IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2824 of 2015 ====================================================== 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 ====================================================== 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 Patna High Court CWJC No.2824 of 2015 dt.20-03-2025 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 4/11 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 5/11 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 6/11 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 7/11 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 8/11 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 9/11 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 10/11 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 11/11 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. Jyoti Kumari/- (Rajesh Kumar Verma, J.) 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