ASHWANI KUMAR GUPTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ application is directed against order dated 28-8-1990 passed in Case No. 3 of 1989-90 by respondent No. 3, whereby and whereunder respondent No. 3 has passed final order under Section 6 of the Bihar Land Encroachment Act, 1956 (hereinafter to be referred to as "Act") directing the petitioner to vacate the land in question within 15 days from the date of order.

(2.) Short facts giving rise to this application are as follows :-Upon a public petition a proceeding under Section 3 of the Act was initiated against the petitioner and notice was issued to him to raise his defence. The petitioner pursuant to the notice issued under Section 3 of the Act appeared before the Collector under the Act and in the proceeding parties were heard and the petitioner in the proceeding had raised question of title with regard to the land in question of khata Nos. 237, 990 and 1050, appertaining to khasara Nos. 2258, 2256 and 2257, situate in the town of Ara. The petitioner contended before the Collector that the lands in question were settled in grant by the Crown land holder prior to 1925 free of rent in the names of Abdul Quadir, Rashid Ahmad, Mst. Bibi Zainal, Mst. Bibi Aisa and others.

(3.) Pursuant to the grant aforesaid, Khatian was prepared in the names of the grantees in the year 1925 and entries, accordingly, were made under Section 103 of the Bihar Tenancy Act (hereinafter to be referred to as "B.T. Act"). The petitioners thereafter purchased the lands in question from the recorded raiyats in the year 1943 and since then he is coming in peaceful possession of the same and his name has been recorded in the municipal records. While the petitioner was coming in possession of the lands in question, a public petition was filed on 18-7-1972 stating therein that the petitioner is in continuous encroachment of the lands in question and due to that, much inconvenience has been caused to public at large of Ara town. Pursuant to the public petition, a proceeding under Section 3 of the Act was initiated in Case No. 7 of 1972-73 and notices were issued to the petitioner and also to the petitioners, who had petitioned/before the Collector on 18-7-1972. Pursuant to notice, the petitioner appeared in the proceeding, but no one appeared on behalf of the applicants despite service of notices and the learned Collector under the Act having heard the submissions of the petitioner and seeing the documents held that the petitioner is the settlee of the land in question by virtue of the grant, as contained in Annexure 1 to the writ application, and, subsequent to that, there was a partition suit in between the co-sharers and the properties were partitioned according to the decree passed in Partition Suit No. 75 of 1928; therefore, it is not a case of encroachment upon the public land, and, accordingly, the case aforesaid was dismissed. However, the Collector under the Act observed that in case, it would be a khas mahal land, then the authorities will be at liberty to proceed in the matter in accordance with the provisions of Khas Mahal Manual. The order passed by the Collector was challenged in appeal by the State of Bihar and the appeal aforesaid was disposed of by remitting back the matter to the sub-divisional officer, Ara vide order, as contained in Annexure 6 and thereafter, the matter was again heard by the sub-divisional officer, Ara, and the impugned order was passed holding that the land in question is khas mahal land and the petitioner would be liable to be evicted under the provisions of the Act giving rise to this writ application.