 6 (2) of the BPLE Act. Thus, the Writ Petitioner came to know about the BPLE Proceeding and also about the Ex-parte Order dated 19-12-1988 passed in BPLE Case No.19 (ix) 81- 82 by the Circle Officer, Baghmara. v. The wife of the original petitioner (the present petitioner) immediately filed an application [Annexure-25] for recall of the Ex- parte Order dated 19-12-1988 passed in BPLE Case No.19
(ix) 81-82 by the Circle Officer, Baghmara and further prayed to implead her as party in the said Proceeding. But no order was passed by the Circle Officer, Baghmara to re-call the said Ex- parte Order.
vi. On receipt of Notice dated 19-12-1988 [Annexure- 26] for removal of encroachment, Original Writ Petitioner-Shyama Kant Lala preferred B.P.L.E. Appeal No.1 of 1989 before Deputy Commissioner, Dhanbad against the Ex-parte Order dated 19-12- 1988 passed in BPLE Case No.19 (ix) 81-82 by the Circle Officer, Baghmara.
vii. BPLE Appeal No.1/1989 was heard on 17.01.1989 [Annexure-
27] and the Appeal was admitted. Notice was issued to Anchal Adhikari, Baghmara and Lower Court Records were called for. Meanwhile, it was directed that no action be taken for removal of the encroachment.
viii. BPLE Appeal No.1 of 1989 was dismissed vide Order dated 21.12.1999 by Deputy Commissioner, Dhanbad [Annexure-28] without discussing the fact and without deciding the appeal on merit, although the Appellate Authority formulated two questions for decision in appeal.
ix. Writ Petitioner challenged the Order dated 21.12.1999 passed in BPLE Appeal No.1 of 1989 in C.W.J.C. No.1193 of 2000 (R). The Hon'ble Court after hearing the parties was pleased to allow the Writ Petition vide Order dated 03.05.2000 [Annexure-29] and the Order dated 21.12.1999 passed in BPLE Appeal No.1 of 1989 6 was quashed and the matter was remitted back to D.C. Dhanbad for passing fresh Order in accordance with law.
x. On remand, the Deputy Commissioner, Dhanbad called for a report from Circle Officer, Baghmara vide Memo No.310 dated 01-08-2005 regarding how the Plot in question is Public Land. Circle Officer submitted his Report vide Letter No.520 dated 04.08.2005 [Annexure-30] wherein he stated that the nature of land as per Khatiyan is Bakast Mallik Land and rent was being received by Raja Nilkant Narayan Singh. As per Section 2 (k) read with Section 4 & 6 of the BLR Act, 1950 such land was "Khas Possession Land" of Ex- Zamindar and it is not a Public Land. It has been further reported by the Circle Officer, Bagmara as follows: -
गई ई /ग ट/
ए
ग
ई - ग
,
ए
(2) -II 0-154
ग ग ग
-01 25.43 ए ड
0ए 0आ 0 1950 5, 6, 7 ग ग
0-04/62-63 ग ग गई
- 0-07 (ix) /64-65 ग
ग 0.13 ए ट ,
-269 ग
0-3246 03.04, 1981
- -65 (ix)/87-88 269
ट
ग ग
xi. Accordingly, Report was submitted vide Letter No.878 dated 20.10.2005 by LRDC, Dhanbad [Annexure-31] to the Deputy Commissioner, Dhanbad.
xii. However, the BPLE Appeal No. 1 of 1989 has been dismissed by the impugned Order dated 01.02.2006 [Annexure-32] against the Writ Petitioner, where under the long standing Jamabandi has been cancelled and the Circle Officer, Baghmara has been directed to take necessary action for evicting the encroachment on the said land. Vide Order dated 16-05-2006, the matter has been admitted for hearing. State Counsel was directed to file Counter Affidavit. Pending hearing of this application, status quo as existed with regard to possession was directed to be maintained. Original writ petitioner died on 04-06-2014. Vide Order dated 08-11-2017 the present petitioner, his widow, has been substituted.
75. Learned Senior counsel for the petitioner submits that in the present case, there is a dispute of title. He has submitted that there are two points of law involved:
i. Whether summary proceeding under BPLE is maintainable when there is serious title dispute in connection with the property involved in this case?
ii. Whether the respondents can rely upon the notification issued under Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, when the transfer of the land involved in this case had taken place prior to issuance of notification dated 23.11.1979?
6. The learned counsel for the petitioner has submitted that the title suit was decided in favour of the husband of the petitioner on 26.05.1969 and the predecessor in interest of the husband of the petitioner had acquired the property by virtue of the hukumnama dated 31.05.1952. The learned counsel submits that there was an agreement of sale between the husband of the petitioner with Phul Kumari Devi coupled with possession of her husband. A title suit was also filed and ultimately it was decided in favour of the husband of the petitioner. He has also submitted that in the year 1981, the husband of the petitioner had gifted the property involved in this case to the present petitioner by way of registered deed of gift. He has also submitted that the property stood mutated in the name of the husband of the petitioner / the present petitioner and they have been in possession of the property since long. Accordingly, the impugned proceedings under Bihar Public Land Encroachment Act (hereinafter referred to as BPLE Act) was itself not maintainable. If the State has to get the property, it was for the State to go and file title suit for declaration of title and recovery of possession. He has submitted that such bonafide dispute in connection with title cannot be decided in a summary proceeding under BPLE Act.
7. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (1982) 2 SCC 134 para 5, 8, 9 and 10; AIR 2019 SC 1692 para 65 to 71, 82 and judgment reported in 2018 (2) JCR 486 (Jhr) para 8 and 9.
8. The learned counsel has also submitted that the notification in connection with the property which was issued on 23.11.1979 was not in possession of the petitioner and therefore, they have challenged the 8 same by virtue of the interlocutory application. He has also submitted that the required procedure for issuance of notification dated 23.11.1979 was not followed and therefore, the same is not binding upon the petitioner. The learned counsel has submitted that the title of the petitioner / her husband/predecessor in interest stood crystalized much before and therefore, the notification dated 23.11.1979 has no impact so far as right, title, interest and possession of the petitioner is concerned. The learned counsel has also relied upon the para 9 and 22 of the counter-affidavit. It has been mentioned in the counter affidavit that the land was acquired by the State Government as surplus land of ex-land lord under the provision of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 vide gazette notification dated 23.11.1979.
Arguments of the Respondents
9. Learned counsel on behalf of the State on the other hand has submitted that on the face of the notification which has been issued under the aforesaid Act of 1961 dated 23.11.1979, it is itself sufficient to show that the land was public land and therefore, there is no disputed question of title as such is involved in the present case. He submits that as long as the said notification is valid, there is no question of holding that there is any disputed question of title involved. The learned counsel has also submitted that the transfer and the manner in which the petitioner is claiming title has to be adjudicated upon a suit which may be filed by the petitioner, but as on date, the impugned proceeding and orders do not call for any interference.
10. In response, learned counsel for the petitioner has submitted that the impugned notice on the basis of which the proceeding was initiated simply mentioned that the petitioner has constructed a house on government land (Annexure - 21 of the writ petition).
11. Learned counsel for the petitioner has filed a supplementary affidavit before this Court in the midst of the proceedings. The learned counsel for the State has objected to the supplementary affidavit and has submitted that the case may be decided on the basis of material available on record. However, on strenuous submissions made by the learned counsel for the petitioner, the same is taken on record.
912. It is observed that although a number of judgments have been referred in para 7 of the supplementary affidavit, but the judgments which have been cited by the petitioner during the course of hearing has already been recorded above and the remaining judgments have not been cited by the petitioner during the course of hearing. Findings of this Court
13. The arguments of the parties and whatever transpired during the court proceedings has been recorded in the order dated 05.04.2023 and arguments were also concluded on 05.04.2023 (order uploaded on 06.04.2023) and the matter has been directed to be posted for judgement today.
I.A. No. 10031 of 201814. Through this interlocutory application, the petitioner has primarily challenged the notification dated 23.11.1979 (Annexure-A to the counter affidavit) which is the notification issued under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act of 1961). It is not in dispute that the said Notification dated 23.11.1979, interalia, includes the property involved in this case. As per the notification dated 23.11.1979, the property mentioned therein have been acquired by the State Government showing surplus land of ex-landlord namely Nilkanth Narayan Singh S/o Late Kamakhya Narayan Singh under the provisions of the aforesaid Act of 1961.
15. It has been stated by the petitioner in the interlocutory application at paragraph No. 3 that the petitioner was not aware about the notification dated 23.11.1979 and the petitioner has seen the same for the first time filed with the counter affidavit.
16. A counter affidavit has been filed to the aforesaid interlocutory application stating that the impugned order passed by the Appellate Authority has been passed in compliance of the order dated 03.05.2000 passed in CWJC No. 1193 of 2000 (R) wherein this Court had remitted the matter back for passing fresh reasoned order inter alia to decide the two questions formulated in BPLE Appeal No. 1 of 1989 and now the petitioner has come up with a prayer seeking amendment and calling for the records of the Land Ceiling Proceedings for the 10 purposes of getting the Notification dated 23.11.1979 quashed which has been issued under the provisions of the aforesaid Act of 1961.
17. This Court finds that the orders impugned in the original writ petition and the entire cause of action in the writ petition arises out of proceedings under the provisions of Bihar Public Land Encroachment Act claiming the property involved in this case to be government land and as per the impugned order itself, the land involved in this case has been acquired by the State under the provisions of aforesaid Act of 1961.
18. This Court is of the considered view that if the petitioner is permitted to challenge the notification dated 23.11.1979 issued by the State Government under the provisions of aforesaid Act of 1961, the same will change the nature of the writ petition. This Court also finds that the provisions of the Act of 1961 have its own procedure and as per the scheme of the Act, the required information is given by the land-holder in terms of the provisions of Sections 6, 8, 9 or the information is obtained by the Collector under Section 7. The information is checked in the prescribed manner and it also provides for filing of objection by any person having any claim or interest in the matter and is required to be considered by the Collector who after giving the parties a reasonable opportunity of being heard and adducing evidence pass appropriate order as it thinks fit. The Act of 1961 also provides statutory remedies including one before the Tribunal constituted under Chapter (XIII) of the aforesaid Act of 1961. The aforesaid Act of 1961 appears to be a self-contained code.
19. If the petitioner was aggrieved by the notification, the appropriate remedy was to be availed in terms of the scheme of the aforesaid Act of 1961 itself which was to be adjudicated after hearing all the concerned parties including the zamindar in terms of the provisions of aforesaid Act of 1961. Otherwise also, this Court finds that the original landlord or his successor in interest are not party in the present proceedings who might have taken steps in terms of provisions of aforesaid Act of 1961 leading to publication of notification under the aforesaid Act of 1961. The original land lord would have been necessary party in a proceeding challenging the notification dated 23.11.1979 issued by the State Government under 11 the provisions of aforesaid Act of 1961 and in their absence, no relief can be granted to the petitioner in connection with the aforesaid notification dated 23.11.1979.
20. This Court is of the considered view that the proceedings under the aforesaid Act of 1961 is totally different from the proceedings under the provisions of Bihar Public Land Encroachment Act even if the respondent State is claiming the property to be government land by virtue of the Notification dated 23.11.1979 issued by the State Government under the provisions of aforesaid Act of 1961. In view of the aforesaid facts and circumstances, this Court is not inclined to allow the interlocutory application filed by the petitioner challenging the aforesaid Notification dated 23.11.1979 issued by the State Government under the provisions of aforesaid Act of 1961. Accordingly, I.A. No. 10031 of 2018 is hereby rejected. However, it is observed that dismissal of the interlocutory application will not come in the way of the petitioner to avail their remedy in connection with the notification dated 23.11.1979 issued by the State Government under the provisions of aforesaid Act of 1961 as may be permissible under law.
21. On the merits of the case, it is the specific case of the petitioner that as on date, the Writ Petitioner is in possession of the property involved in this case since 1953 and has made substantial construction over the property i.e. for last 69 years. It is the case of the petitioner that they are in possession through Predecessor-in-Title since 1932, i.e. for last 90 years and have valid right, title, interest & possession declared by competent Court of Civil Jurisdiction at Dhanbad in a contested Title Suit No.204 of 1964 by Judgment dated 26-05-1969. The learned counsel for the petitioner has framed the following questions for consideration by this Court: -
(i) Whether summary proceeding under BPLE is maintainable when there is serious title dispute in connection with the property involved in this case?
(ii) Whether the respondents can rely upon the notification issued under Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, when the transfer of the land involved in this case had taken place prior to issuance of notification dated 23.11.1979?
1222. Before proceeding further, it is important to refer to the judgements relied upon by the petitioner in support of their submissions that the summary proceedings under BPLE was not maintainable on account of serious title dispute. The summary/ratio of the judgements relied upon by the petitioner are as under: -
A. In the judgment passed by the Hon'ble Supreme Court in the case reported in (1982) 2 SCC 134 (Government of Andhra Pradesh vs. Thummala Krishna Rao & Another), it has been held that the summary remedy for eviction provided under Public Land Encroachment Act can be resorted to by the government only against persons who are in unauthorized occupation of any land which is the "property of the government". It has been held that in order to decide whether the summary remedy can be used, what is relevant is the nature of property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. It has been held that in case of a bona fide dispute of title between the government and the occupant, the same must be adjudicated upon by the ordinary courts of law and the summary remedy is not suited to resolving question of title. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. In such circumstances, the duration of occupation is also relevant and when a person is in occupation for a long time, it 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. In the facts of the said case, it was found that there was long possession of the occupant and their predecessor in title which raised a genuine dispute between them and the government and it was admitted that the property involved in the case originally belonged to the family of Nawab from whom the occupant claimed to have purchased it. It was held that the question as to whether title to the property came to be vested in the government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter 13 and perfected his title by adverse possession must be decided in a properly constituted suit.
B. In the judgment passed by this Court reported in 2018 (2) JCR 486 (Jhr.) (State of Bihar vs. Chanchal Devi), it has been found that the occupants as well as the predecessor in title were in possession from the year 1942 and civil suit was the only remedy available with the State of Jharkhand to claim title over the property. The burden of proof that the State was the owner of the property in question was with the State Government. It was also held that more than 30 years old entries and documents could not be upset by or could not be brushed by one report of Halka Karamchari that the land in question was Gair Mazarua Malik Land. In the said case, it was found that the ex-landlord had settled the land as back as on 09.06.1942 and after coming into force of the Bihar Land Reforms Act, the rent was assessed in the name of the settllee and Jamabandi was created and continued for years together and abruptly in the year 2002, the Halka Karamchari who was the lowest officer in the revenue office had made a remark that the land in question was Gair Mazarua Malik Land from the year 1942. On the basis of such report of Halka Karamchari, the State was asserting that the property was government land. In the aforesaid background, it was held that if this was the stand of the government, the State Government should have taken step, so that the title of the property could be decided by the competent court and it was also held that there was presumption in favour of the holder of the mutation entry especially when mutation entry was much older in point of time.
C. The third judgment which has been relied upon by the learned counsel for the petitioner is the judgment reported in AIR 2019 SC 1692 (Kaikhosrou (Chick) Kavasji Framji and Another vs. Union of India & Others), wherein on account of six reasons, the Hon'ble Supreme Court was of the view that the State had no jurisdiction to invoke the powers to evict under the provisions of Public Premises (Eviction of Unauthorized 14 Occupants) Act and those six reasons have been enumerated in paragraph 65 to 71 of the said judgment, which are as under: -
"65. A fortiori, in such case, respondent No. 2 has no jurisdiction to invoke the powers under section 4 of the PP Act by resorting to a summary procedure prescribed in the PP Act by sending a notice under Section 4 of the PP Act for appellant's eviction from the suit property. This we say for the following six reasons.
66. First, the facts set out above and the documents filed in their support, in no uncertain terms, establish that there exists a bona fide long standing dispute as to who is the owner of the suit property the appellants or Respondent No.1 (Union of India).
67. Second, respondent No.1 itself admitted that there exists a bona fide dispute between the appellants and respondent No.1 (Union of India) over the suit property involving disputed questions of facts (see Paras 7, 8 & 18 of the Review Petition filed by Respondent No.1 in Civil Appeal Nos.608 612 against the appellants in respect of suit property in this Court).
68. Third, respondent No.1 (Union of India) itself stated in this Court in earlier round of litigation while disposing of their Civil Appeal Nos.609, 611 613, 614 and 621 of 1980 that they would seek dispossession of the appellants from the property in question in accordance with law and, if need be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them.
69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to.
70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction.
71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act."
This Court finds that in the aforesaid judgement, there was a bona fide long-standing dispute as to who was the owner of the property i.e the occupant or the Union of India. The fact that there was a bona fide dispute also stood admitted by Union of India. The case was preceded by earlier round of litigation, wherein while disposing of the civil appeal, the Union of India had stated that they would seek dispossession of the occupant of 15 the property in accordance with law and, if needed be, by filing civil suit in the Civil Court, but instead of filing the civil suit, the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act was involved which was a summary proceeding. In such background, it was held that the civil court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act. However, the Hon'ble Supreme Court while allowing the appeal also observed in paragraph 82 of the judgment that whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it will decide on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and the Hon'ble Supreme Court.
23. Keeping in view the ratio of the aforesaid judgments passed by the Hon'ble Supreme Court/ this Court, it is to be examined in the present proceedings as to whether there is a bona fide dispute regarding title between the petitioner and the respondent-State and also as to whether the mutation entries could be of any help to the petitioner, so far as the title of the property is concerned.
24. While going through the case records, this Court finds that it is not in dispute that originally the property involved in this case belonged to the Zamindar of Nawagarh, namely, Raja Nilkanth Narayan Singh which stood recorded in his name. The claim of the petitioner is based on oral raiyati settlement said to have been made by the Zamindar by issuance of rent receipt and delivery of possession in favour of Kishundeo Singh who was the Chaprasi/Guard of the Zamindar. The further claim of the petitioner is that upon death of Kishundeo Singh, his grand-daughter, namely, Phul Kumari Devi continued in possession and in order to give legality to the oral settlement, the Nawagarh Raj-Estate issued a Hukumnama dated 31.05.1952 in favour of Phul Kumari Devi and her name was mutated in the sarista of ex-landlord by paying rents to the Zamindar.
1625. It is important to note that prior to 31.05.1952, the Bihar Land Reforms Act, 1950 had come into force and Zamindari was abolished.
26. Further case of the petitioner is that Phul Kumari Devi entered into agreement of sale in the year 1953 in favour of the original writ petitioner with regard to the property involved in the present case and substantial consideration amount was paid, but before the sale-deed could be adjudicated, she died and ultimately no sale deed was executed in favour of the original writ petitioner. The original writ petitioner claims to have perfected his title by adverse possession being in continuous and uninterrupted possession since 1953 and claims that his predecessors in interest were in possession since 1932.
27. It appears that in the year 1964-65, there was a proceeding under section 144/145 of Cr.P.C. between the original petitioner and one Niranjan Mishra and thereafter the original petitioner filed an application for mutation bearing case no. 7(ix) of 1964-65 on the basis of agreement of sale of the year 1953 by Phul Kumari Devi and ultimately vide order dated 06.06.1966, it was directed to mutate the property in the name of the original writ petitioner on the basis of the report of the karamchari who found that the original writ petitioner was in physical possession of the property. Thus, the order or mutation was based on agreement of sale and physical possession of the property by the original writ petitioner and was not based on any title documents in favour of the original writ petitioner. The records also reveal that inspite of order dated 06.06.1966, neither the name of the original writ petitioner was entered in the Register II nor the rent was fixed nor correction slip was issued nor the original writ petitioner paid any rent to the State. The original writ petitioner again filed a case for mutation in the year 1977-78 and ultimately vide order dated 19.09.1978, the rent was fixed and correction slip was issued. In the meantime, two important developments had taken place as under: -
a. Title Suit No. 204/1964 - There was a dispute regarding right, title, interest and possession between one Niranjan Mishra and the original writ petitioner and a title suit was filed by Niranjan Mishra being Title Suit No. 204/1964 seeking declaration of title and recovery of possession. On contest and vide judgment dated 26.05.1969, title suit filed by the Niranjan Mishra was 17 dismissed. The appeal was filed by the Niranjan Mishra was also dismissed for default vide order dated 30.06.1972. b. The provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 had come into effect and in terms of aforesaid provisions, the publication was made in connection with the surplus land of the Zamindar vide Notification dated 23.11.1979 which also included the property involved in the present case and by virtue of the Notification, the property vested in the State. It is important to note that the petitioner being directly aggrieved by the notification dated 23.11.1979 has sought to challenge the same in this writ petition by filing interlocutory application which has been rejected by this Court as already mentioned above in para 14 to 20 above.
28. Upon perusal of the judgment passed in Title Suit No. 204/1964, this Court finds that the original zamindar was not a party to the suit. The plaintiff, Niranjan Mishra was also claiming title over the property by virtue of Hukumnama said to have been executed by the Zamindar and also claimed that the mutation entries were made in his favour. The original writ petitioner of this case was also claiming title over the property on the basis of oral settlement and then hukumnana of the year 1953 said to have been executed in favour of Phul Kumari Devi (grand-daughter of the chaprasi/guard of the zamindar) and on the strength of agreement of sale executed by her and she expired without executing the sale deed in favour of the original writ petitioner. The original writ petitioner also claimed that mutation orders were passed in his favour. The following issues were framed by the learned trial court: -
1. Is the suit as framed maintainable?
2. Is the suit barred by law of limitation?
3.Is the suit barred by adverse possession?
4. Has the plaintiff got his subsisting title to the suit land
5. Is the plaintiff entitled to get recovery of possession?
6.To what relief, if any, is the plaintiff entitled?
Ultimately, the learned trial court below in the title suit held in para 23 to 25 that there was continuous and uninterrupted possession of Kishundeo Singh (Chaprasi of the Jamindar), Phul Kumari Devi (grand-daughter of Kishundeo Singh) and Uma Charan Ghasi over the 18 property; Phul Kumari Devi entered into agreement of sale with delivery of possession and receipt of consideration and the possession of the plaintiff including that of settler Raja Saheb over the property since long could not be proved. The learned court recorded a finding that the original petitioner was in possession of the property since 1953 by virtue of agreement of sale. It has been held in para 18, 23 to 25 as follows: -
"18. On a careful consideration of the evidence adduced on behalf of the plaintiff it appears that the plaintiff has not acquired any right, title and interest in the suit land by virtue of the alleged settlement. The Hukumnama Ext.1 or the rent receipts Exts.3 series do not create any title in favour of the plaintiff in respect of the suit land as the lease is an unregistered hukumnama. It is the admitted case that the alleged settlement was not for agricultural purpose and as such the settlement would be governed by T.P.Act and not by C.T.Act. In order to create a valid title the deed of settlement must have been a registered one which in the instant case is not and therefore the hukumnama is an invalid piece of document so far the creation of title under it is concerned. The plaintiff has thus no document in support of his alleged title over the suit land the oral evidence adduced is also equally hopeless in as much as not even one person of the locality has been examined either in support of his alleged settlement or in support of his alleged possession over the suit lard during the period of last 19 years. The plaintiff has thus failed to prove either his title or possession over the suit land and as such I am constrained to find and hold that the plaintiff has miserably failed to prove his subsisting title over the suit land.
23. The continuous and uninterrupted possession of Kishundeo Singh, Phulkumari Devi and Uma Ghasi in succession over S.P. No.768 and 850 is well proved. It is also well proved that Phul kumari Debi entered into an agreement to sell 13 decimals from north of S.P.no. 768 to defendant Shyamkant Lala and delivered possession there on receipt of valuable consideration for the same. Defendant shyam Kant Lala has since then been in possession by enclosing his 13 decimals of land from three sides by compound walls and raising crops therein. On the other hand the possession of the plaintiff including that of his settlor Raja Saheb over the suit land since long has not been proved at all even for single moment.
24. In consideration of the evidence adduced on behalf of the defendants and the plaintiff discussed above I am convinced that the defendants have been in possession of 13 decimals of S.P.No. 768 from north which includes 6 decimals of the suit land also since 1953 by virtue of deed of agreement to sell entered into by Fulkumari with the defendant .It is clearly established by reliable evidence that the defendants have raised compound walls on the three sides of 13 decimals of lands excluding the southern side and has been raising crops in the enclosed land all along. It is also established by the evidence that Pulkumari had been in possession of the plot in question since long before she entered into agreement to sell with the defendants. In the circumstances I have no doubt in my mind that defendant Shyam kant lala has perfected title over 13 decimals of lands from north of S.P. No.768 including 6 decimals of land in suit by virtue of long possession for more than 12 years by 19 himself and his vendor Fulkumari even if there be any defect in title because of non-execution and registration of the sale deed and also the loss of hukumnama allegedly granted by Raja saheb in favour or Fulkumari.
25. On a careful be lancing and scrutinizing of all the evidence of both parties as discussed above. I am of opinion that the defendant has better title over the suit land than that of the plaintiff. Under orders passed in the proceeding u/s 145 cr.p.c the possession of the defendant has been declared over the suit land and he is to be ousted only by a person having better title than him. Unfortunately, in the instant case the plaintiff does not appear to have any title whatsoever, not to speak of better title in respect of the suit land. The plaintiff is therefore not entitled on the materials placed an record to the declaration of his subsisting title over the suit land. It is accordingly held that the plaintiff has not got his subsisting title to the suit land."
29. It has been clearly held in paragraph 25 of the judgment of the title suit that the defendant (the original writ petitioner herein) had better title over the suit land than the plaintiff and the defendant (the original writ petitioner herein) could be ousted only by having better title than him. It has been held that the plaintiff did not appear to have any title whatsoever not to speak of better title in respect of the suit property and consequently, the plaintiff was not entitled for a declaration of his title over the suit land on the basis of materials placed on record and accordingly, the learned court dismissed the suit on contest.
30. This Court finds that the title suit was decided on the basis of the fact that the plaintiff did not have a better title than the defendant (the original writ petitioner herein) and the defendant was found to be in possession of the property and his adverse possession was declared. Apparently, the zamindar was not a party to the suit and in such circumstances, it cannot be said that any declaration in the suit was binding on the zamindar. Further, it was clearly observed in para 25 of the suit that the defendant (the original writ petitioner herein) could be ousted by person having better title in respect of the suit property. The adverse possession never decided between the original writ petitioner and the Zamindar, rather, both the plaintiff and defendant in the title suit were claiming title on the basis of one or the other Hukumnama said to have executed by the original Zamindar said to have been executed in their favour/predecessor in interest. Admittedly, no sale deed was executed in favour of the defendant (the original writ petitioner herein) and he was claiming only on account of agreement 20 of sale and possession. The Predecessor in interest of the original petitioner, namely, Kishundeo Singh was claiming the property on the basis of oral settlement and as per the original petitioner, the Hukumnama was executed in favour of the grand-daughter of the Kishundeo Singh only in the year 1952, who entered into agreement of sale with the original writ petitioner, but before she could execute the sale deed, she expired. This Court is of the considered view that there was no declaration of title over of the suit property in favour of the defendant (the original writ petitioner herein) qua the original zamindar and even the State was not a party in the suit although the suit was instituted after abolition of zamindari by virtue of Bihar Land Reforms Act, 1950, nor the zamindar was made party in the suit. It is also important to note that the so called Hukumnama by the original Zamindar in favour of Phul Kumari Devi is said to have been executed in the year 1953 i.e after coming into force of the Bihar Land Reforms Act, 1950. The claim of the petitioner is based on agreement of sale executed by Phul Kumari Devi and possession.
31. The fact remains that under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land), Act, 1961, steps were taken by the Zamindar/respondent authorities and ultimately after completing the procedure, a notification was issued on 23.11.1979. Admittedly, the petitioner /her husband never availed the remedies under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land), Act, 1961. The proceeding under the Bihar Public Land Encroachment Act was initiated against the original petitioner as back as in the year 1981-82. The gift deed executed in favour of the present petitioner in the year 1981 is also of no consequence in view of the fact that the notification was issued under the aforesaid Act of 1961 in the year 1979 itself, by virtue of which the property stood acquired by the State.
32. It is also important to note that though an order for mutation was said to be allowed as back as vide order dated 06.06.1966, but neither any entry was made in Register-II nor any correction slip was issued in favour of the original petitioner and there have been parallel mutation entries in the name of Niranjan Mishra and the original 21 petitioner and ultimately, the name of the original petitioner was entered in Register-II and separate Jamabandi was created only upon filing of another Mutation Case No. 236(ix)/1977-78 vide order dated 19.09.1978 and thereafter, the notification under the provisions of the aforesaid Act of 1961 was issued on 23.11.1979. The Tikuri rent was fixed in the year 1982-83 which was after the publication of the notification dated 23.11.1979. The gift deed was executed by the original petitioner in favour of the present petitioner on 03.04.1981 i.e., after the publication of the notification dated 23.11.1979 and mutation entry was also made in favour of the present petitioner only on 03.03.1988 in Mutation Case No. 65(ix)/1987-88 which happened during the pendency of the BPLE Case No. 19(ix)/81-82.
33. This Court also finds that the order passed in BPLE case as well as by the appellate authority clearly indicated that the property was acquired by the State under the provisions of the aforesaid Act of 1961 and this aspect of the matter was not disputed by the petitioner in the writ petition, but it was their case that the said notification was not proved in the land encroachment proceedings. The notification has been brought on record and the same was sought to be challenged through amendment petitioner but such amendment has been rejected by this court as aforesaid by citing reasons. The existence of notification is an undisputed fact on record.
34. In the aforesaid background, this Court is of the considered view that the original petitioner as well as his wife i.e. the present petitioner have not been able to satisfy this Court that they have any bonafide claim/title dispute as against the State over the property involved in the present case. The points are summarized as under: -
(a) Admittedly, the property belonged to Zamindar of Nawagarh namely Raja Nilkanth Narayan Singh. Admittedly, no sale deed much less any registered sale deed has been executed in favour of the original petitioner in connection with the property involved in this case, who subsequently executed a registered gift deed in favour of his wife in the year 1981.
(b) The petitioner claims that the property was settled in favour of Kishundev Singh (chaprasi/guard of the Zamindar) in the year 1932 and after his death and in order to give legality to the oral 22 settlement, Hukumnama dated 31.05.1952 was issued by the Zamindar in favour of Phul Kumari Devi (grand-daughter of Kishundev Singh) and she also paid rent to the Zamindar.
(c) This Court finds that the Hukumnama dated 31.05.1952 which has been placed on record does not refer to any oral settlement of the year 1932, rather the Hukumnama indicates that registered document was to be executed in connection with Hukumnama, but admittedly no registered document was ever executed in favour of Phul Kumari Devi by the Zamindar.
(d) Said Phulkumari Devi on the basis of the aforesaid un-registered Hukumnama dated 31.05.1952 entered into an agreement of sale in the year 1953 (Annexure-5) with the original writ petitioner for consideration of Rs. 901/- out of which only part payment to the extent of Rs. 700/- was made and remaining amount was to be paid at the time of execution of the registered sale deed. Admittedly, Phul Kumari Devi expired and sale deed was never executed.
However, the original writ petitioner continued to be in possession of the property since the year 1953. It is not the case of the petitioner that the entire consideration amount was paid. It has been simply stated in para 10 of the writ petition that valuable sale consideration was paid vide the agreement of sale (Annexure-5) which in turn indicates only part payment of sale consideration.
(e) There was clear stipulation that the Hukumnama dated 31.05.1952 was to be registered (which ultimately not registered) in favour of Phul Kumari Devi and there was clear stipulation that sale deed was to be executed and registered by Phul Kumari Devi in favour of the original writ petitioner upon payment of remaining consideration, but the agreement of sale did not result in registered sale deed and Phul Kumari Devi expired.
(f) The report of the Circle Officer, Baghmara dated 01.08.2005 reveals that after abolition of Zamindari and upon coming into force of Bihar Land Reforms Act, 1950, the property involved in the present case stood mutated in favour of Zamindar was done under Section 5,6,7 of Bihar Land Reforms Act, 1950 in Mutation Case No. 4/62-63 and rent receipts were issued in his favour.
23(g) Admittedly, no sale deed or any document was executed by the Zamindar in favour of the original writ petitioner. The original writ petitioner has relied upon the zamabandi created in his favour and has referred to Mutation Case No. 7(ix)/1964-65 and also subsequent Mutation Case No. 236(ix) of 77-78 and the correction slip dated 19.09.78 (Annexure-11), but the said mutation order and the correction slip does not refer to any mutation or rent receipt ever in favour of Kishundev Singh or Phul Kumari Devi, rather the correction slip indicates that the property involved in this case was running in the name of the Zamindar and the mutation was done in favour of the original writ petitioner. The fixation of rent and issuance of correction slip in favour of the original writ petitioner was done for the first time only on 19.09.1978.
(h) As already discussed above, the Title Suit No. 204 of 1964 filed by Niranjan Mishra against the original writ petitioner and others does not help the petitioner in any manner in view of the fact that neither the Zamindar nor the State were the party in the said suit. In the said Title Suit, the plaintiff as well as the defendant/ original writ petitioner of this case were claiming title on the basis of different Hukumnama alleged to have been executed by the Zamindar. In the title suit, there was no declaration of title as such in favour of the defendant/original writ petitioner, rather it was held that he had better title than the plaintiff and he was in possession and his adverse possession was declared qua the plaintiff. Thus, the finding of the Title Suit cannot be said to be binding on the Zamindar or the State. It was also observed that the defendant-original writ petitioner could be evicted only by the person who has better title.
(i) Subsequently, the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 also came into force which ultimately led to publication of Notification in terms of the said Act and the property involved in the present case stood acquired by the State as surplus land of ex-landlord under the Act of 1961 and Gazette Notification dated 23.11.1979 was also issued.
(j) In spite of vesting and after issuance of Notification dated 23.11.1979, the original writ petitioner continued to be in 24 possession of the property involved in this case and immediately thereafter the proceeding was initiated against the original writ petitioner in BPLE Case No. 19 (ix) of 1981-82 and the final order dated 19.12.1988 was passed holding that the original writ petitioner was in illegal possession of the land acquired by the State under the provisions of Land Ceiling Act i.e Bihar Land Reforms( Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.
(k) As already stated above, the proceedings under the aforesaid Act of 1961 has its own remedies for the persons claiming the property but the original writ petitioner or even the present writ petitioner (his wife) neither file any claim with regard to the property involved in this case nor challenged the proceeding or the Notification dated 23.11.1979 issued under the aforesaid Act of 1961 and challenged the same for the first time before this Court by filing amendment petition which has been rejected by this Court by this order itself for the reasons mentioned above.
(l) The original writ petitioner filed appeal and the Appellate Authority framed two points for consideration: -
(1) Whether the Hukumnama dated 31.05.1952 can be said to be valid.
(2) Whether the original writ petitioner could have given the property to his wife (the present petitioner) by way of gift deed.
These two points were initially not addressed by the Appellate Authority. Consequently, the original writ petitioner filed writ petition before this Court vide CWJC No. 1193 of 2000 (R) and the order of the appellate authority was set aside vide order dated 03.05.2000 (Annexure-29) observing that the appellate authority neither discussed the facts of the case nor decided the appeal on merits although two points were formulated and the matter was remanded back to the appellate authority for fresh consideration. Thereafter, the Appellate Authority passed the impugned order.
(m) The Appellate Authority by a well-reasoned order held that the un-registered Hukumnama has no value in the eyes of law and also recorded a finding that the gift deed executed and registered by the original writ petitioner in favour of his wife related to government 25 land has no value and there was no satisfactory explanation as to how the government land could be gifted by the original writ petitioner in favour of his wife (the present writ petitioner). The appellate authority also held the property in question stood vested in the State under the land ceiling proceedings and the land was acquired by the government as surplus land and consequently held that the mutation carried out after vesting of land with the government was invalid.
35. In view of the aforesaid facts and circumstances of this case and on the face of the Notification regarding the acquisition of land by the Government vide Notification dated 23.11.1979, this Court is of the considered view that the original petitioner/present petitioner have no bonafide claim over the property involved in the present case so as to hold that the summary proceeding in terms of Bihar Public Land Encroachment Act was not maintainable. This Court is of the considered view that no relief can be granted to the petitioner on the face of the Notification dated 23.11.1979 by which land was acquired under the provisions of the aforesaid Act of 1961 and on the face of the facts and circumstances of this case read with the Notification dated 23.11.1979, it cannot be said that the claim of the petitioner is based upon any bonafide title dispute between the petitioner and the State.
36. In view of the aforesaid findings, both the issues framed by the learned Senior counsel appearing for the petitioner are decided against the petitioner and in favour of the respondents.
37. However, it is observed that the aforesaid discussion and finding are only to figure out as to whether the impugned proceedings under BPLE Act was maintainable in the light of the aforesaid judgements relied upon by the learned counsel for the petitioner. This Court is of the considered view that the respondents have not committed any illegality in proceedings against the original petitioner under the provisions of the BPLE Act and the appeal has been rightly dismissed. This Court finds no merits in this writ petition, which is accordingly dismissed.
38. However, it will be open to the petitioner to get their title declared through competent court of civil jurisdiction and also to avail 26 remedy under the provisions of the aforesaid Act of 1961 in connection with the Notification dated 23.11.1979 and other orders issued under the provision of the aforesaid Act of 1961 as may be permissible under law which will be decided on its own merits based on materials which may be brought on record, without being influenced by any observation made by this Court in this judgement. It is also observed that whenever any question of ownership of the right of the parties will be gone into by the competent civil court, it shall decide the said question strictly and on the basis of the pleadings and evidences adduced by the parties in accordance with law and un- influenced by any observation made by this Court.
39. Interim order dated 16.05.2006 stands vacated.
40. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.) Saurav/Mukul