Thursday, October 31, 2013

Circular silent on protection of gomala land, tanks

The Karnataka government issued a circular to all the regional commissioners and deputy commissioners to demarcate village boundaries and protect government land including Gomala and tank bed almost two-and-half years after the Supreme Court’s order instructing chief secretaries of all the states to protect government land.

The circular was issued on June 14 this year, a week after an activist Kalidas Reddy filed an RTI application seeking measures taken on the SC directive. However, the circular which was issued after much delay does not speak about the mechanism to file complaints and check their status. Also, it is silent on protecting the Gomala lands, mainly in urban areas which are up for grabs.

The Division Bench of Justices Markandey Katju and Gyan Sudha Misra in their January 28, 2011 ruling in the Jagpal Singh and others versus the State of Punjab and other cases  - had noted that the village panchayats had kept common land reserved for the benefit of public since time immemorial.

The judges had noted, “These public utility lands in the villages were for centuries used for the common benefit of the village residents, such as ponds for various purposes, to drink and bathe their cattle, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards and more. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas or Gram Panchayats.”

However, even after two-and-half years of the order, no measures were taken to implement the order. In the circular, the Revenue Department principal secretary has asked the regional commissioners, deputy commissioners and tahsildars to verify records pertaining to the Form-9 of the Revenue Department. 

Certifying boundaries
In the event of certifying the village boundary (Grama Thana Pradesha), the tahsildar must demarcate the boundaries. Any violations of the regulations must be dealt with sternly, the circular stated.

Though the judgement also dealt extensively on the protection of water tanks, stating they must be protected at any cost, the circular makes no mention of any survey in this regard.


Copyright 2008, The Printers (Mysore) Private Ltd.

Deccan Herald - October 31, 2013

Tuesday, October 29, 2013

Banwari Lal Sharma vs. Union of India & Ors., LPA 858/2004

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : DELHI LAND REFORMS ACT, 1954
Date of Reserve : 14.02.2013
Date of Decision : 28.05.2013
LPA 858/2004

BANWARI LAL SHARMA           ..... Appellant
Through: Mr. P.S. Bindra, Advocate.

Versus
UOI & ORS                ..... Respondents
Through: Mr. Sumit Bansal with Mr. Ajay Monga and Mr. Ateev Mathur,
Advocates for Resp-5.
Ms. Latika Choudhary, proxy for Mrs. Avnish Ahlawat, Advocate for
GNCTD.
Mr. Ajay Verma, Advocate for DDA.
Mr. Gaurang Kanth, Advocate for MCD.

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

HON’BLE MR. JUSTICE S.RAVINDRA BHAT
1. The present Letters Patent Appeal challenges the judgment and order dated 04.08.2004 of the learned Single Judge, whereby CM Nos. 370/04 and 3467/04 in WP(C) No. 959/99 and WP(C) No. 892/04 and 906-69/04, filed by the Village Sahoorpur Extn. Residents Welfare Association (the fifth Respondent here), were disposed of. It is contended that the effect of the impugned judgment is to suspend and reverse the judgment and order dated 11.11.2003 of another learned Single Judge in WP (C) No. 959/99.

2. The relevant facts are that WP (C) No. 959/99 was filed by one Shri Banwari Lal Sharma (the appellant herein) who resides in Village Sahoorpur, Mehrauli. He alleged that the land comprising Khasra no. 92 in the village had been illegally encroached upon. His contention was that the land in question, had been transferred to the Forest Department in the year 1988. The alleged encroachers were not impleaded in the writ petition originally. The petitioner sought a direction to the respondents (Union of India and the State authorities concerned), to remove the unauthorised occupants on the said land and to develop and maintain the same as a wild life sanctuary. Based on two notifications (dated 09.10.1986 and 03.11.1987), the learned Single Judge concluded that the land had not vested in the Forest Department, but was to be used by the Gaon Panchayat for maintenance and development of forest and trees or any other work of public utility for the purposes of Delhi Land Reforms Act, 1954. Accordingly, the learned Single Judge, vide judgment and order dated 11.11.2003, allowed the writ petition and directed the Development Commissioner of the Department of Forests to remove the encroachment and to ensure that the land is utlilized for forest and trees or for public utility within a period of four months. An application (CM No. 370/04) was thereafter filed by the appellant herein, seeking that the direction in the order dated 11.11.2003 should be complied with. The application was disposed of by order dated 14.1.2004; a direction restraining any construction on the site was made; the Development Commissioner was directed to demolish all existing structures on the land within one week. Another application (CM 3467/04) was filed pointing out to the Court that other writ petitions (WP (C) No.892/04 and 906-69/04) were filed by the fifth respondent herein, wherein an order against demolition and dispossession had been secured. It was then directed that both the writ petitions be taken up together. This was done on 04.08.2004 when the Court directed that the order dated 11.11.2003 passed in WP(C) No. 959/99 be suspended for a period of six months for a decision on whether the colony is to be regularized or not. Therefore, this appeal hasbeen preferred.

3. In an earlier order this Court had, on 19.07.2005, directed that before taking a decision regarding regularization, it was also necessary to decide about the permissibility of the use of land upon regularization. Through other orders, this Court issued directions for investigations in relation to the area in and around the Sahoorpur Extension colony. The report of The Economic Offences Wing was also made part of the record, which apparently vindicates the stand of the appellant herein.

4. In October 2004, the Government of NCT of Delhi issued a public notice inviting applications from the welfare associations to be regularized. The fifth respondent submitted an application. Thereafter, a list of 1432 unauthorized colonies was prepared by the Government of NCT of Delhi, where the fifth respondent’s colony was at serial no. 1030. In October 2005, the Director of Authorized Colonies Cell filed an affidavit where he stated, inter alia, that the Government of India had issued revised guidelines on 10.2.2004 by which the cut-off date had been extended from 31.3.1993 to 31.3.2002.

5. The appellant’s counsel urged that the impugned judgment proceeded on the erroneous presumption that the petitioners in WP (C) No. 959/99, WP (C) No. 892/04 and WP (C) No. 906-69/04 agitated for a common cause and were represented by a common counsel and that the prayer in CM 3467/04 was for extension of time to carry out the mandate of the order dated 11.11.2003 till WP (C) No. 892/04 was disposed of. It was submitted that the learned Single Judge could not have overridden the previous direction to clear encroachments. It was also submitted that the investigation report had clearly revealed that the lands which are sought to be regularized are public in nature and character, and have to be maintained as open places or parks. Diversion for any other purpose would be contrary to the Master Plan, and contrary to Article 14 of the Constitution of India.  

6. Counsel for fifth respondent relies on the Master Plan of Delhi – 2021 which has been notified; it contemplates regularization of both private and government land. Specifically, counsel relied on:
“In all unauthorized colonies whether on private or public land, regularization should be done as per the government orders issued from time to time. It must be ensured that for improvement of physical and social infrastructure, the minimum necessary/feasible level of services and community facilities are provided.”
It was also pointed out that the Union Cabinet in its meeting held on 8.2.2007 approved a proposal for regularization of unauthorized colonies in Delhi. It is also submitted that the official respondents have issued a provisional regularization notification, after which the matter is beyond controversy.

7. This Court notices the Provisional Certificate of Regularization dated 17.9.2008, by which it was recorded that the fifth respondent’s unauthorized colony fulfilled the requirements of Clause 4 of the Regulations for Regularization of unauthorized colonies in Delhi, (notified by the Government of India vide notification no. S.O. 683 (E) dated 24.03.2008 and amended by notification NO. S.O. 1452 dated 16.06.2008). Such provisional regularization was made final by the order dated 04.09.2012 of the Urban Development Department of the Government of NCT of Delhi.

8. Counsel for the fifth respondent submitted that their colony had been regularized in terms of the order issued by the state government, and as such there is nothing left to be decided in the appeal, especially since there is no challenge to the policy of regularization or the order doing the same. Reliance was also placed on the provisions of the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011, the earlier version of which had been in force since December 2007. This version will remain in force till 31.12.2014. Counsel pointed out Section 3(2) which requires status quo to be maintained in respect of unauthorised colonies which came into existence in Delhi before 31.3.2002. He contended that section 3(2) acts as a bar for courts to direct dislocation of such colonies. Their colony at Sahoorpur has been in existence at Khasra no 92 since December 1990 (as per the Application for Regularisation that was submitted and found to be in compliance with the requirements of Clause 4 of the Regulations for Regularisation of Unauthorised Colonies in Delhi).

9. The relevant provisions and extracts from the Statement of Objects and Reasons of the 2011 Act are reproduced hereunder:

“The National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011: WHEREAS there had been phenomenal increase in the population of the National Capital Territory of Delhi owing to migration and other factors resulting in tremendous pressure on land and infrastructure leading to encroachment or unauthorised developments which are not in consonance with the concept of planned development as provided in the Master Plan for Delhi, 2001 and the relevant Acts and building bye-laws made thereunder; ***
AND WHEREAS based on the policy finalised by the Central Government regarding regularisation of unauthorised colonies, village abadi area and its extension, the guidelines and regulations for this purpose have been issued;
AND WHEREAS in pursuance of the guidelines and regulations necessary steps are being taken for regularisation of unauthorised colonies which, inter alia, involve scrutiny of layout plans, assessment of built up percentage existed as on the 31st day of March, 2002, identification of mixed use of streets, approval of layout plans, fixation of boundaries, change in land use and identification of colonies not eligible for regularisation; 
*** Provisions of the Act:

3. (1) Notwithstanding anything contained in any relevant law or any rules, regulations or bye-laws made thereunder, the Central Government shall before the expiry of this Act, take all possible measures to finalise norms, policy guidelines, feasible strategies and make orderly arrangements to deal with the problem of encroachment or unauthorised development in the form of encroachment by slum dwellers and Jhuggi-Jhompri clusters, hawkers and urban street vendors, unauthorised colonies, village abadi area (including urban villages), and its extension, existing farm houses involving construction beyond permissible building limits and schools, dispensaries, religious institutions, cultural institutions, storages, warehouses and godowns used for agricultural inputs or produce (including dairy and poultry) in rural areas built on agricultural land, as mentioned below:

(a) orderly arrangements for relocation and rehabilitation of slum dwellers and Jhuggi-Jhompri clusters in the National Capital Territory of Delhi in accordance with the provisions of the Delhi Urban Shelter Improvement Board Act, 2010 and the Master Plan Delhi Act 7 of for Delhi, 2021 to ensure its development in a sustainable, planned and humane manner; 2010.

(b) scheme and orderly arrangements for regulation of urban street vendors in consonance with the national policy for urban street vendors and hawkers as provided in the Master Plan for Delhi, 2021;

(c) orderly arrangements pursuant to guidelines and regulations for regularisation of unauthorised colonies, village abadi area (including urban villages) and its extension, as existed on the 31st day of March, 2002, and where construction took place even beyond that date and up to the 8th day of February, 2007;

(d) policy regarding existing farm houses involving construction beyond permissible building limits; and

(e) policy or plan for orderly arrangement regarding schools, dispensaries, religious institutions, cultural institutions, storages, warehouses and godowns used for agricultural inputs or produce (including dairy and poultry) in rural areas built on agricultural land and guidelines for redevelopment of existing godown clusters (including those for a storage of non-agricultural goods) required to cater to the needs of the people of the National Capital Territory of Delhi;

(f) orderly arrangements in respect of special areas in accordance with the Building Regulations for Special Area, Unauthorised Regularised Colonies and Village Abadis, 2010 within the overall ambit of Master Plan in force; and

(g) policy or plan for orderly arrangements in all other areas of the National Capital Territory of Delhi in consonance with the Master Plan on its review.

(2) Subject to the provisions contained in sub-section (1) and notwithstanding any judgment, decree or order of any court, status quo- (i) as on the 1st day of January, 2006 in respect of encroachment or unauthorised development; and

(ii) in respect of unauthorised colonies, village abadi area (including urban villages) and its extension, which existed on the 31st day of March, 2002 and where construction took place even beyond that date and up to the 8th day of February, 2007, mentioned in sub-section (1);

(iii) in respect of special areas as per the Building Regulations for Special Area, Unauthorised Regularised Colonies and Village Abadis, 2010; and

(iv) in respect of all other areas within the National Capital Territory of Delhi as on the 8th day of February, 2007, shall be maintained.

(3) All notices issued by any local authority for initiating action against encroachment or unauthorised development referred to in sub-section (1), shall be deemed to have been suspended and no punitive action shall be taken till the 31st day of December, 2014. If—

(a) it is construed prior to the dates specified for different areas as enumerated in sub-section (2);

(b) it conforms to the safety standards as in force or such other safety requirements as may be notified by the Central Government; and

(c) it complies with the directions with respect to safety, if any, issued by the Central Government”  Provided that in case punitive action is required to be taken by any local authority, prior approval of the Administrator of the National Capital Territory of Delhi or the officer authorised by him in this behalf, shall be obtained by the authority or officer concerned.

(4) Notwithstanding any other provision contained in this Act, the Central Government may, at any time before the 31st day of December, 2011, withdraw the exemption by notification in respect of encroachment or unauthorised development mentioned in sub-section (2) or sub-section (3), as the case may be.

4. During the period of operation of this Act, no relief shall be available under the provisions of section 3 in respect of the following encroachment or unauthorised development, namely:-

(a) encroachment on public land except in those cases which are covered under clauses (a), (b) and (c) of sub-section (1) of section 3; (b) removal of slums and Jhuggi-Jhornpri dwellers, hawkers and urban street vendors, unauthorised colonies or part thereof, village abadi area (including urban villages) and its extension in accordance with the relevant policies approved by the Central Government for clearance of land required for specific public projects.”

10. Counsel for the appellant urged that the regularisation was illegal. It was even urged that the provisions of the 2011 Act should not be enforced by the court as the same are contrary to provisions of the Constitution. However, no specific challenge has been made to the Act. Learned counsel relied on various judgments: Jagpal Singh & Ors. v. State of Punjab, AIR 2011 SC 1123; Hinch Lal Tiwari v. Kamla Devi & Ors., AIR 2001 SC 3215; T.N. Godavaraman v. Union of India, 1997 (3) SCC 775; M.C. Mehta v. Union of India, 1997 (3) SCC 715; M.C. Mehta v. Kamal Nath, 1997 (1) SCC 388; M.C. Mehta v. Union of India, 1996 (8) SCC 462; M.C. Mehta v. Union of India, 1996 (4) SCC 351; Milk Producers Association, Orissa v. State of Orissa, AIR 2006 SC 3508.  

11. The cases cited do not assist the appellant’s case. There is no dispute that the land was to be used for some public utility, or for maintenance and development of forest and trees. This is apparent from the report filed in court, pursuant to orders made in the appeal. However, the executive decision to regularise the encroachment of the land had already been made. The regularization was done in accordance with the existing policies. The Court is conscious of the fact that at the stage when the appellant had approached this Court with the writ proceeding, the enactment which is now pressed into service by the respondent was not in existence. Rather than take a nuanced decision about such matters, the official respondents appear to have proceeded to regularize the existing colony, on public lands, meant to be used as parks or for recreational purposes, and in any event maintained as a green area. That the colony came up, and was regularized later, is a matter fact. Whilst the necessity to ensure green spaces and open areas cannot be undermined, yet the need to balance the needs of the city’s populace which has exploded is a constant and daily challenge to policy makers. The Court, as the protector of citizens’ rights, and the organ of state to ensure governance accountability, can no doubt issue directions where there is breach of binding legal norms. However, when the state grants a moratorium from action or affords immunity to those who have occupied such public spaces unauthorizedly, the court cannot proceed to direct enforcement of its orders if they conflict with such legislation. 

12. Here, Section 3 (2) enjoins that no action can be taken towards demolition or eviction of lands “notwithstanding any judgment, decree or order of any court,” and that status quo as on 1-1-2006 “in respect of encroachment or unauthorised development”; and (status quo) “in respect of unauthorised colonies, village abadi area (including urban villages) and its extension, which existed on the 31st day of March, 2002 and where construction took place even beyond that date and up to the 8th day of February, 2007, mentioned in Section 3 (1)” is mandated.  

13. The State had decided, in the present case, based on the relevant factors, that the colony was to be regularised. The decision of the government has admittedly been made pursuant to the Regulations relating to regularisation of Unauthorised Colonies in Delhi. In the absence of any specific challenge to the Act or the Regulations, which preclude action by the court, the relief claimed in this appeal cannot be granted. The appeal must therefore fail, and is consequently dismissed.

 Sd/-
 S. RAVINDRA BHAT
 (JUDGE)

 Sd/-
 SUDERSHAN KUMAR MISRA
May 28, 2013 (JUDGE)











When nature plays arbiter

M J Antony, Business Standard
July 16, 2013

Mountains and buildings have been tumbling down this season, raining deaths in thousands. Environmentalists have we-told-you-so explanations, religious oracles have their own take on it and the law speaks of the doctrine of "Act of God", though God has little to do with this man-made legal fiction. But one thing is sure, flouting laws and regulations have much to do with these calamities.

The courts have frequently dealt with unauthorised constructions built by rapacious contractors with little regard to architecture or civil engineering. Hotel industries have diverted rivers, tourism projects have come up mid-river and within coastal regulation zones. Residential colonies thrive where old maps show rivers in blue lines.

One such judgment delivered last week by the Supreme Court reviewed the problem once again before ordering the demolition of a restaurant on the Periyar river in Kerala (Association for Environment Protection vs State of Kerala). Usually the courts appear to hesitate to send bulldozers to a completed structure. The tendency of the authorities and the courts is to accept the fait accompli and regularise the violation by compounding it with a fine. But there are rare exceptions.

In this case, there were government orders that prohibited the structure on the river bed, famous for holding Shivratri. Those regulations were bypassed by the Department of Tourism. It did not refer the issue to the environment committee fearing an adverse order. The Supreme Court remarked that "the subterfuge employed by the district promotion council and the Department of Tourism has certainly resulted in violation of the fundamental right to life guaranteed to the people of the area under Article 21 of the Constitution." The high court was also blamed for allowing the structure in a cryptic order.

Normally, the court invokes the fundamental rights of citizens to clean air and water in such environment cases. However, in this case, the court took a detour and invoked the doctrine of public trust. This principle has come into prominence recently in the judgments referring to oil, gas and coal blocks, air waves and spectrum. The doctrine enjoins upon the government "to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of a few." Even if there is no legislation to cover a specific situation, the court has held that the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. This judgment thus emphasises further the rights of the citizens and the corresponding duty of the government.

This accent on public trust is important for future projects. Last year, in another demolition order, the Supreme Court painted a grim picture of planned development. In Dipak Kumar vs Kolkata Municipal Corporation, the court stated that "the common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by people entrusted with the duty of preparing and executing master plans. Reports of demolition of hutments belonging to poor and disadvantaged sections of society frequently appear in the media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storeyed structure raised by economically affluent people...The failure of the state apparatus to take prompt action to demolish such illegal constructions convinced the citizens that planning laws are enforced only against the poor and all compromises are made by the state machinery when it is required to deal with those who have money power or unholy nexus with power corridors."

In another case, Jagpal Singh vs State of Punjab, the government regularised possession of common village land by encroachers. The court reversed it, observing that "we are of the opinion that such blatant illegalities must not be condoned. Even if they have built houses on the land they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularising such illegalities must not be permitted." In the case, M I Builders vs Radhey Shyam, the court ordered the reconstruction of a park after demolition of a shopping complex. In the case, Friends Colony Development Committee vs State of Orissa (2004), the court held that even where the law permits compounding of unsanctioned constructions, such compounding should be only by way of an exception. The court ordered the demolition of a tourism complex since it violated coastal regulations.

These are some cases that travelled up to the Supreme Court. Many illegalities are compounded or explained away by subordinate courts that have the power to order demolition. The offenders have deep pockets and do not hesitate to flex muscles in various ways. They also gamble with repeated appeals, expecting luck at some stage of the legal pyramid. But nature does not wait for court decisions. Impatient, it dons the cap of the arbitrator and wreaks revenge.


Wednesday, October 23, 2013

Khushi Ram Vs. State , W.P. (C) 5823/2013 & CM Appl. 12824/2013


IN THE HIGH COURT OF DELHI
W.P. (C) 5823/2013 & CM Appl. 12824/2013

Decided On: 13.09.2013

Appellants: Khushi Ram
Vs.
Respondent: State

Hon'ble Judges/Coram:
Manmohan, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Mr. Pushpender Singh Dahiya, Adv.
For Respondents/Defendant: Ms. Ferida Satarawala, Adv.

Subject: Property

Disposition: 
Petition dismissed

Case Note:
Property - Maintainability of petition - Whether petition petition seeking stay of ejectment order was maintainable or not - Held, no document had been placed on record to show that Petitioner had been declared to either be a Bhumidhar or a person in adverse possession - No document showing allocation of land to S had been placed on record - Petition dismissed.

JUDGMENT

Manmohan, J.

1. Present writ petition has been filed primarily seeking stay of the ejectment order dated 16th April, 2013 passed by the Revenue Assistant with regard to the land in Khasra No. 37/16 situated in the Revenue Estate of Village Mubarakpur Dabas, Delhi. Since the impugned order is short one, the same is reproduced herein below:

The proceedings in the case were initiated against the respondents for occupying Gram Sabha land and restrained orders were issued on 17/6/2011 to the respondents for not making unauthorized constructions on Gram Sabha land in khasra nos. 37/16 (1-01), Mubarakpur Dabas. It was also indicated in the restrained order that respondent will file fresh petition which will be disposed off within three months of the receipt of petition as per orders of Hon'ble High Court in the case of Nafe Singh & Ors. V/s. GNCT of Delhi & Ors.
In response to the above order respondents appeared before my predecessor and undersigned from time to time and submitted written submission in this regard. During proceedings Sh. S.K. Sangwan, counsel for Gram Sabha filed written submission claiming the land as reserved for kabristan by the Gram Sabha. Sh. S. Chaturvedi Advocate for respondent no. 5 objected to the nature of land and stated that status land is Khatte for garbage pit belonging to the proprietors of the village and also stated that there is a notification issued by Secretary Revenue, Delhi in this regard. Asked to file the documentary evidence in support of his claim, Sh. Chaturvedi filed a copy of khatoni for the year 1964-65 to 1968-69 in Urdu translated copy in English claiming that land was owned by Sh. Nafe Singh & Ors. On perusal of khatoni it was seen that 37/16(1-01) was indicated as 'Gair Mumkin Gadde'. Copy of notification as claimed above was not filed. In the hearing on 8.4.2013 Sh. Chaturvedi has not filed any written statement or documentary evidence in support of his claim and stated that he has already confirmed no concern with the khasra no. 37/16(1-01) as such there is no requirement of filing of such statement/documentary evidence. The other respondent in the case has already confirmed the same facts that they have no concern with the land in khasra no. 37/16 (1-01).

Further in the restrained order dated 17/6/2011, petitioners in the case of Nafe Singh and Ors. were directed to file fresh petition to dispose the same within three months of the filing of petition. From the record it reveals that the fresh petition is not filed yet.

In view of the above facts, I, Krishan Lal, Revenue Assistant (Rohini) therefore, order that the respondents stand ejected from the suit land and Gram Sabha Mubarakpur Dabas is directed to take over the possession of the said land.

Learned counsel for petitioner contends that the petitioner has been in adverse possession of the said suit land for the last two hundred fifty years. He states that the aforesaid land had been earmarked as garbage pit and was granted in the name of Mr. Sukhbir Singh who in turn executed an agreement to sell and general power of attorney in petitioner's favour.

2. However, no document has been placed on record to show that the petitioner has been declared to either be a Bhumidhar or a person in adverse possession. No document showing allocation of the land to Mr. Sukhbir Singh has been placed on record.

3. On the contrary, learned counsel for State of NCT of Delhi has today in Court handed over a Khatoni which clearly shows that land in Khasra No. 37/16 is Gram Sabha land. Learned counsel for NCT of Delhi states that petitioner is actually the owner of Khasra No. 37/14, who has encroached upon Khasra No. 37/16.

4. This court is of opinion that the petitioner has failed to place on record any document to show that he is the legal owner or authorised occupant of Khasra No. 37/16. The Supreme Court in Jagpal Singh and Ors. Vs. State of Punjab and Ors., MANU/SC/0078/2011 : (2011) 11 SCC 396 has held as under:

4. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with their original character, for personal aggrandisement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs.

xxxx xxxx xxxx

13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularising such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of the villagers of the village.

xxxx xxxx xxxx

23. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorised occupants of the Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show-cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. Regularisation should only be permitted in exceptional cases e.g. where lease has been granted under some government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.
(emphasis supplied)

Keeping in view the aforesaid mandate of law and the facts of the present case, present writ petition and application being devoid of merits are dismissed.

Order dasti under signature of Court Master.


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Moga village panchayat losing Rs 25 crore a year : Locals encroach upon 900 acres of jagir patti land worth over Rs. 250 cr in Charik village

PUNJAB SHAMLAT PLUNDER-2

Kulwinder Sandhu/TNS

Moga, October 21

In 1954, 900 acres of jagir patti land worth more than Rs 250 crore was declared surplus during the land consolidation drive. It was to be transferred to the panchayat in Charik village of the Moga district. But it never happened. Reason: The insensitive attitude of the revenue and panchayat departments which resulted in large-scale encroachments on this land by the locals.

Now, the panchayat has been left poorer and now holds only 8 acres 4 kanals and 10 marlas of shamlat land leased out for cultivation at a meager amount of Rs 1.59 lakh as per the figures of the last year. If the panchayat had got the possession of entire 900 acres land, then it would have been richer by Rs 25 crore per year by giving it on lease at the prevailing market rates.

No matter, the Vigilance Bureau initiated an inquiry into these encroachments giving a ray of hope to the panchayat for getting the ownership right, but it shattered when the inquiry was closed citing many complications.

A former patwari of the village, Paramjit Singh, told The Tribune that after consolidation, the ownership right of this land from the jagirdars was not transferred to the panchayat. So over a period of time people started encroaching upon this land. Some of them got it transferred on their names while a major portion of this land still stands on the names of the jagirdars and their family members despite the fact that they do not hold the possession anymore. The cultivating rights (girdawari) had been transferred on the names of the tillers.

Few years back, a resident of the village went to the court of district collector to remove the anomalies but finding it difficult to settle the dispute, the district collector-cum-deputy commissioner referred the matter to the civil court.

Not only this, many more cases of encroachments with legal complicacies over its ownership rights had also come up in the district. The state government and the district administration had almost failed to remove these anomalies.

A similar dispute cropped-up a few years back in Saleena village of the district. The then DDPO, Ranbir Singh Mudhal, in his report found that successive BDPOs of the Moga-II block failed to protect 108 acres of the village common land (grazing land) of this village, a major portion of which was sold to influential persons from time to time in the past 60 years. They failed to transfer the ownership rights of this land on the name of panchayat (grazing land), which led to encroachments. A section of the village residents had left this land for common purposes of grazing after the consolidation when this land was declared surplus by the government.

The DDPO forwarded his report to the director of panchayat department demanding departmental action against the successive BDPOs for their negligence and also suggested legal intervention to protect the panchayat property, but no action has been taken by the Directorate of Panchayat Department, so far.

Last year, the Supreme Court asked the DC to look into this matter, but the administration in a magisterial probe a few weeks back had maintained that the ownership rights of the disputed land were not transferred to the panchayat, therefore, it could not be considered as a common land. Moreover, the high court had also ruled in favour of the purchasers who bought this land from the family members of the actual owners who left if for common purposes.

However, at the same time the magisterial probe suggested that the panchayat department can move to the apex court against the high court’s decision for getting the ownership rights.

As per a report of the Revenue Department, former minister and senior Congress leader Avtar Henry, former MP Kewal Singh, a couple of former bureaucrats and some local leaders were presently cultivating this land and enjoying the ownership rights confirmed by the HC order, which was not challenged either by the village panchayat, probably due to political considerations.

Meanwhile, seven cases of encroachments on 5 acres and 5 kanals of land were pending before the Collector’s court. A dispute over alleged encroachment on 108 acres of grazing common land in Saleena village has not yet been settled by the department. A vigilance probe into the illegal sale of hundreds of acres of panchayat land at Charik village has also gathered dust.

DDPO Ravinder Pal Singh Sandhu, while claiming that the department has managed to remove encroachments from hundreds of acres of shamlat land in the villages during the past few years, said only seven cases of encroachments on 5 acres and 5 kanals of land were pending before his court.

The details of these encroachments are; 1 kanal 10 marla land in Bughipura village, 6 kanal 3 marla in Nathuwala Garbi village, 2 acre 4 kanal in Cheeda village, 1 marla in Badhni Khurd village, 1 acre 4 kanal in Nurpur Hakima village, 16 marla in Mastewala village and 4 kanal 4 marla land in Rajewala village.

“I have asked the BDPOs concerned to visit the spot and prepare a detailed report of these encroachments and send the report to his office so that legal action can be taken accordingly to evacuate this land from the encroachers,” he said.


© The Tribune Trust, 2012

http://www.tribuneindia.com/2013/20131022/main6.htm

Monday, October 21, 2013

Punjab’s well-connected usurp huge tracts of village land


SHAMLAT PLUNDER-I
The Tribune starts a series on illegal occupation of shamlat and panchayat land in the state


Balwant Garg
Tribune News Service

Faridkot, October 20

Not only shamlat and panchayat land, even sites to dispose of carcasses (hadda-rorie) are under illegal possession of influential persons in villages of this district.

Approach the villagers, and most have a story to tell. However, in official records only three acres of land is under illegal possession in the district. But residents cite innumerable instances of encroachment of panchayat land.

Officials concerned claim it is difficult to identify the land occupied illegally because the Revenue Department has yet to take the initiative of marking panchayat land, explained Gurmit Singh Dhillon, District Development and Panchayat Officer (DDPO).

Golewala village is deprived of “hadda rori” as supporters of a former sarpanch have raised a house on land earmarked for the purpose. A major portion of the village's prime panchayat land on the Faridkot-Ferozepur road has been under encroachment for the past several years. A part of this land has been used to raise houses.

On Beguwala road, 22 kanals and 2 marlas of the Golewala panchayat land has been with encroachers for a long time. Yet never has anybody raised a question on the matter, nor efforts made to vacate the land.

A vast tract of village common land, measuring over 10 acres in Laleana village of Faridkot is under illegal occupation. Houses have come up on the land illegally. In Dhilwan village, a family in possession of 20 kanals of common land stopped paying the annual lease money to the village panchayat about 10 years ago after resident close to the family became the village sarpanch. “All my efforts to recover the lease money proved futile,” claimed Darshan Singh, a former sarpanch.

In Gobindgarh village, eight acres of shamlat is in possession of a supporter of a Chief Parliamentary Secretary (CPS). Owing to the influence of this Akali leader, none dares to question the encroachment, say residents.

A huge portion of the common village pond in Pakhi Kalan village has been filled with earth to raise residential houses and cattle-sheds. While the village pond is on the verge of extinction, the village sees a flood-like situation every monsoon with no place for the rainwater. Ponds have been encroached upon in most villages, claimed Balbir Singh, sarpanch of Sibian village, Faridkot.

An ex-serviceman, Balbir Singh said the illegal practice was rampant in rurual are as government officials and village panchayats chose to remain mute spectators. After a major portion of the pond in Sibian village was encroached upon two years ago, Balbir Singh took up the matter with the authorities concerned, but to no avail.

Sibian village had four ponds spread over 12 acres of land. Now a major portion of these ponds are with encroachers. My efforts to erect a boundary around these ponds to check encroachment came to a naught with the Revenue Department failing to undertake demarcation of these ponds, he said.

In Kameana village of Faridkot, well-connected persons had been cultivating 32 acres of panchayat land by paying a paltry sum as lease money. Against the annual lease rate of Rs 30,000-Rs 35,000 per acre, they were paying just Rs 12,000 per acre.

But once RTI activist Kulwinder Singh exposed the wrongdoing, there was a sudden jump in the lease money, from Rs 12,500 to Rs 30,000 per acre per annum.

CHANDIGARH: Land mafia, politicians and even bureaucrats and others have encroached upon shamlat and panchayat lands, especially in the periphery of Chandigarh, and Punjab. The land fetches a very high price.

There are allegations that powerful politicians control panchayat and shamlat lands illegally in a number of villages near Mullanpur, which is now known as New Chandigarh. In these villages, the land price varies between Rs 1.5 cr and Rs 3 cr.

And this is not confined to the Chandigarh region. In Punjab, even village ponds and 'hada rories' (where carcasses of animals are disposed) are usurped. There are reports that illegally occupied panchayat and shamlat lands have been sold further at a premium. Government officials have shown their helplessness.

Grabbing huge chunks
  • In Gobindgarh village of Faridkot, eight acres of shamlat is in possession of a CPS supporter
  • In Golewala village , supporters of a former sarpanch have raised a house on land earmarked for disposing of carcasses
  • In Laleana, houses have been raised on the village common land, measuring over 10 acres
  • In Dhilwan village, a family in possession of 20 kanals of common land has stopped paying annual lease money to the panchayat
  • A huge portion of the village pond in Pakhi Kalan has been filled with earth to raise residential houses and cattle-sheds
© The Tribune Trust, 2012.

Friday, October 18, 2013

In Other Courts: Brij Mohan Mishra and Others v. State of U.P. and Others, Civil Misc. Writ Petition No. 5348 of 2013


Equivalent Citation: 2013(2)ADJ757, 2013 4 AWC3522All

IN THE HIGH COURT OF ALLAHABAD
Decided On:
Brij Mohan Mishra and Others
Vs
State of U.P. and Others
Hon'ble Judges/Coram: and, JJ.

Counsels:
For Appellant/Petitioner/Plain tiff: and
For Respondents/Defendant: C.S.C., and

Subject:

Acts/Rules/Orders:
Disposition:

JUDGMENT

1. We have heard Shri R.K. Ojha, learned counsel appearing for the petitioner. Learned Standing Counsel appears for the State respondents. Shri Navin Sinha, Sr. Advocate assisted by Shri P.C. Pathak appears for respondent No. 5. On a complaint made by Shri Prem Shanker Mishra, the cousin brother of the petitioners, proceedings were initiated against the petitioner for having illegally encroached on the village pond situate in Plot No. 611 /0-348 hects. in Village Dhania Mau. The Sub-Divisional Magistrate directed the complaint to be enquired. After taking measurements and receiving the report an order was passed by the Sub Divisional Magistrate, Badlapur, Jaunpur on 18th January, 2013 directing encroachments made by the petitioner, on the land recorded as pond to be removed giving rise to this writ petition.

2. Learned counsel appearing for the petitioner submits that the proceedings have been taken ex parte against the petitioner. No notice was given, nor any action was initiated under Section 122B of the UPZA & LR Act, which prescribes a procedure for eviction from the Gaon Sabha land including pond. The orders passed for demolition-and eviction will cause serious civil consequences. It is also stated that the orders have been passed in violation of the principles of natural justice.

3. Shri Navin Sinha on the other hand submits that the proceedings were actually initiated in the year 2010 on the complaint of Smt. Barfi Devi, President of Jal Prabandhak Samiti, Dhania Mau, Baksha, Teh. Badlapur, Jaunpur. Enquiries were made on the complaint on 5.4.2010 on which it was verified that Plot No. 611 area 0-3480 hects. in Village Dhania Mau, Block Baksha, Tehsil Badlapur, Distt. Jaunpur recorded as pond, has been encroached by the petitioners. On such verification directions were issued by the Addl. District Magistrate, Finance & Revenue, Jaunpur on 9.2.2010, after he also caused inspections on 8.2.2010, and verified the encroachment, to demolish the constructions made over the pond and to evict them.

4. Shri Navin Sinha submits that in the present case it is not denied that the plot in question is recorded as pond. It is also not denied that the petitioner have house adjacent to the pond and that he has made construction in the pond by raising pillars. The objections of the petitioner that they had constructed their house on the disputed portion of the land in the year 1945-50 is wholly misconceived in as much as no evidence whatsoever has been placed nor any objection was filed to that effect against the orders passed on 10.2.2010 and the orders challenged in this writ petition passed on 18th January, 2013.

5. In the present case it is not denied by the petitioner that the land in question is recorded as pond. The petitioner's house is adjacent to the pond and that there are constructions over the pond made by the petitioners.

6. The petitioner has made vague statement in para 9 of the writ petition that the constructions were made in 1945-50 prior to the date of vesting (when the Zamindari in the State of U.P. were abolished). He has not enclosed any document of proof, nor has he filed any objection before the Sub-Divisional Magistrate or the District Magistrate.

7. The Supreme Court in Hinch Lal Tiwari v. Kamala Devi and others, MANU/SC/0410/2001 : AIR 2001 SC 3215, held that ponds are part of habitat of the village. The water reservoirs repeatedly encroached by the villagers, raise important environmental issues, which must be addressed by discouraging and demolishing such constructions and restoring land to the common use by the villagers.

8. In Jagpal Singh and others v. State of Punjab and others, MANU/SC/0078/2011 : AIR 2011 SC 1123, the Supreme Court observed in paragraphs 16, 18 and 22 as follows:

16. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari v. Kamala Devi, MANU/SC/0410/2001 : AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan v. State of Tamil Nadu, MANU/TN/0660/2005 : 2005 (4) 9 CTC 1 Mad) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case.
18. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country.
22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorised occupants of Gram Sabha/Gram Panchayat/ Poramboke/Shamlat land and these must be restored to the Gram Sabha/ Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show-cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularisation should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.

9. In the present case we may observe that the petitioner has admitted that construction of his house over part of land, which has been recorded as pond. He has not challenged the extent of the encroachment nor has he questioned the complaint of encroachment made by his own family members. The order is challenged only on the ground that the constructions are existing since prior to the date of vesting. We do not find that there is any proof of the objection nor any such objection was raised before the competent authority.

10. The Zamindari was abolished in the State of U.P., with the date of vesting as 1st April, 1951. It is difficult to believe that since thereafter, if there were any constructions, on the pond, they were not recorded nor any effort was made to get such old constructions, if they were really old, to be so recorded or documented at any time. On the contrary the entry of the pond on the land has continued.

11. We are of the opinion that the plea that constructions are old has been taken only to avoid the demolition of the unauthorised constructions over the pond. There is no substance in the plea.

12. Before parting with the case, we may observe that the Division Bench of this Court in Prem Singh v. State of U.P. and others, MANU/UP/2176/2012 : 2012 (11) ADJ 404 (DB), has also issued directions in this regard as follows:
After the judgment of the Supreme Court in the case of Jagpal Singh and others v. State of Punjab and others, MANU/SC/0078/2011 : AIR 2011 SC 1123, followed by some other judgments, upon directions of this Court, the Commissioner-cum-Secretary, Board of Revenue, U.P. Lucknow has issued a circular dated 4th October, 2012. Para-1 of that circular simply refers to certain directions of this Court in a writ petition bearing number 6472 (M/B) of 2012 (On Prakash Verma and others v. State of U.P. and others) and judgments of the Apex Court including that in the case of Jagpal Singh's case (supra), but Para-2 is relevant for the purpose. The same runs as hereunder:




We have noticed that large number of similar writ petitions are being filed only for enforcement of law laid down in the case of Jagpal Singh (supra) and some subsequent judgments.
In view of direction noticed in the aforesaid circular, we are of the considered view that if complaints regarding unauthorised occupation over the public ponds or other similar public lands are received by the District Magistrate of a District, he should take all the required actions in view of law already settled in the case of Jagpal Singh and others.
In case, the District Magistrate finds some good reasons to seek guidance from the Members Committee indicated in Para-2 of the aforesaid circular, then he may refer the matter and seek guidance in appropriate cases.
So far as the present writ petition is concerned, we grant liberty to the petitioner to approach respondent Nos. 2 and 3 again with a certified copy of this order. The concerned respondents shall get appropriate inquiry made and take required action to protect public ponds as per law laid down by the Apex Court, expeditiously.
Let a copy of this order be furnished to the learned Standing Counsel for the State for communication to the Principal Secretary, Revenue, Government of Uttar Pradesh, who shall circulate a copy of this order to all the Divisional Commissioners as well as the District Magistrates so that number of such types of cases coming to this Court may be checked.
The petition is, accordingly, disposed of.
13. In this case on the admitted position that the petitioner has encroached upon the land recorded as pond, which were verified on the spot inspection by the ADM (F & R), Jaunpur on 8.2.2010, such constructions must be demolished and the pond restored to the villagers. The writ petition is dismissed.

© Manupatra Information Solutions Pvt. Ltd.







Bhola Saw and Ors. v. State of Jharkhand and Ors, W.P. (C) No. 765 of 2008 with W.P.(C) No. 865 of 2008 with W.P.(C) No. 877 of 2008 with W.P.(C) No. 878 of 2008 with W.P.(C) No. 880 of 2008 with W.P.(C) No. 867 of 2008

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (C) No. 765 of 2008
with
W.P.(C) No. 865 of 2008
with
W.P.(C) No. 877 of 2008
with
W.P.(C) No. 878 of 2008
with
W.P.(C) No. 880 of 2008
with
W.P.(C) No. 867 of 2008
---
Bhola Saw (WPC 765/08)
Enayatullah (WPC 865/08)
Shafiullah (WPC 877/08)
Mazhar Alam (WPC 878/08)
Bishndeo Ram (WPC 880/08)
Dinanath Mahto (WPC 867/08) --- --- --- ---- Petitioners

Versus

The State of Jharkhand & others (all cases) --- Respondents

---

CORAM: The Hon’ble Mr. Justice Aparesh Kumar Singh

For the Petitioners: Mr. Rohit Roy, Advocate
For the State: JC to SC (L&C)
---

05/ 21.12.2012 
These petitioners have come before this Court being aggrieved by the action of the respondents threatening demolition of their residential houses standing on a portion of Khata no. 471, plot no. 2347, village Chitrapur, District- Ramgarh, which according to them, is being made without resorting to any proceeding whatsoever or any order from any competent authority.

2. Petitioner Bhola Saw in WPC No. 765/08 and Mazhar Alam in WPC No. 878/08 are the descendants of Uttim Sahu and Badruddin Hasan @ Sheikh Badruddin Hasan respectively who claim to be settled 0.10 acres and 0.54 acres of land, by the Manager of Ramgarh Estate on payment of proper salami, in the year 1945 and 1941 respectively in the said plot being plot no. 2347 Khata No. 471 village Chitrapur. Petitioners Enayatullah in WPC No. 865/08, Shafiullah in WPC No. 877/08, Bishndeo Ram in WPC No. 880/08 and Dinanath Mahto in WPC No. 867/08 have been sold certain portions of land by the petitioner Mazhar Alam and his brother Zafar Alam in the year 1999.

3. Counsel for the petitioners submits that the plot no. 2347 in khata no. 471 village Chitrapur, thana Ramgarh, District-Ramgarh comprises 6.06 acres of Gairmajurua Khas land of Ex-landlord i.e. Ramgarh Estate. As stated herein above, Badruddin Hasan, father of Mazhar Alam and Uttim Sahu, father of Bhola Saw, were settled 0.54 and .10 decimals of land respectively by the Ex-landlord in the year 1941 and 1945 respectively. The annual rent was also fixed thereupon and it is claimed that the predecessor of these petitioners came into possession of the respective areas of the land settled in their favour by the Ex-landlord. It is further stated that after coming into force of Bihar Land Reforms Act, a demand was opened in the name of Badruddin Hasan and Uttim Sahu in Register-II and rent receipts were granted to them respectively from 1956 onwards. Badruddin Hasan had two sons namely Mazhar Alam, who is petitioner in WPC No. 878/08 and Zafar Alam and they are still paying rent to the State over the aforementioned land. Similarly,  rent have also been regularly paid by the predecessor of Bhola Saw and Bhola Saw himself after opening of the demand. It is further submitted on behalf of the petitioner Mazhar Alam that a proceeding was initiated for cancellation of the rent receipts at the instance of one Md. Shibli in the year 1959 itself and by order dated 8th April 1959, the Additional Collector, Ramgarh recorded that the rent receipt cannot be cancelled which is annexure-4 to the WPC No. 878/08. It is further submitted on behalf of the petitioner Mazhar Alam that Anchal Adhikari has issued four Basgeet Parchas under the Bihar Privileged Persons Homestead Land Act bearing case nos. 1/78-79, 2/78-79, 3/78-79 and 4/78-79 with respect to 9 decimal, 5 decimal, 9 decimal and 9 decimal of land respectively of plot no. 2347 khata no. 471 in respect of four landless persons. Counsel for the petitioner Mazhar Alam submits that once again, recommendation was made by the Anchal Adhikari for cancellation of Jamabandi running in the name of Badruddin Hasan and others with respect to the same plot and case no. 2/93-94/27/93-94 was initiated in which the learned Deputy Collector, Land Reforms, after perusing the entire documents of the affected parties, rejected the recommendation of the Anchal Adhikari, Ramgarh and confirmed the Jamabandi of Badruddin Hasan (Annexure-6 to WPC No. 878/08). According to the petitioner-Mazhar Alam, by various sale deeds, he and his brother Zafar Alam transferred 10 ½ decimals of said land to the various persons in the year 1999 who are also aggrieved and preferred the instant writ applications which are being heard and decided today, as indicated herein above by the Petitioners Enayatullah, Shafiullah, Bishndeo Ram and Dinanath Mahto respectively. It is the categorical case of these petitioners that before threatening to demolish houses and structures belonging to these petitioners, no proceeding under the Bihar Public Land Encroachment Act has been initiated and no order has been passed by any competent authority to carry out such demolition. Therefore, the impugned action are wholly illegal, arbitrary and in teeth of the well settled law that even an encroachment over the public land, cannot be removed except by the process of law as per the law of the land which, in this case, is governed by the Bihar Land Encroachment Act, 1956, if at all.

4. Respondent State have appeared and filed their counter affidavit in each of the respective cases. Their common case is that the petitioners have claimed settlement of their land on the basis of Sada Hukumnama followed by possession and issuance of rent receipt by the then Ramgarh Estate. It is further submitted on their behalf that the said piece of land being area of 6.06 acres of land is recorded in plot no. 2347 khata no. 471 as Gairmajurua Khas land of Exlandlord. The said land was notified as Bazar and even in Survey Map of 1909-10, the land is notified as Bazar and the land is entered as Sairat in Sairat Register. The sairat was previously under the jurisdiction of Anchal Office which has been transferred to Bazar Samittee which has constructed various structures and market shades for local traders. The lands have been usurped through subterfuge and encroached by these petitioners. Respondents have raised a question that the settlement of the land in question said to have been made by the erstwhile landlord is illegal. However, from the submission of the respondents and the averments made in the counter affidavit, it is not borne out that no proceeding under the Bihar Public Land Encroachment Act was ever initiated against these petitioners either against Bhola Saw, who claims to be descendants of Uttim Sahu who claimed settlement from the Ex-landlord and the petitioner-Mazhar Alam, descendant of Badruddin Hasan who also claimed settlement from the Ex-landlord. The rest of the four petitioners are previously transferee from the petitioner Mazhar Alam and his brother Zafar Alam of the plots settled in their name. Respondents although have referred to the statements made in para-17 of their counter affidavit in respect of another writ petition, but from the order annexed through I.A. No. 3555/08 in WPC No. 878/08 i.e. appellate order passed in Land Encroachment Case No. 38 of 2008 it appears that the said proceedings were initiated in respect of other person Yshrabi Fatima & others vs. State. Counter affidavit of the respondents is silent in respect of the specific statement made by the petitioners that no BPLE proceedings were initiated against these petitioners.

5. I have heard learned counsel for the parties at length and have gone through the relevant materials on record. From the facts narrated herein above, it is not in dispute that pursuant to some settlement made by the Ex-landlord, a demand was opened in the name of the ancestor of the petitioner-Bhola Saw and Mazhar Alam in the year 1946 after coming into force of Bihar Land Reforms Act and they have been continuously paying rent thereof. Proceedings were initiated for cancellation of jamabandi in respect of the land in question in the name of Badruddin Hasan and Uttim Sahu in the year 1994 which were however rejected by the order of the Land Reform Deputy Collector. These petitioners have continued to be in possession over the said piece of land which is described as Shariat by the respondents. However, from the facts which have been narrated herein above, it is obvious that no proceeding under the Bihar Public Land Encroachment Act, 1956 has ever been initiated against these petitioners or transferee from the petitioner-Mazhar Alam, as named herein above, for eviction from the land in question. It is well settled that in case of land being in the nature of public land, an order of eviction against the unauthorized occupant can be passed in a manner prescribed under the Act of 1956 after giving due notice and opportunity to the occupant to defend himself. Respondents appear to have taken steps by threatening the petitioners with demolition of their structures and houses existing over the land in question which the petitioners claim. The petitioners had therefore come before this court in anticipated action against the threatened breach of their rights.

6. In these facts and circumstances, it is observed that the respondents if at all are inclined to initiate proceeding affecting these petitioners, that can only be done in accordance with law, by initiating proceeding under the Bihar Public Land Encroachment Act, 1956 and after giving proper show-cause and notice to each of the affected persons. In these circumstances, respondents are restrained from evicting these petitioners without resorting to any proceeding under the BPLE Act.

Writ petitions are accordingly allowed in the aforesaid terms. I.A. No. 3555/2008 in WPC No. 878/08 also stands disposed of.

(Aparesh Kumar Singh, J)

Ranjeet/







Source:
http://jhr.nic.in/hcjudge/data/50-765-2008-21122012.pdf