GITENDRA THAKUR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present writ petition has been filed for quashing the order dtd. 16/9/2021 passed by the respondent No. 2 in Encroachment Appeal Case No. 03 of 2016-17 (Annexure-13 to the writ petition) whereby the said appeal preferred by the petitioner has been dismissed directing the respondent No. 4 to remove the alleged encroachment from the petitioner's raiyati land appertaining to part area of Khata No. 77, Plot No. 44, Mouza-Gorhimal, P.S+District-Godda, Thana No. 503, measuring an area of 0.0379 Acre [hereinafter referred to as 'the said land'] within two months from the date of the order. Further prayer has been made for quashing the notice dtd. 14/3/2016 (Annexure-10 to the writ petition) issued by the respondent No. 4 in Land Encroachment Case No. 01/16 whereby the petitioner was directed to remove the alleged encroachment from the said land.

(2.) Learned counsel for the petitioner submits that the land appertaining to Jamabandi No. 74, Plot Nos. 44 and 42, Mouza-Gorhimal, P.S+District-Godda originally belonged to Raja Krityanand Bahadur Singh and others of Rajya Bandeli Estate, Godda. The said land was settled in the name of the petitioner's grandfather, namely, Shiv Shankar Thakur by way of 'Kurfanama' dtd. 15/4/1949 and thereafter he came in absolute exclusive possession of the same by paying rent to the ex-landlord i.e. Rajya Bandeli Estate for which rent receipts were also issued in his favour. After vesting of the intermediary estate, the ex-landlord filed return of various plots showing the said plots in possession of the petitioner's grandfather, who applied for mutation of Plot No. 42, which is adjacent to Plot No. 44 and the same was allowed vide order dtd. 27/9/1965 passed in Mutation Case No. 43 of 1965-66. Meanwhile, one Jagdish Prasad Srivastav made a complaint before the respondent No. 3 on 9/9/1964 against the petitioner's grandfather for initiating a proceeding under Sec. 144 of Cr. P.C. alleging inter alia that Plot No. 44 was illegally purchased by him and construction over the same was also being made by trying to close down the drain passing through the said plot, water of which flowed into a 'Pokhar' at Plot No. 46. On the basis of the said allegation, one complaint Criminal Misc. Case No. 375 of 1964 was initiated in the Court of the respondent No. 3. Thereafter, an enquiry was conducted and a report dtd. 1/12/1964 was submitted by the Sub-Inspector of Police, Godda Police Station in the said Court stating that there was no trace of any 'Nala' (drain) over Plot No. 44 whereas there was existence of 'House' and 'Khalihan' of the petitioner's grandfather since long and the same was also under his possession. On the basis of the report dtd. 1/12/1964, Criminal Misc. Case No. 375 of 1964 was dropped. Jagdish Prasad Srivastava again made objection during field bujharat operation stating that Plot No. 44 was recorded as 'Danr' in the last survey which was illegally purchased by the petitioner's grandfather and others. The said case was registered as Bujharat Dispute Case No. 02 of 1967 in the Court of the respondent No. 4 which was decided vide order dtd. 18/5/1967 holding that a 'Nala' had been left out in southern side of the house of the petitioner's grandfather providing outlet of rain water. It was further held that Plot No. 44 was in continuous possession of the petitioner's grandfather. Another complaint was made before the respondent No. 4 on 29/4/1975 by one Rani Bala Devi, wife of Jagdish Prasad Srivastava alleging that there was a drain adjacent to the 'Pokhar' at Plot No. 46 which was encroached by influential persons. On the basis of the said complaint, Land Encroachment Case No. 17 of 1975-76 was instituted whereupon an enquiry was conducted and it was found that there was no trace of 'Danr' (drain) over Plot No. 44 which had been in possession of the petitioner's grandfather since long. The said land encroachment case was finally dropped vide order dtd. 31/5/1976. Thereafter, Jagdish Prasad Srivastava filed an application before the respondent No. 3 against the father and the uncle of the petitioner, namely, Gangadhar Thakur and Bharati Thakur respectively alleging inter alia that they had encroached a 'Nala' passing over Plot No. 44 flowed into a 'Pokhar' at Plot No. 46 which had been utilized by the raiyats of Mouza-Gorhimal. The said case was registered as Criminal Misc. Case No. 99 of 1984 and the same was also rejected vide order dtd. 1/5/1985 observing that there was no trace of 'Nala' existing over Plot No. 44 and the said land had been in absolute continuous possession of the petitioner's ancestors prior to the year 1964. Jagdish Prasad Srivastava again filed a petition for initiation of proceeding under Sec. 147 of Cr. P.C. which was allowed vide order dtd. 11/12/1986. Aggrieved with the said order, the petitioner's ancestors approached the Patna High Court in Criminal Misc. Case No. 8580 of 1987 which was allowed vide order dtd. 13/1/1988 holding that entire history of litigation showed that the applications filed repeatedly for the same cause and having lost in the Courts of the respondent Nos. 3 and 4, any further proceeding under Sec. 147 Cr. P.C. would be an abuse of process of the Court. Even after the said order of the Patna High Court, another proceeding under Sec. 144 of Cr. P.C. was initiated on an application filed by Samar Srivastava, son of Jagdish Prasad Srivastava which was registered as Criminal Misc. Case No. 28 of 1989, however, the said case was dismissed vide order dtd. 16/5/1989.

(3.) It is also submitted that the petitioner as well as his predecessors-in-interest have been in continuous, absolute and uninterrupted possession of the said land. The petitioner's father-Late Gangadhar Thakur died on 22/6/2011 and the said land devolved upon the petitioner and other legal heirs. Suddenly, the petitioner received a notice dtd. 25/2/2016 issued by the respondent No. 4 in Land Encroachment Case No. 01 of 2016 calling upon him to appear before the said respondent on 10/3/2016 and to show cause as to why the alleged encroachment made over 0.0379 Acre of the land of Gorhimal Gairmazurwa Khata No. 77, Plot No. 44 be not removed. Pursuant to the said notice, the petitioner appeared before the respondent No. 4 through his counsel and submitted all the relevant documents including the entire litigation history, however, the respondent No. 4 did not consider the submission made on behalf of the petitioner and served another notice dtd. 14/3/2016 to him for removing the alleged encroachment from the said land. Thereafter, the petitioner filed a writ petition being W.P.(C) No. 1673 of 2016 before this Court for quashing the notice dtd. 14/3/2016 which was disposed of vide order dtd. 30/3/2016 with liberty to the petitioner to approach the appellate authority within a period of three weeks from the date of the order and further directed the appellate authority to consider the case on its own merit. Thereafter, the petitioner preferred an appeal under Sec. 11 of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 [hereinafter referred to as 'the Act, 1956'] before the appellate authority i.e. the respondent No. 2 which was registered as Encroachment Appeal No. 03 of 2016-17. The said appeal was however dismissed vide order dtd. 16/9/2021 directing the respondent No. 4 to remove the alleged encroachment within a period of two months from the date of the order and to ensure intimation to the appellate authority regarding compliance of the said order.