IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4245 of 2009 ABHAY SHANKAR SINHA S/O LATE NILKANTH SINHA R/O OF MOHALLA- LAL DARWAJA, PS-KOTWALI MUNGER DISTRICT- MUNGER----------------PETITIONR Versus 1. THE STATE OF BIHAR 2. COLLECTOR & DISTRICT MAGISTRATE, MUNGER 3. ANCHAL ADHIKARI, SADAR MUNGER 4. KHAS MAHAL OFFICER, MUNGER----- RESPONDENTS ----------- 5 24.7.2009 Order dated 17th January, 2008 passed in Encroachment Case No. 7/07-08 (annexure-1) by learned Circle Officer, Munger as well as the order dated 22nd December, 2008 passed by the Collector, Munger in Appeal No. 4/07-08 (annexure-2) are under challenge in the present writ application. Some basic facts are not disputed in the present writ application. The land in question is a Khas Mahal land which was settled in favour of one Bishundeo Narayan Singh way back on 25th October, 1929 by a so called registered lease deed. There was a clause for renewal in the said deed. According to the petitioner when the period of lease was still subsisting, the family members of the present petitioner acquired interest in the said land by way of a sale deed in favour of Smt. Awadh Kishori Devi, the mother of the present petitioner. The sale deed is stated to be registered and is dated 26th of May, 1967. Petitioner’s family thereafter got a map plan approved by the Munger Municipality built a house and started to occupy it. The background to the present dispute is that the Indian Railways decided to construct rail-cum-road bridge over the river Ganges, a long demand of the people of the area and - 2 - much needed communication and for the said project lands came to be acquired by due process of law by the State Government. As the land of the petitioner along with some other plots were found to be Khas Mahal land, not in the possession of the original lessees, the State Government vide a notification/communication dated 13.3.2007 informed the Collector, Munger that the Government has decided to resume the lands indicated in the communication, for the purpose of the project in question. Holders of the lands including this petitioner were asked to vacate the same. Since they refused to heed to the request of the State Government or the district authority, a proceeding under Public Land Encroachment Act was initiated not only against this petitioner but against other land holders as well. Objections came to be filed. The so called documents and the evidence claiming right, title and interest over the lands were produced before the Circle Officer, Munger. The matter was heard on several dates and finally one of the impugned orders contained in annexure-1 came to be passed directing eviction of the petitioner from the piece and parcel of the land. It was held by the Circle Officer that since the petitioner was not the original lessee of the Khas Mahal land in question as also the sale, purchase and alienation was without due information and permission of the State Revenue Authority, the sale deed which is in favour of the mother of the petitioner will not give right, title and interest in favour of the petitioner. - 3 - Petitioner not being satisfied with the said order filed a statutory appeal before the Collector, Munger and the Collector, Munger has also rendered his decision which is contained in annexure-2 and is also subject matter of challenge in this writ application. Learned counsel representing the petitioner submits that no doubt it was a Khas Mahal land but it is a fact that the same was bought through a registered sale deed way back in the year 1967 and the house in question has been constructed after getting the map and the sanction plan approved by the Municipal authority and even holding tax is being paid for a long period of time. The petitioner therefore has acquired a right. In the alternative it is also urged that in view of the said hostile possession the petitioner’s property must be acquired by the State Government under the Land Acquisition Act and at least compensation be paid since the petitioner has no other residential house or property. Learned counsel for the petitioner tried to fortify his submission relying on a decision rendered in the case of Smt. Sushila Srivastava & Others vs. State of Bihar & Others along with other analogous cases reported in 2000 ( 1) PLJR 301. In the said case the Court after considering the given facts that the State Government/Patna Administration Committee (PAC) later known as Patna Municipal Corporation (PMC) had settled the shops and the lands in question by registered deeds many decades - 4 - ago and even if the lease had expired they could not be thrown out by use of force. Recourse to law has to be taken. This position was held not only in the case of original lessee but even the sub-lessee. Learned counsel representing the State, however, submitted that neither the fact nor the law as rendered in the case of Smt. Sushila Srivastava (Supra) has any application in the present case. In the above case the petitioners were sought to be dispossessed by force and were the original lessees or the sub- lessees, whose rights are well recognized under the law. But in the present case it is an admitted position that the lessee of the Khas Mahal land had clandestinely sold the leased property in favour of petitioner’s mother without any permission, information or approval of the competent authority. Merely because they have been in occupation of the property for a long period of time, it cannot be said to have created a right, as was the case of a lessee or sub-lessee alone. Petitioner’s status is of a rank trespasser at the most. Since it is a public land whose right, title and interest still vests in the State of Bihar, a proper proceeding under the Public Land Encroachment Act had been initiated and opportunity of hearing given. The Circle Officer committed no wrong in directing removal of the encroachment from the public land. That position has also been affirmed by the Collector in his order contained in annexure-2. Learned counsel for the respondents/State further submitted that in the light where a proper legal proceeding had - 5 - been initiated and orders having been passed against the petitioner, no interference is required by this Court under Article 226 of the Constitution of India. Learned counsel also submitted that the prestigious rail-cum-road bridge over river Ganges located at Munger is being delayed and held to ransom by such persons who have no legal right to occupy and obstruct the completion of bridge in time. In fact, there is already cost over run due to such delay and litigations. Learned counsel for the State further relied on a decision rendered in the case of Dr. Kunal Hazari vs. The State of Bihar & others, 2007(3) PLJR 673 wherein on a detailed consideration of similar issues the Court has categorically held that in absence of Collector’s permission for construction of multi storeyed Complex over Khas Mahal land which was a condition precedent the construction was held to be illegal and therefore amenable to demolition. The Khas Mahal land and its settlement is a self contained Code. Yet another decision brought to the notice of this Court is Rajat Nath Sinha &others vs. State of Bihar &others, 1993 (2) PLJR 348 with regard to the “Government Estate” i.e. Khas Mahala which has been described as follows:- “16. “Khas Mahal” is what is known in English as „Government Estate‟. This aspect of the matter has been considered by this Court in Bhola Ram Chaudhary and others vs. State of Bihar and Others, 1989 PLJR 920, in the following words:- “Let us therefore examine whether Khas Mahal was/is intermediary. What is, therefore, Khas Mahal ? The word „Khas Mahal‟ is nothing but what is known in English as „Government Estate‟. That is defined in the Khas Mahal as - 6 - follows:- “Meaning of Government estates”:- The term Government estates is used to mean estates under the direct management of Government whether these are the property of Government or are the estate of private individuals brought under the direct management of Government. It may also mean any land which is the property of Government and as such would include estates owned by Government which have been let in farm and leased for periods and also the waste lands but would not include lands belonging to other departments of Government, e.g. road-side lands, so long as they are not relinquished by the department concerned to the Collector for management. This manual unless it so appears from the context, deals with the principles, policy and procedure for Khas management of estates under the direct management of Government.” From the above there can be no difficulty in appreciating that Khas Mahal is nothing but Government Estate. It is the Estate of the Government. Since it is Estate of the Government, it cannot be a Zamindari. Not being a Zamindari a Khas Mahal cannot vest in the State of Bihar. It has always been in the State of Bihar itself.” 13. The State therefore for the purpose of management of this Estate under it has issued executive instructions commonly known as “Bihar Government Estate Khas Mahal Manual” which deals with principles policy and procedure of such management. It also provides for the manner in which such leases are to be granted, the terms and conditions of such lease, the grant of approvals and permissions under such leases in different areas, the nature of user permitted and prohibited the consequences of such breach, renewal, resumption thereof etc. Rule 14 of this Manual read as follows:- “What constitutes Town Khas Mahals:- Town Khas Mahals consist of urban lands not used or likely to be used for agricultural purposes. They are governed by the Transfer of Property Act and not by the Tenancy Acts except where lands though not used for non-agricultural purposes now were originally leased to raiyats who have subsequently acquired occupancy rights. Particular care is necessary in the case of these lands not merely to safeguard the pecuniary interest of Government but also to prevent the erection of undesirable and insanitary structures which would be discreditable to Government as landlord.” Rule 170 (1 ) (i ) and (iv ) of the Khas Mahal Manual reads as follows:- “170. Conditions of grants:- (1 ) In addition to any other conditions, which the circumstances of a particular case may demand or which may be settled in a particular case, all transfers of immovable property shall be made expressly on the following conditions:- - 7 - (i ) That the property shall be liable to be resumed by Government if it is not used, or ceased to be used for the specific purpose for which it is granted or if it is used for any other purpose either in addition to or in substitution for that purpose; (iv ) that if the property is resumed under the terms of the grant for a breach or non-observance of conditions of that grant, the grantee shall not be entitled to any compensation whatsoever for the land or for the buildings or other structures erected by him on the land, but he will be at liberty to remove the materials of any such buildings or structures within a specified time, failing which he shall cease to have any right to such buildings or structures or the materials thereof.” It is urged that since the Revenue Authorities of the State of Bihar have already issued an order resuming the Khas Mahal land in question of the petitioner along with similar other lands, which is not a subject matter of challenge then by no stretch of imagination the petitioner can be permitted to only challenge the proceeding which has culminated in annexures- 1 and 2 and have been initiated under due process of law of the land. To sum therefore the position as it stands in the present case is that the petitioner is neither the original lessee nor sub-lessee of the Khas Mahal in question. Since he has acquired interest in the land without any authority of law or permission of the competent authority of the State Government, which if at all is in breach of the rule and the guidelines issued by the State Government in this regard, it cannot be said that the petitioner has right under the law which is required to be protected in an application filed under Article 226 of the Constitution of India. Any application filed by the petitioner under Article 226 of the Constitution of India must establish breach of constitutional or - 8 - statutory right, which the petitioner has failed to establish before this Court The law and the facts being what they are and with no infirmity in the reasonings given by the Circle Officer as well as the Collector, nonels volens the petitioner has to suffer the consequence of the governmental decision including annexures 1 and 2. The present writ application has no merit and it is accordingly dismissed. RPS (Ajay Kumar Tripathi,J.)