RITLAL CHOUDHARY Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) The petitioners have prayed for restraining the respondents from demolishing their structures, which they describe to be permanent structure, situated in Gulab, Bagh, ward No. 20 of Purnea Municipality on the following averments made in the writ petition. There are 37 petitioners in this case and they have stated that they have built permanent structures, residential-cum-commercial, in ward No. 21 in Gulab Bagh, one of the quarters of the Purnea Municipality. Their case is that these structures are coming from before 1950 and they had been constructed after obtaining the sanction of the Municipality. To the year 1952 the Public works Department through the Sub-divisional Officer, Purnea. initiated a proceeding under Section 5 of the then Bihar Land Encroachment Act, 1950 for removal of the alleged encroachment in respect of the premises belonging to the petitioners. In that case the case of the opposite party, some of whom are petitioners was that the G.D. Road and the lands adjacent to it formerly belonged to the Distirct Board and the District Board had settled the road side lands beyond demarcation pillars with Raja P.C. Lal with liberty to construct shops and houses thereon. It may be stated here that Raja P.C. Lal is dead and his son Kumar P.C. Lal is petitioner No. 28. Raja P.C. Lal in his turn had settled some of the lands with other opposite parties in that case and since then they have been coming in possession after creating shops and houses thereon. The said G.D. Road was subsequently made over to the Provincial Government for maintenance and the contention was that rent was accepted from some of the opposite parties and as such those opposite patties were holding over under Section 116 of the Transfer of Property Act on the same terms and conditions, as before, even after the expiry of the period of settlement. It was also contended therein that under the definition of (1) "public property" contained in the Land Encroachment Act, 1950 such lands would not come under the mischief of the Act. The contention of the opposite party was accepted by the Additional Sub-divisional Officer on the 5th July, 1953, a copy of which order has been filed as Annexure '1'. This was set aside in appeal by the Collector by his order dated 17th February, 1954, which was set aside by the Commissioner by his order dated the 14th July, 1954, a copy of which has been filed as Annexure 2. and the order of the Additional Sub-divisional Officer restored. This order has been affirmed by the Board also by order dated the 10th February, 1955, a copy of which has been filed as Annexure '3'. The petitioners have asserted that thereafter they remained in peaceful possession till the 10th August, 1975, when some officials of Lateral Road Project Division No. 1, Bahadurganj at Purnea, came along with Amin and overseers and arbitrarily started demarcating a considerable portion of the premises of the petitioners sitauted in Gulb Bagh, Ward No. 21, and asked the petitioners to demolish a part of their premises demarcated by them, on the threat of demolition by force in case of non-compliance of their direction by the petitioners within two weeks. It is also alleged that on the 17th August, 1975 the officer of the Latteral Road Project Department came with labour force and the petitioners apprehended that their premises would be demolished illegally and unauthorisedly. Accordingly on the 18th August, 1975, the petitioners filed this writ application which was admitted on the 19th August, 1975, and the respondents were directed to maintain the status quo till the disposal of the writ petition. A counter-affidavit has been filed on behalf of respondents 1 to 4 denying the assertions made in the writ petition and that the settlement with Raja P.C. Lal was for a short period without any right to construct any substantial structure. Raja P.C. Lal had also no right to sub-let it to any body and after the expiry of the lease with Raja P.C. Lal the petitioner should be ranked as trespassers. It Is also stated in paragraph 2(g) of the counter affidavit that only from Ritlal Choudhury, Champa Lal Pugalia, father of petitioner Kanhaiyalal Pugalia (petitioner No. 29) and Mouzi Lal rent was accepted under ignorance of the true position which was directed to be refunded. The other, allegations about forcible demolition on the 17th August, 1975, or of any coercive action against the petitioners under Miss etc. for removal have been denied. The petitioners have filed a reply to the counter-affidavit to which it is not necessary to refer.

(2.) Mr. Singh also submitted that the petitioner' case in any event will be one of holding over and they are entitled to a notice. In view of Section 116 read with Section 106 of the Transfer of Property Act and in view of the earlier order under the Land Encroachment Act a suit would be the only remedy. It is needless to go into this question for the reason that in absence of the State of Bihar the question whether the case of the petitioners or which of them would be one of holding over could only be decided in presence of the State. We do not, therefore, propose to decide this question.

(3.) The petitioners, however, are entitled to a declaration by this Court that they could be evicted only in due course of law and they could not be forcibly evicted from the lands which are in their possession. This order will be without any prejudice to the right of the respondents or the authorities to take such proceeding, as they might be advised, under any appropriate statute including the Code of Civil Procedure.