Jharkhand High Court
Indu Kumari Sinha vs Jharkhand State Housing Board ... on 21 March, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 322 of 2020
With
I.A. Nos. 1099 of 2021 & 5438 of 2020
Indu Kumari Sinha, aged about 68 years, wife of late Yogendra Singh,
resident of C 107, Harmu Housing Colony, P.O. & P.S. Argora, District-
Ranchi.
... ... Applicant
Versus
1. Jharkhand State Housing Board through its Managing Director having its
office at Harmu, P.O. & P.S. Argora, District-Ranchi.
2. Managing Director, Jharkhand State Housing Board, having its office at
Harmu, P.O. & P.S. Argora, District-Ranchi.
3. Estate Officer, Jharkhand State Housing Board, having its office at Harmu,
P.O. & P.S. Argora, District-Ranchi.
... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellant : Mr. Amit Sinha, Advocate
For the Respondents : None
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ORAL JUDGMENT
04/Dated: 21st March, 2023
Per Sujit Narayan Prasad, J
I.A. No. 1099 of 2021:
1. The present interlocutory application has been filed for substitution of the
appellant through his wife, namely, Indu Kumari Sinha.
2. It has been contended in the application that widow-Indu Kumari Sinha being
the wife of the appellant has got right to sue the proceeding and, therefore, she
may be substituted.
3. Considering the averment made in the instant interlocutory application, the
same is, hereby, allowed.
4. Accordingly, the interlocutory application being I.A. No.1099 of 2021 stands
disposed of.
5. Office is directed to make necessary correction in the cause title of the appeal.
I.A. No. 5438 of 2020:
6. This interlocutory application has been filed for condoning the delay of 362
days, which has occurred in preferring this appeal.
7. No counter to the delay condonation application has been filed.
8. Heard the learned counsel for the appellant.
9. Having heard the learned counsel for the appellant and taking into
consideration the reason assigned in the interlocutory application that due to
the mental agony sustained by the appellant due to the death of her husband,
delay of 362 days has occurred in filing the appeal, as such, this Court, deems
it fit and proper to condone the delay so as to decide the issue on merit.
10. Accordingly, the instant interlocutory application is allowed and the delay of
362 days in preferring this appeal, is hereby condoned.
11. With the consent of the parties, the matter has been heard at this stage for final
disposal.
L.P.A. No. 322 of 2020:
12. The instant appeal is under clause 10 of the letters patent directed against the
order/judgment dated 17.09.2019 passed by the learned Single Judge of this
Court in W.P.(C) No. 835 of 2011, whereby and whereunder, the notice
issued by the respondent no.3, Estate Officer, Jharkhand State Housing Board,
Ranchi dated 25.03.2010 asking the writ petitioner to deposit a sum of
Rs.86,285.65/- towards penalty for illegal encroachment of 562.50 sq. ft. land
for the period from 24.05.1987 to 31.12.2009, has been refused to be
interfered with by dismissing the writ petition.
13. The brief facts of the case as per the pleading made in the writ petition which
require to be enumerated herein, read as under:
The writ petitioner applied for allotment of MIG plot in pursuance of
which the erstwhile Bihar State Housing Board vide its letter dated
24.04.1987 allotted Plot No. C-107 to the writ petitioner and the cost of the
plot was tentatively determined as Rs. 20,710/-. An agreement to that effect
was executed on 16.05.1987. Subsequently, the respondent no. 2 - the
Managing Director, Jharkhand State Housing Board, Ranchi vide letter dated
19.10.2002 asked the writ petitioner to deposit an amount to the tune of
Rs.21,568/- towards the balance amount of principal and interest accrued
thereon till 31.10.2002 for the said plot which the writ petitioner deposited on
26.10.2002.
The dispute arose when the Executive Engineer of the Housing Board
physically verified the Plot No. C-107 before final handing over the same to
the writ petitioner. The inspection report dated 21.10.2003 submitted by the
Executive Engineer indicated that the writ petitioner was found in excess
possession of 562.50 sq.ft. of land whereas 3000 sq.ft. of land was allotted to
him. The Executive Engineer of the Jharkhand State Housing Board vide his
letter dated 22.10.2003, however, recommended the respondent no. 2 to allot
the said extra land in favour of the petitioner.
Thereafter, the writ petitioner also made several representations before the
concerned authority of the Jharkhand State Housing Board for settling the
excess part of the land in his favour and to execute the sale deed. However, no
action was taken on the said request. Rather, the Housing Board issued the
notice dated 08.02.2010 asking the petitioner to deposit penalty of
Rs.86,285.65 @ Rs. 20/- per day for encroaching 562.50 sq.ft. of land for the
period from 24.05.1987 to 31.12.2009 i.e., for 22 years, 07 months and 07
days (8257 days).
The writ petitioner replied the said notice on 11.02.2010 by apprising the
respondent no. 3 regarding the aforesaid facts and requesting him to settle the
land in his favour on a reasonable cost. However, without considering the
reply of the writ petitioner and the recommendation of the Executive Engineer
made in this regard, the impugned notice dated 25.03.2010 was issued by the
respondent no. 3 asking the writ petitioner to pay penalty of Rs. 86,285.65
towards encroachment of the said part of land.
The writ petitioner against the said notice dated 25.03.2010 approached
before this Court by filing writ petition being W.P.(C) No.835 of 2011 which
has been dismissed declining to interfere with the same.
14. Mr. Amit Sinha, learned counsel for the appellant has submitted that although
the land to the extent of 562.50 sq. ft. has not been allotted in favour of the
writ petitioner but repeated requests was made for its settlement in favour of
the writ petitioner and to execute the sale deed but no action was taken rather
a notice of demand by way of penalty to the extent of Rs.86,285.65 @ Rs.
20/- per day for encroaching 562.50 sq.ft. of land has been issued.
15. It has been contended that the learned Single Judge ought to have taken into
consideration that when requests have been made for settlement of the non-
allotted land to the extent of 562.50 sq. ft., the same first was to be dealt with
by the concerned authority and only after taking decision on such request, the
penal action ought to have been taken. But the aforesaid aspect of the matter
even though has been agitated before the learned Single Judge but the same
has not been considered and hence, the order passed by the learned Single
Judge suffers from patent illegality, as such, not sustainable in the eyes of law.
16. None appears for the respondent-Jharkhand State Housing Board.
17. This Court has heard the learned counsel for the appellant and found from the
material available on record the undisputed fact that encroachment of 562.50
sq. ft. of land is admitted since it is the case of the writ petitioner that due
request was made for settlement of the excess part of the land in his favour
and to execute the sale deed.
18. The law is well settled that the land if not been allotted by the Board or no
title is accrued under the provision of Transfer of Property Act either by way
of settlement or by way of lease or by way of mortgage or by way of sale, the
party concerned has got no right to insist upon the settlement of the
encroached land.
Exactly the case herein is that the chunk of land was settled in favour of
the writ petitioner by the respondent-Jharkhand State Housing Board but the
writ petitioner has encroached the land to the extent of 562.50 sq. ft. and
remained in possession from 24.05.1987 to 31.12.2009, i.e., for 22 years, 07
months and 07 days (8257 days).
19. The Housing Board, considering the said action of the writ petitioner to be
illegal, has issued notice on 25.03.2010 asking the writ petitioner to pay the
penalty of Rs.86,285.65 towards encroachment of the said part of the land.
20. The writ petitioner, being aggrieved with the same, has approached to this
Court by filing writ petition being W.P.(C) No. 835 of 2011 and the learned
Single Judge after taking into consideration the fact that the writ petitioner has
remained in authorized possession of 562.50 sq. ft. of land besides the legally
allotted land and the said part of the land is adversely affecting the nearby plot
and road, as such, has refused to accept the contention of the writ petition by
coming to the conclusion that the writ petitioner is having no legal right to get
the physical possession of any part of the land more than what was legally
allotted to him by the Housing Board.
21. The said finding of the learned Single Judge, according to the considered view
of this Court, cannot be said to suffer from error reason being that once the
allotment has been made by any competent authority under the Regulation in
favour of a party, the concerned party in whose favour the land has been
allotted, will remain to be in possession over the portion of land which has
been allotted in his favour.
If such persons is having possession of any extra land, the same cannot be
allowed to be settled merely by virtue of the fact that the said part of the land
if remained in unauthorized possession and if such extra land will be allotted,
the same will be nothing but acceleration of the illegality which has been
committed by the party concerned in encroaching the non-allotted part of the
land.
22. This Court, after taking into consideration the fact in entirety and considering
the reason assigned by the learned Single Judge to be just and proper, is of the
view that the finding recorded by the learned Single Judge requires no
interference.
23. Accordingly, the instant appeal fails and stands dismissed.
24. In consequence thereof, pending interlocutory application(s), if any, also
stands disposed of.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Saurabh/-
N.A.F.R
