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Judgment
Aparesh Kumar Singh, J.—By Court: Heard counsels for the parties.
These four petitioners came before this Court alleging unauthorized construction over portion of Plot No. 520, under Khata No. 138, Plot No. 527 under Khata No. 129 and Plot No. 522 under Khata No.26 situate at Mouza Ramgarh seeking interference of this Court and/or in the alternative for payment of compensation in lieu thereof. The petitioners independently claim title to the pieces of land on the basis of the statements made at paragraphs 5 to 11 relying upon photocopy of Khatian of the relevant Khata numbers of the year 1908 in the name of the original land holder through whom they claim descendance through independent family trees. Copy of the Genealogy of one Burwa Seikh was also annexed at Annexure-5. They had also alleged at paragraph-13 that the lands in question have not been acquired in any proceeding under the Land Acquisition Act nor any compensation paid. Through supplementary affidavit filed on 13th January, 2012 they enclosed a document provided under Right to Information Act being letter no. 426/2012 dated 10th May, 2012 issued by the District Animal Husbandry Officer, Hazaribagh which inter-alia gave the following information:-
"i. Building of pet Clinic is being constructed within the boundary of Veterinary Hospital, Ramgarh.
ii. Veterinary Hospital, Ramgarh was in existence for the last 50 years over a Government piece of land which has earmarked area and circled by barbed wire.
iii. In the campus of Veterinary Hospital, residence of employees of Animal Husbandry Department and other old structures are in existence since long and in possession of Animal Husbandry Department.
iv. Documents relating to Veterinary Hospital however were not available in the said office."
These petitioners thereafter filed their response to the first counter affidavit of the State on 01st April, 2013 enclosing a judgment dated 18th December, 1931 in Title Suit No. 207/1929 rendered by the Court of Additional Sub-Judge, Civil Court, Hazaribagh. The suit was instituted on 02nd June 1929. Petitioners claimed that the acquisition undertaken in terms of Section 50 of Chotanagpur Tenancy Act on the application of Kumar Kamakshya Narain Singh in Case No.1/1926-27 in respect of several plots of land which included Plot Nos. 522, 527 and 520 were declared to be null and void being collusive document and not binding on the plaintiffs namely Shahdul Mian and others. Petitioners in their reply filed on 27th January, 2014 to the supplementary counter affidavit of respondents dated 23 January, 2014 however, accepted that the areas mentioned in Plot Nos. 520, 526 and 527 were acquired to the extent of 56 decimals and 5 decimals respectively in the later two plots in L.A. Case No. 6/1940-41 vide notification dated 29th October, 1940 part of the counter affidavit of the respondents at page-79 of the records.
Learned counsel for the respondents Mr. Jai Prakash, learned A.A.G. in response has contested the claim of the petitioners, inter-alia, relying on the following facts and documents :-
(i) It is submitted on his behalf that the petitioners do not dispute that the Veterinary Hospital in question is in existence for more than 50 years as corroborated by the information furnished under RTI vide letter dated 10th May, 2012.
(ii) It is submitted by relying upon the documents enclosed to the counter affidavit dated 23rd January, 2014 (Annexure-B) being an application made by Kumar Kamakshya Narain Singh under Section 50 of the C.N.T. Act, 1908 that acquisition in respect of several plots including Plot Nos. 522, 527 and 520 totalling an area of 8.39 acres was allowed by the court of Deputy Collector, Hazaribag in Suit No.6/1923/24 vide order at Annexure-C dated 28th April, 1924 and possession thereof was also delivered, as evident from the order dated 20th October, 1924 being part of the order sheet at Annexure-D in the said Suit.
(iii) Learned Counsel for the State has also relied upon the notifications of 29th October, 1940 in support of the contention that an acquisition was made for Military Cantonment at Ramgarh. The judgment passed in Title Suit No. 207 of 1929 can in no way take away the acquisition made pursuant to the proceedings in Suit No. 6/1923-24 pursuant to which the Veterinary Hospital was constructed.
(iv) It is further submitted that simply because an acquisition in Case No.1/1926-27 ordered by the Deputy Collector, Hazaribagh in respect of several plots including those plot nos. 522, 527 and 520 have been annulled by the judgment dated 18th December, 1931 (Annexure-14 to the reply of the petitioners) that would not in effect annul any other acquisition made in respect of the said plots in an earlier proceeding of 1923-24.
(v) He has pointed out to the shifting stand of the petitioners as originally taken in the writ petition and thereafter in the rejoinder affidavit filed on their behalf.
(vi) Learned counsel for the State submits that taking note of rival pleas of the parties this Court was pleased to appoint a Pleader Commissioner vide order dated 15th July, 2016. The Pleader Commissioner''s report submitted thereafter was unequivocal in its finding that the property claimed by the petitioners falls within the campus of the veterinary Hospital. Therefore, petitioners cannot allege unauthorized construction of Pet Clinic within the campus of Veterinary Hospital, which exists since more than 50 years by now. The Map enclosed to the Pleader Commissioner''s report in red wash also makes it clear that the relevant Plot No. 527 and 520 are larger Plots, the entire portion of which does not come in the campus of the Veterinary Hospital. However, Plot No. 522 falls within the campus of the Veterinary Hospital and bounded by the National Highway (NH-33) on the Eastern side. Petitioners claim of title over the aforesaid piece of land and the possession thereof is in the realm of serious doubt. Therefore, on mere pretense no relief can be granted to them.
Learned counsel for the petitioners have filed an objection to the Pleader Commissioner''s report on 06th September, 2016. Petitioners have relied upon a proceeding of C.R.R Case No. 16/1994 conducted by the Circle Officer, Ramgarh in the matter of opening of Zamabandi in respect of some of the plots. Referring to the report enclosed thereto it is stated that in respect of plot no. 522 showing 0.79 Acres area, office of the Veterinary Hospital and some houses are situate on only 10 decimals of land while 0.69 decimals of land are indicated as vacant and not part of the acquisition made in L.A. Case No.06/1940-41. He however fairly submits that rent receipt issued up to 2015 in respect of plot no. 522 are without prejudice and would have no further bearing so far as the claim of title is concerned.
I have considered the submissions of the parties at sufficient detail and gone through the relevant materials on record. I have also gone through the Pleader Commissioner''s report submitted earlier in pursuance of the order dated 15th July, 2016.
Upon consideration of the submissions of the parties in the canvas of the aforesaid factual averments and documents relied upon by them the following facts and inferences emerge :-
In the first place all these petitioners claim themselves to be the descendants of one or the other persons, their ancestors in whose name lands described in copies of the Khatiyan annexed as Annexures- 1, 2 and 4 are shown to have existed as recorded in 1908. The genealogy of one Gopi Dusadh and Burwa Seikh have been annexed as Annexure -3 and 5 respectively. It can only be said in respect thereof that any title claimed by the petitioners on the basis of the entries recorded in the name of their ancestors in the year 1908 must have substantially undergone division one after the other amongst several co-sharers/ coparceners who are not before this Court. This in itself is a question mark on their solitary claim of title over the pieces of land in question.
These petitioners have relied upon the documents at Annexure-1, 2 and 4 respectively apart from the letter furnished under right to information dated 10th May, 2012, the judgment passed by learned Court of Additional Sub-Judge, Civil Court, Hazaribagh in Title Suit No. 207 of 1929 (Annexure-14 to their rejoinder) and the notification of 29th October, 1940 in support of their contention that the portion of the land described in the judgment dated 18th December, 1931 are not subject matter of acquisition claimed by the respondents-State. It is also their case that the documents relied upon by the respondents being order passed in Suit No.06/1923-24 are truncated documents. According to them, these documents being of doubtful character also lend support to their contention that there was no occasion for acquisition of the property again, in a proceeding for land acquisition as evident from the notification dated 29th October, 1940. They, therefore, have tried to set up that there was no acquisition on these pieces of land claimed by the respondents. Therefore, any construction made on those lands can only be said to be unauthorized in the eyes of law.
On the contrary on perusal of the documents on record, the existence of the Veterinary Hospital for more than 76 years by now is fortified simply by referring to the notification dated 29th October, 1940 being part of the counter affidavit dated 27th February, 2013 filed by the respondents. A mere description of the schedule of the property acquired for the purposes of establishment of a Military Camp in the village of Ramgarh shows that on the eastern side, the property was bounded by the Public Works Department road running from Hazaribagh to Ranchi, Veterinary Hospital, Circle Office and Forest Rangers Quarters of Ramgarh Raj. This fortifies the information furnished under the Right to Information Act to the petitioners also that the Veterinary Hospital existed for more than 50 years. What is conspicuous by absence in the documents relied upon by the petitioners as well as respondents is that none of the proceeding of Suit No. 6/1923-24 or that of Title Suit No. 207 of 1929 being judgment dated 18th December, 1931 contains the schedule of the property in question. This in fact had persuaded this Court to ascertain the real description of the area and the bound age of the property by directing inspection by the Pleader Commissioner vide order dated 15th July, 2016, relevant extract of which is quoted hereunder:
"4. During course of hearing of the case and upon consideration of the submissions made, it appears to the Court that much of the controversy would be perhaps resolved if physical inspection and report is sought for through the Court appointed Pleader Commissioner as to the exact area, description, boundary of the plot on which Veterinary Hospital is existing since last more than 50 years. Inspection would also reveal whether the piece of land claimed by the petitioners and subject matter of the present writ application, falls within the campus of the Veterinary Hospital or not? In order to have a correct picture of the actual physical site, this Court considers it proper to appoint a Pleader Commissioner. Accordingly, Mr. Rahul Gupta, learned Advocate of this Court, is appointed as Pleader Commissioner to undertake the aforesaid exercise with the aid and assistance of the survey knowing Amin. The Circle Officer, Ramgarh/competent authority of the district of Ramgarh would provide the services of survey knowing Amin to the learned Pleader Commissioner for undertaking physical inspection and measurement, etc. of the aforesaid piece of land. Mr. Rahul Gupta, learned Pleader Commissioner shall inform the counsel for the parties of the date and time of inspection to be made so that the respective parties or their representatives may remain present. Let the xerox copy of the relevant Revenue Records such as Khatian, Map of the said area be also made available by the Revenue Authority to the Pleader Commissioner, if possible, for the said purpose."
Learned Pleader Commissioner inspected the site in the presence of both the parties and undertook measurement of the campus of the Veterinary Hospital as well as taken photographs of the boundary wall and existing structure within the campus. He has also furnished a DVD containing recordings of the inspection. Findings recorded in the Pleader Commissioner''s report are being quoted hereunder:-
"a. The Vaterinary Hospital is situated on the Western side of the NH- 22 (Ranchi-Patna Highway) (Photograph no. 1)
b. On front side of the Veterinary Hospital (i.e on Eastern Side of the property) there is main gate at the center. However, apart from the main gate at the center no other brick built boundary wall on the Eastern side was found. There were only 2 pillars at the centers on which there is main gate. The front portion is bounded by wire as well as bushes. (Photograph no.1)
c. On the remaining three sides there is brick built wall which has been demarcated in the map attached herewith. The petitioners claimed that the wall does not belong to the Veterinary Hospital and major portion of the wall has been constructed by the Military. The officers of the Veterinary however claimed that the boundary wall on three sides (I.e South, West and North) was constructed by the State and is existing since last more than 50 years.
d. Towards first half of the Southern side of the Veterinary Hospital, there is a private property. There is an old boundary wall towards the Southern side of the Veterinary Hospital which separates the Veterinary Hospital and the Private property referred to above. (Photograph no. 14). Thereafter, on the balance Southern half (i.e towards South-Western side), entire Western side and entire Northern side there is a brick built boundary wall plastered with cement. (Photograph no. 5 ). It appears that Military Cantonment is situated on the South- Western part, Western side as well as Northern side of the Veterinary Hospital.
e. There are three very old structures facing the NH-33 i.e towards the Eastern side of the property. First structure which is on the left side from the gate is being used as an Officer of the Veterinary Hospital. Two other buildings are on the right side from the main gate. The extreme right old building is being used by a fourth grade staff of the Veterinary Hospital. One family is also staying on the back portion of the middle building. All the three buildings are situated on the plot no. 522. The said three buildings appear to be more than 50 years old. (Photograph nos.3, 4, 12, 13 and 15).
f. Behind the office there is a semi-constructed building, (i.e. the building which has given rise to the present dispute and hereinafter referred to as semi-constructed building). However, it seems that at present no construction work is being carried on. The said semi-constructed building is on plot no. 522 (Photograph no. 6).
g. Thereafter just behind the said semi-constructed buildings there is an old quarter which is being used by the staff of the Veterinary Hospital. The said old quarter is also in Plot no. 522. The semi-constructed building is between the first old building referred to above (i.e the office) and the old quarter being used by the staff. Thus all the three buildings i.e the Office, the semi-constructed building as well as the old quarter is in Plot no. 522. (Photograph no. 9 to 16).
h. There are two more buildings on the right side i.e. towards Northern side of the Veterinary Hospital. Both the buildings appear to be between eight to ten years old. One of the said two buildings is lying vacant whereas the other one is being used as District Dairy Development Officer, Ramgarh.
(Photograph no. 8 to 10).
i. The area falling withing the boundary (measured and shown in red wash in the map attached herewith) is 1 acre 89 decimals. Plot wise area within the boundary is as under:
i.
Plot no. 520
�
5 decimals
ii.
Plot no. 521
�
15 decimals
iii
Plot no. 522
�
69 decimals
iv
Plot no. 524
�
20 decimals
v.
Plot no. 525
�
5 decimals
vi.
Plot no. 526
�
40 decimals
vii.
Plot no. 527
�
35 decimals
Total
=
1 Acre 89 Decimals
j. The piece of land claimed by the petitioners falls within the Campus of the Veterinary Hospital (I.e if the area within the boundary wall on the Southern, Western and Northern side as well as the fencing by bush and wire on the Eastern side is treated to be the campus of Veterinary Hospital ).
I, thus conclude and submit my report to the Hon''ble Court."
The Map enclosed to the Pleader Commissioner report very clearly in red wash shows the bound-age of the campus of the Veterinary Hospital which includes portions of plot nos. 521, 526, 527, 524 and 522 in full. It is evident from perusal of the report that the proposed construction of Pet Clinic, which is in a semi construction stage, falls within this campus. Though the objection has been taken by the petitioners to the Pleader Commissioner''s report, but upon consideration thereof it cannot be said to be suffering from such errors or perversity which comments its rejection in totality.
What transpires from the discussions made herein above is that a Veterinary Hospital bounded by a particular campus existed there before 1940 indisputably. Petitioners or their ancestors at no point of time after 1931 seem to have made any objection to the existence of the boundary of Veterinary Hospital and the structure which came up thereupon from time to time. Through the pleadings and the documents relied upon by them in the instant writ petition they have also not been able to categorically show the exact schedule of the property, if any, claimed made by them by virtue of the decision dated 18th December, 1931.
In such Circumstances, the claim of title, ownership and possession over the area falling within the Veterinary Hospital campus, where the proposed construction of Pet Clinic was undertaken, is not fully established on the part of the petitioners. On the other hand, a prima facie opinion can definitely be drawn on the basis of materials on record as to the existence of the Veterinary Hospital and its campus from more than 50 years within which the construction of Pet Clinic has been started. Straightway therefore petitioners cannot seek to injunct the activity undertaken by the respondents to construct a Pet Clinic within the campus of the Veterinary Hospital, in a writ proceeding like this. Unless and until the petitioners are able to establish clear title, ownership and possession over the piece of land claimed by them, no writ or direction in the nature prayed for can be passed to restrain the respondents from carrying the proposed construction. However, it is open for the petitioners to establish their right, title and ownership over any such piece of land claimed by them in an appropriate proceeding before the competent court of law where such question of facts can be adjudicated upon adducing of oral and documentary evidences after giving opportunity to the affected parties. But on the plea raised by the petitioners in the instant proceeding, the respondents cannot be injuncted from undertaking the construction proposed. The relief, prayed for, is accordingly declined. However, it is made clear that the discussions and the observations made herein above would not act to the prejudice of the parties in any such proceeding before the competent court of law on the claim of title, ownership or possession of the property in question.
Writ petition is accordingly dismissed. The interim order dated 13th June, 2012 stands vacated.