Jharkhand High Court
Pankaj Kumar Dubey Son Of Shri Tapeshwar ... vs The State Of Jharkhand on 9 April, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.-4965 of 2016
1. Pankaj Kumar Dubey son of Shri Tapeshwar Dubey
2. Nagina Singh son of Kuldip Singh
3. Dilchand Sao son of Bifar Sao
4. Sahdeo Dubey son of late Janki Dubey
5. Ramkewal Prasad son of Kalector Prasad
6. Devender Kumar Prasad son of Suresh Prasad
All are residents of village Nagava Thana no. 182 ,PO, PS & District-
Chatra ...Petitioners
-V e r s u s-
1. The State of Jharkhand
2. Collector-cum-Divisional Forest Officer, Chatra South Forest Division, PO,
PS & District- Chatra ..... Respondents
CORAM: - HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner :- Mr. Sabyasanchi, Advocate For the Respondents :- Mr. Apurv, A.C. to G.A. Order No.-06 Dated: 09.04.2018 The present writ petition has been filed for quashing the notice dated 21.06.2016 issued by the Collector-cum-Divisional Forest Officer, South Forest Division, Chatra (respondent no. 2) under Section 3 of the Bihar(now Jharkhand) Public Land Encroachment Act, 1956 (in short "the Act, 1956").
2. Learned counsel for the petitioners submits that so far as petitioner no.1 is concerned, his wife Mohini Devi filed a suit against the authorities of the State Government in the court of Civil Judge, Chatra being Title Suit no. 03 of 2001 with regard to plot in question i.e. plot no. 1144, village- Nagwan, Thana no. 182, PO, PS & District- Chatra. The said suit was decided and decreed in favour of the wife of petitioner no.1 vide judgment/decree dated 29.02.2012/12.03.2012 by the court of Civil Judge (Sr. Division)-II, Chatra. Against the said judgment and decree passed in Title Suit No. 03 of 2001, the State- authorities preferred Title Appeal No. 08 of 2012 in the court of District Judge-III, Chatra, which is still pending. The respondent no. 1 had also instituted a criminal case against the petitioners for the offence under Section 33 of the Indian Forest Act. However, vide judgment dated 11.02.2009 passed in U.C. Case no. 104 of 2001 / T.R. Case no. 181 of 2008 by the S.D.J.M., Chatra, the petitioners have been acquitted in the said criminal case. Thereafter, the State of Jharkhand preferred a 2 Criminal Appeal No. 13 of 2010, which was dismissed vide judgment dated 16.04.2016 by the Sessions Judge- Chatra. Under the aforesaid background, learned counsel for the petitioner submits that the respondent no.2 had no authority to issue the impugned notice dated 21.06.2016 under Section 3 of the Act, 1956.
3. Though a counter affidavit has been filed on behalf of the respondent no.2 justifying the issuance of impugned notice dated 21.06.2016 issued under Section 3 of the Act, 1956, yet the facts with regard to the aforesaid litigation for land in question averred by the petitioners in the writ petition has not been denied. It has merely been stated that the Title Appeal preferred by the State-respondents against the judgment/decree dated 29.02.2012/12.03.2012 passed in Title Suit no. 03 of 2001 is pending.
4. Considering the fact that the judgment and decree dated 29.02.2012/12.03.2012 in Title Suit no. 03 of 2001 passed by S.D.J.M., Chatra in favour of the wife of the petitioner no. 1, the petitioners have a prima facie case that they are not the encroachers over the land in question.
5. It is well settled that the land in which the question of title is involved, summary proceeding under the land encroachment law is not tenable. In the case of "Government of Andhra Pradesh Vs. Thummala Krishna Rao & Anr." reported in (1982) 2 S.C.C. 134, the Hon'ble Supreme Court has held that where question of title with respect to the land is involved, the proceeding under the land encroachment law is not the remedy, rather remedy is to get the right declared by the competent Civil Court and until such right is declared, the person in possession/occupation of the land cannot be evicted by summary proceeding under the Land Encroachment Act.
6. Further, In the case of "Smt. Rekha Singh and others Vs. State of Bihar and others" reported in 1992 (2) PLJR 854, Hon'ble Division Bench of Patna High Court (during the period of unified Bihar)has held as under:-
"8. It has been well settled by now that the summary remedy for eviction under the Act can be 3 resorted to by the Government only against the persons who are in unauthorised occupation of any land which is "the property of Government". If there is a bonafide dispute regarding the title of the Government to any property, the Government cannot take unilateral decision in its own favour that the property belongs to it, and, on the basis of such decision take recourse to the summary remedy provided for evicting the person who is in possession of the property under a bona fide claim or title.
9. In the instant case, unquestionably, the petitioners have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed under the Act is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process for evicting the petitioners.
10. The facts which raise a bona fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary course of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is in occupation of a property for a considerable length of time 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."
7. The purpose of introduction of the Act, 1956 is to remove any encroachment from public land and for removal of such encroachment, summary proceeding is required to be followed so that the encroachment may be removed without undue delay. Thus, the authority is empowered to proceed under the Act only when it prima facie appears that the public land has been encroached. However, in a situation where some bonafide dispute of title of land appears to be involved between the alleged encroacher and the government agencies, the same cannot be decided under the land encroachment law and it is required by the government agencies to take appropriate recourse before the Civil Court for adjudication of the dispute seeking declaration of title of the said land. The administrative action must be exercised objectively, rationally and fairly. Such action should not be taken in undue haste dehors the law.
48. Considering the aforesaid facts and circumstances of the case, the impugned notice dated 21.06.2016 issued by the respondent no. 2 (Annexure-1 to the writ petition) cannot be sustained in law. The same is, hereby, quashed and set aside. However, the issue regarding the petitioners being encroachers over the land in question shall be subject to the outcome of the Title Appeal no. 08 of 2012 preferred by the respondent State in the court of District Judge-III, Chatra.
9. The writ petition is accordingly disposed of with aforesaid observation.
(Rajesh Shankar, J.) Ritesh/N. A.F.R