Jharkhand High Court
Ganesh Burman @ Ganesh Poddar vs The State Of Jharkhand on 28 January, 2025
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 413 of 2024
Ganesh Burman @ Ganesh Poddar, aged about 57 years, son of Sri
Mahadev Poddar, resident of Village- Choukunda, P.O.- TK Gram, P.S.-
Fatehpur, District- Jamtara. ... ... ... Appellant
Versus
1. The State of Jharkhand
2. The Circle Officer, Fatehpur, P.O. & P.S.- Fatehpur, Distt.- Fatehpur
3. The Deputy Commissioner, Jamtara, P.O. & P.S.- Jamtara, District-
Jamtara
4. The Secretary of Building Construction Department, Government of
Jharkhand, Project Bhawan, Dhurwa, P.O. & P.S.- Dhurwa, District-
Ranchi ... ... ... Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr. Shresth Gautam , Advocate
Mr. Rahul Anand, Advocate
Mr. Yogendra Yadav, Advocate
Mr. Himanshu Harsh, Advocate
For the Respondents: Mr. Aditya Kumar, A.C. to Sr. S.C.-I
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05/Dated: 28.01.2025
M.S. Ramachandra Rao, C.J.(Oral)
1) This Letters Patent Appeal is preferred against the judgment dt.
13.2.2024 of the learned Single Judge dismissing the appellant's writ
petition.
2) In the writ petition, the appellant had challenged the memo no.
880 dt. 24.12.2019, memo no. 34 dt. 17.1.2020 and memo no. 412 dt.
9.7.2020 whereby the respondents had asked the appellant to vacate
property bearing Khata No. 65, Plot No. 208 of Mauza Choukunda, P.O.-
TK Gram, P.S.- Fatehpur, District- Jamtara.
3) It was the contention of the appellant in the writ petition that the
said land was granted to his grandfather, namely, Jagdish Prasad Sah
under the Bhoodan Yagna Scheme by the Bihar Bhoodan Yagna
Committee and to that effect a donation certificate bearing certificate No.
101831 dt. 28.8.1957 was issued in the name of his grandfather. Copy of
the same was filed as Annexure-1 in the writ petition.
4) It was further contended by the appellant that after the land was
donated, his grandfather applied for mutation which was registered as
Mutation Case No. 21/1962-63 and the mutation was allowed by the
Court of the Circle Officer, Kundahit and necessary entries were made in
Register-II and a rent of Rs.0.59 Paisa was also fixed towards the said
land. The said mutation order was filed as Annexure- 2 to the writ
petition.
5) It was contended that thereafter the grandfather of the appellant
built a kacha house on the land and started living there and cultivating
the land. Appellant has also filed rent receipts issued as Annexure-3 as
evidence of his possession of the land and cultivation of the same which
had been issued by the Bhoodan Yagna Board.
6) On 24.12.2019 the Circle Officer, Fatehpur issued Annexure-4,
eviction notice to the appellant asking him to vacate the land within 15
days.
7) Thereafter the appellant made a detailed representation before the
said Officer explaining that his ancestor was the lawful owner of the land
and that it was granted in 1957 under the Bihar Bhoodan Yagna Act,
1954 and later mutation was also done and rent was also fixed and was
being paid. Annexure-5 is the said representation.
8) Thereafter on 17.1.2020, an eviction notice was issued by the
Circle Officer, Fatehpur (which was filed as Annexure-6) asking
appellant to vacate the land.
9) In March 2020, according to the appellant, the respondents started
construction work over the land, but due to pandemic situation and lock-
down the construction was got stopped.
10) On 30.6.2020 appellant made a representation to the Deputy
Commissioner, Jamtara reiterating that he is the lawful owner of the land
and stating the circumstances under which he inherited the land from his
grandfather who had been donated the said land by the Bhoodan Yagna
Board and also complaining that the respondents were forcibly carrying
out constructions over the land and asked him to stop the said work.
11) Thereafter, it appears that the construction work again
commenced on 2.7.2020.
12) In the meantime on 9.7.2020 the Circle Officer, Fatehpur issued a
3rd eviction notice directing the appellant to again vacate the land within
ten days.
13) These eviction notices were impugned in the writ petition and it
was specifically contended that these notices had no backing of law and
the Circle Officer had no jurisdiction to evict the appellant.
14) The appellant then filed writ petition being W.P. (C) No. 1979 of
2020 before this Court and complained about the inaction of the
respondents to his representation.
15) This Court on 29.7.2020 directed the respondents to pass a
reasoned and speaking order after giving him an opportunity. The writ
petition was kept pending. Thereafter the present impugned order dated
6.8.2020 was passed.
The order dt.6.8.2020 reads as under:
"अभभलेख उपस्थाभपत।
06-08-20
वादी उपस्स्थभत। वादी द्वारा माननीय उच्च न्यायालय, झारखण्ड रॉची के समक्ष दायर वाद
स०- WP(C) No. 1979/2020 पर भदनाां क 29.07.2020 पर पाररत आदे श की प्रभत सां लग्न करते
हुए भनमाा ण काया रोकने हे तु आवे दन समभपा त भकया। साथ ही वादी को सु ना। पू वा दास्खल कागजात
के अभतररक्त अन्य साक्ष्य प्रस्तु त नहीां भकया। वाद से सां बांभधत भवषय पर चचाा के उपराां त भनम्न आदे श
पाररत भकया जाता है :
यह वाद अभतक्रमण से सां बांभधत मामला है । मौजा चौकुन्दा के अनावादी खाता सां0-65, दाग
सां0-208, कुल रकवा-28.00 एकड़, भकस्म - पु रातन पभतत भूभम के अांश रकवा-2.00 भू खांड पर श्री
गणे श पोद्दार व वमान, ग्राम-चौकुण्दा द्वारा चाहरभदवारी भनमाा ण भकये जाने पर सां बांभधत राजस्व
उपभनरीक्षक द्वारा आवे दन समभपा त करते हुए अभतक्रमण करने की सूचना उपलब्ध कराया गया।
उक्त भू भम का पू वा से भकसी भी प्रकार का भौभतक पररवता न नहीां भकया गया है , अथाा त् भूखण्ड
वता मान में भी प्राकृभतक स्वरूप में ही भवद्यमान है ।
प्राप्त सू चना के आधार पर श्री गणे श ओद्दार व बमान, भपता-स्व० जगदीश प्रसाद साव को
नोभिस भकया गया। वादी श्री बमान द्वारा डाक के माध्यम से उक्त भू खण्ड पर अपने दादा स्व०
जगदीश प्रसाद साव को भबहार भू दान यज्ञ सभमभत द्वारा प्रदत्त पट्टा एवां लगान रसीद की छायाप्रभत
साक्ष्य स्वरूप समभपा त करते हुए उक्त भू खण्ड पर दावा प्रस्तु त भकया गया। जबभक वता मान में भी
वभणात स्थल प्राकृभतक स्वरूप में है ।
श्री बमान द्वारा प्रस्तु त कागजातोां का कायाा लय में उपलब्ध दस्तावे ज से भमलान करने पर मेल
नहीां होता है । आचाया भवनोभा भावे/ भबहार भू दान यज्ञ सभमभत को भबहार भू दान यज्ञ अभधभनयम,
1954 के भनयम-3 के अनु सार भू-स्वाभमयोां से प्राप्त दानस्वरूप भूभम पर भूभमहीन को पट्टा भनगात
भकया जाता है एवां तद् नु सार दास्खल-खाररज की कारा वाई पू णा करते हुए लगान भनधाा ररत भकया जाता
है । राजस्व उप भनरीक्षक के जााँ च प्रभतवेदन के अनु सार उक्त भू खांड, मौजा-चौकुन्दा के भकसी भी
रै यत के Inherit भू भम नहीां है । श्री बमान व वां शज् मौजा-चौकुन्दा के मूल रै यत नहीां हैं । साथ ही
अभधभनयम के धारा-19 के अनु सार कारा वाई सु भनभित कर वाां भछत सू चनाएाँ , जो अां चल कायाा लय,
फते हपु र में सां धाररत सां बांभधत पां जी-II में अां भकत रहना चाभहए, जो अभकत नही ां है ।
साथ ही श्री बमान द्वारा प्रस्तु त 2015 में भनगात लगान रसीद का क्रमाां क सां० अां चल कायाा लय,
फते हपु र में सां धाररत लगान रसीद भनगात पां जी के क्रमाां क से मेल नहीां खाता। अथाा त् भनयभमत रूप से
लगान दे ने की बात भमथ्या है । वादी द्वारा फजी कागजात समभपा त भकया है । इस प्रकार श्री बमान व
उनके पू वाज को भबहार भू-दान सभमभत द्वारा प्रदत्त पट्टा की प्रास्प्त की पू भि नहीां होती है ।
अतएव उपयुा त तथ्योां के आधार पर वादी श्री वमान व पौद्वार का उक्त भूखण्ड पर दावा
खररज भकया जाता है । अथाा त् श्री बमान व पौद्वार द्वारा उक्त भू खण्ड पर अभतक्रमण भकया गया है ,
भजसे तत्काल प्रभाव से उच्छे द भकया जाता है ।
लेखाभपत
अांचल अभधकारी फते हपु र
अांचल अां चल अभधकारी
फते हपु र
06.08.2020".
16) The impugned order passed by the Circle Officer, Fatehpur clearly
indicates that the appellant was in possession of the subject land and
had even constructed a boundary wall therein but it is contended that the
same is an 'encroachment'.
17) Art. 300 A of the Constitution of India states that no person shall
be deprived of his property save by authority of law.
18) However no provision of law is quoted in the order dt.6.8.2020
which empowers the Circle Officer, Fatehpur to determine the title to the
land in the occupation of the appellant or to evict the appellant. the
doctrine of separation of powers, precludes the Circle officer, who is a
member of the Executive branch of the Government from exercising
judicial powers.
19) Thus his order is without jurisdiction.
20) We are also of the opinion that the Circle Officer cannot
unilaterally determine the title of the government to the subject land and
only the civil court can do.
21) In Government of Andhra Pradesh Vs. Thummala Krishna Rao
and Anr.1, the Supreme Court has held that if there is a bonafide dispute
regarding title of the government to any property, government cannot
take a unilateral decision in its own favour that the property belongs to it,
and on the basis of such a decision, summarily evict somebody who is in
possession of the property.
22) This was reiterated in Kaikhosrou (Chick) Kavasji Framji v.
Union of India2, in the following terms:
"The question involved in Express Newspapers case3 in relation to
remedy of the State qua person in possession of the land was again
considered by a Bench consisting of three Judges in State of
Rajasthan v. Padmavati Devi4. In that case also, the question arose
as to whether the State Government can take recourse to a summary
remedy of eviction of a person under the State Revenue laws from
the land when such person raises a bona fide dispute about his right
to remain in occupation over such land. Their Lordship held that in
such a situation, the summary remedy to evict such person under the
Act could not be resorted to.
(1982) 2 SCC 134
(2019) 20 SCC 705, at page 720
(1986) 1 SCC 133
(1995) Supp 2 SCC 290
48. S.C. Agrawal, J. speaking for the Bench held in para 6 in the
following words: (Padmavati Devi case, SCC pp. 292-93)
"6. As noticed earlier Section 91 of the Act prescribes a summary
procedure for eviction of a person who is found to be in unauthorised
occupation of government land. The said provisions cannot be
invoked in a case where the person in occupation raises bona fide
dispute about his right to remain in occupation over the land. Dealing
with similar provisions contained in Section 6 of the Andhra Pradesh
Land Encroachment Act, 1945, this Court in State of A.P. v.
Thummala Krishna Rao has laid down that the summary remedy for
eviction provided by Section 6 of the said Act could be resorted to by
the Government only against persons who are in unauthorised
occupation of any land which is the property of the Government and if
the person in occupation has a bona fide claim to litigate he could not
be ejected save by the due process of law and that the summary
remedy prescribed by Section 6 was not the kind of legal process
which is suited to an adjudication of complicated questions of title.
For the same reasons, it can be said that summary remedy available
under Section 91 of the Act is not the legal process which is suited for
adjudication of complicated questions of title where the person sought
to be evicted as an unauthorised occupant makes a bona fide claim
regarding his right to be in possession. In such a case the proper
course is to have the matter adjudicated by the ordinary courts of
law."
This view was reiterated in State of U.P. v. Zia Khan5."
23) Admittedly, the possession of the appellant is long standing as
evidenced by the mutation order given by the revenue authorities in his
grandfather's favour in 1962-63. So there is a Bonafide dispute of title.
Therefore summary eviction of appellant could not have been done
without following due process of law.
24) The State should file a Civil Suit for declaration of title and
recovery of possession and then only evict the appellant. The learned
Single Judge clearly erred in asking appellant to go the Civil Court and
get back possession.
(1998) 8 SCC 483
25) The Circle Officer then referred to certain documents which he
claims to be in his possession, in his office. He also relied on an
investigation report of a Revenue Sub Inspector and opined that the
subject land is not inherited land of any raiyats. This finding cannot be
sustained since there was a mutation order in favour of the appellant's
grandfather issued by the revenue officials in 1963. It is also not the
Circle Officer's case that the Revenue Sub Inspector had given any
notice to appellant before making his investigation. Material collected
behind appellant's back cannot be used to his prejudice.
26) The Circle officer also held in the impugned order that the
appellant and his descendants were not the original raiyats of the land.
On what basis he came to this conclusion is not stated there.
27) He also opined that certain rent receipts produced by the
appellant did not match the number of rent receipt register maintained in
the Zonal office, Fatehpur and that the appellant had submitted fake
documents.
28) We fail to understand how the Circle Officer could determine
whether a document is fake or not as he is not conferred the power of
the civil court to decide the genuineness of document or whether it is a
forgery.
29) For all the aforesaid reasons, the appeal is allowed with cost of
Rs. 1,00,000/- (Rs. One Lakh only) to be paid by the 1st respondent to
the appellant; the impugned proceedings dt. 24.12.2019, 17.1.2020,
9.7.2020 and 6.8.2020 are all set-aside and declared to be proceedings
issued without jurisdiction and null and void; the respondents are
directed to put back the appellant in possession of the property, if he has
been dispossessed, within one week from today. Disciplinary action be
initiated against the 2nd respondent by the 1st respondent for acting
highhandedly without any jurisdiction for evicting the appellant.
30) Pending Interlocutory Application, if any, stand disposed of.
(M.S. Ramachandra Rao, C.J.)
(Deepak Roshan, J.)
Sharda/MM
