Sona Lal Singh v. The State Of Bihar And ORS
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19007 of 2013 ====================================================== Sona Lal Singh, S/O-Late Gena Singh, Resident of Village- Tinkoni, P.OTinkoni, P.S- Darpa, District- East Champaran. .... .... Petitioner
Versus
1. The State of Bihar
2. The District Magistrate, Motihari, East Champaran.
3. Sub Divisional Officer, Raxaul, East Champaran.
4. Circle Officer, Chhauradano Block, East Champaran.
5. Superintendent of Police, Motihari, East Champaran.
6. The Officer Incharge, Darpa Police Station, East Champaran
7. Wakil Singh, S/O- Late Ram Ayodhya Mahto, Resident of VillageTinkoni, P.S- Darpa, District- East Champaran. .... .... Respondents ====================================================== Appearance :
For the Petitioner/s : Mr. Sunil Kumar No.III For the Respondent/s : Mr. Roy Shivaji Nath ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 14-07-2017 Heard Mr. Sunil Kumar No.3, learned counsel for the petitioner and learned AC to AAG-9 for respondent nos. 1 to 7.
The nature of order this court intends to pass does not require issuance of notice to the private respondent no. 7. The present writ application has been filed for a direction to the respondent nos. 2 to 6, to get the encroachment made by respondent no. 7, removed over raiyati land of the petitioner, pertaining to Khata No. 108, Plot No. 3784, situated in Village Tinkoni, District East Champaran.
2/7 It is submitted by the learned counsel for the petitioner that the petitioner is having title and possession over the land in question. The petitioner‟s residential house is situated on the land in question. Respondent no.7, with mala fide intention, forcibly in order to grab the land, made encroachment over the land of the petitioner. For removal of the encroachment, the petitioner made several representations before respondent nos. 2, 3 and 4 and even in the Janta Darbar of Hon‟ble the Chief Minister, but the grievance of the petitioner has not been redressed. Hence, the present writ application.
Learned AC to AAG-9 submits that the counter affidavit filed on behalf of respondent nos. 2 to 4 reflects that the land in question is raiyatee land of the petitioner which has been encroached upon by the private respondent no.7, hence, no proceeding can be initiated under the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the „Act‟), and the issue can only be decided through a suit by a competent Civil Court.
Having heard learned counsel for the parties, this is not in dispute that the land in question is a raiyatee land of the petitioner. The provisions of the Bihar Public Land Encroachment Act is applicable only upon public land. Public land has been
3/7 described in sub-section (3) of Section 2, which reads as follows:- "2. Definitions - In this Act unless there is anything repugnant in the subject or context - (1)...
(2)...
(3) "public land" means any land [managed by or] vested in the Union of India or the State of Bihar, or in any local authority [or statutory body], [public undertaking,] educational institution recognized by the Government or by any University established under any law for the time being in force, Railway Company or Gram Panchayat established under, section 3 of the Bihar Panchayat Raj Act, 1947 (Bihar Act VII of 1948), and includes any land over which the public or the community has got a right of user, such as right of way, burials, cremation, pasturage or irrigation." Hence, the encroachment on the raiyatee land of the petitioner cannot be directed to be removed through a proceeding being initiated under the Act.
So far as, giving any direction in exercise of discretionary jurisdiction under Article 226 of the Constitution of India, for removal of encroachment from a private land, is concerned, there is no binding rule that the High Court cannot try the issue of facts in a writ application, but in such cases where
4/7 relief has been prayed for on the basis of disputed question of facts which cannot be determined without leading of evidence, the court should ordinarily relegate the parties aggrieved to agitate the issue before Civil Court. This is, however, a rule of practice and not an incident of jurisdiction of the High Court.
Facts are of two types. (i) The facts which the court or an authority determines for the purpose of deciding the question before it; and (ii) the facts which must exist before the Court or a Tribunal for exercise of its jurisdiction which is called jurisdictional or preliminary facts. When the writ discretion cannot be exercised for deciding the question before the court in view of disputed question of fact, it falls in the first category but where alternative remedy is available to the party concerned then it falls under jurisdictional or preliminary facts.
In the present case, no direction can be given for removal of encroachment under the Act, since the land in question is not a public land, hence this case falls under the jurisdictional or preliminary facts. Moreover, the Court in exercise of Article 226 of the Constitution of India cannot decide the disputed question of fact since it requires determining of the title and possession of the petitioner over the land in question.
The Apex Court elaborated the same view in the
5/7 case of Real Estate Agencies Vs. State of Goa and Ors. (2012) 12 Supreme Court Cases where certain development works/raising construction over some plot of land was in dispute though the title over the land was not in dispute but it was held that the writ court may refuse to interfere if the process of determination of the issue, the disputed question of fact or title would be required to be adjudicated. Paragraph 16 reads as follows:- "16. A reading of the order of the High Court would go to show that its refusal to interdict the developmental works undertaken or about to be undertaken is on the ground that the Petitioner has an efficacious alternative remedy, i.e. a suit for injunction.
The Writ Court exercising jurisdiction under Article 226 of the Constitution is fully empowered to interdict the State or its instrumentalities from embarking upon a course of action to detriment of the rights of the citizens, though, in the exercise of jurisdiction in the domain of public law such a restraint order may not be issued against a private individual. This, of course, is not due to any inherent lack of jurisdiction but on the basis that the public law remedy should not be readily extended to settlement of private disputes between individuals.
6/7 disputed questions of fact or title would require to be adjudicated."
In the case of D.L.F. Housing Construction (P) Ltd Vs. Delhi Municipal Corpn. and Others, (1976) 3 Supreme Court Cases 160, the question related to the right of ownership over a land, a Four Judge Bench of the Apex Court held that in a case where the basic facts are disputed and complicated question of law and fact depending on evidence are involved, the writ court is not a proper forum for seeking relief. Paragraph 18 reads as follows: "18. In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course of the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case.
In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. On this short ground while setting aside the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The appellants may if so advised, seek their remedy by a regular suit."
In the present case, the issue raised cannot be
7/7 decided in a summary proceeding under the provisions of Bihar Public Land Encroachment Act, since the fundamental facts have not been brought on record through pleadings and counter pleadings, whether the land in question is a public land or still it is a private land. Such issue can be decided only after leading of evidence properly in a suit before Civil Court. Accordingly, this writ application is disposed of with liberty to the petitioner to avail remedy before appropriate forum.
(Dinesh Kumar Singh, J) Anil/- U