Patna High Court
Ashwani Kumar Gupta vs State Of Bihar And Ors. on 2 February, 2000
Equivalent citations: AIR2000PAT154, 2000(48)BLJR883, AIR 2000 PATNA 154, (2000) 2 PAT LJR 221 2000 BLJR 2 883, 2000 BLJR 2 883
ORDER Narayan Roy, J.
1. This writ application is directed against order dated 28-8-1990 passed in Case No. 3 of 1989-90 by respondent No. 3, whereby and whereunder respondent No. 3 has passed final order under Section 6 of the Bihar Land Encroachment Act, 1956 (hereinafter to be referred to as "Act") directing the petitioner to vacate the land in question within 15 days from the date of order.
2. Short facts giving rise to this application are as follows :--
Upon a public petition a proceeding under Section 3 of the Act was initiated against the petitioner and notice was issued to him to raise his defence. The petitioner pursuant to the notice issued under Section 3 of the Act appeared before the Collector under the Act and in the proceeding parties were heard and the petitioner in the proceeding had raised question of title with regard to the land in question of khata Nos. 237, 990 and 1050, appertaining to khasara Nos. 2258, 2256 and 2257, situate in the town of Ara, The petitioner, contended before the Collector that the lands in question were settled in grant by the Crown land holder prior to 1925 free of rent in the names of Abdul Quadir, Rashid Ahmad, Mst. Bibi Zainal, Mst. Bibi Aisa and others.
3. Pursuant to the grant aforesaid, Khatian was prepared in the names of the grantees in the year 1925 and entries, accordingly, were made under Section 103 of the Bihar Tenancy Act (hereinafter to be referred to as "B.T. Act"). The petitioners thereafter purchased the lands in question from the recorded raiyats in the year 1943 and since then he is coming in peaceful possession of the same and his name has been recorded in the municipal records. While the petitioner was coming in possession of the lands in question, a public petition was filed on 18-7-1972 stating therein that the petitioner is in continuous encroachment of the lands in question and due to that, much inconvenience has been caused to public at large of Ara town. Pursuant to the public petition, a proceeding under Section 3 of the Act was initiated in Case No. 7 of 1972-73 and notices were issued to the petitioner and also to the petitioners, who had petitioned/before the Collector on 18-7-1972. Pursuant to notice, the petitioner appeared in the proceeding, but no one appeared on behalf of the applicants despite service of notices and the learned Collector under the Act having heard the submissions of the petitioner and seeing the documents held that the petitioner is the settlee of the land in question by virtue of the grant, as contained in Annexure 1 to the writ application, and, subsequent to that, there was a partition suit in between the co-sharers and the properties were partitioned according to the decree passed in Partition Suit No. 75 of 1928; therefore, it is not a case of encroachment upon the public land, and, accordingly, the case aforesaid was dismissed. However, the Collector under the Act observed that in case, it would be a khas mahal land, then the authorities will be at liberty to proceed in the matter in accordance with the provisions of Khas Mahal Manual. The order passed by the Collector was challenged in appeal by the State of Bihar and the appeal aforesaid was disposed of by remitting back the matter to the sub-divisional officer, Ara vide order, as contained in Annexure 6 and thereafter, the matter was again heard by the sub-divisional officer, Ara, and the impugned order was passed holding that the land in question is khas mahal land and the petitioner would be liable to be evicted under the provisions of the Act giving rise to this writ application.
4. Mr. Dhrub Narayan, learned counsel appearing on behalf of the petitioner submitted that the lands in question are neither public land nor khas mahal lands and the lands in question were settled by the Crown in favour of the vendors of the petitioner free of rent. Accordingly, entries were made, in the Khatian under Section 103 of the B.T. Act, and, in view of the entries made in the, Khatian, the lands in question are neither public land nor khas mahal land, rather it is a raiyati land of the petitioner, which he claimed to have purchased from his vendors, who were the recorded raiyats in the Khatian, as contained in Annexure 1 to the writ application.
5. Learned Standing Counsel No. 7, on the contrary, submitted that from the order impugned, it would appear that the nature of the land was khas mahal land and the grant must be construed to be a grant by way of lease to the petitioner and after expiry of the lease, the petitioner was liable to be evicted as the petitioner had not produced any document before the authorities showing his title over the land in question; therefore, the order impugned even passed under the provisions of the Act is wholly sustain-able in law.
6. I have perused the order impugned and also the earlier order passed by the Collector, as contained in Annexure 5. From Annexure 1 to this writ application, it appears that the vendors, of the petitioner have been shown as raiyats and the entry made in the Khatian appears to be in consonance with 1 he provisions of Section 103 of the B.T. Act. From Annexure 2 to the writ application, it appears that the petitioner has been mutated with regard to the lands in question in the Ara Municipality and he is paying municipal rent with regard to the holding in question. From the impugned order, it appears that the sub-divisional officer has proceeded on the premises that the lands in question are khas mahal land, as the lands were recorded as Kaisare Hind land and the petitioner has encroached upon the lands in question, There are distinct provisions under the Khas Mahal Manual and the Act. Seclion 3 of the Act is the provision for initiation of a proceeding if it appears to the Collector from application made by any person or upon information received from any source that any person has made or is responsible for the continuance of any en-croachmentupon the public land, Rule 22 of Khas Mahal Manual is the mode prescribed for taking possession of the khas mahal land. Rule 22 of the Khas Mahal Manual reads thus :--
"Rule 22. Khas possession can only be taken through Civil Court if lessee objects.--When in a lease it is provided that, in the event of certain contingencies occurring, the Collector will enter upon and take khas or direct possession of the property, it must be understood that, where the settlement-holder objects, possession cannot be taken save under the orders of a competent Civil Court."
It is manifest from Rule 22 of the Khas Mahal Manual that in case, an objection is raised by the settlement holder possession cannot be taken save under an order of a competent Civil Court.
7. From the pleadings of the parties and from the order impugned, it is manifest that the lands in question were not public land under the meaning of the Act, rather it appears to be land of khas mahal. Even assuming that there were exigencies for the Collector to take possession of the land in question, he could have proceeded under the provisions of the Khas Mahal Manual, and, in no case, the proceeding under the Act was maintainable. It would appear from the order impugned itself that questions of title were raised by the petitioner with regard to the land in question, and, therefore, he is not liable to be evicted under the provisions of the Act. In the case of Brij Bhukan Kalwar v. S.D.O. Siwan, AIR 1955 Patna 1, a Special Bench of this Court held that a person on account of efflux of time acquires title by acquiring possession to a property, which was at one time a public property, that property cannot be taken away by the State, even according to continuity of time of imminent possession, subsequently, without payment of compensation. It is further held that no private individual can take possession of Gair Majarua land and he can acquire a perfect title to it by being in adverse possession for more than the statutory period, way of adverse possession. In the case of Government of Andhra Pradesh v. Thummala Krishna Rao, AIR 1982 SC 1081, it was held that a person in an unauthorised occupation of a Government land cannot be evicted in the summary proceeding, where complicated questions of title arise for decision. The duration of occupation is relevant in the sense that a person, who is in occupation of the property openly for an appreciable length of time can be taken, prima facie, to have bona fide claim to the property requiring an impartial adjudication according to the established procedure of law.
8. From the facts, enumerated above, it is manifest that complicated questions of title have been raised by the petitioner by adverse possession, as he is in continuous possession of the land in question and as per the assertion of the petitioner, the petitioner is coming in possession of the land since 1943. The questions, therefore, could not have been decided in the summary proceeding under the Act and if at all a proceeding was maintainable, that could have been under Rule 22 of the Khas Mahal Manual and that, too, by filing a suit before a competent Civil Court. For the foregoing reasons aforesaid, therefore, I will have no hesitation to hold that in absence of a proper proceeding, the order impugned passed under the Act is wholly without jurisdiction and not sustainable in law.
9. In the result, this application is allowed and the order impugned as contained in Annexure 7 is hereby quashed. However, there shall be no order as to costs.