IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.919 of 2012 ====================================================== Babu Kant Jha, son of Late Satya Narain Jha, resident of village-Uchhati, P.S.-Biraul and District-Darbhanga. .... .... Petitioner/s Versus 1. The State of Bihar through the Director General of Police, Bihar, Patna. 2. The District Magistrate, Darbhanga. 3. The Senior Superintendent of Police, Darbhanga. 4. The Sub-Divisional Magistrate, Biraul, Darbhanaga. 5. The Circle Officer, Biraul, Darbhanga. 6. Officer-in-Charge, Biraul Police Station, Darbhanga. .... .... Respondent/s ====================================================== Appearance: For the Petitioner : Mr. Girish Chandra Jha, Advocate Mr. Govind Mohan Thakur, Advocate For the State : Mr. M.D. Dwivedi (SC-23) Mr. Ram Narayan, AC to SC-23. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER
7 23-04-2013 By invoking the extra-ordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India, the petitioner has made prayer for issuance of an appropriate writ directing the respondents not to interfere in possession of the petitioner over the land as determined by decree dated 9 th October, 2006, arising out of judgment dated 25th September, 2006, passed by the learned Sub-Judge-I, Benipur, Darbhanga in Title Suit No. 61 of 2001.
It is contended that the petitioner is karta and manager of his Hindu undivided family. He purchased 13 kathas of land under old khata no. 369 corresponding to C.S. plot no. 39 and 38 in village-Hatee, Pargana-Ahis, P.S.-Anchal, Sub-Division- 2 Patna High Court CR. WJC No.919 of 2012 (7) dt.23-04-2013 2/7 Biraul, District-Darbhanga under Thana no. 297 in name of his son Mani Shankar Jha by means of two sale deeds dated 26.7.1973 and 24.11.1973 executed by one Navin Chandra Prasad Singh. Said Navin Chandra Prasad Singh had purchased the aforesaid land from Raja Bahadur Sri Bisheshwar Singh of Raj Nagar on 20.8.1949. The petitioner was coming in peaceful possession of the said land since the date of purchase. The name of petitioner's son was mutated in sharista of the State of Bihar and he had been paying rent continuously. In 1982, upon the request of the then MLA of the locality, the petitioner donated about 5 kathas from the aforesaid land to the State of Bihar for construction of inspection bunglow at Biraul. The State of Bihar accepted the donation of land and constructed inspection bunglow over the same. The petitioner continued to be in possession of about 8 kathas out of the said 13 kathas of the aforesaid land. The revisional survey authorities opened khata with respect to 8 kathas of land in favour of the petitioner and the revisional survey khatiyan has already been published on 5 th October, 1994. The petitioner constructed pucca house consisting of four rooms over the land in question. However, all of a sudden, the petitioner's son, namely, Mani Shankar Jha received a notice dated 7 th November, 2001, issued under the signature of the Circle Officer, Biraul, whereby he had been directed to remove his possession 3 Patna High Court CR. WJC No.919 of 2012 (7) dt.23-04-2013 3/7 from the remaining 8 kathas of land by 12th November, 2001. On receipt of the aforesaid notice, the petitioner's son put his claim over the land before the Circle Officer, Biraul on 8.11.2001 but the Circle Officer, Biraul directed him to remove his possession or else he would be dispossessed under the provisions of the Bihar Public Land Encroachment Act.
It has further been contended on behalf of the petitioner that the petitioner and his son, being left with no option, filed Title Suit No. 61 of 2001 in the court of Sub-Judge-I, Benipur, Darbhanga for declaration of title over the land measuring 33 decimal appertaining to khata no. 369 (old), plot no. 39 & 38 (old) situated in village-Hatee, Pargana-Ahis, Thana no. 297, District-Darbhanga. The further prayer of the plaintiffs in the said suit was for granting permanent injunction restraining the defendants, the State of Bihar, the Collector, Darbhanga and the Circle Officer, Biraul from changing the status quo of the suit land.
The learned Sub-Judge-I, Benipur, Darbhanga vide his judgment dated 25th September, 2006, decided the aforesaid suit on contest against the defendants. It has been declared in the suit that the petitioner and his son who were plaintiffs in the case had got title over the suit land and the defendants were permanently restrained from removing them or demolishing the house of the 4 Patna High Court CR. WJC No.919 of 2012 (7) dt.23-04-2013 4/7 plaintiffs situated over the suit land. The said suit has already been decreed by the learned Sub-Judge-I, Benipur, Darbhanga on 9th October, 2006.
Learned counsel further contended that after the judgment and decree passed in the aforesaid suit in favour of the plaintiffs, the petitioner started construction and repairing work over the land in question. The Circle Officer, Biraul came there and stopped the work and threatened the petitioner with dire consequences if he proceeds with any construction work. The petitioner filed several representations before the District Magistrate and the Superintendent of Police, Darbhanga but to no effect.
The State has filed two counter affidavits. One on behalf of respondent nos. 3 & 6 and the other on behalf of respondent no. 5.
In the counter affidavit filed on behalf of respondent nos. 3 & 6, a clear stand has been taken that the construction and repairing work over the land as claimed by the petitioner was never stopped by the police. However, it has been conceded that the construction work has been stopped by the Circle Officer, Biraul.
In the counter affidavit filed on behalf of Circle Officer, Biraul, it has been admitted that he has directed the 5 Patna High Court CR. WJC No.919 of 2012 (7) dt.23-04-2013 5/7 petitioner to stop construction over the land in question in public interest. Most of the facts stated by the petitioner in the writ petition have been admitted by the respondent no. 5 in the counter affidavit filed on his behalf. However, it has been contended that the Sub-Divisional Officer, Biraul has cancelled Jamabandi of the petitioner's son vide order dated 18th July, 2012, in Jamabandi Cancellation Case No. 1/2002-03. It is also admitted in the counter affidavit that the petitioner after obtaining decree from the court of Sub-Judge-I, Benipur, Darbhanga filed a petition before the Circle Officer, Biraul for restoration of his old Jamabandi and after receipt of the said application, the Circle Officer, Biraul initiated a proceeding for restoration of Jamabandi of the petitioner. He called for a report from the Halka Karamchari and the Circle Inspector and after obtaining their report sent the case record to the Additional Collector, Darbhanga for his approval and concurrence vide his letter No. 72 dated 14.1.2013.
Learned counsel for the State submitted that during the pendency of restoration of the Jamabandi Case, the petitioner started some construction work over the land in question and then a public petition signed by one Indrakant Jha and others was received making a complaint that the petitioner is illegally acquiring the public land and after receipt of the said application, the Circle Officer, Biraul directed S.H.O. of Biraul Police Station 6 Patna High Court CR. WJC No.919 of 2012 (7) dt.23-04-2013 6/7 to take necessary action and stop the ongoing construction.
Learned counsel for the State further submitted that since the matter relating to restoration of Jamabandi is still sub- judice before the Additional Collector, Darbhanga, the prayer made by the petitioner in the present case is fit to be dismissed.
Taking into consideration the rival submissions made on behalf of the parties, I am of the considered opinion that the respondents have illegally interfered in possession of the petitioner over the land in question. It is well-settled by now that creation or cancellation of Jamabandi has no impact on the right, title and possession of a party. The judgment and decree passed by the civil court shall always prevail till it is set aside by any superior court.
At this stage, I think it appropriate to take note of Article 300-A of the Constitution of India which reads as under:
"No person shall be deprived of his property save by authority of law".
Article 300A has been inserted by the Constitution (44th Amendment) Act, 1978. Prior to this amendment, the right to property was guaranteed by Article 31of the Constitution. It is true that right to property is no more a fundamental right but the same is a human right as also a constitutional right. The right to property of a person would include a right to construct a building. 7 Patna High Court CR. WJC No.919 of 2012 (7) dt.23-04-2013 7/7
Such a right, however, can only be restricted by reason of legislation.
As noted above, in the present case, the right of the petitioner over the land in question has been determined by a competent civil court. Thus, there is no doubt that the petitioner has established that he has title to that property. Under such circumstance, it is duty of the State to give necessary protection for protecting the petitioner's right to property. The State cannot deprive the petitioner from enjoying such right which has been perfected by a verdict of competent civil court in a duly instituted suit on the pretext that the Jamabandi has subsequently been cancelled by any revenue authority.
For the reasons stated, hereinabove, the respondents are hereby restrained from interfering in possession of the petitioner over the land as determined by decree dated 9 th October, 2006 arising out of judgment passed by the learned Sub- Judge-I, Benipur, Darbhanga, in Title Suit No. 61 of 2001.
With these observations and directions, the application is allowed.
(Ashwani Kumar Singh, J.) Sanjeet/-