Neha Sharad vs State Of Jharkhand And Ors

The present case is taken up through video conferencing.

The present writ petition has been filed for quashing the notice dated 15.06.2020 issued by the respondent no. 2 under Section 3 of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 (in short "the Act, 1956") in Encroachment Case No. 02 of 2020-21 (Annexure-7 to the writ petition) whereby the power of attorney holder of the petitioner has been directed to remove the alleged encroachment from a piece of the land measuring an area of 10 decimals pertaining to plot no. 09, khata no. 50, Mouza- Namkum, Thana no. 214, P.S.- Namkum, District- Ranchi, as according to the petitioner, the said part of the land is a raiyati and is not a public land.

Learned counsel for the petitioner submits that the land appertaining to plot no. 9, khata no. 50, khewat no. 2/1 in Mouza- Namkum measuring a total area of 2.24 acres was originally recorded in the Cadastral Survery Record of Rights as "Gair Mazarua Malik". The then landlord namely Babu Balkishun Sahu made permanent settlement of the aforesaid land to Babu Bipin Chandra Kushari by way of registered indenture and put him in possession thereof. At the time of vesting, the ex-landlord-Babu Balkishun Sahu submitted return in terms of provisions of the Bihar Land Reforms Act, 1950 wherein the plot in question was shown to have been settled to Bipin Chandra Kushari who used to pay rent to the landlord in respect of the aforesaid land. After vesting, the name of Bipin Chandra Kushari was entered in Register-II and he started paying rent to the State Government. Upon death of Bipin Chandra Kushari, his sons namely Krishna Kushari and others inherited the said property and their names were mutated in the office of the respondent no. 2. They had been paying rent to the State Government and the last rent receipt was issued by the office of the respondent no. 2 on 15.04.2011 for the year 2011-12. Santosh Kumar Kushari and others, sons of Krishna Kushari, made an application before the respondent no. 2 for correction in Register-II and for deletion of wrong entry in Register-II. The said application was registered as Misc. Case No. 02(VIII)/11-12. The respondent no. 2 vide order dated 08.07.2011, while allowing the prayer made on behalf of Santosh Kumar Kushari and others, made recommendation for correction in Register-II in respect of entry in page no. 115/I relating to Khata no. 50/118. Santosh Kumar Kushari and others being sons of Krishna Kushari as well as another legal heir jointly sold an area of 4 Katha 3 Chhatak 33 sq.feet (equivalent to 7 decimals) being portion of plot no. 9, sub-plot no. 9/7 Khata no. 50, khewat no. 2/1 in village-Namkum by way of registered sale deed dated 29.07.2013 for a consideration of Rs. 4,00,000/- to the petitioner and put her in possession thereof. Thereafter, the respondent no. 2 allowed the mutation of the said land vide Mutation Case No. 2314R27/2013-14 in favour of the petitioner and issued a correction slip.

It is further submitted that the petitioner granted a registered power of attorney in favour of Ram Ashish Tiwari for dealing with the land in question and on the basis thereof, the present writ petition has been filed by the power of attorney holder of the petitioner. The petitioner has been paying rent to government and rent receipts have been issued in her favour in respect of 7 decimals of land being portion of plot no. 9 under Khata no. 50 in village-Namkum for the year 2019-20 and 2020-21. However, the respondent no. 2, in exercise of power as a Collector under Section 3 of the Act, 1956, issued a notice dated 15.06.2020 (received on 10.07.2020) to the power of attorney holder of the petitioner asking him to appear before the said respondent on 02.07.2020 and to file show cause as to why encroachment over an area of 10 decimals of land in plot no. 9 under khata no. 50 in village- Namkum be not removed. It has also been mentioned in the said notice that if he fails to appear at the time and place mentioned in the notice, the matter would be decided in his absence. It is thus submitted by the learned counsel for the petitioner that issuance of impugned notice dated 15.06.2020 by the respondent no. 2 is illegal and without jurisdiction.

Mr. Gaurav Abhishek, learned A.C. to A.G., submits that on perusal of the writ petition, it appears that the petitioner vide registered sale deed dated 29.07.2013, has purchased 7 decimals of land, however the impugned notice dated 15.06.2020 has been issued to the power of attorney holder of the petitioner for an area of 10 decimals situated under the concerned plot and khata. Hence, there may be a possibility that the petitioner has encroached public land to the extent of 10 decimals over and above the land measuring an area of 7 decimals purchased by her. Since the factual issues are required to be considered by the respondent no. 2 pursuant to the notice dated 15.06.2020, the petitioner should appear before the said respondent with the relevant documents.

Having heard the learned counsel for the parties and on perusal of the content of the writ petition, I am of the view that the impugned notice dated 15.06.2020 has been issued by the respondent no. 2 under Section 3 of the Act, 1956 calling upon the power of attorney holder of the petitioner to appear in the land encroachment proceeding so as to satisfy that the alleged encroachment of land made by her is not a public land. Since the factual plea taken by the petitioner as detailed hereinabove are required to be considered by the respondent no. 2 in the concerned encroachment case i.e. Encroachment Case No. 02 of 2020- 21, I am not inclined to entertain the present writ petition on merit. The petitioner is directed to appear before the respondent no. 2 and file reply with supporting documents within a period of four weeks from today. On receipt of the said reply, the respondent no. 2, after providing due opportunity of hearing to the power of attorney holder of the petitioner and on verifying the relevant records, shall pass appropriate order expeditiously in terms with the provisions of the Act, 1956. Till an appropriate order is passed by the respondent no. 2, no coercive action shall be taken against the petitioner in land Encroachment Case No. 02 of 2020-21.

The writ petition is accordingly disposed of with aforesaid observation and direction.