CIVIL WRIT JURISDICTION CASE No.9586 OF 1993 ---------- In the matter of an application under Articles 226 and 227 of the Constitution of India ----------- RAJ KISHORE SINGH son of late Ram Saran Singh, resident of village Cheran, P.S. Harnaut, District Nalanda presently residing at the house Situated over plot no. 140, Thana No.250, Khata No. 171 Mauza Rupaspur Circle Harnaut in the district of Nalanda …..Petitioner. Versus 1. THE STATE OF BIHAR 2. The Collector, Nalanda. 3. The Deputy Collector Land Reforms (DCLR), Nalanda 4. The District Engineer, District Board, Nalanda 5. The Deputy Development Commissioner-cum- Chief Executive Officer, Nalanda 6. The Circle Officer, Harnaut in the district of Nalanda. 7. Zila Parishad , Nalanda through the Deputy Development Commissioner-cum-Chief Executive Officer, Biharsharif …….Respondents. --------- For the petitioner : Mr. Anjani Kumar, Advocate For the respondent: No.4,5 & 9 Mr. Awadhesh Pd. Sinha, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA B.P. Verma, J Heard Mr. Anjani Kumar, learned counsel appearing on behalf of the petitioner and Mr. Awadhesh Pd. Sinha, learned counsel appearing on behalf of respondent Zila Parishad, Nalanda and its functionaries. However, no one appears on behalf of State of Bihar and its functionaries. 2. The petitioner has approached this Court by filing the present writ petition under Articles 2 226 and 227 of the Constitution of India, questioning the validity and legality of the order dated 25.8.1993(Annexure-5), passed in Encroachment Case no. 14 of 1991 (Zila Parishad, Nalanda Vs. Raj Kishore Singh) by respondent District Collector, Nalanda, in exercise of his powers under Section 11 of The Bihar Public Land Encroachment Act, 1956 (in short „Act‟), whereby the aforesaid appeal filed on behalf of the respondent Zila Parishad was allowed and the order dated 10.9.1992 (Annexure-4) passed by the respondent DCLR in Encroachment Case No. 1 of 1990-91 has been set aside. The petitioner has been directed to remove his encroachment made on the land bearing Plot No. 140, appertaining to Khata No. 171, Situate at Mauja Rupaspur, District Nalanda, (referred to as the land in question) within a period of 15 days. The short facts relevant for disposal of the present proceeding are enumerated as follows: 3. On the basis of a report dated 22.8.1990 submitted by Zila Parishad, Nalanda that the petitioner has made encroachment over a plot of land bearing Plot No. 140 appertaining to Khata No. 3 171 situate at village Rupaspur, a proceeding under Section 3 of the Act was initiated by respondent DCLR, the Collector under the Act. On receipt of notice, the writ petitioner submitted his show cause taking a plea that land in question was settled in favour of one Shri Sarjug Singh, the uncle of the petitioner, on 24.5.1946 and he paid the prescribed rent till the year 1960 to the Zila Parishad. After considering the materials and on hearing the parties, respondent DCLR, without recording a finding of fact as to whether the land in question is a public land or not under the meaning of the Act, dropped the said proceeding by his order dated 10.9.1992 (Annexure-4). Respondent Zila Parishad, being aggrieved by the aforesaid order dated 10.9.1992 (Annexure-4), preferred an appeal before the District Collector, Nalanda in terms of Section 11 of the Act, giving rise to Encroachment Case No. 14 of 1992. The aforesaid appeal has been allowed by the impugned order dated 25.8.1993 (Annexure-5) and the land in question has been held to be a public land belonging to the Zila Parishad and the petitioner has been directed to 4 remove encroachment within 15 days. 4. Learned counsel appearing on behalf of petitioner submits that as a matter of fact by a resolution dated 24.5.1946 the District Board, Patna settled an area measuring 34‟ x 15‟ at Harnaut-Chandi road @ Rs. 4 and 8 anna per annum in favour of one Shri Sarju Singh. He also submits that by another resolution No. 27 dated 29.5.1948 (Annexure-2) of District Board, Patna, the land settled in favour of Shri Sarju Singh was identified and was said to be lying in front of a pond. The petitioner has brought on record the rent receipts issued by the District Board, Patna from 1947 to 1960, as Annexure-3 series. It was contended that after death of aforesaid Sarjug Singh, the petitioner has inherited the aforesaid property, being his nephew. Therefore, according to the learned counsel the land in question cannot be termed as a public land, under the meaning of the Act. 5. Learned counsel appearing on behalf of respondent Zila parishad and its functionaries has strongly opposed the prayer made on behalf of the petitioner in the present proceeding. He has supported 5 the impugned order passed by the respondent District Collector and has placed his reliance on the averments made in the counter affidavit filed on behalf of respondent no.4 and 5, the functionaries of Zila Parishad, Nalanda. Learned counsel for the respondents has further submitted that as a matter of fact the land encroachment proceeding was started with respect to plot no. 140 of village Rupaspur in the district of Nalanda under the provisions of the Act and petitioner has completely failed to show that plot no. 140 was ever settled either in favour of Sarju Singh , the uncle of the petitioner, or in his own favour. According to him, neither document at Annexure-1, nor document at Annexure-2 shows that plot no.140 was ever settled in favour of aforesaid Sarju Singh. He has specifically contended that as a matter of fact, the land in question was never settled in favour of Sarju Singh or the petitioner. He has drawn the attention of the court to the averments made in paragraph 3, 4, 5 and 6 of the counter affidavit, where it has been specifically asserted that the lands of plot No. 140 was never settled to the petitioner or his fore-father. In order to 6 appreciate the assertion made on behalf of the respondent Zila Parishad and its functionaries, Paragraph, 3, 4, 5 and 6 of the counter affidavit are reproduced herein below: “ 3. That according to paragraph no.5 of the writ application in which it has been stated that on 24.5.1946, it was resolved in the ordinary meeting of the District Board to settle the land measuring 34‟ x 15‟ situated in the last mile of Harnaut and Chandi Road in front of Kazi House at Harnaut Bazar but later on it has been described in paragraph 5 is not the same land for which the land encroachment proceeding has been started due to the fact that in the said resolution there is no mentioned of plot no, khata no. or boundary and the land encroachment case has been started in plot no.140 therefore, the plot no.140 was never settled with the petitioner”. “4. That with regard to the paragraph 6 of the writ application it is being stated that in Annexure-2 of the writ application it is clear that the Board‟s approval was granted for the land lying in front of pond which is not plot no.140. It is also cannot be attached with plot no.140 as there is no khata no. or plot no. neither any boundary finds place in Annexure-2 of the writ application”. “5. That with regard to the statement made in para no. 7 of the writ application it is stated that Annexure-3 series has been attached with the writ application which does not disclose the 7 plot number, khata no. or anything by which it can be suggested that the land in question was ever settled in the name of Babu Sarju Singh”. “6. That fore-father of the petitioner, namely, Babu Sarju Singh never came in possession even an inch of land of plot no.140 at any point of time.” 6. On the basis of these pleadings, learned counsel for the respondents has submitted that the land in question is a public land under the meaning of Section 2(3) of the Act and the petitioner is having no legal right over the same, and , therefore respondent District Collector was fully justified in directing the petitioner for removal of encroachment made by him over the land in question. 7. After having heard the parties at length, this Court finds that as a matter of fact, the encroachment proceeding was started with respect to plot no.140 situate at village Rupaspur and the petitioner has not been able to show/prove his right and title over the land in question. On perusal of Annexures-1 and 2, this Court further finds that there is no materials to show that Sarju Singh, uncle of the 8 petitioner, was settled any portion of land of plot no.140. On the basis of order dated 24.5.1946 (Annexure-1) an agreement was required to be signed by the parites for settlement of the land in question. The petitioner has not produced any such agreement either before the original authority or before the appellate authority or before this Court. The agreement could have shown the identity of the land and the period for which settlement was made in favour of aforesaid Sarju Singh. In absence of such an agreement, it is difficult to hold that Sarju Singh, uncle of the petitioner, was ever settled any portion of plot no.140. The petitioner has also not brought on record any document to show that settlement even on the basis of annexure-1, was for perpetuity. 8. Respondent District Collector has rightly noticed the fact that if any settlement would have been made in favour of Sarju Singh, uncle of the petitioner, or any deed would have been executed in his favour, then that would have been for a prescribed period under the mandate of Section 106 and 107 of the Transfer of Property Act, 1882. Obviously, no 9 lease deed has been brought on record by the petitioner in support of his claim over the land in question. 9. In absence of any valid document showing the right and title of the petitioner over the land of plot no.140, the land in question has rightly been held to be a public land and the petitioner has rightly been held to be an encroacher over the public land under the meaning of the Act by the respondent District Collector. This court does not find any legal infirmity or procedural irregularity in the order dated 25.8.1993 (Annexure-5) passed by the respondent District Collector. Consequently, the writ petition has to fail. It is, accordingly, dismissed but without costs. The interim order of stay passed by a Bench of this Court on 28.11.1993 stands automatically vacated., 10. However, the petitioner, if so advised, may file a title suit before a civil court of competent jurisdiction for getting his right and title decided, on the basis of alleged settlement by virtue of Annexure-1 and 2. If such a suit is filed, then that shall be decided in accordance with law on its own merit without being prejudiced by the present order of 10 dismissal of the present writ petition. Patna High Court The 17th May, 2011 Rahman(NAFR)/ ( Birendra Prasad Verma, J.)