Jharkhand High Court
Rama Devi, Wife Of Late Bishwanath ... vs State Of Bihar And Ors. on 23 June, 2004
Equivalent citations: [2004(4)JCR268(JHR)], 2005 A I H C 59, 2004 AIR - JHAR. H. C. R. 3213, (2004) 3 JLJR 424 (2004) 4 JCR 268 (JHA), (2004) 4 JCR 268 (JHA)
Author: Tapen Sen
Bench: Tapen Sen
JUDGMENT Tapen Sen, J.
1. In this writ petition, the petitioner pray for issuance of a writ of certiorari for quashing the order dated 27.10.1999 (Annexure-8) passed by the respondent No. 3 in B.P.L.E. Case No. 4-R 15/96-97 setting aside the order dated 12.12.1997 (Annexure-7) passed by the predecessor-in-office of the respondent No, 3 in Misc. Appeal (Encroachment) Case No, 4/97 with a direction upon the respondent No. 4 to remove the encroachment made by the petitioner within 15 days. The petitioners further pray for issuance of a writ of mandamus commanding upon the respondents to forebear from interfering with the peaceful possession of the petitioners in respect of the land measuring 5.74 Acres situated in village Basia on khata No. 249, Plot Nos. 1116, 1117 and 118.
2. According to the petitioners, they are in peaceful possession of the land since 1942 in respect of the entire area referred to above. The details whereof are as follows :
Plot No. Acres 116 2.58 Acres 117 2.86 Acres 118 0.30 Decimals. Total : 5.74 Acres
3. The land in question was recorded as gair majarua malik and it was uncultivable, fallow and full of boulders and bushes. It was surrounded by the raiyati lands of the petitioners and accordingly, it was converted from a fallow land into a cultivable land in the year 1942. According to the petitioners the act of converting this land into a cultivable area was made after obtaining oral permission of the then landlord Maharaja Pratap Uday Nath Shahdeo. Thus, what the petitioners contend is that their predecessor-in-interest namely Bishwanath Prasad Choudhary (the original petitioner) converted this land into "Korkar" as provided under the provisions of the Chotanagpur Tenancy Act, 1908.
4. The petitioners have further stated that after the aforementioned conversion, the land was reclaimed, a well was excavated and several valuable trees including fruit bearing trees were planted which are still standing over the land. According to these petitioners, Late Bishwanath Prasad Choudhary started deriving the benefits of the land and the plants since 1942.
5. After vesting, Settlement Case 42/ 61-62 was initiated and on 19.12.1961 (An-nexure-1) the karamchari submitted a report. The Circle Inspector, Basia also submitted a report recommending settlement in favour of Bishwanath Prasad Choudhary. It is the further case of petitioners that on 10.7.1969 (by Annexure-2), the Circle Officer, Basia submitted a report in the aforementioned settlement case specifically stating that the land in question was in the peaceful possession of Bishwanath Prasad Choudhary for the last 15 years and it could by settled with him.
6. It is the further case of the petitioners that on 7.8.1969, the Circle Officer, Basia passed an order in the aforementioned Settlement Case No. 42/61-62 (Annexure-3), recommending approval for settlement of the land in favour of Bishwanath Prasad Choudhary (predecessor-in-interest of the petitioners). Thereafter, the Deputy Collector, Land Reforms, Gumla issued a letter dated 3.1.1970 by which he returned the file to the Circle Officer whereafter on 15.12.1970, vide Annexure-4, he once again recommended the settlement of the land in question in favour of Bishwanath Prasad Choudhary mentioning therein specifically that he had converted the land into "Korkar" and as such there was no possibility of settlement of that land in favour of any other person. The petitioners' further case is that thereafter there was a Revision Case No. 2/93 and from Annexure- 4/A, it appears that on 31.8.1994, the claim of the State was rejected and a direction was made by the ASO, Ranchi to prepare khata in the name of Bishwanath Prasad Choudhary and it was thereafter that the name of Bishwanath Prasad Choudhary was entered in Register No. 2 as will be evident from Annexure-5. Thereafter, the Circle Officer, Basia initiated an Encroachment Case No. 1/94-95 against Bishwanath Prasad Choudhary for removal of alleged encroachment over the lands in question, by Order dated 8.1.1997 (Annexure-6), the Circle Officer, Basia passed an order of removal of that encroachment.
7. Being aggrieved, Bishwanath Prasad Choudhary filed an appeal in the Court of the Additional Collector, Gumla which was registered as Miscellaneous Appeal (Encroachment) Case No. 4/97 and by order dated 12.12.1997 (Annexure-7), the Additional Collector, Gumla directed settlement of the land in favour of Bishwanath Prasad Choudhary with a further direction upon the Circle Officer to open jamabandi in his favour.
8. It is stated that thereafter, the Principal of Basia College, Basia (respondent No. 4) filed an application for review of the aforementioned order dated 12.12.1997 and this was registered as Encroachment Appeal Case No. 4-R 15/96-97 on 16.10.1998.
9. According to the petitioners, Basia College was a complete stranger to the issue and they have stated at paragraphs 24 and 25 that the college had no focus standi to file a review petition against the order passed by the then learned Additional Collector, Gumla. At paragraphs 24 and 25. it has been stated thus :
"24. That it is stated that the building of the Basia College is situated in Plot No. 319 under khata No. 41 of village Turibira, P.S. Basia, District Gumla. The proposed settlement in favour of the Basia College is for an area of 19.88 Acres out of it this petitioner is only concerned with an area of 2.58 Acres out of 5.55 towards North in Plot No. 1116 over which a four roomed house has also been constructed by this petitioner and he is in possession since more than 50 years over the same.
25. That the petitioner states that the Basia College was neither party in the Court of Circle Officer nor in the Court of the then Additional Collector, Gumla hence the Basia College has no locus standi to file a review petition against the order passed by then learned Additional Collector, Gumla."
10. Let it be recorded at this stage that as per office notes dated 28.8.2001 and 30.8.2001, notices were validly served upon respondent No. 5 whereafter, a counter affidavit was filed by the Principal of that College. The same will be dealt with later but, in the meantime, what the petitioners have to say further is that although the respondent No. 5 had no locus standi to file a review application yet, at its instance, the Additional Collector passed an order on 27.10.1999 (impugned order) setting aside the earlier order dated 12.12.1997 (Annexure-7) passed by his predecessor-in-office vide Annexure-8. According to the petitioner, the respondent No. 3 had no jurisdiction to review the order and in any event, the respondent No. 5 had no authority or jurisdiction to pray for review of order dated 12.12.1997.
11. In the counter-affidavit of respondent Nos. 2 to 4, it has been stated that the land in question are Government land and that the Circle Officer, Basia had earlier passed an order dated 5.1.1997 in Land Encroachment Case No. 1/94-95 State of Bihar v. Bishwanath Prasad Choudhary, whereby he had passed an order of removal of encroachment over those lands. It has further been stated that although the Assistant Settlement Officer had passed an order recommending settlement in favour of the petitioners yet, it was not binding on the State as the State, being the owner, had requested the said Assistant Settlement Officer in Case No. 2/93 by letter dated 4.5.1994 to open khata in the name of the State of Bihar but, instead of doing so, he passed an order apparently on 31.8.1994 (Annexure-4/A) by which he directed settlement to be made in favour of Bishwanath Prasad Choudhary and dismissed the claim of the State.
12. The petitioners' 'case is that the building of Basia College is situated on Plot No. 319 under khata No. 41 in village Turibera, P.S. Basia, Gumla. A Settlement Case in respect of proposed settlement in favour of that College is for an area of 19.88 Acres out of which the petitioners are only concerned with an area of 2.58 Acres out of 5.55 Acres situated near Plot No. 1116 over which a four roomed house had been constructed by Bishwanath Prasad Choudhary who was in possession for more that 50 years. According to the respondents however, the petitioners could not produce any order of settlement in Case No. 42/61-62 and therefore, he is not entitled to claim as a matter of right that the area in dispute should be settled with him and that this land is included for settlement of 19.98 Acres of land in favour of Basia College. According to these respondents, Bishwanath Prasad Choudhary is already in possession of 23.48-1/2 Acres of land as per report of the halka karamchari dated 2.1.1997 as contained in Annexure-A. It has further been stated that the lands in question are being used for public purposes and the College is being run and that there is nothing wrong in the order dated 27.10.1999 passed by the Additional Collector, Gumla because that order was passed on the basis of the order passed by the Deputy Commissioner, Gumla to look into the matter as the said Deputy Commissioner has forwarded a proposal to the Government for settlement of that land in favour of the college. According to them, at the time when the order dated 12.12.1997 was passed the college was not a party and therefore, they did not have knowledge and as soon as it came to the knowledge of the Principal, an application for review was filed. It was heard at length and under the provisions of Section 13 of the Bihar Public Land Encroachment Act, 1956 the order dated 12.12.1997 was set aside. It has further been stated that the petitioners do not have any proof of any Korkar nor have any proof in relation to any permission obtained by them for converting the land into Korkar and therefore, the petitioners have no right over the land in question. It has also been stated that since the College was not even been made a party when the order dated 12.12.1997 was passed, there was nothing irregular when a review application was filed by them when the order dated 12.12.1997 came to their knowledge.
13. The respondent No. 5, on the other hand, has stated that in the year 1987.88, the Government authorities had initiated a proceeding vide Settlement Case No. 1/87-88 for settlement of 19.98 Acres of land including the land in question of Plot No. 1116 for running the Basia College and in that proceeding, the Sub-Divisional Officer vide order dated 24.11.1987 had made a recommendation for settlement of land with the College. It has further been stated that from the pleadings made in the writ petition, it is evident that only the personal right of the petitioners have been highlighted whereas the land meant for the College is in the interest of the people of the locality. According to the petitioners, there is no power of review and in any event, the order of the Assistant Settlement Officer as contained in Annexure-4 on 31.8.1994 became final and it was never challenged. It has further been stated that after 31.8.1994, entries were made in Register-2 and accordingly khatian was prepared vide Annexure-5 in favour of Bishwanath Prasad Choudhary. The argument of the learned counsel for the petitioner that the impugned order dated 27.10.1999 as contained in Annexure-8 amounts to a review and it is impermissible cannot be accepted. Under Section 13 of the Bihar Public Land Encroachment Act, any order passed under that Act may be reviewed by the officer who made the order or by his successor-in-office on account of any mistake or error in course of any proceeding under that Act. In this context, it is evident to note that the proposal for settlement of the land in favour of Basia College including the land in dispute was pending consideration and at the time when the order of the Assistant Settlement Officer was made on 31.8.1994, the said College was not a party before it. It is also evident, as has been stated by the petitioners themselves, that the land was recorded as gair mazarua land but the same, according to the petitioners was converted into a Korkar land under the oral permission (see paragraph-8 of the petition) of the Deputy Commissioner, Moreover, the report of the karamchari sent to the Circle Officer, Basia vide Annexure-A appended to the counter-affidavit shows that Bishwanath Prasad Choudhary is in possession of 23.48-1/2 Acres of land. Under such circumstances, public need will override private need and that too, when the private person claiming the land does not have adequate materials to support his claim. Moreover, under Section 64 of the C.N.T. Act, a cultivator or a landless labourer has the right to convert a piece of land into Korkar with the prior permission of the Deputy Commissioner. Such permission however is not required if on the date of commencement of the C.N.T. Act, such a person was entitled to the land in question by virtue of entries made in the record of rights. Section 64 does not contemplate on oral permission. Moreover Section 64(2) lays down the procedure to be followed in passing an order under Section 64. These ingredients are apparently missing in the instant case and therefore, the petitioners cannot be allowed to take advantage on the basis of a khatian which appeared to have been issued after the order dated 31.8.1994 passed by the Assistant Settlement Officer in a proceeding where the College itself was not a party.
14. Thus, Section 13 of the Bihar Public Land Encroachment Act was correctly invoked and as a consequence thereof, the order dated 27.10.1999 (Annexure-8) was passed. This Court does not find any irregularity with the said order. Consequently, this Court holds that there is not merit in this writ petition. It is accordingly dismissed. There shall however be no order as to costs.