Jharkhand High Court

Budhu Dom Alias Budhu Bansfore Son ... vs The State Of Jharkhand on 27 November, 2021

                                1




        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P. (C) No. 403 of 2013

       Budhu Dom alias Budhu Bansfore Son of late Langru
       Dom, resident of Mahagama, P.O. and P.S. Mahagama,
       District-Godda                        ....   ...       Petitioner
                                    Versus
       1.The State of Jharkhand
       2.Deputy     Commissioner,       Godda,    P.O.,     P.S.    and
       District-Godda.
       3.Deputy Collector Land Reforms, Godda, P.O., P.S.
       and District-Godda.
       4.Sub Divisional Officer, Godda, P.O., P.S. and District-
       Godda.
       5.Circle Officer, Mahagama, P.O., P.S. Mahagama,
       District-Godda.
       6.Block Development Officer, Mahagama, P.O., P.S.
       Mahagama, District-Godda         ...          Respondents
                            -------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioners : Mr. Ram Chandra Sahu, Advocate For the Respondents : Mr. Nawal Kishore Pandey, A.C to S.C. (L&C) I

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th Order No. 6/Dated 27 November, 2021

The matter has been taken up through video

conferencing.

2. This writ petition has been filed under Article

226 of the Constitution of India seeking appropriate

direction upon the respondents to restore his

possession over the land situated at Plot No. 1013

under Mahagama Block in J.B. No. 202, Mouza

Mahagama measuring 1 Khatha 13 Dhurs, which was

settled in favour of petitioner vide Case No. 4/6 of

1969-70 by the Circle Officer under Bihar Privileged

Persons Homestead Tenancy Act.

3. The brief facts of the case as per the pleadings

made in the writ petition, which is required to be

enumerated herein, read as hereunder:

It is the case of the writ petitioner that the land

in question was settled in favour of writ petitioner vide

Case No. 4/6 of 1969-70 under Bihar Privileged

Persons Homestead Tenancy Act for the purpose of

homestead with a fixed rent. After settlement of the

aforesaid land, he was paying rent to the authorities

concerned and since then the petitioner is in

possession over the land in question and constructed

house thereupon.

But all of a sudden, the petitioner came to know

that aforesaid constructed building is going to be

demolished by the respondents on the frivolous

complaints made by some persons to which he

responded by filing representation but the

respondents-authorities without paying any heed to the

representation of the petitioner demolished the

construction made on the aforesaid land. Therefore, the

present writ petition has been filed by the writ

petitioner seeking appropriate direction upon the

respondents to restore his possession over the land in

question.

4. Counter affidavit dated 14.08.2013 has been

filed on behalf of respondent nos. 2 to 6 wherein stand

inter alia has been taken that plot in question is

recorded as "Gochar Rasta" as such under the

provision of Section 69 of the Santhal Pargana Tenancy

Act, 1949, it cannot be settled or transferred to any

person. Therefore, an Encroachment proceeding vide

Case No. 01/2011-12 was initiated against the

petitioner and others, in which, order for demolition

was passed vide order dated 19.07.2011 and after

serving final notice on 22.07.2011 the house of the

petitioner was demolished on 07.01.2013.

5. Mr. Ram Chandra Sahu, learned counsel for the

petitioner submits that the land in question has been

settled way back in the year 1969 vide Case No. 4/6

dated 12.03.1969 and since then it is in possession of

the writ petitioner and they are paying rent to the

authorities concerned. It has further been submitted

that petitioner's possession over the land in question

has never been held illegal by the respondents and

petitioner was residing with his family members by

constructing a pucca house thereon. Therefore, action

of the respondents-authorities of demolishing the

building by dispossessing the petitioners is illegal.

6. Mr. Nawal Kishore Pandey, A.C to learned S.C.

(L&C) I submitted reiterating the statement made in the

counter affidavit that the house of the petitioner was

demolished on 07.01.0213 taking into consideration

the fact that nature of the land in question is "Gochar

Rasta", which is not cultivable in view of provision of

Section 69 of the Santhal Pargana Tenancy Act, 1949.

Hence, the settlement order passed by the then Circle

Officer is void ab initio and nullity in terms of law, as

such the order dated 19.07.2011 passed in Encroached

Case No. 01/2011-12 whereby the illegal construction

has been demolished is valid and in accordance with

law.

7. This Court has heard learned counsel for the

parties and perused the documents available on record.

The case which is not in dispute is that the land

in question under Plot No. 1013, Khata No. 202, Mauza

Mahagama is recorded as "Gochar Rasta" in the record

of rights, which was settled in favour of of the writ

petitioner vide Case No. 4/6 of 1969-70 by the Circle

Officer under Bihar Privileged Persons Homestead

Tenancy Act.

It is the case of the petitioner that since the

land in question has been settled in favour of the writ

petitioner and since then he is in possession of the said

land, the action of the respondents of demolishing the

Pucca house made on the plot in question is illegal. It

has further been submitted that once the settlement

has been made in their favour the construction made

thereon cannot be demolished by taking aid of Public

Land Encroachment Act.

But, learned counsel for the petitioner though

has not disputed the fact that the nature of the land is

"Gochar" and it is settled position of law that "Gochar"

land can be used only for purposes for which it is

permitted to be used and the user cannot be contrary

to what is being permitted for Gochar land, which is a

grazing land.

Reference in this regard be taken judgment

passed by the Hon'ble Apex Court in the context of

Gochar land in Rameshbhai Virabhai Chaudhari v.

State of Gujarat and Others in Civil Appeal 5135 of

2021 dated 6th September, 2021, while dealing with

encroachment of Gochar land, it has been held that:

"It is trite to say that gouchar land can be used only for purposes for which it is permitted to be used. If there is a user contrary to the permissible user, whether by the State or by any third party, the same cannot go on. Rehabilitation of persons is really not required in the present case as only three persons are entitled to an alternative site as per rules. There is of course some dispute whether the encroachers have made permanent structures or kuchha construction for keeping cattle but be that as it may, the user cannot be contrary to what is being permitted for gouchar land, which is a grazing land."

(Emphasis supplied)

9. This Court taking into consideration the

aforesaid aspect of the matter, more particularly, the

fact that the nature of the said land is "Gochar" under

Santhal Parganas Tenancy Act, 1949, is of the view

that even if it was settled in favour of the petitioner that

does not create any right upon the party since the

settlement is contrary to the statutory provision.

Further, it is settled position of law that if

inception is wrong subsequent development cannot be

said to improve the illegality.

Reference in this regard may be made to the

judgment rendered by the Hon'ble Apex Court in

Ritesh Tewari and Another v. State of Uttar

Pradesh and Others [(2010) 10 SCC 677] wherein at

paragraph 32 the Hon'ble Apex Court has held as

under :-

"32. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits."

10. Here, in the instant case since, as per the

Santhal Pargana Tenancy Act, the Gochar land cannot

be transferred by way of settlement as such the

settlement itself dehors the rule and even if the writ

petitioner remained in position over the land, the

illegality committed at inception will not be legalized.

11. This Court, on the basis of the settled

position of law and discussions made hereinabove, is of

the view that the writ petitioner has failed to make out

a case for passing any positive direction.