Patna High Court
Rajeshwar Prasad Singh vs The State Of Bihar And Ors on 20 March, 2025
Author: Rajesh Kumar Verma
Bench: Rajesh Kumar Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2824 of 2015
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Rajeshwar Prasad Singh S/o - Late Surya Prasad Singh R/o - Mohalla Miscot.
P.S. - Motihari Town, P.O. - Motihari, Distt. - East Champaran.
... ... Petitioner/s
Versus
1. The State of Bihar
2. The District Magistrate, East Champaran, Motihari.
3. The D.C.L.R., Motihari, East Champaran.
4. Teh Circle Officer, Anchal - Motihari, Distt. - East Champaran.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Shri Prakash Srivastava, Advocate
Mr. Santosh Bharti, Advocate
Mr. Rajeev Ranjan, Advocate
For the Respondent/s : Mr. M.K. Sinha, AC to GA-9
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CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL JUDGMENT
Date : 20-03-2025
Heard Mr. Shri Prakash Srivastava, learned counsel
for the petitioner and Mr. M.K. Sinha, AC to GA-9 for the State.
2. The present writ petition has been filed for
quashing of the order dated 10.07.2014 passed by the D.C.L.R.,
Motihari, East Champaran (respondent no. 3) in Encroachment
Case No. 110 of 2012-13 whereby the petitioner has been held
encroaches on the land bearing Khata No. 199, Plot No. 859
having total areal of 10 dhurs.
3. Learned counsel for the petitioner submits that the
petitioner had purchased the land in question bearing Khata No.
199, Plot No. 859, Area 0.4 decimals through different sale
Patna High Court CWJC No.2824 of 2015 dt.20-03-2025
2/11
deeds dated 30.05.1988 (Annexure-1), 17.01.2003
(Annexure1/A) and 25.07.2003 (Annexure-1/B) respectively. He
further submits that the land in question was purchased by the
petitioner in favour of his son and other family members.
4. On the other hand, respondents have claimed that
the land in question is a public land and no notice was served
upon the purchaser (petitioner) rather notice has been served
upon the father of the petitioner. Apart from that the respondent
no. 3 has not notified as a collector under the act.
5. Learned counsel for the petitioner submits that the
land in question was executed by one Smt. Rukmini Devi wife
of Shri Rameshwar Nath Shah on 30.05.1988 again a land was
purchased by the petitioner in favour of his son namely, Pradeep
Kumar by virtue of sale deed dated 17.01.2003. The said sale
deed was executed by Shri Rai Devendra Singh son of late Raj
Kishore Singh with respect to Khata No. 199 Plot No. 859 area
of 3 dhurs. Third sale deed was executed by Shri Rai Narendra
Singh son of late Raj Kishore Singh in favour of Sanjeev Kumar
son of Shri Rajeshwar Prasad Singh (petitioner) by virtue of sale
deed dated 25.07.2003. The aforesaid sale deed was with respect
to Khata No. 199 Plot No. 859 area 3 dhurs. Learned counsel for
the petitioner submits that from the perusal of the sale deed
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3/11
dated 17.01.2003 the noting made by and from the office of the
respondent no. 4 (Circle Officer) which is quoted herein under
in extenso :-
vapy vf/kdkjh eksfrgkh ds Kkikad&214
fnukad 27-02-2003 ds izfrosnukuqlkj bl nLrkost esa
vafdr csycuok dh tehu izfrcfU/kr {ks= ls ckgj dh
gSA
6. It appears from the aforesaid that the present
encroachment proceeding initiated against the petitioner was
through based on non-existent and stale material. A notice under
Section 3 of the Bihar Public Land Encroachment Act, 1956 was
issued upon the petitioner on 24.01.2013. Despite the fact that
the self acquired properties were running in the name of the
sons and other family members of the petitioner and they are
rightful owner by virtue of the sale deeds dated 30.05.1988,
17.01.2003
and 25.07.2003 respectively, and no notice was
served upon Dilip Kumar, Pradeep Kumar and Sanjeev Kumar
from the office of the respondent no. 3 who is the rightful owner
of the land in question.
7. A counter affidavit has been filed on behalf of
the respondent-State stating therein that on the basis of the
report of the Assistant Settlement Officer, Motijheel Survey
Patna High Court CWJC No.2824 of 2015 dt.20-03-2025
Camp, Motihari through his Letter No. 1964 dated 28.11.2012
instructed the Deputy Collector Land Reforms, Sadar, Motihari
(respondent no. 3) to start a proceeding under the provisions of
Bihar Public land Encroachment Act, 1956. Accordingly, Case
No. 110 of 2012-13 was started in the Court of Deputy Collector
Land Reforms, Sadar, Motihari (respondent no. 3) against the
petitioner of the present writ petition, whose name was on Serial
No. 151 of the list of the encroachers of Motijheel presented by
Assistant Settlement Officer, Motijheel Survey Camp, Motihari
and after following the process under the Act and theory of
natural justice, the respondent no. 3 has passed the order dated
24.01.2013 by the aforesaid order the applicant of the present
writ petition was declared as encroachers and he was instructed
to remove the encroachment within the 15 days, otherwise the
encroachment was to be removed forcefully.
8. In reply to the aforesaid, learned counsel for the
petitioner submits that it is an admitted fact that the sons and
family members of the petitioner had purchased the land in
question through different sale deeds dated 30.05.1988,
17.01.2003 and 25.07.2003 respectively and thereafter he
obtained sanction from the competent authority and the
authority after verifying the same has sanctioned the plan for
Patna High Court CWJC No.2824 of 2015 dt.20-03-2025
construction.
9. Learned counsel for the petitioner has placed
reliance upon the Paragraph No.-5 of the judgment reported in
2017 (1) PLJR 818 in case of Vijay Kumar Prasad & The
State of Bihar & Ors. Paragraph No.-5 is hereinbelow as:
5). I completely fail to
understand as to how such plea could
be decided by the Collector in a
summary proceeding. The information
given to the petitioner under Right to
Information Act, a copy of which has
been appended as Annexure 3, indicates
in clear terms that the concerned part of
the constructed road was never entered
in any survey map as road or lane
rather the entry is as Gair Mazarua
Malik which could have well been
settled as a Raiyati land by the
Jamindar. That apart the Hon'ble
Supreme Court in Gauri Shanker v. Ram
Singhasan AIR 1952 Patna 472) has
held that the entry in the record of rights
chough has a presumptive value but it
weakens or wanes through passage of
time. The collector must be indicating
towards entry of Gair Mazarua in
cadastral survey of right which must
have been prepared between the year
Patna High Court CWJC No.2824 of 2015 dt.20-03-2025
1906 to 1911. After 30-40 years, there
was a possibility that the nature of land
might have changed from Gair Mazarua
and could have been settled. However, it
was unfair on part of he Collector to
direct the petitioner to produce that
Sadda Pattta which vas executed in the
year 1940 to the ancestor of his vendor
without explaining as to why the
Jamabandi was created in the name of
Kamli Devi, Kunti Devi and Sheo
Dulari Devi and was never questioned.
If a person or even State has some
reason to question the manner in which
amabandi was created in 1950 after
several decades then onus would e upon
it or such person to prove that such
Jamabandi was created wrongly. That
apart, after such a long time after
creation of Jamabandi and, thereafter,
further mutation after purchase in the
year 1977 by the etitioner, it cannot be
held in the year 2013 by the collector
that amabandi was created fraudulently
as the fraud would have to be roved
before a Court of competent
jurisdiction. Thus, the option before he
State of Bihar would be to file a suit
before the competent court for etting
such declaration. It cannot be done even
Patna High Court CWJC No.2824 of 2015 dt.20-03-2025
under Section 9 of the ihar Mutation Act
in the facts and circumstances of the
case. He annot become a factotum i.e. a
party and the judge and would decide
me matter and annul such Jamabandi
which is standing for several ecades. A
reference in this regard is made to a
decision of a Coordinate Bench of this
Court rendered in C.W.J.C. No. 22052
of 2013 analogous cases (Shyam Mohan
Shahi v. the State of Bihar) holding hat
only option open in such matters to the
State would be to file a uit and get a
decree from the Civil Court of
Competent Jurisdiction. me aforesaid
judgment was upheld by a Division
Bench of this Court in State of Bihar v.
Harendra Nath Tiwary reported in 2015
(1) PLJR 606. Apart from the above,
this is also intriguing as to under which
authority, the Collector has himself
recorded a positive finding as if
deciding and declaring title in favour of
the State and, thereafter, directed the
Circle Officer to initiate a proceeding
for cancellation of Jamabandi. The
Circle Officer does not have power to
cancel the Jamabandi when such power
has been vested in the Additional
Collector under Section 9 of the Bihar
Patna High Court CWJC No.2824 of 2015 dt.20-03-2025
Land Mutation Act, 2011. Even if it
assumed that he has such power then
again if the Collector, being a superior
authority, has already applied his mind
as he had practically decided a title suit,
it would be unwise to think that an
authority who is lower in the rank to the
Collector would have courage to take a
decision contrary to the findings which
have been recorded by his superior
authority. In my view such action is
wholly arbitrary and undesirable.
He also placed reliance upon the Paragraph Nos. 7, 8
and 9 of the judgment reported in (2014) 3 PLJR 584 in case of
Maya Devi & Ors. Vs. The State of Bihar & Ors. Paragraph
Nos.-7, 8 and 9 are hereinbelow as:
7). We then come to the third
stage. Who is to determine the validity
of long standing Jamabandi created? It
is not one of those cases where
overnight people have turned up and
some papers have been manufactured.,
Here, the petitioners undisputedly have
been in possession for over 50 years.
State, in its counter affidavit itself,
agrees that Jamabandis were created
long back but they point out two
fallacies to challenge its correctness or
Patna High Court CWJC No.2824 of 2015 dt.20-03-2025
authenticity. In my view, it is again well
settled that where there are such
disputes, which involve question of title,
right of possession, especially when
long standing possession is not
disputed, then the only forum available
to the State for cancellation, of
Jamabandi is resort to Civil Court and
not in a summary proceeding by any
revenue officer of the State.
8). The result of these three
progressive stages is that if the State
wants the petitioners' lands or the lands
on which the petitioners have been
residing for last 50 years, they must pay
due compensation and take action in
accordance with the provisions of the
new Land Acquisition Act. If they intend
to cancel the Jamabandi then it is for
them to move the Civil Court for a
declaration that the alleged settlement
and/or Jamabandi is illegal and cannot
be accepted and let the title of the State
be so declared but till such time the
dispute is resolved, the petitioners cannot
be evicted by the State in any manner nor
can just compensation for acquisition be
denied.
9). Here, I can usefully refer to
the case of Hindustan Sugar Mills v.
Patna High Court CWJC No.2824 of 2015 dt.20-03-2025
State of Rajasthan since reported in
(1980) 1 SCC 599: AIR 1981 Supreme
Court 1681 wherein it was held as
under:-
"... ... ..We hopefully expect that the
Central Government will not try to shirk
its legal obligation by resorting to any
legal technicalities, for we maintain that
in a democratic society governed by the
rule of law, it is the duty of the State to
do what is fair and just to the citizen,
and the State should not seek to defeat
the legitimate claim of the citizen by
adopting a legalistic attitude but should
do what fairness and justice demand."
10. Having heard the parties and perused the
material available on record, the Court has come to the
conclusion that the authority had never issued notice to the
original land holders rather the notice was issued in the name of
the father of the original land holders and it is an admitted fact
that the sons and other family members of the petitioner had
purchased the land in question through different registered sale
deeds dated 30.05.1988, 17.01.2003 and 25.07.2003
respectively. It transpired that the neither encroachment case
having been registered against the person other than the title
Patna High Court CWJC No.2824 of 2015 dt.20-03-2025
holders is maintainable nor in view of the settlement which was
placed apart from the judgment rendered by this Court as
reported aforesaid and accordingly the order dated 10.07.2014
passed by the Deputy Collector Land Reforms, Sadar, Motihari
(respondent no. 3) in Encroachment Case No. 110 of 2012-13 is
quashed and set aside and it is held that unless the State of Bihar
obtains a degree in its favour with respect to the land in dispute
from the Civil Court of competent jurisdiction, the Jamabandi
which was created in favour of the sons and family members of
the petitioner would stand as it is and the same cannot be
questioned in the summary proceeding after the lapse of long
period.
11. Accordingly, the present writ petition stands
allowed.
(Rajesh Kumar Verma, J.)
Jyoti Kumari/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date .04.2025
Transmission Date N/A
