IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4682 of 2009 Banwari Lal Bhimsaria, Son of Late Shyam SundarBhimsaria, resident of Village-Sagarmal Chowk, P.S. & District-Khagaria. -Petitioner. VERSUS 1. The State of Bihar, through the Chief Secretary, Government of Bihar, Old Secretariat, Bailey Road, Patna. 2. Commissioner, Munger Division. 3. District Magistrate, Khagaria. 4. Sub Divisional Officer, Khagaria. -Respondents. ----------- For the Petitioner : Mr. Ram Balak Mahto, Sr. Adv. Mr. Ajay Kumar. For the State : Mr. Nirmal Kumar, G.P.-4. For the Intervenor : Mr. S. D. Sanjay. ----------- 05 18.03.2010 An intervention application has been filed by one Sanjeev Kumar Tulsyan. Heard Mr. S.D. Sanjay, learned counsel for the intervenor. To the straight question put by the Court about his interest in the property in dispute in the writ petition, learned counsel very fairly states that he has no interest in the property. He is merely a neighbour raiyat, as such, has no legal interest in the litigation or lis. In view of this, the intervention is thoroughly misconceived and is dismissed. Yet, learned counsel insists on Court asking the petitioner to establish his title. In other words, the intervention has been set up by the Sub Divisional Officer to defend his cause, which again is apparently not a bona fide exercise and as such not acceptable to this Court. - 2 - As pleadings are complete, with consent of parties the case has been heard for final disposal at this stage. Now, coming to the merits of this case, it is not in dispute that petitioner’s grandfather was Sagarmal Bhimsaria. This is admitted in the counter affidavit as well. For several years he had been moving the authorities of the State to ensure that the Sub Divisional Officer, Khagaria, who is occupying building on their land, be shifted out, as now Sub Divisional Officer’s own official residence has been constructed. Having failed to persuade the State to do what is just, fair and legal, he has come to this Court. The case of the petitioner is that his grandfather had purchased the said property by a registered deed as far back as in the year 1912. Their family had extensive properties there. In the year 1944, Khagaria was made a Sub Division of the district Munger. There was no official quarter available. The grandfather of the petitioner being a big landlord of the area agreed to let the Sub Divisional Officer use one of the premises for his residence till official residence is constructed. Since then the place is occupied by the Sub Divisional Officer, not as an owner nor as a tenant, his possession is permissive and by way of sufferance. Recently, when official residence of the Sub Divisional Officer, Khagaria was constructed, in stead of moving to the - 3 - official residence, he continues to remain in this building and Sub Divisional Officer’s official residence now being allotted to Additional District Magistrate. Petitioner protested to the State Government. At the instance of the State Government, enquiry was entrusted to the Divisional Commissioner, Munger, who was requested by the State Government to hear all the parties, that is, the petitioner, the District Magistrate, Khagaria and the Sub Divisional Officer, Khagaria and make enquiries and to give a finding in these regards. The detailed report of the Commissioner of the Division is dated 15th January 2009. It is this report which has been forwarded and submitted to the Chief Minister’s Secretariat. Petitioner relies on the said report, which clearly admits that petitioner’s ancestors owned the property. It admits that it was given for occupation of the Sub Divisional Officer in the year 1944. The revenue records show that the petitioner’s grandfather was the raiyat of the land which has the residence of the Sub Divisional Officer. Even though, pleas were taken by the Sub Divisional Officer and the District Magistrate, Khagaria about their presence on the property as government property they were unable to produce any paper in support thereof. Thus, on basis of these findings, petitioner states that continuance of the Sub Divisional Officer in the premises, after petitioner asked - 4 - them to vacate, is arbitrary and illegal. Mr. R.B. Mahto, learned Senior Counsel appearing for the petitioner submits that State must not only act fairly but it must act reasonably and not arbitrarily. He further submits that the State being governed by Article-14 of the Constitution, must not force frivolous and vexatious litigation for the sake of it. State being unable to establish its right to hold the property, beyond the consent of the landlord, must vacate the same. It was as courtesy measure to a newly created Sub Division that the then Sub Divisional Officer was permitted to occupy the premises even without rent. That should not embolden the State to continue to occupy the same and force unmeaningful litigations. Mr. Mahto relies on a recent decision in the case of Urban Improvement Trust, Bikaner Vs. Mohan Lal since reported in (2010) 1 Supreme Court Cases 512 and as also the observations of the Apex Court in the case of M/s Hindustan Sugar Mills Vs. The State of Rajasthan & Others since reported in AIR 1981 Supreme Court 1681 wherein the Apex Court had held thus:- “……We hope and trust that the Central Government will honour its legal obligation and not drive the appellant to file a suit for recovery of the amount of such sales tax. We hopefully expect that the Central Government will - 5 - not try to shirk its legal obligation by resorting to any legal technicalities, for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen, and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand…” The stand of the State is just opposite of what the Apex Court observed. The Sub Divisional Officer, Khagaria is challenging the authority of the Commissioner and the jurisdiction of the Divisional Commissioner to make enquiries in the matter. That, in my view, is not even permitted to the District Magistrate-cum-Collector, what to talk of the Sub Divisional Officer. The reason is not far to search for. He is occupying luxurious premises at no cost and is really hurt if he is asked to move out. Thus, the courage to challenge the findings of the Divisional Commissioner and set up persons like the intervenor to some how get the writ petition dismissed, beyond that there is nothing that the State would say. To the straight question put by the Court to the learned counsel for the State as to under what authority State was occupying the premises, - 6 - there was no answer. All that was submitted, as is stated in the counter affidavit, is that the Sub Divisional Officer was allowed to stay in the property as far back as in 1944, and as such, no authority could ask him to vacate the premises. That is the belligerent attitude of the State through the Sub Divisional Officer. The matter was adjourned for the State to furnish the papers to establish their right to occupy the said properties, none was produced. All that was produced is Register-II of the revenue records. What is stated is that it has an entry of petitioner’s grandfather being shown as the raiyat. It had an entry showing occupier of the land, as the residence of Sub Divisional Officer, over which at some point of time some paper was stuck, but the entry could be read inspite this. There is not a chit of paper apart from this. With reference to the order of the Divisional Commissioner, it is pointed out before the Divisional Commissioner, a plea was taken by the Sub Divisional Officer and the Collector, Khagaria in the year 2008 that the premises was leased out by the ancestor of the petitioner for the purposes of residence of the Sub Divisional Officer but in that order itself, it is noted that no such document or any chit of paper could be produced, as they were being searched out. After two years also they are still being searched out. Learned counsel for the State repeatedly states - 7 - that first the petitioner must establish his right to the said property. In my view, the argument was most misconceived. When as per the document filed by the State itself, and as per the statement as made in the counter affidavit itself, it is admitted by the State that the grandfather of the petitioner was the owner of the property, it is for the State to explain as to under what circumstances and under what authority of law it came over that land. They have failed to show any such authority except admitting that it is being used as residence of the Sub Divisional Officer, Khagaria since 1944, and as such, they cannot be thrown out, even if it is a private property not belonging to the government. Strange it may sound but that is the belligerent stand of the State. I fail to understand how State was even advised to take such a stand when Article-14 still survives in the Constitution. We live in a country governed by Constitution and State must show qualities of good governance and fair conduct. I am afraid, the facts show otherwise. This cannot be permitted. There is no dispute of facts, no disputed questions of title, still the State is using its might and being in dominating position refuses to vacate the premises as sought by the private individual. In view of the two judgments, as noted above, it is impermissible for the State to take such a stand and continue to occupy a property without any authority of law - 8 - and then ask the citizen to move Civil Court and institute a suit for evicting them. If this is not forcing frivolous and vexatious litigation then what it is this Court fails to understand. That is a stand most arbitrary and unfair and cannot be countenanced by the Court. In such a situation, I am left with no option but to direct the Collector-cum-District Magistrate, Khagaria to ensure that within a reasonable time the premises, in question, should be vacated by State and handed over to the petitioner not later than three months from today. Before parting, I want to make it clear that no finding given or observations made hereinabove, would be deemed to be conferring an exclusive title on the petitioner as against his other co-sharers. The petitioner would represent lawful interest of all the heirs of Late Sagarmal Bhimsaria whose grandson he is. With the aforesaid observations and directions, the writ petition is disposed of. Trivedi (Navaniti Prasad Singh, J.)