- (1.) This review petition has been filed for review of orderdated 18.7.2007 passed in W.P.(PIL) No. 3621 of 2007.
(2.) The case as made out by the writ petitioner in the Public Interest Litigation being W.P.(PIL) No. 3621 of 2007 is as under: The land appertaining to khata no. 334 plot nos. 1445 and 1446 is a property of Central Government as it is recorded as Keshr-e-Hind in the last Cadastral survey completed prior to 1910. The writ petitioner/first respondent came to know that the then Circle Officer illegally issued rent receipts in favour of one Shiv Narayan Jaiswal and Jagat Narayan Jaiswal by settling the same in their names and the said Shiv Narayan Jaiswal and Jagat Narayan Jaiswal have got no piece of land within the Bagodar Circle and at no point of time they were resident of Bagodar Police Station. It is further submitted that the Keshar-e-Hind land cannot be settled with anybody who were not resident of the area. While so, Shiv Narayan Jaiswal and others filed an application to the Secretary, Deputy Commissioner, Hazaribagh and got an Officer Gyapank No. 10-1/2004-1786/Revenue and inspite of the fact that the Halka Karamchari submitted report that the land is Keshar-e-Hind, the C.O., Bagodar passed Mutation Order. One Hemlal Prasad, Khiru Mahto, Rajesh Kumar Rai and Mahendra Mahto are claiming to have purchased the property falling under Plot Nos. 1445 and 1446 and have started construction of building. One Binod Singh (review applicant) M.L.A of Bagodar Constituency and his workers namely, Taiyab Ansari and Mahesh Mishra also purchased the said Keshar-e-Hind land, falling under plot no. 1445 and 1446 from the family members of Jaiswal on nominal price and they have put boundaries on the said land. It is further averred that the C.O. Bagodar issued notice to the said Hemlal Prasad, Khiru Mahto, Rajesh Kumar Rai and Mahendra Mahto to show cause why encroachment shall not be removed. Alleging that the said encroachment has not been removed from the Keshar-e-Hind land, the first respondent-writ petitioner filed the Public Interest Litigation to remove encroachment. The said writ petition was disposed of by a brief order dated 18.7.2007, which is quoted herein below: There is no dispute in the fact as contained in para 19 of the writ petition that already on the complaint of the petitioner, the Circle Officer, Bagodar, has taken steps to remove encroachment and issued notices to the respondent nos. 6 to 11 to show cause as to why encroachment shall not be removed. Though the notices have been issued on 10.1.2007, the petitioner, without taking follow-up action in the matter, has chosen to file this PIL before this Court. But at this stage, it is not known as to what steps have been taken by the Circle Officer to stop so called construction and remove the encroachment. Under those circumstances, we feel that it would be appropriate to direct the petitioner to approach the Circle Officer and S.D.O., Bagodar, by filing representation for removal of the construction/encroachment, who, in their turn, will look into the matter, stop construction without any delay and pass reasoned order in accordance with law. With these directions, this petition is disposed of. Let copies of this order be given to the counsel for the parties.
(3.) This review application is filed by the review applicant, to review the order passed in the Public Interest Litigation stating that the order suffers from the error apparent on the face of the record and further it has not taken into consideration various factual aspects, on the following grounds: (i) Shiv Narayan Jaiswal and others are the owners of the property appertaining to plot nos. 1445 and 1446, by virtue of registered sale deed executed by the competent Court of Sub-Ordinate Judge III in Title Suit No. 34 of 1937 and by sale deed dated 31.8.1954 being Deed No. 8162 in the District Sub-Registry at Gaya. (ii) The review applicant is a member of the Communist Party of India (Marxist-Leninist) {in short C.P.I. (M.L.)} and is representing Bagodar Constituency. The said C.P.I. (M.L.) is a political party registered with Election Commission of India and it has its own building at Giridih and also running its office over portion of plot nos. 1445 and 1446 area 15.25 decimals of Khata No. 334. The C.P.I. (M.L.), pursuant to a contract of sale from Shiv Narayan Jaiswal and others, who are owners of the property and on payment of consideration and part performance of contract of agreement dated 17.2.2005 have been put in possession thereof. The C.P.I. (M.L.) had also made a construction of five rooms in or about March, 2006. (iii) Group of persons known as Choudhary family of Katihar were owners of the some set up for the manufacture of country liquor in the name and style of Manpur Distillery in pursuance to orders of Excise Commissioner, over portions of Plot nos. 1445 and 1446 of Khata No. 108 of village Jarmune, Police Station Bagodar, Giridih district. (iv) In the year 1973, a dispute created between the members of the Choudhary Family taking the Manpur Distillery and various properties including Warehouse in the State of Bihar which led to filing of Title Suit No. 34 of 1937 in the Court of Sub-Judge, III at Gaya. (v) In the said Title Suit No. 34 of 1937 Sri Shyam Bahadur was appointed by the Court as Receiver, who enquired into the contractor's Warehouse known as Country Liquor Warehouse at Bagodar, the then district of Hazaribagh and at present in the district of Giridih. The contractor's Warehouse was standing on the portion of the plot nos. 1445 and 1446, which was not the government property. Pursuant to the order of the Court, Receiver was appointed in Title Suit No. 34 of 1937, who conducted a public auction and in the public auction Rai Sahab Lakshmi Narayan Jaiswal was the highest bidder. After approval was granted by the Court, the Court executed a registered deed of sale on 31stst March, 1954 in the office of District Sub-Registrar at Gaya in favour of Lakshmi Narayan Jaiswal, who was the highest bidder. As per the said sale deed, the Warehouse at Bagodar being at serial No. 16 and Warehouse at Dhanbad, the then district Manbhum being serial no. 19 besides others were purchased by Late Lakshmi Narayan Jaiswal. (vi) Under the Bihar Public Land Encroachment Act, proceedings were initiated as against serial no. 13 being the Warehouse at Dhanbad in the district of Manbhum now the district of Dhanbad. As against the order passed in B.P.L.E. No. 2 of 2001 of the Court of Land Reforms Deputy Collector at Dhanbad, an appeal was preferred before the Commissioner, North Chhotanagpur Division as B.P.LE. Appeal No. 77 of 2000. The Commissioner, after considering the disputed question of title held as under: The complainant being the purchaser in the auction conducted by the Court cannot be dispossessed by taking recourse to a proceeding under the Bihar Public Land Encroachment Act. Accordingly, the order passed in the proceeding under B.P.L.E case No. 3 of 2001 was set aside. A member of the aggrieved party through Deputy Commissioner, Dhanbad to get the matter adjudicated before the Civil Court. (vii) No suit was filed against the heirs of late Lakshmi Narayan Jaiswal for a declaration that item nos. 19 or 16 of the sale deed could not have been the subject matter of sale made in favour of late Lakshmi Narayan Jaiswal. As regards to item no. 16 of the sale deed of Warehouse at Bagodar, Giridih, the heirs of Lakshmi Narayan Jaiswal approached the Commissioner, North Chhotanagpur Division at Hazaribagh. (viii) In terms of the order passed by the Commissioner, North Chhotanagpur Division at Hazaribagh in B.P.L.E. Appeal No. 77 of 2000, the name of the claimants were entitled to be mutated. Vide order dated 29.7.2004, the Deputy Commissioner,Giridih was directed to consider the claim of Shiv Narayan Jaiswal and others, who were claiming title on the basis of registered sale deed dated 31.8.1954. Accordingly, the Deputy Commissioner forwarded the representation of Shiv Narayan Jaiswal and others with the recommendation to the Circle Officer to mutate the name of Shiv Narayan Jaiswal and his co-sharer in the revenue records. Accordingly, the Circle Officer had passed an order dated 28.3.2005 allowing the mutation of name of Shiv Narayan Jaiswal and others of plot nos. 1445 and 1446 under Khata No. 344 of Jarmune. Accordingly the name of Shiv Narayan Jaiswal and his co-sharers were mutated and rent receipts were issued. (ix) The Land Reforms Deputy Collector has registered a Mutation Appeal No. 137/2007-08 filed on behalf of the State and by order dated 25.6.2007 allowed the appeal of the State. Challenging the said order dated 25.6.2007, Lakshmi Narayan Jaiswal filed W.P.(C) No. 4473 of 2007. The Circle Officer issued a notice under Section 6(2) of the Jharkhand Public Land Encroachment Act on 23.7.2007 and directed Shiv Narayan Jaiswal giving him fifteen days time for giving a possession of plot nos. 1445 and 1446 of village Jarmune, P.S. Bagodar, District Giridih. (x) Based on the order passed in the Encroachment Case being Encroachment Case No. 6 of 2006-07 and order passed in the Mutation Appeal No. 130 of 2007-08 impugned notice was issued stating that the mutation made in favour of Shiv Narayan Jaiswal and others are cancelled and, therefore, Shiv Narayan Jaiswal and others were directed to remove the encroachments. (xi) Challenging the action of the State authorities not to interfere with the possession of Shiv Narayan Jaiswal in view of the order passed by the Commissioner, North Chhotanagpur Division in B.P.L.E. Appeal No. 77 of 2000, said Shiv Narayan Jaiswal preferred W.P.(C) No. 941 of 2005 which was disposed of in terms of order dated 30.06.2005 holding that till the order passed by the Commissioner is set aside/modified by a competent authority, the State will not disturb the possession of the petitioner from the land in question. (xii) After passing of the order passed on 30.6.2005, Shiv Narayan Jaiswal was served with another notice dated 23.7.2007. Then the said Shiv Narayan Jaiswal moved this Court by filing W.P.(C) No. 4573 of 2007, in which, the Hon'ble Court has passed the interim order staying the notice dated 23.7.2007 holding that In the meantime, pursuant to the notice as contained in Annexure-5 there shall not be demolition of the structure standing in plot No. 1446 area of village Jarmune, Thana No. 108, P.S. Bagodar, Giridih. (xiii) When the writ petitioner/respondent no. 1 came to know about the stay order passed in W.P.(C) No. 4573 of 2007, he moved before this Court by filing Interlocutory Application, being I.A. No. 328 of 2007, for impleading him as a party, which was rejected.(vide order dated 23.01.2008) (xiv) Thereafter, the writ petitioner/respondent no. 1 moved this Court by filing a Contempt Petition suppressing the fact of rejection of his Interlocutory Application. On service of notice in the said contempt petition, the Sub-Divisional Officer, Giridih has passed executive order vide memo no. 349 dt. 20.4.2010 (Annexure 13) directing the Circle Officer, Bagodar to take immediate steps for removal of encroachment. (xv) On receipt of notice as contained in Memo No. 349 dated 20.4.2010, the Circle Officer, Bagodar has purported to issue the impugned notice dated 21.4.2010 (Annexure 14) treating it to be issued in Encroachment Case No. 05/ 07-08 and 6/2006-07. (xvi) The C.P.I.(ML) has already moved this Court by filing W.P.(C) No. 2502 of 2010 challenging the executive order issued on 20.4.2010 by Sub-Divisional Officer, Giridih, which is still pending. (xvii) On enquiry, the applicant came to know that in view of the direction of this Hon'ble Court dated 18.7.2007 in W.P.(PIL) No. 3621 of 2007 the concerned officer/Circle Officer/Sub-Divisional Officer, Bagodar has to stop the construction without delay.;