Dismissed

Mantu Rani Devi v. the State of Jharkhand

Jharkhand HC16 Mar 2023WPC/2482/2020

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a show cause notice for alleged land encroachment. Rejecting the petitioner's claim of possession over a specific plot, the court relied on a recent official measurement report confirming possession over the alleged encroached plots, thereby upholding the authority to proceed with the notice under the Public Land Encroachment Act.

What did the court decide?

The writ petition was dismissed. The show cause notice dated 25.06.2020 and the notice under Section 6(2) of the Public Land Encroachment Act were allowed to remain in force.

Mantu Rani Devi Vs the State of Jharkhand — Landlord and Tenant | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No. 2482 of 2020

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Mantu Rani Devi

… … Petitioner

Versus

The State of Jharkhand

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The Deputy Commissioner, Dumka

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The Sub-Divisional Officer, Dumka

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The Circle Officer, Circle-Dumka, District- Dumka

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Satish Kumar Chourasia

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…. … Respondents

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CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioner : Mr. Abhijeet Kumar, Advocate For the Resp.Nos. 1 to 4 : Mr. Niraj Kumar Mishra, A.C. to G.P.-IV For the Resp. No. 5 : Mr. Prashant Pallav, Advocate Mr. Bajrang Kumar, Advocate

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Order No. 08 Dated: 16.03.2023

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The present writ petition has been filed for restraining the respondent no. 4- the Circle Officer, Circle- Dumka to proceed further in terms with show cause notice dated 25.06.2020 (Anneuxre-1 to the writ petition) issued in connection with JPLE Case No. 01 of 2019-20 in view of order dated 09.12.1970 passed by learned Magistrate-1^st Class, Dumka in T.R. No. Case No. 107 of 1970 as well as not to disturb the petitioner’s possession over plot no. 402 of Mouza- Dumka. The petitioner has also prayed for quashing the impugned show cause notice dated 25.06.2020 issued by the respondent no. 4 in connection with JPLE Case No. 01 of 2019-20.

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2. Heard learned counsel for the parties and perused the materials available on record.

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3. The respondent no. 5-Satish Kumar Chourasia had filed a writ petition before this Court being W.P.(C) No. 2254 of 2016 challenging the order dated 15.12.2015 passed by the Deputy Commissioner, Dumka (the respondent no. 2) in R.M.A. No. 04/2014-15 whereby the said appeal preferred by Mantu Rani Devi (the petitioner herein) and Anand Keshri against the order dated 25.06.2014 passed in E.E. Case No. 25/2013-14 by the Sub-Divisional Officer, Dumka was allowed. The said writ petition was disposed of by a Bench of this Court vide order dated 28.02.2019, relevant part of which reads as under:

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“5. Counsel for the petitioner submits that a proceeding for removal of encroachment was initiated in connection with Plot Nos.

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300 and 405 and an order was passed for removal of encroachment against the private respondent herein vide order dated 25.06.2014 by the Sub-Divisional Officer, Dumka in E. E. Case No. 25/2013-14. He further submits that against the order, the private respondent filed an appeal which has been disposed of by the impugned order dated 15.12.2015 passed in R.M.A. Case No.04 of 2014-15. By referring to the impugned order, he submits that a specific statement was made by the appellant/private respondent herein that the house of the private respondent is situated in Plot No. 402 and on the basis of this oral statement the appeal was allowed.

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6. Counsel for the petitioner further submits that as the private respondent had encroached over the Plot No. 300 and Plot No. 405, an order of eviction of the private respondent from these two plots ought to have been sustained by the appellate authority.

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7. Counsel appearing on behalf of private respondents submits that the house of the private respondents is located only in Plot No. 402 and he has got no concern with Plot No. 300 and Plot No. 405 and he shall have no grievance, if any of the parties proceed in connection with Plot No. 300 and Plot No. 405. He submits that even the ancestors of the private respondent had not encroached Plot No. 300 and 405.

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8. Counsel appearing on behalf of the respondent state submits that they have filed a counter affidavit indicating that the house of the private respondents is on Plot No. 402.

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9. After hearing the counsel for the parties and after considering the materials on record, this Court finds that the specific case of the private respondents is that the house of the private respondents is situated on Plot No. 402 and that they have not encroached Plot No. 300 and Plot No. 405. Admittedly, the impugned proceedings were in connection with Plot No. 300 and Plot No. 405. In such circumstances, if it is found that Plot No. 300 and Plot No. 405 is encroached by the private respondents, it will be open to the authorities of the respondent-State to take steps in accordance with law.

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10. From the impugned order, this Court finds that the specific case of the private respondents was that their house is situated on Plot No. 402 has been accepted by the learned appellate authority. In view of the specific stand which has been taken by the private respondents, the impugned order does not call for any interference. 11. However, there is no impediment for the Respondent State to proceed in connection with Plot No. 300 and Plot No. 405, in view of the aforesaid specific stand which has been taken by the private respondents herein that they have no concern with Plot No. 300 and Plot No. 405 and if required help of amin may also be taken for exact identification of Plot No. 300 and Plot No. 405.

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12. Accordingly, this writ petition is disposed of.

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4. In pursuance of the observation made in the order dated 28.02.2019, the respondent no. 4 called for a report from the concerned ‘Anchal Amin’ and on the basis of the said report, the impugned notice dated 25.06.2020 was issued to the petitioner in connection with J.P.L.E. Case No. 01 of 2019-20.

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5. The contention of the petitioner as raised in the present writ petition is that the impugned show cause notice dated 25.06.2020 has been issued by the respondent no. 4 without properly identifying the plot over which she has been residing for last several years. Her specific case is that she has not encroached plot nos. 300 and 405 as has been alleged in the impugned notice, rather she is in possession of plot no. 402.

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6. Keeping in view the said contention, this Court, vide order dated 10.09.2020 directed the State respondents to file counter affidavit specifically stating as to whether plot no. 300 and plot no. 405 vis-à-vis plot no. 402 of the concerned khata have duly been identified in pursuance of the order dated 28.02.2019 passed in W.P.(C) No. 2254 of 2016. The writ petition was subsequently taken up on 23.03.2021 and following order was passed:

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“ This case is taken up through video conferencing.

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Reference may be made to the order dated 10th September, 2020 passed by this Court, whereby the State respondents were directed to file counter affidavit specifically stating as to whether plot nos.300 and 405 vis-à-vis plot no.402 of the concerned Khata had duly been identified in pursuance of the order dated 28th February, 2019 passed in W.P.(C) No.2254 of 2016.

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A counter affidavit has been filed on behalf of the State respondents, annexing a copy of the report dated 19th February, 2020 submitted by the Anchal Amin, Sadar, Dumka before the Circle Officer, Dumka. The very first paragraph of the said report suggests that the aforesaid land could not be properly measured due to resistance of certain persons and therefore he could not measure part of the land in question. As per the said report, the petitioner has allegedly encroached the land to the extent of 10 “Dhurs” over which a hutment (Khaprail Makan) has been constructed. Some part of the land to the extent of 01 “Dhur” and ¼ “Dhurki” is said to have been encroached by one Anand Keshri.

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After going through the said report, this Court is of the view that the measurement of the land in question done by the Anchal Amin cannot be said to be conclusive.

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Hence, this Court directs the Deputy Commissioner, Dumkarespondent no.2 to constitute a team by 7th April, 2021 for measurement of plot nos.300 and 405 vis-à-vis plot no.402 of Mauja Dumka Town no.7, comprising of an Executive Magistrate, a Circle Inspector and two Amins. The said team shall visit the plots in question on 12th April, 2021 at 11:00 a.m. The petitioner, the respondent no.5 and Anand Keshri shall also ensure their presence at the time of measurement of the concerned plots by the said team and shall cooperate in the measurement.

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The measurement report shall be duly signed by the members of the aforesaid team as well as by the petitioner, the respondent no.5 and said Anand Keshri, which shall be submitted before the respondent no.2 on or before 16th April, 2021. The respondent no.2 shall file a counter affidavit in the present case annexing a copy of the said report by 23rd April, 2021. Put up this case under the heading “For Admission” on 29th April, 2021.”

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7. Pursuant to the order dated 23.03.2021, a supplementary counter affidavit has been filed on behalf of the respondent no. 2 annexing a copy of measurement report dated 12.04.2021 (Annexure-V to the same) of the concerned lands prepared by a team of officials constituted in pursuance of the said order of this Court. It has been stated in the said supplementary counter affidavit that plot no. 300 (nature of the land - road), plot no. 405 (nature of the land-path) and plot no. 402 (nature of the land-parti kadim) were measured on the basis of ‘Khesra Register’ and

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the cadastral map of 1927-28. As per the measurement report, the petitioner’s house is situated over plot nos. 300 and 405 measuring an area of 01 katha 05 dhur. It has also been found that house of one Anand Keshri is situated over an area of 05 dhur of plot no. 402 and 04 dhur of plot no. 405. Moreover, 17 persons including the petitioner and Anand Keshri are found to have encroached over plot no. 300, plot no. 402 and plot no. 405. A temple is also situated over plot no. 405 and plot no. 300 covering an area of 04 dhur and 10 dhurki.

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8. On perusal of the statements made by the respondent no. 2 in the supplementary counter affidavit based on the report dated 12.04.2021 prepared by a team of the officials, it is evident that the petitioner has not been found in possession of plot no. 402 as she has claimed, rather she has been found in possession of plot no. 300 and plot no. 405.

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9. At this juncture, learned counsel for the petitioner submits that earlier a complaint was filed by the Executive Officer, Dumka Municipality on behalf of the Commissioner of the said Municipality for taking action against the petitioner’s husband- Ram Das Sah (since deceased) under Section 203 (2) of Bihar and Orissa Municipal Act, 1922 with an allegation that he had constructed permanent structures measuring an area of 20’6” x 12’6” over plot nos. 300 and 405 being road and drain of Dumka town. However, since the complainant could not prove the allegation against the petitioner’s deceased husband, he was accordingly discharged (wrongly written as “acquitted” in the order) under Section 245 Cr.P.C. vide order dated 09.12.1970.

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10. I have gone through the said order, on perusal of which it transpires that the witness namely B.P. Dutta, who was Overseer and pursuant to whose report, a notice was issued to the petitioner’s husband to remove the alleged encroachment, failed to bring on record total measurement of plot nos. 300 and 405 specifying the area of encroachment. The actual width of drain allegedly situated over plot no. 405 as well as whether the said drain had been closed was also not mentioned in the report of the said witness. Therefore, the learned magistrate felt difficulty in fixing up the extent of encroachment made by the petitioner’s husband since a clear picture did not emerge from the report and sketch map submitted by the said overseer.

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11. However, this Court, vide order dated 23.03.2021, directed the respondent no. 2 to constitute a team comprising of an Executive Magistrate, a Circle Inspector and two Amins to ascertain the fact as to whether the petitioner is in possession of plot no. 300/405 vis-à-vis plot no. 402 and on measurement, a fact finding report dated 12.04.2021 has been submitted by the said team which falsifies the averment made by the petitioner in the present wit petition that she is in possession of plot no. 402 and not of plot nos. 300 and 405. Moreover, the extent of encroachment has also been ascertained in the said report. Thus, I am of the considered view that the said order dated 09.12.1970 passed by the learned Magistrate, 1^st Class, Dumka discharging the petitioner’s husband does not come to the petitioner’s rescue.

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12. Since it has already been factually ascertained that hutment has been constructed by the petitioner on plot nos. 405 and 300 and not on plot no. 402 as has been claimed by her, I see no reason to interfere with the show cause notice dated 25.06.2020 issued by the respondent no. 4 as well as the subsequent notice issued under Section 6(2) of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 on 26.08.2020 directing her to comply the order passed under Section 6(1) of the said Act.

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13. The writ petition is accordingly dismissed.

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(Rajesh Shankar, J.)

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Ritesh/AFR

Mantu Rani Devi v. the State of Jharkhand

Case brief

What is this about?

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Mantu Rani Devi v. the State of Jharkhand

Case brief

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