IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7715 of 2009 DR.ASHUTOSH SHARAN s/o Dr. Shambhu Sharan, resident of Mohalla- Belbanwa, P.S. Motihari Town, at Motihari, District- East Champaran. Versus 1. THE STATE OF BIHAR through the District Magistrate and Collector, East Champaran, Motihari. 2. The Sub-divisional Magistrate, Motihari Sadar, Motihari. 3. The Land Reforms Deputy Collector, Motihari, East Champaran. 4. Ratnesh Mani Tripathi s/o not known to the petitioner described as State Representative, Bihar Pradesh Congress Committee, Sadaquat Ashram,Patna. 5. Sri Kanhaiya Prasad s/o not known to the petitioner, at present posted as Sub-divisional Magistrate, Motihari Sadar, Motihari- East Champaran. ----------- For the Petitioner : Mr. V.K.Kanth, Sr.Adv. & Mr. Mukul Sinha For respondent no.4 : Mr. Binay Kant Mani Tripathi For the State : Mr. M.K. Pathak,A.C. to S.C. 17 3 18.12.2009 Heard Mr. Vinod Kumar Kanth, learned Senior Counsel in support of the writ petition , Mr. Vinay Kant Mani Tripathi, learned Advocate appearing for private – respondent no.4 ( Ratnesh Mani Tripathi) and Mr. M.K.Pathak , learned counsel for the State and with their consents this application is being disposed of at this stage itself. By this writ petition, the petitioner challenges the order of the Sub-divisional Officer, Motihari ,by which purporting to under the provisions of Bihar Public Land Encroachment Act, 1950, he has virtually directed the eviction of the petitioner from the land, which was purchased by him and on which, being a Doctor he is constructing a Nursing Home. Mr. Vinod Kumar Kanth, learned Senior Counsel 2 submits that the very proceeding has initiated by the Sub-divisional Officer at the instance of the private- respondent is wholly without jurisdiction and if such action is permitted then the Sub-divisional Officer and an Executive would usurp the role of the Civil Court to settle such dispute. By the said impugned order, the Sub-divisional Officer, in a proceeding under the aforesaid Act, has held that the land which has been purchased by the petitioner and on which construction is being made by the petitioner is part of public land by virtue of being originally a part of a Public Religious Trust and as such public land within the meaning of Section 2(3) of the said Act and that being the position, petitioner purchased thereof and occupation of the same was illegal and unauthorized and as such he was liable to be evicted. Mr. Kanth challenges the said order primarily on the ground that so far as definition of „public land‟ as given in the said Act is concerned , it does not contemplate the land for use of religious purposes like a temple. So far as Hindu Religious Trust is concerned, there is a comprehension legislation , namely, Bihar Hindu Religious Trust, 1950 in which appropriate authorities have been created and conferred with power to determine the question specific. To that extent even if land of Public Religious Trust is covered under the definition of Section 2(3) in respect of Public Land under the Land Encroachment Act, the same stands excluded falling within the exclusive jurisdiction of authorities under the Religious Trust Act. He then submits that these are the questions ,which need decision as to 3 right, title and interest of parties in land and have to be decided upon elaborate evidences, which only can be done by a Civil Court if any private person intends to bring any action in that regard. The facts ,as appearing, are that in or about 1930 about 19 Katha 4 dhur of land was transferred by Motihari Concerned Limited to one Khem Chand Lal by registered sale deed. In 1943, 18 Katha 4 dhur of land was sold by the said Khem Chand Lal to one Narsingh Das Kejaria. On part of the said land , the said family established Shiv Temple and for management thereof established a family trust. In due course of time, several of the original trustees died and moved and as such in 1952 another trustee was drawn up. This time again, as in past, all trustees was just family members of Kejaria family. Again in 1978 a family trustee was formed when trustee was re- constituted and ultimately in 1984 when most of the original family members have ceased to exist a further trustee was executed by the family members in which authorities to settle land was also conferred on the trustee, so that the family deity would be duly worship and maintained. On 2.4.1991 the trust decided that it must take action for settling/selling the property of the trust to raise fund to maintain family deity. It may be mentioned that with the permission of the trustee and the family members, members of public ,at time, are permitted to worship the deity for their own salvation but no contributions are taken from the members of the public up keep of the said temple otherwise exclusively a family temple . It is not even the 4 order of Sub-divisional Officer that the temple is being maintained by public donation. Pursuant to decision taken, as aforesaid, the trustee in September, 1991 sold some 45 dhurs of land to the petitioner. Having purchased by registered sale deed, the petitioner was immediately confronted with a notice issued by the Bihar Religious Trust Board owning the said temple with all land therein. That was challenged by the petitioner before this Court in C.W.J.C.No. 1961 of 1992. Initially in this proceedings, parties joined also but thereafter Religious Trust Board took a stand that on enquiry it was found that it could not be termed as Public Religious Trust and it was accordingly de-notified . This action having been taken, the writ petition became infructuous in view of the findings of the Religious Trust Board itself and on 28.8.2004 the writ petition was withdrawn as infructuous. The controversy should have ended there but the private- respondent, who is an active worker of Congress Party suddenly took upon himself and moved the Sub-divisional Officer, Motihari, East Champaran with an application that the temple and the land is public land as it is a public Religious Trust and it has been unauthorisedly sold by the trustee to the petitioner and petitioner is thus unauthorisedly constructing thereon and should be stopped. Petitioner protested but by the impugned order, the Sub-divisional Officer has held the land to be public land within the meaning of Bihar Public land Encroachment Act, 1956 and thus held that the sale of land to the petitioner by the trustee was void as no permission was taken and the petitioner could not obstruct public rite on the said land 5 being public road of worship of public deity. Being aggrieved by the said, the petitioner is before this Court. Reliance is placed on a Constitutional Bench judgment of the Apex Court in the case of Bishan Das and others –v- State of Punjab & ors. since reported in AIR 1961 S.C. 1570 and in particular para 14 thereof. On the other hand, the private- respondent states that he is not a busy body rather he is a public representative . He had a right to move the Sub-divisional Officer and the order of Sub-divisional Officer is correct. It is not in dispute that the trustees of the trust are family members of Narsingh Das Kejaria family and not a single outsider, not even the private person is the trustee nor are any government official trustee therein. He further submits that the Bihar Hindu Religious Trust Board had no jurisdiction to de notify or withdraw the notification issued by it taking over the management of the Trust as a Public Religious Trust. On the other hand, he justified the order of Sub-divisional Officer as sitting in appeal over the statutory authority of the Bihar Hindu Religious Trust Board. Learned counsel for the State submits that the definition of „public land‟ is quite wide enough to include temple and the right to worship therein. Having considered the matter, in my view, the writ petition must succeed and the impugned order cannot be sustained. Public Land is defined for the purposes of public Land Encroachment Act, 1956, as follows: “2(3)- “public land” means any land vested in the Union 6 of India or the State of Bihar, or in any local authority [public undertaking,] educational institution recognized by the Government or by any University established under any law for the time being in force, railway company or Gram Panchayat established under Section 3 of the Bihar Panchayat Raj Act,1947 (Bihar Act VII of 1948), and includes any land over which the public or the community has got a right of user such as right of way, burials, cremation, pasturage or irrigation.” A reference to the said Section would show that „public land‟ means , firstly, land vested in either the Central Government or the State Government or local authority or public undertaking, educational institution recognized by any university, railway company or Gram Panchayat and any land over which the public or the community has got a right of user such as right of way, burial, cremation, pasturage or irrigation. What is significance is that it does not refer to „public road‟ of worship. In my view, it is so because so far as Public Religious Trust is concerned, the entire step in relation thereto was squarely covered by an exhaustive legislation, namely, Bihar Hindu Religious Trust Act, 1950 which was a pre existing legislation when Bihar Public Encroachment Act , 1956 was brought. Thus seen to position in law emergent one public land does not include within its Public Religious Trust and land belonging thereto and secondly if it is presumed to be a Public Religious Trust then it does not fall within the ambit of Land Encroachment Act but would be a subject matter of Bihar Religious Trust Act, if at all. On this 7 finding alone, the entire action taken by the Sub-divisional Officer became a nullity if wholly without jurisdiction. In that view of the matter , it is not necessary for me to decide other issue at all. Thus, the impugned order of the Sub- divisional Officer, Motihari dated 27.6.2009 passed in Land Encroachment Case no. 1/2009-10 is hereby quashed. Before parting, all I can do to quote in extenso para 14 of the judgment of the Apex Court in AIR 1961 SC 1570 :- “ 14. Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government , (2) that the petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government, the petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated . In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might Legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property. As pointed out by this Court in Wazir Chand 8 v. State of Himachal Pradesh, 1955-1 SCR 408 : (AIR 1954 SC 415), the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorizes their acts. In Ram Prasad Narayan Sahi –v- State of Bihar, 1953 SCR 1129 : (AIR 1953 SC 215), this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extra – ordinary action are, to quote what we said in Sahi‟s case (supra), remarkable for their disturbing implications.” The writ petition is allowed with cost of Rs. 50,000/- (fifty thousand) payable by the private- respondent. Singh (Navaniti Prasad Singh, J.)