IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 520 of 2005

Transcription

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 520 of 2005 Fr. Mariya Packian S.J. Petitioner -V e r s u s- 1. The State of Jharkhand 2. Deputy Commissioner, Hazaribagh 3. Land Reforms Deputy Collector, Sadar, Hazaribagh 4. Addl. Collector, Hazaribagh 5. Vinod Kumar Rana Respondents CORAM: - HON BLE MR. JUSTICE PRASHANT KUMAR. For the Petitioner : M/s. Sumeet Gadodia, Tapas Kabiraj, Savarimuthu, Anurag Kashyap, Adv. For the Respondents : Mr. Vikash Kishore Prasad, SC (L&C). Mr. Vineet Prakash, J.C. to SC (L&C). For the Intervenor : Mr. Dilip Kr. Prasad, Advocate. 09/ This application has been filed for quashing the order dated passed by the respondent no. 3 in Miscellaneous Case No. 8 of 2003, whereby and whereunder he directed the petitioner to remove encroachment from the land pertaining to Khata Nos. 1, 18, 31, 32, 33, Plot Nos. 241, 242, 52, 316 & 230 of Village Sitagarha, Thana No. 238, P.S. - Muffasil in the district of Hazaribagh. Petitioner further prays for quashing the order dated passed by the respondent no. 4 in Miscellaneous Appeal No. 6 of 2004, whereby and whereunder he dismissed the appeal of the petitioner preferred against the order dated passed by respondent no. 3 in Miscellaneous Case No. 8 of Facts of the case is that the land pertaining to Khata Nos. 1, 18, 31, 32, 33, Plot Nos. 241, 242, 52, 316 & 230 of Village Sitagarha along with other lands, settled with petitioner's Society vide Annexure - 1/1 by General

2 -2- Manager of the Encumbered Estate, Hazaribagh, after obtaining sanction and approval from the Commissioner, Chhotanagpur Division and the Board of Revenue respectively. Further case of the petitioner is that after the said settlement they came in exclusive possession of the lands. It is further stated that after vesting of the Zamindari, the name of the Society entered in Register-II and they are paying rents to the State Government. It is further stated that in the year 1955 at the instance of some of the villagers, a proceeding under Section 133 Cr.P.C. initiated against the petitioner, which was disposed of vide order dated with observation that matter required to be decided by a competent civil court. It then appears that a proceeding under Section 3 of Bihar Public Land Encroachment Act (in short 'BPLE Act') initiated by the Circle Officer, Hazaribagh vide Miscellaneous Case No. 3 of against the petitioner for the same lands. The said proceeding decided against the petitioner. Thereafter, the petitioner filed an appeal vide Land Encroachment Appeal No. 7 of 1983, which was disposed of on While disposing of the said proceeding, learned appellate court held that :- Once the land has been settled even though the same is a Gair Mazarua Aam and / or Gair Mazarua Khas land then for deciding as to whether the villagers had right over the said land by custom or not, is a question required to

3 -3- be decided by a competent civil court. However, the appellate court remanded the matter back to the Circle Officer for deciding the case as to whether the land was settled with the petitioner or not and what is the value of such settlement in view of entries made in the Khatiyan. The appellate court further direct Circle Officer to consider as to whether the villagers are using the said land or not? It appears that after remand, the Circle Officer made inquiry and thereafter dropped the proceeding vide his order dated (Annexure-4). It then appears that again Land Reform Deputy Collector, Sadar, Hazaribagh (in short 'LRDC') on initiated a proceeding under the B.P.L.E Act vide Miscellaneous Case No. 18 of 2003 on the report of the Circle Officer, Hazaribagh for same lands and issued show cause notice to the petitioner. It appears that the petitioner filed a detailed show cause refuting the allegation that they had encroached the lands in question. However, the plea of the petitioner disallowed and vide order dated and the petitioner was directed to remove the encroachment, otherwise the same will be removed by the State and the cost incurred on removal of the encroachment will be recovered from the petitioner. It further appears that the petitioner filed an appeal before the Additional Collector, Hazaribagh against

4 -4- the aforesaid order dated , which was disposed of by order dated , wherein the Additional Collector, Hazaribagh concluded that some of the lands settled with the petitioner are Gair Mazarua Aam and Gair Mazarua Khas land, which cannot be settled. He further find that Gair Mazarua Aam and Gair Mazarua Khas land ought to have been left for use of public at large. Accordingly, he confirmed the order of the L.R.D.C. and dismissed the appeal. 3. It is submitted by Sri Sumeet Gadodia, learned counsel appearing for the petitioner that it is not open for the LRDC and Additional Collector to declare that the settlement made in favour of petitioner is illegal and that too in a summary proceeding initiated under the B.P.L.E. Act. Sri. Gadodia further submits that for initiation of a proceeding under the BPLE Act, it is incumbent for the State to prove that the lands in question are public land and the same had been encroached. He submits that if the petitioner came in possession over the lands in question through a deed of settlement even though the same has been executed against the law, the same cannot be treated as encroachment. Hence, the proceeding under BPLE Act is not tenable. Learned counsel for the petitioner then submits that once, for the same lands and with the same allegation, a land encroachment proceeding initiated and after inquiry dropped by the competent authority then it is not open for the respondents authority to restart another

5 -5- proceeding on the same lands, as the same is barred by general principles of res judicata. Accordingly, Sri Gadodia submits that both the impugned orders are liable to be set aside. 4. On the other hand, Sri Vikash Kishore Prasad, Standing Counsel (Land & Ceiling) submits that in the instant case, in the Khatiyan, the land in dispute recorded as Aam Rasta, pond and cremation ground. He further submits that as per Section 84 of the Chhotanagpur Tenancy Act, the entry made in the Khatiyan will be presumed to be correct unless rebutted by cogent evidence. Accordingly, Sri Prasad submits that it is in dispute as to whether the land in question settled with the petitioner or not. Hence, this question cannot be decided in writ jurisdiction. Sri Prasad further submits that in view of the judgment of Hon'ble Supreme Court in Srimati Raj Lakshmi Dasi & Ors. Vs. Banamali Sen & Ors. reported in AIR 1953 SC 33 the principles of res judicata is not applicable to revenue court. Thus, the revenue authority can again initiate a proceeding under BPLE Act. Sri Prasad further submits that in a BPLE proceeding, the authority could incidentally decide, whether the deed on the basis of which petitioner claiming the land in question are legally tenable or not. Accordingly, he submits that the present writ application is liable to be rejected. 5. Sri Dilip Kumar Prasad, learned counsel

6 -6- appearing for the intervenor Villagers / Public at large submits that in Khatiyan the aforesaid lands recorded as pubic road, cremation ground and pond. He further submits that the villagers are using the said pond, road and cremation ground since last several years. He further submits that the said lands are Gair Mazarua Aam and Gair Mazarua Khas land. Therefore, villagers have customary right over the same, hence, said land could not be settled. Thus, the settlement in favour of petitioner is illegal. Therefore, petitioner was rightly directed to remove encroachment. Accordingly, Sri D.K. Prasad, submits that this writ application is liable to be dismissed. 6. Having heard the submission, I have gone through the record of the case. Admittedly in the year 1955 a proceeding under Section 133 of the Cr.P.C. initiated against the petitioner in respect to Plot nos. 316 & 230 because petitioner put a cattle trap on the entry of the road and villagers were feeling difficulty in taking their cattles through the said road. It appears that after hearing both the parties in the said proceeding, learned Magistrate observed that the entire dispute require to be adjudicated by a competent civil court. It then appears that Circle Officer, Hazaribagh in the year 1979 initiated a proceeding under BPLE Act against the petitioner for the same lands and vide order dated directed petitioner to remove the encroachment. Against that, petitioner filed an appeal, which was disposed of vide order dated

7 , wherein the appellate court remanded the matter and directed the Circle Officer to make fresh inquiry and decide the matter again. Annexure-4 reveals that the Circle Officer, Hazaribagh made inquiry as directed by the appellate court and after inquiry dropped the proceeding. 7. It has been held by Hon'ble Patna High Court at paragraph no. 5 in Mahanth Ramagya Giri Vs. State of Bihar & Others reported in 1991 (2) PLJR 249 that:-... for the same reason and on the same allegation there was no jurisdiction in the officers concerned to initiate a fresh proceeding after long nine years when the matter had been finally concluded regarding the land encroachment. If the State was aggrieved by the earlier order of Collector under the Act whereby the proceeding has been finally dropped and concluded, they could have preferred an appeal or revision but nothing of the kind was availed and I do not see any reason how after long nine years for the same cause and on the same allegation fresh proceeding under the Land Encroachment Act could be initiated. 8. In the instant case also the earlier proceeding

8 -8- under the BPLE Act dropped after inquiry in the year In the counter affidavit, the State nowhere stated that against the said order it had preferred any appeal and / or revision. Under the said circumstance, initiation of fresh proceeding in the year 2003 on the same lands and for the same reason, after the gap of 19 years, is without jurisdiction as held by the Patna High Court. 9. The contention of Sri Vikash Kishore Prasad, that principles of res judicata have no application, so far the revenue courts are concerned, cannot be accepted. It is true that Hon'ble Supreme Court in the judgment rendered in the case of Srimati Raj Lakshmi Dasi (Supra) has held that the principles of res judicata as provided under Section 11 of C.P.C. will not apply in the case of revenue court, but in the said judgment itself, at paragraph no. 20, their lordships laid down that : - when a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the court that heard and decided the former case was a court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of courts of exclusive

9 -9- jurisdiction, like revenue courts, land acquisition courts, administration courts, etc. (emphasis added) Thus, the aforesaid judgment cited by Sri V.K. Prasad has no help to him. In this case, as noticed above, the proceeding under BPLE Act has been dropped after inquiry which become final, because the State had not preferred any appeal and / or revision. Thus, on the ground of general principles of res judicata the authority LRDC has no power and / or jurisdiction to initiate a fresh proceeding under BPLE Act. 10. From perusal of Annexure-7, I find that the appellate court while dismissing the appeal of the petitioner had observed that the land in question alleged to have been settled with the petitioner are Gair Mazarua Aam land, which cannot be settled with an institution or person, because the said lands are required to be left for the use of public at large. The aforesaid finding, in my view, is on teeth of the judgment of the Supreme Court rendered in the case of Government of Andhra Pradesh Vs. Thummala Krishna Rao & Anr. reported in (1982) 2 Supreme Court Cases 134, wherein at paragraph no. 9, their lordships had held that:- Facts which raise a bonafide dispute of title between the Government and the occupant must be adjudicated upon by the

10 -10- 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. In this case, it is the plea of the Circle Officer that the said land is Gair Mazarua Aam land and it cannot be settled and it appears that the authorities under BPLE Act themselves decided the matter and asked petitioner to remove encroachment. Hence, on this ground also the impugned orders cannot be sustained. 11. The second leg of argument raised by Sri V.K.Prasad that disputed question of fact cannot be decided in a writ jurisdiction, cannot be accepted in the facts and circumstances of the case. In the instant case, it is not in dispute that proceeding under BPLE Act initiated against the petitioner for the same lands. It is not in dispute that appellate court declared that the settlement made in favour of petitioner is against the law in a summary proceeding under BPLE Act. Thus, the points on which the impugned orders challenged in this case, do not involve any disputed question of fact. Hence, I find no merit in the aforesaid submission of learned counsel for the State. Accordingly, the same is rejected. 12. In view of the discussions made above, I find that the impugned orders suffers from serious illegality. Therefore, the same cannot be sustained in this writ

11 -11- application. 13. In the result, this application is allowed and the impugned orders dated and is quashed. However, the parties shall bear their own costs. sunil/ (Prashant Kumar, J.)