IN THE HIGH COURT OF JHARKHAND
WP(C) No. 1833 of 2016
Decided On: 31.01.2018
Appellants: Rajendra Nath Mahto
Vs.
Respondent: The State of Jharkhand and Ors.
Counsels:
For Appellant/Petitioner/Plaintiff: Rajesh Lala and Arpit Kumar
For Respondents/Defendant: Kanchan Kumari
ORDER
Rajesh Shankar, J.1. The present writ petition has been filed for quashing the order dated 16.10.2015 passed in Encroachment Case No. 3 of 2014-15 by the Circle Officer, Chas (Bokaro), whereby the application dated 27.6.2014 filed by the petitioner under Bihar (now Jharkhand) Public Land Encroachment Act, 1956 against the respondent Nos. 4 to 19 has been dismissed. Further prayer has been made for quashing the order dated 16.2.2016/23.2.2016 passed by the Collector-cum-District Magistrate, Bokaro, whereby the Encroachment Appeal No. 38 of 2016 filed against the order dated 16.10.2015 in Encroachment Case No. 3 of 2014-15 has been rejected. The factual background of the case as stated in the writ petition is that the land under Plot No. 69, Khata No. 67 of Mouza-Mamarkudar, Thana No. 92, Area 62 decimals at Chas, District-Bokaro (hereinafter referred to as "the said land") is a Government land and is recorded as Gair Abad Malik in the Khatian of the year 1925. The petitioner being a public spirited person filed an application dated 27.6.2014 before the Deputy Collector Land Reform (DCLR), Chas, Bokaro and requested for removing the encroachment made by the respondent Nos. 4 to 19 over the said land alleging that the same is a Government/Public Land. On the basis of the petitioner's application, the DCLR, Chas, Bokaro vide his Letter No. 491 dated 24.7.2014, directed the Circle Officer, Chas to take action in accordance with law after due inquiry, who vide order dated 12.8.2014 called for a report from Halka Karamchari/Circle Inspector. The Circle Inspector submitted his report stating that the land is recorded as Gair Abad Khata and recommended for initiation of encroachment case against the respondent Nos. 4 to 19 and accordingly, Encroachment Case No. 3 of 2014-15 was registered and notices were issued to the respondent Nos. 4 to 19, who submitted their reply stating that the land was settled by the ex-landlord in favour of their great grandmother vide unregistered Jothe Patta dated 7.1.1940 and on a part of which, she constructed residential house whereas the rest land was used for growing vegetables. The respondent Nos. 4 to 19 further contended that after the death of the settlee, they came in possession of the land in question. The Circle Officer, Chas rejected the application of the petitioner on the basis of the show-cause reply of the respondent Nos. 4 to 19 and also the opinion of the Government Pleader. Aggrieved thereby, the petitioner filed Encroachment Appeal No. 38 of 2014-15, but the same was not entertained by the Collector-cum-District Magistrate, Bokaro on the ground that no public interest is involved in the said appeal.
2. The learned counsel for the petitioner submits that the show-cause reply of the respondent Nos. 4 to 19 was not served to him to explain the ground taken in the same. The Circle Officer, Chas passed the impugned order dated 16.10.2015 without hearing the petitioner, only putting reliance on the show-cause reply of the respondent Nos. 4 to 19 and the opinion of the Government Pleader. It is further submitted that the impugned order has been passed in violation of the principles of natural justice. It is also submitted that old Khatian of the land has not been considered, wherein the said land has been recorded as Government/public land. The authorities failed to appreciate the fact that no rent receipt has ever been issued by the State Government in favour of the respondent Nos. 4 to 19. The Circle Officer also did not consider the report of the Halka Karamchari who specifically mentioned that the said land is recorded as Gair Abad Khata Land. It is further submitted that the said land was a Government land and as such, the Zamindar had no authority to settle the said land by Jothe Patta dated 7.1.1940 in favour of Rangi Mahatwain and thereafter to issue frivolous rent receipt in her favour. It is finally submitted that the State was never called upon to file any formal reply by the State authorities.
3. The learned counsel for the respondent-State submits that the said land is recorded as Gair Abad Malik in last C.S. record of 1925. It is further submitted that the impugned orders have been passed by the respondent authorities after taking into consideration the documents available on record and as such, the same require no interference. It is also submitted that the Circle Officer, Chas has passed the order after complying the principles of natural justice, thus the petitioner is not entitled for any relief.
4. In the case of "Govt. of A.P. vs. Thummala Krishna Rao" reported in AIR 1982 SC 1081, the Hon'ble Supreme Court held as under:--
8. The view of the Division Bench that the summary remedy provided for by S. 6 cannot be resorted to unless the alleged encroachment is of "a very recent origin", cannot be stretched too far. That was also the view taken by the learned Single Judge himself in another case which is reported in Mehrunnissa Begum vs. State of A.P., (1970) 1 Andh LT 88 which was affirmed by a Division Bench (1971) 1 Andh LT 292. It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts which raise a bona fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary courts 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 openly for an appreciable 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.
5. Further, in the case of "Smt. Rekha Singh & Ors. vs. State of Bihar & Ors., reported in (1992) 2 PLJR 854, a Division Bench of this Court held thus:--
8. It has been well settled by now that the summary remedy for eviction under the Act can be 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 bona fide 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.
6. The purpose of introduction of Bihar (now Jharkhand) Public Land Encroachment Act, 1956 is removal of any encroachment from public land for which a summary proceeding is required to be followed to remove the encroachment without undue delay. Thus, the authority is required to proceed under the Act only when it prima facie appears that a public land has been encroached. However, in the present case, there appears to be a dispute of title between the respondent Nos. 4 to 19 and the Government, as has been claimed by the third party i.e., the petitioner for which the proper course is to get it adjudicated by the competent civil court where both the side will have opportunity to adduce respective evidences. Though the duration of encroachment is not conclusive to decide the encroachment proceeding, however, if a person is in possession of a land for an appreciable length of time, it can prima facie be taken as a claim over to the property requiring an impartial adjudication according to the established procedure of law. In the present case, the claim of the respondent Nos. 4 to 19 as evident from the order of the Circle Officer, Chas, Bokaro that the land was settled by the ex-landlord in favour of their predecessor-in-interest and since then, the said land is in their possession. The procedure for cancellation of settlement has been delineated under Section 4(h) of the Bihar Land Reforms Act, 1950 and without following that procedure, no settlee can be evicted from a settled land. The Government Pleader, in his opinion has confirmed the possession of the respondent Nos. 4 to 19 upon the said land. In the new Survey also, the said land has been recorded in the name of the respondent Nos. 4 to 19. The claim of the petitioner, who is a third party is that no rent receipt for the said land is being issued in favour of the respondent Nos. 4 to 19. The said fact also would not change the situation as it is a settled law that mutation neither confers or extinguishes title of any person upon the land.
7. In the case of "Municipal Corpn., Aurangabad vs. State of Maharashtra", reported in (2015) 16 SCC 689, the Hon'ble Supreme Court held as under:--
13. It is settled that mutation does not confer any right and title in favour of any one or other, nor cancellation of mutation extinguishes the right and title of the rightful owner. Normally, the mutation is recorded on the basis of the possession of the land for the purposes of collecting revenue.
8. Learned counsel for the petitioner has put reliance on the judgment of the Hon'ble Supreme Court in the case of "Jagpal Singh & Ors. vs. State of Punjab & Ors." reported in 2016 (3) JLJR (SC) 321 which reads as follows:--
22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.
9. In the case of "Jagpal Singh" (supra), an application was filed under Punjab Village Common Lands (Regulation) Act, 1961, for eviction from the land recorded as village pond which was being used by the cattle of the village for drinking and bathing. In that case, the Collector, Patiala directed to recover the cost of the land from the illegal occupants. The Hon'ble Supreme Court after taking into consideration the fact of the case, directed all the State Governments to prepare schemes for eviction of illegal occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and directed that the regularization of that land shall only be done in exceptional circumstances. The fact of the present case is entirely different from the case cited by the petitioner. In the present case, the petitioner failed to prove before the courts below that the respondent Nos. 4 to 19 are in illegal possession of land, rather as per the impugned order dated 16.10.2015, the respondent Nos. 4 to 19 appear to have produced sufficient documents before the Circle Officer, Chas, Bokaro in support of their claim. The petitioner has also failed to bring on record any material to suggest that the said land was ever used for any public purpose. For the reasons as aforesaid, the present writ petition is hereby dismissed. However, it is clarified clear that observation made in this case is confined to the encroachment proceeding initiated against the respondent Nos. 4 to 19 at the instance of the petitioner and it will not in any manner affect the title of any person including the Government over the said land and the affected party is at liberty to take appropriate recourse in accordance with law, if so advised.
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