Claim for Commons: Bhola Saw and Ors. v. State of Jharkhand and Ors [21.12.2012]

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (C) No. 765 of 2008

with

W.P.(C) No. 865 of 2008

with

W.P.(C) No. 877 of 2008

with

W.P.(C) No. 878 of 2008

with

W.P.(C) No. 880 of 2008

with

W.P.(C) No. 867 of 2008

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Bhola Saw (WPC 765/08)
Enayatullah (WPC 865/08)
Shafiullah (WPC 877/08)
Mazhar Alam (WPC 878/08)
Bishndeo Ram (WPC 880/08)
Dinanath Mahto (WPC 867/08) --- --- --- ---- Petitioners

Versus

The State of Jharkhand & others (all cases) --- Respondents

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CORAM: The Hon’ble Mr. Justice Aparesh Kumar Singh

For the Petitioners: Mr. Rohit Roy, Advocate
For the State: JC to SC (L&C)
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05/ 21.12.2012

These petitioners have come before this Court being aggrieved by the action of the respondents threatening demolition of their residential houses standing on a portion of Khata no. 471, plot no. 2347, village Chitrapur, District- Ramgarh, which according to them, is being made without resorting to any proceeding whatsoever or any order from any competent authority.

2. Petitioner Bhola Saw in WPC No. 765/08 and Mazhar Alam in WPC No. 878/08 are the descendants of Uttim Sahu and Badruddin Hasan @ Sheikh Badruddin Hasan respectively who claim to be settled 0.10 acres and 0.54 acres of land, by the Manager of Ramgarh Estate on payment of proper salami, in the year 1945 and 1941 respectively in the said plot being plot no. 2347 Khata No. 471 village Chitrapur. Petitioners Enayatullah in WPC No. 865/08, Shafiullah in WPC No. 877/08, Bishndeo Ram in WPC No. 880/08 and Dinanath Mahto in WPC No. 867/08 have been sold certain portions of land by the petitioner Mazhar Alam and his brother Zafar Alam in the year 1999.

3. Counsel for the petitioners submits that the plot no. 2347 in khata no. 471 village Chitrapur, thana Ramgarh, District-Ramgarh comprises 6.06 acres of Gairmajurua Khas land of Ex-landlord i.e. Ramgarh Estate. As stated herein above, Badruddin Hasan, father of Mazhar Alam and Uttim Sahu, father of Bhola Saw, were settled 0.54 and .10 decimals of land respectively by the Ex-landlord in the year 1941 and 1945 respectively. The annual rent was also fixed thereupon and it is claimed that the predecessor of these petitioners came into possession of the respective areas of the land settled in their favour by the Ex-landlord. It is further stated that after coming into force of Bihar Land Reforms Act, a demand was opened in the name of Badruddin Hasan and Uttim Sahu in Register-II and rent receipts were granted to them respectively from 1956 onwards. Badruddin Hasan had two sons namely Mazhar Alam, who is petitioner in WPC No. 878/08 and Zafar Alam and they are still paying rent to the State over the aforementioned land. Similarly, rent have also been regularly paid by the predecessor of Bhola Saw and Bhola Saw himself after opening of the demand. It is further submitted on behalf of the petitioner Mazhar Alam that a proceeding was initiated for cancellation of the rent receipts at the instance of one Md. Shibli in the year 1959 itself and by order dated 8th April 1959, the Additional Collector, Ramgarh recorded that the rent receipt cannot be cancelled which is annexure-4 to the WPC No. 878/08. It is further submitted on behalf of the petitioner Mazhar Alam that Anchal Adhikari has issued four Basgeet Parchas under the Bihar Privileged Persons Homestead Land Act bearing case nos. 1/78-79, 2/78-79, 3/78-79 and 4/78-79 with respect to 9 decimal, 5 decimal, 9 decimal and 9 decimal of land respectively of plot no. 2347 khata no. 471 in respect of four landless persons. Counsel for the petitioner Mazhar Alam submits that once again, recommendation was made by the Anchal Adhikari for cancellation of Jamabandi running in the name of Badruddin Hasan and others with respect to the same plot and case no. 2/93-94/27/93-94 was initiated in which the learned Deputy Collector, Land Reforms, after perusing the entire documents of the affected parties, rejected the recommendation of the Anchal Adhikari, Ramgarh and confirmed the Jamabandi of Badruddin Hasan (Annexure-6 to WPC No. 878/08). According to the petitioner-Mazhar Alam, by various sale deeds, he and his brother Zafar Alam transferred 10 ½ decimals of said land to the various persons in the year 1999 who are also aggrieved and preferred the instant writ applications which are being heard and decided today, as indicated herein above by the Petitioners Enayatullah, Shafiullah, Bishndeo Ram and Dinanath Mahto respectively. It is the categorical case of these petitioners that before threatening to demolish houses and structures belonging to these petitioners, no proceeding under the Bihar Public Land Encroachment Act has been initiated and no order has been passed by any competent authority to carry out such demolition. Therefore, the impugned action are wholly illegal, arbitrary and in teeth of the well settled law that even an encroachment over the public land, cannot be removed except by the process of law as per the law of the land which, in this case, is governed by the Bihar Land Encroachment Act, 1956, if at all.

4. Respondent State have appeared and filed their counter affidavit in each of the respective cases. Their common case is that the petitioners have claimed settlement of their land on the basis of Sada Hukumnama followed by possession and issuance of rent receipt by the then Ramgarh Estate. It is further submitted on their behalf that the said piece of land being area of 6.06 acres of land is recorded in plot no. 2347 khata no. 471 as Gairmajurua Khas land of Exlandlord. The said land was notified as Bazar and even in Survey Map of 1909-10, the land is notified as Bazar and the land is entered as Sairat in Sairat Register. The sairat was previously under the jurisdiction of Anchal Office which has been transferred to Bazar Samittee which has constructed various structures and market shades for local traders. The lands have been usurped through subterfuge and encroached by these petitioners. Respondents have raised a question that the settlement of the land in question said to have been made by the erstwhile landlord is illegal. However, from the submission of the respondents and the averments made in the counter affidavit, it is not borne out that no proceeding under the Bihar Public Land Encroachment Act was ever initiated against these petitioners either against Bhola Saw, who claims to be descendants of Uttim Sahu who claimed settlement from the Ex-landlord and the petitioner-Mazhar Alam, descendant of Badruddin Hasan who also claimed settlement from the Ex-landlord. The rest of the four petitioners are previously transferee from the petitioner Mazhar Alam and his brother Zafar Alam of the plots settled in their name. Respondents although have referred to the statements made in para-17 of their counter affidavit in respect of another writ petition, but from the order annexed through I.A. No. 3555/08 in WPC No. 878/08 i.e. appellate order passed in Land Encroachment Case No. 38 of 2008 it appears that the said proceedings were initiated in respect of other person Yshrabi Fatima & others vs. State. Counter affidavit of the respondents is silent in respect of the specific statement made by the petitioners that no BPLE proceedings were initiated against these petitioners.

5. I have heard learned counsel for the parties at length and have gone through the relevant materials on record. From the facts narrated herein above, it is not in dispute that pursuant to some settlement made by the Ex-landlord, a demand was opened in the name of the ancestor of the petitioner-Bhola Saw and Mazhar Alam in the year 1946 after coming into force of Bihar Land Reforms Act and they have been continuously paying rent thereof. Proceedings were initiated for cancellation of jamabandi in respect of the land in question in the name of Badruddin Hasan and Uttim Sahu in the year 1994 which were however rejected by the order of the Land Reform Deputy Collector. These petitioners have continued to be in possession over the said piece of land which is described as Shariat by the respondents. However, from the facts which have been narrated herein above, it is obvious that no proceeding under the Bihar Public Land Encroachment Act, 1956 has ever been initiated against these petitioners or transferee from the petitioner-Mazhar Alam, as named herein above, for eviction from the land in question. It is well settled that in case of land being in the nature of public land, an order of eviction against the unauthorized occupant can be passed in a manner prescribed under the Act of 1956 after giving due notice and opportunity to the occupant to defend himself. Respondents appear to have taken steps by threatening the petitioners with demolition of their structures and houses existing over the land in question which the petitioners claim. The petitioners had therefore come before this court in anticipated action against the threatened breach of their rights.

6. In these facts and circumstances, it is observed that the respondents if at all are inclined to initiate proceeding affecting these petitioners, that can only be done in accordance with law, by initiating proceeding under the Bihar Public Land Encroachment Act, 1956 and after giving proper show-cause and notice to each of the affected persons. In these circumstances, respondents are restrained from evicting these petitioners without resorting to any proceeding under the BPLE Act.

Writ petitions are accordingly allowed in the aforesaid terms. I.A. No. 3555/2008 in WPC No. 878/08 also stands disposed of.

(Aparesh Kumar Singh, J)

Ranjeet/