Patna High Court
Tapeshwar Prasad Singh vs State Of Bihar & Ors on 1 August, 2014
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court CWJC No.3941 of 1995 dt.01-08-2014 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3941 of 1995
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Tapeshwar Prasad Singh, son of Late Bhuvaneshwar Prasad Singh, permanent
resident of village-Okari P.O. Okari, P.S. Ghosi District Jehanabad, holding power
of Attorney executed by Major Ajoy Krishna, at present posted at Gachham in the
State of Arunachal Pradesh under the Indian Army in Vital Operation concerning
Nation in Nagaland.
.... .... Petitioner/s
Versus
1. The State of Bihar.
2. The District Magistrate, Nawadah.
3. The Additional District Magistrate, Nawadah.
4. The Civil Sub-divisional Magistrate, Nawadah.
5. The Executive Magistrate, Nawadah.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. D.N. Pandey, Adv.
For the Respondent/s : Mr. Krishna Kumar, AC to GP-26
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL JUDGMENT
Date: 01-08-2014
1. This writ petition under Article 226 of Constitution of India has been filed by the petitioner for issuance of writ of mandamus directing the respondents not to demolish Gopalpur Complex, Nawadah standing on plots no. 3238 and 3239.
2. The case of the petitioner is that the aforesaid Gopalpur Complex, Nawadah standing on plots no. 3238 and Patna High Court CWJC No.3941 of 1995 dt.01-08-2014 2 3239 belongs to Major Ajoy Krishna and his wife Anandita Krishna. The above stated plots no. 3238 and 3239 were purchased by Sabitri Singh wife of Surendra Prasad Singh and mother of Major Ajoy Krishna from one Surendra Kumar Bhadani who transferred the above stated lands by executing registered sale deed on 28.11.1974 and after that the mother and father of Major Ajoy Krishna came in possession of the aforesaid lands. Later on, parents of Major Ajoy Krishna died and Major Ajoy Krishna became owner of the above stated plots. It is further case of the petitioner that plot no. 3238 contains double storeyed houses with nine shops and similarly, plot no. 3239 contains double storeyed building with seven shops and Shauchalaya. The construction on the above stated plots was made according to sanctioned map. It is also case of the petitioner that prior to purchase of the aforesaid lands, a petrol pump was existing on the said lands since the year 1934. Further case of the petitioner is that in the year 1964-65, an encroachment proceeding bearing Encroachment Case No. 9/64-65 was initiated against the owner of the aforesaid lands but the aforesaid Land Encroachment Case No. 9/64-65 was dropped under Section 6 A of BPLE Act and thereafter, again an encroachment proceeding bearing Encroachment Case No. 220/76-77 was initiated in respect of the Patna High Court CWJC No.3941 of 1995 dt.01-08-2014 3 same lands on the same grounds and again the aforesaid proceeding was dropped in favour of father of Major Ajoy Krishna. It is further case of the petitioner that the respondents no. 3, 4 and 5 came at the aforesaid Gopalpur Complex, Nawadah and made attempt to demolish the structure standing on the aforesaid plots upon which the wife of Major Ajoy Krishna made protest but no heed was paid by the above stated respondents. Thereafter, Major Ajoy Krishna was informed about the above stated incident and having got the aforesaid information, he rushed to his house and requested the concerned authorities to get the lands measured in his presence or in presence of his family members by a trained Amin or Surveyor Commissioner but his prayer was not heard and on the pretext of issuance of general notice, the respondents are adamant to demolish the house and other structures standing on the aforesaid plots taking shield of so-called encroachment on public road by the aforesaid Major Ajoy Krishna as well as his family members.
3. Counter affidavit has been filed on behalf of the respondents and the stand of the respondents is that the plots in question are recorded as Khanta in khatiyan and as a matter of fact, the plots in question are flank of the public road which has been encroached by Major Ajoy Krishna. It has also been averred Patna High Court CWJC No.3941 of 1995 dt.01-08-2014 4 by the respondents in their counter affidavit that earlier encroachment proceedings were initiated in respect of the same lands but as a matter of fact, the proper materials could not be placed in the aforesaid encroachment proceedings and the findings in the aforesaid encroachment proceedings are erroneous and, therefore, the findings of the aforesaid encroachment proceedings are not binding upon the respondents. It is also stand of the respondents that lands in question are recorded in the name of State and even if the finding given in encroachment proceeding assumed to be correct, then also, the aforesaid lands were taken by Surendra Kumar Bhadani on lease and, therefore, the aforesaid Surendra Kumar Bhadani had no right to transfer the aforesaid lands in favour of the parents of Major Ajoy Krishna by executing registered sale deed and, therefore, Major Ajoy Krishna and his family members have got no right and title over the disputed plots.
4. The petitioner has filed this writ petition on behalf of Major Ajoy Krishna who executed power of attorney in favour of the petitioner.
5. Learned counsel appearing for the petitioner submits that admittedly, earlier two encroachment proceedings were initiated in respect of the same lands on the same grounds Patna High Court CWJC No.3941 of 1995 dt.01-08-2014 5 and both the aforesaid encroachment proceedings were dropped and, therefore, no fresh encroachment proceeding in respect of the same lands on the same grounds can be initiated. Learned counsel for the petitioner relied upon a decision reported in 1969 PLJR 23 (Shri Kali Prasad Seal Vs. the State of Bihar and Ors.) in which it has been held by Division Bench of this Court that when the order passed in the earlier proceedings became final, the case of the alleged encroachment must also be taken to have been finally concluded and there was no jurisdiction in the officers concerned to re-agitate the matter in another fresh proceeding. Learned counsel for the petitioner also relied upon a decision reported in 1991(2) PLJR 249 (Mahanth Ramagya Giri vs. The State of Bihar and Ors.) in which the principle laid down in Shri Kali Prasad Seal Case (Supra) was followed. Learned counsel for the petitioner further submits that when the respondents had got no right to initiate fresh proceeding in respect of the disputed plots in question, any order or issuance of notice by the respondents is illegal and without jurisdiction. Learned counsel for the petitioner also relied upon a decision reported in 1999(2) PLJR 851. It is further contended by him that no notice was served upon Major Ajoy Krishna or his family members or any interested person even on the petitioner before taking steps Patna High Court CWJC No.3941 of 1995 dt.01-08-2014 6 for demolition of structure standing on the above stated plots. It is further contended by him that without service of notice and without giving opportunity of hearing to interested or effected persons, no order under Bihar Public Land Encroachment Act, 1956 can be passed. In support of his contention he relied upon a decision reported in 1984 BBCJ 820 (Jagannath Jha vs. State of Bihar) in which it has been held by Division Bench of this Court that any encroachment on public land can be removed only in accordance with the procedure prescribed under Bihar Public Land Encroachment Act, 1956. He also referred a decision reported in A.I.R. 1977 Orissa 201 in which it has been held that the rule of law must be followed and, therefore, even the State has got no authority to act beyond the purview of law and rule. He also relied upon a decision reported in 1985 PLJR 424 (Uma Das Gupta vs. The State of Bihar & Ors.) in which it has been held that administrative order which involves civil consequences must be made in conformity with rule of natural justice which at the least requires notice and opportunity to the person affected thereby. It is further contended by him that there is nothing on the record to show that any notice was ever served upon the owner of lands in question before taking steps of demolition of structure standing on the plots in question. It is further contended by him Patna High Court CWJC No.3941 of 1995 dt.01-08-2014 7 that a measurement report of an Amin has been brought by the respondents on record but there is nothing in the aforesaid measurement report that the said measurement was made in presence of owner of the structure or any other effected persons. It is specific case of the petitioner that there was a petrol pump on the disputed plots since 1934 and the original owner and thereafter parents of Major Ajoy Krishna were never dispossessed from the plots in question and, therefore, a complicated question of title is involved and the complicated question of title cannot be decided in a summary proceeding.
6. On the other hand, learned counsel appearing for the State submits that the disputed plots in question are recorded as Gair Majarua Malik as well as Khanta in relevant records of right and therefore, it is apparent that the aforesaid plots are public lands which have been encroached by Major Ajoy Krishna as well as his other family members. It is further contended by him that to ease traffic congestion in the town of Nawada, the administrative authorities took decision to remove all the encroachments made on the side pits of public road and in execution of the aforesaid decision, portion of the Gopalpur Complex raised on the aforesaid plot no. 3238 was sought to be demolished. It is further contended by him that Surendra Kumar Patna High Court CWJC No.3941 of 1995 dt.01-08-2014 8 Bhadani was only a lease holder and as a matter of fact, the disputed lands belong to public works department and, therefore, Surendra Kumar Bhadani had no right to transfer the aforesaid lands. It is further contended by him that findings given in the earlier encroachment proceedings are not binding upon the respondents.
7. Admittedly, earlier two encroachment proceedings were initiated in respect of same lands on same grounds. Annexure-8 to the supplementary affidavit reveals that Land Encroachment Case No. 9/64-65 was started at the behest of public works department on the ground that portion of plot no. 3238 at Patna Ranchi Road at Nawadah was encroached by the Petrol Pump M/s. Jitan Ram Nirmal Ram. In the aforesaid proceeding, it was found that there was no encroachment on the public road and accordingly, the aforesaid proceeding was dropped vide order dated 30.08.1965. Again an encroachment proceeding no. 220/76-77 was initiated at the behest of official of public works department in respect of plot no. 3238 on the ground that 134 x 24 kadi of aforesaid plot has been encroached by father of Major Ajoy Krishna. Again the aforesaid proceeding was dropped on the ground that the aforesaid plot was not of public works department. Therefore, it is an admitted position that for Patna High Court CWJC No.3941 of 1995 dt.01-08-2014 9 the same land twice encroachment proceedings were initiated on the same grounds and both the proceedings were dropped. Admittedly, both the aforesaid orders passed in the encroachment proceedings were never challenged before higher authority, particularly, in the circumstance when there is a specific provision of appeal in Bihar Public Land Encroachment Act, 1956. Therefore, the orders passed in both the above stated encroachment proceedings have already been attained its finality and again no fresh encroachment proceeding can be initiated in respect of the disputed plots in question on the same and similar grounds. In Bihar Public Land Encroachment Act, 1956, the procedure for removal of the encroachment on public land has been prescribed. Section 3 of the aforesaid Act gives power to Collector to give notice to a person who is said to have encroached on public land. Section 4 of the aforesaid Act gives power to the person on whom notice has been served under Section 3 or any person interested in the encroachment to appear before the Collector and raise any defence which he could have raised, if he was a defendant in a properly framed suit for the removal of the encroachment. Section 5 of the aforesaid Act makes a provision of hearing and the Collector is duty bound to take evidence, if any, adduced by the parties in course of Patna High Court CWJC No.3941 of 1995 dt.01-08-2014 10 proceeding and to hear the parties before passing final order. Section 6 of the aforesaid Act says the way in which the Collector can pass final order in a proceeding initiated under Section 3 of the above stated Act. Therefore, it is apparent from perusal of the aforesaid provisions that a detailed procedure for encroachment proceeding has been given in the said Act.
8. So far as the present case is concerned, it is said that a general notice for removal of the encroachment was issued. Admittedly, the aforesaid notice neither contains any plot number nor any specific area of so-called encroachment. Moreover, the aforesaid general notice has not been issued in proper format as given in the above stated Act. The stand of the respondents is that a notice was issued to wife of Major Ajoy Krishna which is evident from Annexure-F to the reply to the reply of petitioner but from perusal of Annexure-F annexed in the reply of the State, it appears that the aforesaid notice was never served either upon Major Ajoy Krishna or his wife or any other interested person and the process server returned the aforesaid notice mentioning this fact that the wife of Major Ajoy Krishna as well as her husband reside outside and in that circumstance, the notice could not be served. It is pertinent to note here that in almost all the relevant provisions of Bihar Public Land Patna High Court CWJC No.3941 of 1995 dt.01-08-2014 11 Encroachment Act, the word "service of notice" has been used and, therefore, mere issuance of notice under the aforesaid Act is not sufficient rather the service of aforesaid notice is essential before passing final order under the aforesaid Act. Admittedly, in the present case, neither any notice was served nor any opportunity of hearing was given to the affected persons before taking the step for removal of the structure standing on the disputed plots in question.
9. Annexure-9 to the supplementary affidavit reveals that proceedings under Sections 144-145 of the Cr.P.C. were also initiated between the parties and the aforesaid proceedings were decided in favour of father of Major Ajoy Krishna. There is nothing on the record to show that Major Ajoy Krishna as well as his other family members were ever ousted from the plots in question rather it is admitted case of the respondents that they are still in possession of the aforesaid lands. Therefore, when the question of title of the parties as well as nature of possession is in dispute, the same cannot be decided in a summary proceeding rather a competent court can decide the aforesaid issue.
10. On the basis of aforesaid discussions, in my view, this writ petition is liable to be allowed and accordingly, Patna High Court CWJC No.3941 of 1995 dt.01-08-2014 12 this writ petition is allowed and the respondents are restrained to demolish the structure standing on plots no. 3238 and 3239 known as Gopalpur Complex, Nawadah and to initiate a fresh encroachment case in respect of the aforesaid lands till the State get his title declared in his favour.
(Hemant Kumar Srivastava, J) SHAHZAD/- A.F.R. U