IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12385 of 2009 1. SURESH CHOUDHARY, son of late Udho Choudhary. 2. DINESH CHOUDHARY, son of late Mauje Lal Choudhary. Both residents of village – Jayajpatti, P S and P.O. – Dalsingsarai, District – Samastipur. Versus 1. THE STATE OF BIHAR 2. The Collector cum District Magistrate, Samastipur. 3. The Circle Officer cum Block Development Officer, Dalsingsarai, Samastipur. 4. The Sub-Divisional Magistrate, Dalsingsarai, Samastipur. 5. The Union of India through the Chairman, Railway Board, Rail Bhavan, New Delhi. 6. The Divisional Railway Manager, East Central Railway, Sonepur. 7. ADEN (East) Eastern Railway, Barauni. 8. The Section Engineer (work/line), East Central Railway, Barauni. 9. The Superintendent (Railways), Dalsingsarai, Samastipur. 10. Vir Bahadur Choudhary, son of late Ram Baran Choudhary. 11. Naresh Choudhary, son of late Udho Choudhary. 12. Kaushal Kishor Choudhary son of late Mauje Lal Choudhary. Respondents 10 to 12 are residents of village Jayajpatti, P S and P. O. Dalsingsarai, District – Samastipur. ----------- For the petitioners : M/S. Nishant Choudhary and Anil Kumar Singh. For the Railways : M/S. N K Agrawal and Sandeep Jha. For the Intervenor : Mr. Chaudhary Shyam Nandan. For the State : S C – 1. -------- 04. 07/11/2009 An order passed by the Collector, Samastipur on 17.8.2009 in Encroachment Appeal No. 125 of 2008 (Annexure-15) which has affirmed the earlier order dated 26.6.2006 passed by the Circle Officer, Dalsingsarai in Land Encroachment Case no. 22 of 2005-06 (Annexure-7) are under challenge in the present writ application. By virtue of the two orders the respondent authorities have directed removal of the encroachment from the land in question which has been found to be belonging to the railway authorities. Some of the basic submissions which have been made at the bar by the learned senior counsel for the petitioners is that serious - 2 - question of title cannot be adjudicated upon in a summary proceeding like Public Encroachment Act. The forum in such matter would be a civil court of competent jurisdiction as petitioners have been living on the piece and parcel of land, in a house constructed on the same, for more than 5-6 decades. The finding arrived at by the Circle Officer as well as the Collector, Samastipur that the land belongs to the railways was in absence of any valid evidence brought about to establish the right, title in favour of the railway authorities. In the summary proceeding the evidence produced by the petitioners, like the rent receipts and the entry in Khatiyan is enough to dispel or dislodge the findings recorded against the petitioners. Some facts are required to be taken note of to understand the ambit of the dispute involved in the present writ application. The area in question is 66 decimals of land situated in Plot No. 58, Khata No. 58, in revenue Thana No. 73 located at Mouze Jayajpatti in Dalsingsarai sub-division. Petitioners’ stand is that in the cadastral survey the said land has been shown as gairmajrua khas which had been settled by the Ex-landlord namely, Babu Uma Shankar Prasad, in favour of the ancestors of the present petitioners. This was done prior to the vesting of the jamindari. The fact is also corroborated by grant of rent receipts in favour of Ragho Chaudhary and Awadh Chaudhary. The entry made in the cadastral survey khatiyan and the rent receipts have been annexed as Annexures 1 and 2 to the writ application. It is also stated that Ex-landlord Babu Uma Shankar Prasad - 3 - had submitted his Jamabandi return after vesting of the jamindari to the State of Bihar showing Ragho Chaudhary and Awadh Chaudhary as permanent settlee of the plot in question by taking najarana. Annexure-3 has been annexed with the writ application in support of the said pleading. One Gauri Shankar Chaudhary started having tiffs with the petitioners since they happen to be neighbours. The said Gauri Shankar Chaudhary alleged that petitioners are encroachers of a public land and he got a proceeding initiated under section 133 of the Code of Criminal Procedure before the court of Sub Divisional Magistrate. Later, he also decided to move the Circle Officer of Dalsingsarai for drawing up a proceeding under the Bihar Public Land Encroachment Act against the petitioners on the ground that the land in question belonged to the railways. But since nothing was done by the revenue authorities, the said Gauri Shankar Chaudhary filed CWJC No. 14353 of 2004. The writ application stood disposed of vide order dated 27.2.2006 with a direction that the matter will be looked into by the Circle Officer and decided in accordance with law. That is the origin of institution of Land Encroachment Case No. 22 of 2005-06. The proceeding was held, rival positions of the parties were placed before the Circle Officer and an order dated 26.6.2006 came to be passed against the petitioners by the Circle Officer, Dalsingsarai, which is annexure-7 to the writ application. Against the findings of the Circle Officer an appeal before the Collector, Samastipur was filed. The appeal was registered as Land - 4 - Encroachment Appeal No. 125 of 2008. Even in the appeal, for the reasons indicated therein, the petitioners lost and were directed to vacate the property in favour of the railways. Annexures-7 and 15 therefore came to be challenged in the present writ application. Since some of the contentions of the petitioners has been taken note of in the earlier part of the order, efficacy of the same will be tested later after taking note of the stand of the respondents i.e. the State authorities, the Railways and the intervener who is none else but Gauri Shankar Chaudhary. An I.A. No. 6205 of 2009 has been filed praying for impleadment of Gauri Shankar Chaudhary, in light of the origin of the present dispute. The Court allowed the I.A. vide order dated 7.10.2009. Counter affidavits have been filed on behalf of all these respondents. Counter affidavit on behalf of State authorities has been sworn by the Circle Officer, Dalsingsarai. They have seriously contested the stand of the petitioners, both on the question of fact and law. Their stand is that two impugned orders are based on sound reasoning and evidence. The primary evidence produced by the petitioners in support of their claim over the land are misplaced in view of the fact that the so-called malikana , rent receipts of 1948 filed by the petitioners are not valid since after 1.1.1946 no Jamindar had right to settle any land of any kind. The rent receipt has been issued much later in the year 1948. A glaring fact about the so-called rent receipt is that it neither bears the description of the land nor the bandobasti case number. What the two petitioners claim in annexure- - 5 - 1 as Khatiyan is not a Khatiyan but a Khesera Panji. The entry relates to the year 1895 and it is a rent free land given to the railways. It is also pointed out that name of the landlord indicated is one Maheshwar Babu and the nature of the land has been described as gairmajrua khas. The entry also indicates that some trees located on the said land like, Sisam, Mahua and Bargad were in possession of the malik at the time of cadastral survey. Under these circumstances, it cannot be said that the evidence produced by the petitioners are authentic documents establishing their right or settlement in their favour as is their case. The matter has been well inquired into, verified and based on the evidences, the two impugned orders have come to be passed. The stand of the railways is that the entry in the cadastral survey shown as Mahal Lekhraj and by nature as Parti Kadim. The word Parti Kadim means Kaisare Hind and the word Lekhraj means rent free land. Even according to annexure-1 the entry or the landlord shown is one Maheshwar Babu but it is not explained as to how settlement has been made by one Uma Shankar Singh. They also take a stand that merely because the petitioners have managed to hang on to the property for many a years it does not mean that they acquired a vested right. The land belongs to the railways and is required by the railways for various expansion programme as has been indicated in the counter affidavit. The pleading and submission of the intervener is in similar terms as the stand of the official respondents. He only reiterates the position and gives a narration of the origin which has culminated in - 6 - the two impugned orders. He also states that a Khesera Panji which is annexure-1 is not final evidence since it is not a khatiyan and once the land has been acquired by the railways, no ex-intermediary could settle it in favour of the any other person. Since the rent receipts itself are not authentic as it does not give the area, khata or khesera number. It does carry the signature of Collector. The settlement has been made in the month of May, 1948 but the printed receipt produced has been printed only on 22.11.1948 which by itself puts a question mark on the authenticity. Learned counsel for the petitioners relies on two decisions of this Hon`ble Court in the case of Smt. Rekha Singh and others vs. State of Bihar and others, 1992 (2) PLJR 854 and in the case of Smt. Uma Devi Sinha Vs. State of Bihar and others, 2001 (2) PLJR 587, on the ground that if there are serious contests with regard to the title, the same cannot be decided by the Collector and may be the remedy for the State, in such a situation would be filing of an eviction suit. The question for consideration for this Court is whether the said decisions have any applicability to the facts of the present case. Merely stating that there are serious question of title and raising a bogie may not be enough for the present case to come within the ambit of ratio decided in the two decisions. The petitioners have only put up a semblance of evidence in support of their stand that the land had been settled by the ex-intermediaries in favour of their fore- fathers and annexures 1, 2 and 3 have been pressed into service. But - 7 - as already discussed in the earlier part of the order, based on the statements made in the counter affidavits that there are gaping holes in the said documents. Like annexure-1 is only a khesera panji and not a khatiyan and that rent receipts don’t give any description of the area, khata number or the khesera number nor does it have the seal or signature of the revenue authorities like the Collector. Even according to the petitioners, the settlement had been made some time in the month of May, 1948 but rent receipt showing settlement has been printed on 22.11.1948 plus there is no dispute in law that no ex-intermediaries or Jamindars had power to settle their land after 1.1.1946, whereas the present settlement, if at all, relates to the year 1948. Sum essence of the above facts leads to only one conclusion that keeping the nature of the evidence in mind and the material which has been discussed both in the order of the Circle Officer as well as the learned Collector, there does not seem to be an error either in fact or law. If prima facie materials was available about the nature of the land, covered by the proceeding under the Land Encroachment Act, then the respondent State authorities have necessary powers to exercise. The findings are neither arbitrary or perverse and it requires no interference by this Court. The writ application has no merit and the same is dismissed. rkp (Ajay Kumar Tripathi, J)