Ramjit Ram vs The State Of Bihar & Ors on 10 September, 2015

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Patna High Court

Ramjit Ram vs The State Of Bihar & Ors on 10 September, 2015

2. The petitioner has filed the present writ petition under Article 226 of the Constitution of India for issuance of a direction to the respondent State of Bihar and its functionaries i.e. the respondent nos. 1 to 5, commanding them not to settle Gair Mazarua Malik land, recorded as such in the khatiyan, as contained in Annexure-1, and Gair Mazarua Aam land, recorded as such in the khatiyan, as contained in Annexure-1/A to the writ petition, as according to him, the lands detailed in aforesaid two khatiyans are being used by the Patna High Court CWJC No.16158 of 2008 dt.10-09-2015 2/5 common people of the village and if proposal made by the respondent Circle Officer for settlement of those lands in favour of the respondent nos. 6 to 14 is allowed to proceed, then common people of the village besides the petitioner will have to face a lot of inconvenience as some part of the aforesaid Gair Mazarua Aam land is being used as graveyard, burial ground and play ground etc. for the use of common people.

3. Learned counsel appearing on behalf of the petitioner submits that aforesaid Gair Mazarua Aam land is for common use of the villagers and, therefore, the respondent nos. 1 to 5 be restrained from settling the aforesaid land in favour of any private individual including respondent nos. 6 to 14. He further submitted that Gair Mazarua Malik, land as detailed in khatiyan in Annexure-1, has also vested in the State of Bihar, but has been illegally encroached upon by some anti-social elements. However, in the whole writ petition the petitioner has not shown his any right and title over the lands in question, detailed in the khatiyans vide Annexures- 1 and 1/A.

4. From perusal of the khatiyan, as contained in Annexure-1, this Court finds that plot no. 431 appertaining to khata no. 02, area 12 kathas 4 dhurs of village Mahui in the district of West Champaran has been recorded as Gair Mazarua Malik land and name of the Malik has been shown to be one Janki Kuer. From perusal of Annexure-1/A it further appears that the plots of land bearing khata no.03, appertaining to Khesara No. 438, area 1 bigha 15 kathas and 18 dhurs as also khesara No. 439, area 2 bighas 4 kathas and 6 dhurs have been recorded as Gair Mazarua Aam land. It also appears that after vesting of zamindari, the aforesaid parcel of lands have vested in the State of Bihar. In the description of aforesaid Gair Mazarua Aam lands, Khesra Nos. 438 and 439 have been shown as 'Bhinda Pokhar' Patna High Court CWJC No.16158 of 2008 dt.10-09-2015 3/5 and 'Pokhar' (tank and its ridge/embankment) respectively.

5. In the present case, a detailed counter affidavit has been filed on behalf of the respondent nos. 2 to 5, wherein it has been admitted that in the last revisional survey, lands of plot no. 431 was recorded as Gair Mazarua Malik land and lands of plot nos. 438 and

439. have been recorded as Gair Mazarua Aam land. It has further been admitted that one acre of land of plot no. 438 is being used as graveyard. However, rest of the lands of plot nos. 431, 438 and 439 were encroached upon by several persons for growing crops and certain trees of different varieties are standing over it. It has also been admitted that in view of the petition filed by the villagers, Encroachment Case No. 07 of 2006-2007 was initiated by the Anchal Adhikari, Ramnagar whereafter notices were issued to the alleged encroachers and when steps were taken to remove encroachment, the private respondents filed their petitions before the Anchal Adhikari that they are poor and landless persons belonging to scheduled castes, therefore, these lands or in alternative, any other suitable lands may be settled in their favour. In paragraph 12 of the counter affidavit, it has been stated that the villagers vehemently opposed the proposal of settlement of the land in question in favour of any person. However, on persuasion, they finally agreed that the lands in question may be settled in favour of private respondents, but after excluding graveyard, burial ground, pokhra and play ground. In paragraph 14 of the counter affidavit it has also been stated that Anchal Adhikari, Ramnagar prepared two records for settlement of Gair Mazarua Malik land of plot no. 431 as also Gair Mazarua Aam land of plot nos. 438 and 439. However, the proposal made by Anchal Adhikari is yet to be approved by the SDO, Bagaha and District Collector, West Champaran.

Patna High Court CWJC No.16158 of 2008 dt.10-09-2015 4/5

6. After having heard the parties and on consideration of the materials available on the records, this Court is of the opinion that so far as Gair Mazarua Malik land of plot no. 431 area 12 kathas 4 dhurs is concerned, if that has been vested in the State of Bihar and no private individual is claiming his/her right and title over the same, then the State of Bihar and its functionaries shall be at liberty to settle the aforesaid land in favour of the private individual including private respondent nos. 6 to 14. However, so far as the lands of Plot Nos. 438 and 439, which are recorded as Gair Mazarua Aam land in the khatiyan, cannot be permitted to be settled in favour of a private individual including private respondent nos. 6 to 14. It is well known that Gair Mazarua Aam land is always for use of the common people, and for the personal benefit of respondent nos. 6 to 14, interest of entire villagers/common people cannot be sacrified. However, being a welfare State, if the State of Bihar and its functionaries want to settle certain other lands in favour of the respondent nos. 6 to 14 or any other poor and landless person, then certainly the petitioner and/or any other person of the village cannot be permitted to raise any objection, but settlement of such land in their favour may be made either by acquiring certain other plots of land or if such lands belong to the State of Bihar excluding Gair Mazarua Aam land. Admittedly, the proposal made by the Circle Officer, Ramnagar has not been approved till date by the SDO, Bagaha and the District Collector, West Champaran.

7. For the reasons recorded above, the respondent nos. 1 to 5 are directed not to settle any part of Gair Mazarua Aam land of plot nos. 438 and 439 in favour of any private individual including the respondent nos. 6 to 14. If some person (s) has illegally encroached upon the said lands, then prompt steps shall be taken for removal of Patna High Court CWJC No.16158 of 2008 dt.10-09-2015 5/5 such encroachment from the aforesaid Gair Mazarua Aam land and that shall be allowed to be used by common people of the village. However, so far as Gair Mazarua Malik land of plot no. 431 is concerned, the respondent nos. 1 to 5 shall be at liberty to settle entire area of land or any portion of aforesaid land in favour of any private individual including the respondent nos. 6 to 14.

8. The petitioner shall appear with a certified copy of the present order before the respondent District Magistrate, West Champaran, Bettiah within a period of one month from today, whereafter, he shall ensure strict compliance of the present order.

9. The writ petition stands finally disposed of with the aforesaid observations and directions.

(Birendra Prasad Verma, J) Tahir/-

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Patna High Court