ARCHANA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and learned counsel for the State. The petitioner seeks quashing of the order dated 10.8.2012 passed by the Collector, Munger in Encroachment Case No. 1 of 2012-13 (Appeal) by which he has dismissed the appeal filed by the petitioner against the order dated 12.6.2012 passed by the Sub-Divisional Magistrate, Sadar, Munger in Encroachment Case No. 11 of 2011-12 by which the petitioner had been directed to vacate the entire house with other structures standing on the land mentioned therein and further seeks quashing of the order dated 12.6.2012.

(2.) The facts of the case relevant for the decision of the present matter are that the Khas Mahal house bearing Tauzi No. 1333, Jamabandi No. 44, Khata No. 41, Khesra Nos. 166, 167 and area 14 khatas 15 dhurs, Holding Nos. 20 and 21, Ward No. 1 under Fort Area, Munger, P.S.-Kotwali, District-Munger was initially leased to one Nirmalendu Mukherjee and others. The stand of the petitioner is that the same was sold by the original lease holders to Smt. Rama Devi through registered sale deed dated 8.12.1981. After the said sale Rama Devi filed an application for renewal of the lease on 18.11.1991 before the Collector through the District Khas Mahal Officer, Munger. It is the further stand of the petitioner that the said Smt. Rama Devi executed a will on 22.6.1990 in favour of Smt. Pushpendar Kunwar, her daughter-in-law. Subsequently Rama Devi died on 1.6.1992 and after her death Pushpendar Kunwar became the owner of the land and house and is occupying the said land and house as an owner and is in legal possession of the same and the electrical connection, which was still in existence, was taken in her name. It is the further stand of the petitioner that Rama Devi executed a power of attorney in favour of the petitioner on 16.12.2010 which was registered at Deoghar. Although the petitioner claims that the power of attorney was to look after the property and the household properties, on a perusal of the said power of attorney it appears that practically all the rights under the lease had been transferred to the general power of attorney holder and according to the general power of attorney the petitioner was entitled to get her name mutated in the Serista of Anchal/Municipality, in the Serista of Khas Mahal for self and also to sell the property to any one so that the purchaser's name could be mutated in the respective seristas; the petitioner was also empowered to let out the property, lease out on rent and to put someone as licensee and receive the rent and give them receipt in lieu of the payment of rent and also to get Bank loan or loan over the said property and to get the lease deed executed in her name by the Collector, Munger/Khas Mahal Authority so that the lease of the land could be obtained in her name.

(3.) The petitioner received a notice from the Khas Mahal authorities as to why the land and house be not acquired and also she may not be ousted from the property. The petitioner along with Rani Pushpendra Kunwar challenged the said notice by filing CWJC No. 21416 of 2011 before this Court which was disposed of by order dated 14.12.2011 with the direction of extending the time period for filing reply to the notice by further two weeks, i.e., 2.1.2012, if not already filed and the District Khas Mahal Officer, Munger was directed to hear the petitioner No. 1 of the said writ application, namely, Smt. Rani Pushpendra Kunwar @ Pushpendar Kunwar, if she appears and files a representation within the same time and thereafter dispose of the matter in accordance with law expeditiously. After the disposal of the writ application the District Magistrate, Munger referred to in his order dated 9.1.2012 the extensive enquiry made in this regard by the Khas Mahal Officer and recommendation made by him to take action under Chapter 5 Clause 17 of the Bihar Khas Mahal Policy, 2011. He also considered the fact that the petitioner had filed her objection in the matter on 10.12.2011 and thereafter not filed any other objection and Smt. Rani Pushpendra Kunwar did not file any objection pursuant to the order of this Court and after rejecting the objection of the petitioner held that the petitioner is an encroacher in terms of Chapter 5 Clause 17 read with Clause 5(gha) of Chapter 5 which refers to the prohibition made by the Government for the transfer of Government land with effect from 29.5.2008, the power of attorney being after the said cut-off date and held that the petitioner is an illegal transferee and an encroacher; accordingly, he directed the petitioner to vacate the land and the constructions over the same by 25.1.2012 and further directed the Sub-Divisional Officer, Sadar to evict the petitioner in accordance with the procedure prescribed by the Bihar Public Land Encroachment Act and take the same in his possession by 26.1.2012. He further held that in terms of Clause 17 of the Bihar Khas Mahal Policy, 2011 the encroacher or any person would not be entitled to any compensation for the same.