BANMALI MAHTO Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present writ petition has been filed for quashing the notices dtd. 11/10/2018 (Annexure- 5 series) issued under Sec. 3 of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 (in short, "the Act, 1956") to the petitioners by the Circle Officer, Chas-cum- Collector under the Act, 1956 (the respondent no. 3) in Encroachment Case No. 11 of 2018-19 alleging encroachment made by them over different areas of the land appertaining to Khata no. 67, plot no. 69, village- Mamarkudar, Thana No.- 92, P.S.- Chas, District- Bokaro.

(2.) Learned counsel for the petitioners submits that the land appertaining to plot no. 69, Khata No. 67, measuring an area of 62 decimals situated in village Mamarkudar, Thana No. 92, P.S.-Chas (M), District- Bokaro (hereinafter to be referred as "the said land") was given by the landlord- Dharapati Bhattacharya son of late Sumitha Nath Bhattachartya to Smt. Rangi Mahtain wife of late Dhirju Mahto by way of "Jot Patta" executed vide deed no. 3457 dtd. 7/1/1940 and accordingly the rent was fixed by the landlord. She, thereafter, came in possession of the said land and by constructing a house over part of the same, started living with her family. The rest part of the land was utilized by her as open space and garden as well as for cultivation of vegetables. Late Rangi Mahtain was the great-grandmother/grandmother of the petitioners who being her descendants have been living peacefully over different portion of the land after mutual partition of the same. It is further submitted that after lapse of more than 75 years of settlement of said land in favour of the ancestor of the petitioners, a show cause notice was issued to the petitioners under Sec. 3 of the Act, 1956 by the respondent no. 3 in Encroachment Case No. 03/2014-15. On receipt of the said notice, the petitioners appeared in the said encroachment case and filed their respective replies. Thereafter, the respondent no. 3, vide order dtd. 16/10/2015, considering the issue of encroachment of public land on merit and also keeping in view the opinion of the government pleader, observed that since the petitioners/their ancestors had been residing over the said land since 1940 on the basis of ..Jot Patta" dtd. 7/1/1940, dispossessing them from the said land on the complaint of a private person namely Rajendra Mahato, would not be in accordance with law. Accordingly, the said encroachment case was dropped. However, surprisingly, after lapse of about 3 years of dropping the aforesaid encroachment case, the respondent no. 3 again issued the impugned notices dtd. 11/10/2018 to the petitioners under Sec. 3 of the Act, 1956 alleging encroachment over the same land. It is also submitted that once the land encroachment proceeding was initiated and after considering the issue involved on merit, the respondent no. 3 had dropped the same, issuance of the impugned notices by the said respondent are not only barred by the principles of res-judicata but are also illegal and arbitrary. Hence, the same are liable to be set aside.

(3.) Learned counsel for the petitioners in support of his contention has put reliance on the judgments rendered by Patna High Court in the case of Sri Kali Pd. Seal Vs. State of Bihar and Ors. reported in 1969 (17) BLJR 254 as well as in the case of Mahanth Ramagya Giri Vs. The State of Bihar and Ors. reported in 1991(2) PLJR 249 equivalent to AIR 1992 Pat. 82.