(I) Suresh Ram vs State Of Jharkhand Through Deputy ...
2022 Latest Caselaw 1041 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
              SECOND APPEAL No. 293 of 2002

1. (i) Suresh Ram
   (ii) Umesh Ram                            .....    .....    Appellants
                         Versus

1.   State of Jharkhand through Deputy Commissioner, Hazaribagh
2.   Deputy Commissioner, Hazaribagh,
3.   Circle Officer, Ramgarh          .... ....      Respondents
4.   Ganesh Sao                       .... .... Proforma Respondent

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CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Kundan Kumar Ambastha, Advocate For the Respondents-State : Mr. Diwa Kant Roy, A.C. to S.C. (Mines)-I

CAV ON 22.02.2022 PRONOUNCED ON 14 .03. 2022

1. Appellants are the L.Rs. of plaintiff who have preferred the appeal against the judgment and decree passed in Title Appeal No. 7 of 1995 whereby the appeal has been dismissed and the judgment and decree of dismissal of suit passed by Subordinate Judge-IV Hazaribagh in Title Suit No. 51/92 been confirmed.

2. The parties shall be referred to their placement in the suit.

3. The case of the plaintiff in brief is that the suit land comprising of 1 decimal, detailed in the plaint is a Khasmahal property was settled to the plaintiff for the commercial purpose by the Additional Collector, Hazaribagh on 23.10.1962 for a period of 16 years from 01.04.62 to 31.03.78 on payment of Salami of Rs. 200/- and annual rent of Rs. 3/- with option of renewal of lease for further 16 years subject to fulfilment of the terms and conditions of the lease. The plaintiff after the settlement of the land got constructed a residential house with tea stall by spending Rs. 20,000/. A kacha house was rebuilt and extended later with the permission of cantonment authorities. The plaintiff filed a petition for renewal of the lease of 29.12.77 which is still pending. On 25.5.1977 plaintiff received a notice from the court of D.C.L.R Hazaribagh regarding the lease hold land for encroachment of 36 decimals of

land. The plaintiff filed show cause which was rejected against which he preferred appeal before the Deputy Commissioner.

4. The further case of the plaintiff appellant is that the plaintiff was possessing the land on valid lease and paying rent regularly to the State of Bihar. The plaintiff is a tenant holding therein the permissive possession of the land and he cannot be evicted by proceeding under Bihar Public Land Encroachment Act. The plaintiff's petition with regard to renewal of lease was rejected by the defendant No. 2 without hearing the plaintiff on this matter. The order dated 15.05.85 of the defendant No. 2 is illegal as he did not act according to the direction given by the Commissioner by his order dated 11.9.84. The proceeding against the plaintiff is discriminating malafide and motivated because the sweet meat shop. Rest House and other shops are in possession of other persons but no proceeding was started against them. The suit land is about 80 ft. away from the main road and it does not obstruct the visibility of the moving vehicles. The plaintiff is continuing in permissive possession of the suit premises.

5. The further case of the plaintiff is that the plaintiff moved the Hon'ble Supreme Court against the order passed by the Hon'ble High Court, Ranchi Bench in the above said writ petition. The Hon'ble Supreme Court stayed the matter till final hearing of the lease petition and the matter was stayed up-to 01.5.92 when the Special Leave petition was dismissed. The plaintiff was informed by his advocate that the Civil Court is appropriate forum for effective remedy. The plaintiff was holding valid lease over the suit property and continued the possession for several years. There was a condition for renewal of the lease and in such case, the renewal could not be refused. The defendant has no case that the plaintiff had violated any of the condition of the lease. The defendant No. 4 and others improved and extended their further construction on their part of the suit plot in collusion with the defendant No. 3. The building and structure of the plaintiff standing on the suit premises is of about 40,000/- and the defendants are attempting to demolish the suit property or dispossesses the plaintiff. The plaintiff was threatened on 16th August, 1992 of demolishing the plaintiff's building and structure and so the suit was filed without notice u/s 80 of C.P.C. with leave of the court and the cause of action arose on 15.5.85, 25.6.85, 2.7.85, 3.3.86, 18.9.86, 1.5.92 and 16.8.92 when the defendant No. 3 and his men again

meted out threats of forcible dispossession which is being continued day to day.

6. The plaintiff has prayed for the following reliefs:

(i) on adjudication it be declared that the plaintiff is entitled to maintain its peaceful possession over the Schedule 'A' premises in suit with all his building and structure thereon, until evicted (if at all) in due course of law and not by executive force.

(ii) A decree of permanent injunction restraining the defendants 1 to 3, their men, agents and servants be restrained from disturbing the possession of the plaintiff and the construction of the suit premises, in any manner.

(iii) Ad-interim relief in terms of sub-para 2 above.

(iv) Any relief or reliefs as may appear equitable for grant.

7. On service of summons only defendant Nos. 1 to 3 appeared in the lower court and filed W.S. and after contested the suit. The defendant No. 4 has not filed written statement and the suit was heard ex-parte against him.

8. The case of the defendant No. 1 to 3 in brief is that the suit as framed is not maintainable. The plaintiff has no cause of action for the suit. The suit is barred u/s 16 of Bihar Public Land Encroachment Act because the date of cause of action given in the plaint related to the orders passed in land encroachment case.

9. The further case of the contesting defendants is that the suit property described in schedule 'A' of the plaint belongs to Khasmahal Department and its settlement and management are regulated under the provisions of Khasmahal manual. The plaintiff is not absolute owner of the suit property rather he is enjoying the suit property as per the terms and conditional of the lease. The plaintiff erected a Jhopari and opened a tea-stall in the suit premises and subsequently made pucca building on it without the permission of the Deputy Commissioner as provided in the terms and conditions of the lease. The plaintiff has changed the nature of lease (commercial to residential) and by doing this act the plaintiff has violated the terms and conditions of the lease. The renewal of the lease was rejected after due notice. The plaintiff has got his residential house in Mohalla Golpar within the Ramgarh town but in order to claim better right over the suit land, the plaintiff sent his family members to live in the suit house. The suit land is close to the Damodar bridge near the N.H. road No. 33. The structure of the

suit land is dangerous for the traffic and in the interest of public safety the plaintiff cannot allowed to remain in the suit premises. The suit is also hit under the provision of the Specific Relief Act, law of waiver, estoppel and also the Public Land Encroachment Act. The plaintiff has no title, interest or possession over the suit land and on such ground, the defendants have prayed for dismissal of the suit.

10. On the pleadings of the parties, the following issues have been framed on recast:-

(i) Is the suit as framed maintainable in its present form?

(ii) Has the plaintiff got cause of action for the suit?

(iii) Has the plaintiff paid advalorem court fee?

(iv) Is the suit bad for proper notice U/s. 80 (2) C.P.C.?

(v) Is the suit barred by law of limitation, Specific Relief Act and U/s 16 of Bihar Public Land Encroachment Act?

(vi) Is the plaintiff entitled to the reliefs claimed?

(vii) To what other relief or reliefs, the plaintiff is entitled to?

11. The trial court dismissed the suit by recording finding of facts on the main issues against the plaintiff on the following grounds: Firstly, the requirement of an order of the civil court for eviction of a lessee under rule 22 of Bihar Government Estate Khas Mahal, 1953 for an order of the civil court is in cases where there is subsistence of the lease and not thereafter. The term of lease having expired, the plaintiff had no right to continue in the leased land.

Secondly, the lease was not renewed.

Thirdly without the permission of the competent authority construction had been made of house over the suit land. There was violation of the term of lease and the prayer for renewal was rejected.

12. Learned Court of Appeal concurred with the findings of the trial court and dismissed the appeal. It has been noted by the Learned Court of Appeal that in the order of the D.C Hazaribagh passed in L.E. Case no. 89/79 (Ext 8/A and A) that there was very heavy vehicular traffic all the 24 hours and the existence of gumti caused traffic congestion and the plaintiff appellant's petition for renewal of the lease was rejected but the plaintiff appellant was given an option to apply for the lease for another piece of land. The plaintiff had converted the commercial lease by making construction of a

residential building. DW 2 junior engineer, PWD deposed that the suit land was at the conjunction N.H.23 and 33. The suit house caused obstruction to the smooth movement of vehicles.

13. This appeal has been admitted to be heard on the following substantial questions of law:

a. Whether after expiry of the khas Mahal lease the respondent - state can take recourse to Public Encroachment Act for the purpose of eviction of the lessee?

b. Whether the judgement of the lower appellate court is vitiated in law for non-consideration and non-re appreciation of the evidence being a fact-finding court?

14. In view of the concurrent findings of both the lower courts that the term of lease had expired and the prayer for renewal had been rejected the suit of the plaintiff for possession and injunction is without any legal basis. Learned Courts below have fully considered the evidence on record and the judgment does not suffer any infirmity for non-consideration of evidence. The respondent State was fully justified to invoke the provisions of the Public Encroachment Act against the plaintiff who is continuing in illegal possession after the expiry of the terms of lease. Both these substantial questions of law are accordingly answered in the negative against the plaintiff/appellant.

The judgment and decree passed by the Learned Court below is affirmed.

The appeal is dismissed with cost.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 14th March, 2022 NAFR / Anit