HAFIZA KHATOON Vs. STATE OF BIHAR

JUDGEMENT

(1.) contained in Annexure-2, 3, and 5, by issuance of an appropriate writ. This writ application was admitted on 22nd December, 1982 and operation of the orders as contained in Annexures 2, 3, and 5 was also stayed. The Facts :

(2.) The petitioner assert that plot No. 1007 is a big plot consisting of 22 bighas 7 kathas 14 dhurs out of which only 11 bighas are utilised as Hat. The said land was recorded as Bakasht Malik. After 1940 Mahespur Raj went on settling small portions of lands out of this plot with different persons and in 1351 Bangla Sambat (1944) settled 3 kathas of land to the petitioner and granted a rent receipt to the petitioner. Even though the settlement was made with respect to 3 kathas of land the settled area was found to be, on measurement, only 2 kathas 8 dhurs. The petitioner paid rent to the ex-landlord for 3 kathas. Over the said land the petitioner had also built her pucca house. At the time of vesting of the Zamindari, the Ex-landlord, Maheshpur Raj, showed the petitioner as its raiyat. Thereafter the petitioner also paid rent regularly to the State of Bihar in regard to the land in question. Only in one of the rent receipt granted on 5th December, 1975, the area was mentioned as 2 kathas though in all rent receipts the area mentioned was 3 kathas. In 1951 Raj Maheshpur started holding a weekly Hat over plot Nos. 1007 and 1003 as it was considered that the Hat, which previously held on plot No. 1022 measuring 2 bighas 7 kathas 8 dhurs, was inadequate. Land Encroachment Case No. 17 of 1973-74, State v. Hafiza Khatoon, (the petitioner) was started by the Anchal Adhikari, Mahespur (Respondent No. 3). The petitioner was noticed as to why she should not remove an encroachment over 1 katha 12 dhurs of land of plot No. 1007 of village Maheshpur. The petitioner took up a defence without filing any show cause that the said land was settled with her by grant of receipt and that the land in question is not a public land. The petitioner also produced a number of rent receipts granted by the State of Bihar as also the earliest rent receipt granted by the ex-intermediary, a copy of which has been appended as Annexure-1 to this writ application. It further appears that a report was also submitted by the Anchal Amin supporting the case of encroachment. Respondent No. 3 examined the rent receipts filed by the petitioner and refused to place reliance on them on the ground that at times rent receipts were granted in respect of 2 kathas of lands and at times in regard to 3 kathas of lands whereas from perusal of Tenants' Ledger Register II, it appeared that 2 kathas of land only in the said plot has been entered in the name of the petitioner and that it has not been stated by her as to how the said entry was made. In this backdrop, Respondent No, 3 rejected the claim of the petitioner vide Anncxure-2 as baseless and recorded a finding against her that she has made encroachment illegally over 2 kathas 8 dhurs of land taking into account the reports of the Anchal Amin submitted in that the encroached area is in relation to 8 kathas 12 dhurs. Respondent No. 3 also recorded a finding that because a Hat is being held the nature of plot in question has been changed to a public land. He also directed the petitioner to remove the encroachment, failing which, he further directed, that action will be taken under Section 188 of the Indian Penal Code against her. The petitioner appealed. The appellate authority (Respondent No. 2) dismissed th e appeal vide Annexure-3 giving following reasons :

(3.) A counter-affidavit has been filed on behalf of the State alleging, inter alia, that the Hat was being held on entire area of plot No. 1007, which vested under the provisions of the Bihar Land Reforms Act, 1950 ; that in the record of rights the land was recorded under khata No. 176 and it was shown as Bakast Lakhrajdar and the plot as mango orchard ; that the ex-proprietors had moved this Court challenging the vesting of the Hat in the State of Bihar, which was allowed by this Court but on appeal by the State of Bihar to the Supreme Court the decision of this Court was set aside ; that in the encroachment proceedings the entire plot No, 1007 was brought under dispute and not a portion as claimed by the petitioner : that the proprietors with an intention to undo and nullify the provisions of the Bihar Land Reforms Act started settling small fractions of plot No. 1007 which different persons and granting emendated rent receipts aud thus violated the provisions of Section 4(h) of that Act ; that the petitioner had not produced any Patta or Kabuliyat to support her case of settlement rather she produced only one rent receipt which was granted to her after the propritors had lost their case in the Supreme Court ; that the petitioner had not also produced return; that it was only by mistake rent receipts were granted to her previously by the State; and that the orders have been correctly passed after verifying the papers. The Submissions.