Allowed

Sheikh Israt Khan @ Ali and Ors. v. State of Bihar and Ors.

Patna HC5 Feb 2015CWJC/4396/1996

Case brief

AI extract

What is this about?

Patna HC quashed an order directing removal of a house as encroachment. The Court held the Deputy Collector had no jurisdiction to initiate proceedings while a title suit was pending regarding ownership and wakf status, distinguishing between eri and wakf properties under the Bihar Land Encroachment Act.

What did the court decide?

Order dated 16th March 1996 passed by Dy. Collector Land Reforms directing removal of encroachment was quashed.

Sheikh Israt Khan @ Ali and Ors. Vs State of Bihar and Ors. — Land Acquisition | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.4396 of 1996

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=========================================================== 1. Sheikh Israt Khan @ Ali 2. Shiekh Azad Ali @ Khan

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Sheikh Shaukat Ali.

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All sons of Late Sheikh Safi, resident of village /Mohalla-Karan Sarai (Rasulpur), PO & PS-Sasaram Town and District-Rohtas.

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.... .... Petitioner/s Versus

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State of Bihar

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The Collector, Rohtas at Sasaram

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The Dy. Collector Land Reforms, Rohtas at Sasaram

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The Anchal Adhikari, Sasaram, District-Rohtas

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Nazib Ahmad son of Latif Ahmad, resident of Mohalla-Karan Sarai, PO & PS – Sasaram, District-Rohtas.

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.... .... Respondent/s with

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=========================================================== Civil Writ Jurisdiction Case No. 13862 of 2002

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===========================================================

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Alay Nabi Wakf Estate No.70 through its Motwali, Nazib Ahmad son of Late Latif Ahmad, resident of Mohalla-Adda Road, PS-Sasaram, District-Rohtas.

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.... .... Petitioner/s

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Versus

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The State of Bihar

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The Secretary, Minority Welfare Department, Bihar, Patna

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The Collector, Rohtas, Sasaram

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The Sub-Divisional Officer, Rohtas, Sasaram, District-Rohtas

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The Superintendent of Police, Rohtas, Sasaram, District-Rohtas

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.... .... Respondent/s

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=========================================================== Appearance : (In CWJC No. 4396 of 1996) For the Petitioner/s : Mr. Jitendra Prasad Singh For the State Mr.Sanjay Kumar @ Manu For the Respondent No. 5: Mr.Sanjay Kumar @ Manu (In CWJC No. 13862 of 2002) For the Petitioner/s : Mr. Sanjay Kumar @ Manu For the Respondent/s : Mr. Ashok Kumar Verma, AC to SC-17 =========================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL JUDGMENT Date: 05-02-2015

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Heard learned counsel for the petitioners and learned

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counsel for the State.

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Patna High Court CWJC No.4396 of 1996 dt.05-02-2015

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2/5

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In CWJC No. 4396 of 1996, petitioners are challenging the order dated 16^th March 1996 passed by DCLR, Sasaram in Encroachment Case No. 43 of 1995 whereby he has directed for removal of encroachment i.e. house of the petitioners and before the order of interim/stay, certain portion of the house has already been demolished.

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In the present case, the land in question appertaining to Khata no. 96, Plot no. 93 old, new Plot no. 84, Municipal Plot no. 1184, Area 2.48 decimal but the petitioners have claimed over 1.84 link by virtue of continuous possession and also inherited the property being legal heirs and successors.

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With respect to the aforesaid property, mother of the petitioners filed a title suit, vide Title Suit No. 15/1976, for relief of declaration of right, title and possession over the land in question and the same was dismissed on the ground of vague description of the land and in that case, petitioners were not made parties even as minor and later on, petitioners filed a title suit, vide Title Suit No. 379 of 1975, with a prayer for declaration of right, title and possession over the land in which Respondent no. 5 is a defendant in the title suit.

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It appears that Respondent no. 5 is claiming to be Mutwali of waquf property which was given to waqf by Syed Ali Navi Mokhtar through the registered deed but the claim has been

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Patna High Court CWJC No.4396 of 1996 dt.05-02-2015

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3/5

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made by the petitioners that this land is not a waqf property rather it is an individual raiyati property.

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The Trial Court, vide order dated 22^nd September 1995, granted status quo and later on, injunction petition was rejected. Respondent No. 5, who was the Stenographer in the office of the D.D.C., filed a petition for removal of encroachment in the court of D.C.L.R. which was registered as Encroachment Case No. 43 of 1995.

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Notice was issued by the D.C.L.R. vide order dated 28^th November 1995. Petitioners appeared and filed their show cause on 12^th December 1995. The D.C.L.R., vide order dated 16^th March 1996, declared the house of the petitioners as encroachment and directed for its removal.

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In between the order passed by the D.C.L.R. and status order passed by the Court, certain portion of the house was already demolished.

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The counsel for the petitioners submits that the land in question is not a waqf property rather it is a raiyati land of the petitioners and for that, a title suit, as aforesaid, is pending for adjudication.

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During the pendency of this title suit, the Revenue Authority under the Bihar Land Encroachment Act, 1956 should not have initiated the proceeding of removal of the encroachment and so

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Patna High Court CWJC No.4396 of 1996 dt.05-02-2015

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4/5

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much so that even presuming that the land to be a waqf land, cannot be said to be a public land as defined under section 2(3) of the Bihar Land Encroachment Act, 1956, only the land of the Union of India, State Government, Local Authority, University, Gram Panchayat including the land over which the public or the community has got a right of use, such right, by way of burials, cremation, pasturage or irrigation and the land in the present case does not fall in the category of the public land, so much so the DCLR is not Collector under the Bihar Land Encroachment Act as defined under section 2 (1) of the Act, has no jurisdiction to proceed with the matter, so much so, if any person is encroacher of the waqf property, Administrator has been given power to initiate a proceeding and remove the encroachment. Before the new amendment, the Civil Court had a jurisdiction and after coming of the wakf Act, 1995, the Board as well as the Tribunal, as provided under sections 43 and 85 of the Act, have jurisdiction to decide the status of the property as to whether it is a private property or a waqf property.

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In such view of the matter, from all angles, DCLR does not have a jurisdiction to initiate a proceeding and pass an order of encroachment with respect to property in which the parties are claiming to be a raiyati land and others are claiming to be a waqf property and for that already a suit is pending.

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Patna High Court CWJC No.4396 of 1996 dt.05-02-2015

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5/5

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In view of the aforesaid facts and circumstances, the order dated 16^th March 1996 (Annexure-6) is hereby quashed. This Court is not giving any opinion on the merit of the case, only deciding the power of the DCLR with regard to initiation of proceeding under the Encroachment Act. The nature of the land will be subject to the result of the suit.

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Accordingly, this petition (CWJC No. 4396 of 1996) is

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allowed.

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With respect to 13862 of 2002 is concerned, in view of order passed in CWJC No. 4396 of 1996 where this Court has already decided that encroachment proceeding was/is misconceived, misdirected and quashed the order dated 16^th March 1996 passed in Encroachment Case No 43 of 1995, this writ application does not survive and accordingly the same is dismissed.

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(Shivaji Pandey, J)

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Mahesh/-

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Sheikh Israt Khan @ Ali and Ors. v. State of Bihar and Ors.

Case brief

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Sheikh Israt Khan @ Ali and Ors. v. State of Bihar and Ors.

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