Binod Kumar Roy, J.
1. Through this writ application the petitioner prays for quashing different orders passed by the authorities under the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as ‘the Act’) as contained in Annexures 2, 3 and 5, by issuance of an appropriate writ. This writ application was admitted on 22nd December, 1982 and operation of the orders as contained to Annexures 2, 3 and 5 was also stayed.
2. The petitioner asserts that plot No. 1007 is a big plot consiting of 22 bighas 7 kalhas 14 dhura curt of which only 11 bighas are utilised as Hat. The said land was recorded as Bakasht Malik. After 1940 Maheshpur Raj went on settling small portions of lands out of this plot with different persons and in 1351 Bangla Sambat (1944) settled 3 kathas of land to the petitioner and granted a rent receipt to the petitioner, Even though the settlement was made with respect to 3 kathas of land the settled area was found to be, on measurement, only 2 kathas 8 dhurs. The petitioner paid rent to the ex-Iandioord for 3 kathas. Over the said land the petitioner had also built her pucca house. At the time of vesting of the Zamindari, the Ex-landlord, maheshpur Raj, showed the petitioner as its raiyat, Thereafter the petitioner also paid rent regularly to the State of Bihar in regard to the land in question Only in one of the rent receipt-granted on 5th December, 1975, the area was mentioned as 2 kathas though in all rent receipts the area mentioned was 3 kathas. In 1,951 Raj Maheshpur started holding a weekly Hat over plot Nos. 1007 and 1003 as it was considered that the Hat, which was previously held on plot No. 1022 measuring 2 bighas 7 kathas 8 dhurs, was inadequate. Land Encroachment casa No. 17 of 1973-74, State v. Haffje Khatoon (the petitioner) was stated by the Anchal Adhikari, Maheshpur (Respondent No. 3). The petitioner was noticed as to why she should not remove an encroachment over! katha 12 dhurs of land or plot No. 1007 of village Maheshpur. The petitioner took up a defence without filing any show cause that the said land was settled with her by grant of receipt and that the land in question is not a public land. The petitioner also produced a number of rent receipts granted by the State of Bihar as also the earliest rent receipt granted by the ex-intermediary, a copy of which has been appended as Annexune-1 to this writ application. It further appears that a report was also submitted by the Anchal Amin supporting the case of encroachment. Respondent No. 3 examined -the rent receipts filed by the petitioner and refused to place reliance on them on the ground that at times rent receipts were granted in respect of 2 kathas of lands and at times in regard to 3 kathas of lands whereas from perusal of the Tenants Ledger Register II, it appeared that 2 kathas of land only in the said plot has been entered in the name of the petitioner and that it has not been stated by her as to how the said entry was made, in this backdrop, Respondent No. 3 rejected the claim of the petitioner vide Annexure 2 as baseless and recorded a finding against her that she has made encroachment illegally over 2 kathas 8 dhurs of land taking into accoun the reports of the Ancha; Amin submitted in that the encroached area is in relation to 8 kathas 12 dhura. Respondent No. 3 also recorded a finding that because & Hat is being held the nature of plot in question has been changed to a public land. He also directed the petitioner to remove the encroachment, failing which, ha further directed, that action will be taken under Section 188 of the Indian Penal Code against her. The petitioner appealed. The appellate authority (Respondent No. 2) dismissed the appeal vide Annexure-2 giving following reasons:-(i) The appellant did not submit any settlement paper.(ii) It is very easy to get receipt from the ex landlord, (iii) The receipt granted by the State without prejudice and thus no right can be claimed by virtue of only the rent receipts and (iv) It is also not clear as to how the name of the petitioner was entered in Register It and why bar name was not mutated for three years. The petitioner thereafter filed a petition of review relying upon a judgment dated l1th January, 1980 of this Court passed in C. W. J, C. Nos. 1480 and 1480 of 1977 (as contained in Annexure-4), The petitioner also relied upon yet another judgment of this Court in C.W.J.C.
No. 73 of 1968 disposed of on 15th May, 1969.. The review petition was also dismissed by an order dated 23rd August, 1982, as contained in Annexure-5. It is averred that Respondent No. 3 completely misconceiving the facts as well as the legal position had passed the impugned order. The appellate authority, too, dismissed the appeal by unwarranted surmises and conjectures The appellate authority also illegally refused to review the order by completely misconceiving the judgements of this Court in
C.W.J.C. Nos. 75 of 1968, 1480 and 1481 of 1977 as also No. 1380 of 1977. The last writ application was filed by one Haripado Mandal, who was also facing similar allegation of encroachment in regard to 4 kathas of his land in the very plot. The matter also stands settled by yet another judgment of this Court in C.W.J.C. No. 1476 of 1977 disposed of on 12-7-1979. The impugned orders are thus arbitrary, illegal and passed violating the principles of natural justice.
3. A counter-affidavit has been filed on behalf of the State alleging, inter alia, that the Hat was being held on entire area of plot No. 1007, which vested under the provisions of the Bihar Land Reforms Act, 1950; that in the record of rights the land was recorded under khata No. 176 and it, was shown as Bakast Lakhrajdar and the plot as a mango orchard; that the ex-proprietors had moved this Court challenging the vesting of the Bat in the State of Bihar, which was allowed by this Court but on appeal by the State of Bihar to the Supreme Court the decision of this Court was sat aside; that in the encroachment proceedings the entire plot No. 1007 was brought under dispute and not a portion as claimed by the petitioner; that the proprietors with an intention to undo and nullify the provisions of the Bihar Land Reforms Act started settling small fractions of plot- No. 107 with different persons and granting entendated rent receipts and thus violated the provisions of Section 4(h) of that Act; that the petitioner had not produced any Patta or Kabuliyat to support her case of settlement rather she produced only one rent receipt which was granted to her after the proprietors had lost their case in the Supreme Court, that the petitioner had not also produced return; that it was only by mistake rent receipts were granted to her previously by the State; and that the orders have been correctly passed after verifying the papers.
4. Sri Ganpati Trivedi, learned Counsel appearing for the petitioner, submits as follows:
(i) The principles of natural justice have been blatantly violated inasmuch as it is apparent from Annexure-2 that notice issued earlier by respondent No. 3 was in regard to 1 katha 12dhurs of land only out of plot No. 1007, It was only on the basis of the report dated 13 12-9 976 submitted by Anchal Amin while passing the final order dated 20-12-1976 (Annexure 2) respondent No. 3 raised the area and recorded a finding that 2 kathas 8
dhures of lands are public land. Direction to initiate under Section 188 I. P. C. proceeding was illegally made.
(ii) Unwarranted surmises and conjectures have been made in Aannexure-3 in disbelieving the case of the petitioner when the entry in the Tenants,” Ledger Registrar 11 shows her as raiyat in regard, to atleast 2 kathas of land. The onus, in view of Section 9, was initially on the State of Bihar and respondent No. 3 has erred in not taking recourse to Section 10 of the Act, which clothed a jurisdiction in him (Respondent No. 3) to hold local inspection, to summon and enforce the attendance of witnesses and to compel the production of documents as a Civil Court under the Code of Civil Procedure. The appellate authority also erred in placing reliance on the judgment of this Court in C.W.J.C. No. 75 of 1968 to which the petitioner was not party.
(iii) The earlier rent receipt (original of annexure-1 through which the settlement was made having been produced before Respondent No. 3 as well as Respondent No. 2(the appellate authority) they were not justified in drawing adverse inference against the petitioner, in view of the patent fact that it was not her case that the settlement was made through a document, followed up by a Kabuliyat. The genuineness of the rent receipt (Annexure-1) not even doubted by Respondent No. 3.
(iv) Respondent No. 3 was not justified in holding that the nature of the land had changed simply because a Hat was held over the plot No. 1007. Plot No. il07 was a very big plot and it was only on a portion of which the Hat was held.
(v) New facts have been stated in the counter-affidavit for the first time before this Court which should be ignored.
(vi) The writ application, in the said view of the matter, should be allowed
5. Learned Additional Advocate General appearing for the Respondents, on the other hand, submits as follows:
(i) The State rent receipts produced by the petitioner showed that they were granted without prejudices by the State of Bihar and they appeared to have been issued by mistake. In the said view it cannot be said that they are binding on the State of Bihar.
(ii) The Anchal Adhikari (Respondent No. 3) has himself sworn the counter-affidavit. He is a responsible officer and the statements made therein may be accepted by this Court.
(iii) The house claimed by the petitioner is not her rather actually belongs to the ex-landlord of which she is merely a tenant. The house was constructed for management of the Hat.
(iv) Since the entire plot No. 1007 vested in the State there was no question of a portion of it having remained without vesting.
(v) The action done by the ex-landlord in making the settlement being contrary to the provisions of the Bihar Land Reforms Act, was beyond their rights and thus the authorities have correctly initiated a proceeding against the petitioner.
(vi) The petitioner, thus, is not entitled to the reliefs claimed by her as valid reasons have been given in the impugned orders.
6. In reply, Mr. Trivedi submits as follows:
(i) The respondents cannot be allowed to state new fact or to take new point/points before this Court and thus the submissions made by the learned Additional Advocate General based on new facts should not be accepted.
(ii) It was not asserted in any of the courts below or even in the counter-affidavit that the house in question was not built by the petitioner. The counter-affidavit does not speak that the house in question was not built by the petitioner. It has been simply stated that it is on rent stating further that the petitioner is residing alongwith her husband, in a different house.
(iii) The entire plot No. 1007 was not under dispute.
7. Sections 9 and 10 of the Act run as follows:
9. Burden of proof.–Where any public land was acquired under the provisions of the Land Acquisition Act, 1894(1 of 1894), for the purpose of the Government, any local authority, [public undertaking] any educational institution or a rail way company, or where the land is recorded in any public or other official book, register or recorded or surveyed under the Bengal Survey Act, 1875 (Ben Act V of 1875), or other local or special law as belonging to the Government, local authority, [Public undertaking], educational institution or railway company, or where the land is recorded as public land within the meaning of this Act, the burden of proving that toe land is not public land or has ceased to be public land shall lie on the person who raises such a defence.
10. Powers of Collector to summon witnesses, etc. in enquiries under this Act.-The Collector shall, for the purposes of enquiries under this Act, have powers to issue commission, to hold local inspection, to summon and enforce the attendance of witnesses and to compel the production of documents as a civil court under the Code of Civil Procedure, 1908 (V of 1908.)
8. In paragraph 14 of the judgment of C.W.J.C. No. 1476 of 1977 of this Court, scope of Section 9 of the Act was examined and it was held as follows:
The position of a person proceeded against in a proceeding under the Act is that of a defendant and the provisions of Section 9 of the Act, dealing with the burden of proof, would necessitate that before awaking the defendant to discharge the burden of proving that the land was not public land or had ceased to be public land, the State shall have to show, even prima facie, that the subject-matter of the proceeding was acquired under the provisions of the Land Acquisition Act, 1894 for the purposes mentioned therein or was recorded in any public or other official record as belonging to the Government etc. or was recorded as public land within the meaning of the term as used in Section 2(3) of the Act. The State having failed to establish the same, even prima facie, the Deputy Commissioner acted illegally in asking the petitioner to discharge the onus.
9. A bare perusal of Section 10 shows that it gives jurisdiction to the Collector to hold local inspection, to summon and enforce the attendance of witnesses and to compel the production of documents as a Civil Court. In the instant case it is an admitted position that no local inspection was held by Respondent No. 3 himself. No witness was also examined.
10. It appears that plot No. 1007 in question has got a chequered history so far as this Court is concerned. The matter in regard to vesting of it and encroachment over that plot had come up to this Court in CWJC No. 75 of 1968,
C.W.J.C. No. 1476 of 1977 and in C.W.J.C. No. 1480-1481 of 1977. In C. W. 3. C, No. 1476 of 1977, as it appears from the judgment of that case that the petitioner of that case had claimed settlement by a Patta. It was also stated in the judgment that the said Patta was lost and then a registered sale deed was executed in favour of the petitioner. In the said case judgment of this Court in
C.W.J.C. No. 75 of 1968 disposed of on 15th May, 1969 relied upon by the authorities was rightly distinguished on the ground that the petitioner of
C.W.J.C. No. 1476 of 1977 was not a party to the same. From the judgment of
C.W.J.C. No. 1480 of 1977 (Annexure 4 to the writ application) it appears that between the date of settlement and prior to the initiation of the proceedings the lands in question of that proceeding had passed into various hands by different registered sale deeds. It further appears that in that case the
Anchal Adhikari had held that the land was settled by the Raj Maheshpur. This Court in the said judgment had held that the authorities were in error to dismissing the appeal on the ground that the settlement made by the Maheshpur Raj was not at all relevant. It also appears that C.W.J.C. No. 75 of 1968 was disposed of on the basis of a compromise arrived at between the petitioner of that case and the State of Bihar and this Court had quashed orders passed by the different authorities taking into account the said fact. In the said view of the matter, I find force in the argument of the learned Counsel for the petitioner that the judgment in
C.W.J.C. No. 75 of 1968 was not very much relevant for dismissing the case of the petitioner.
11. In the instant case, however, there was no document for settlement as contended by the petitioner. The statement made in paragraph 5 of the writ petition that “in 1351 B S. (1944 A. D.) the petitioner was settled by a rent receipt 3 kathas of land and was given possession of the plot in dispute” has not at all been denied by the State in its counter-affidavit either directly or impliedly. There ate only rent receipts and the entry in the Tenants’ Ledger Register II which considerably supported the case of the petitioner. The authorities thus have erred in drawing adverse inference against the petitioner from her alleged failure to file any settlement paper and/or Kabuliyat. No finding has been recorded in the appellate order that the original rent receipt (of which Annexure 1 is a photo copy) was a forged and fabricated document which was at least had a corroboration to support the settlement claimed by the petitioner. All what was said therein that it is easy to get receipt from the ex landlord This is nothing but a mere surmise specially when in paragraph 16 of the counter-affidavit it has been merely stated that” only one rent receipt granted by the
ex-proprietor can never be evidence of settlement. “Though in paragraph 10 of the counter affidavit is has been stated that” by mistake rent receipts were granted in his name,” but 1 am of the view that such a new case cannot be allowed to be made for the first time. Impugned annexures do not show that the State ever took up a plea that State rent receipts were granted by mistake to the petitioner as rightly submitted by Mr. Trivedi in regard to 3 kathas of land except one dated 5-12-1975 in regard to 2 kathas of land but granted not ‘without prejudice’ which has been shown to me by the learned Counsel for the petitioner. The authorities have erred in drawing adverse inference against the petitioner for her alleged failure to file a copy of the return of the outgoing landlord. In my view, this was also not justified in view of the patent fact that the return in question was in the custody of the State of Bihar and not in the custody of the petitioner. Respondent Nos. 2 and 3 ought to have called for the return of the ex-landlord if they were not satisfied about the entry in the Tenants’ Ledger Register 11. The fact that in the Register 11 the petitioner was shown as vaiyat in regard to 2 katha of land lend support her case. How the said entry was made was thus quite clear. The presumption about the correctness of he official acts has also been lost sight of by both the authorities. As laid down in
C.W.J.C. No. 1476 of 1977, in the peculier facts and circumstances, the State should have been called upon, prima facie, to satisfy that the land in question was a public land which was not done. It also does not appear from the original as well appellate orders that it was ever the ease of the State that rent receipts were issued by the Slate to the petitioner by mistake. The argument of the learned Additional Advocate General in this regard is not thus tenable. Findings in the said orders holding that the land in question is public has been recorded only on the oasis of a report of the Anchal Amin.
12. I also do not find force in the argument of learned Additional Advocate General that the entire plot No. 1007 was involved in the proceeding. As already pointed out, the proceeding in question was in regard to 1 katha 12 dhure of land only. Undoubtedly, as the final stage, the area of the encroached land, as already indicated by me. was increased to 2 kathas 8 dhurs. Thus, the principle of natural justice has been violated to same extent.
13. It is also not clear that the petitioner was noticed when the Anchal Amin had inspected the land in question and/or an opportunity was given to the petitioner to file objection, if any, to his report dated 13-12-76 or to examine the Anchal Amin under Section 10 of the Act. Section 10 conferred jurisdiction in Respondent No. 3 alone to hold local inspection. The Anchal Amin at best could have been a witness for the State. Thus there has been a glaring infirmity in the conduct of the proceeding too.
14. In my view, the State of Bihar would have been well advised to bring on the record the judgment of the Hon’ble Supreme Court to show that plot No. 1007 had vested in the State of Bihar in its entirety, which was not done a” it is apparent from Annexures 2 and 3. Respondent No. 3 had sworn the affidavit stating such facts, which I do not find in Annexure-2 and 3. It is thus difficult for me to place reliance on the same.
15. I also do not find force in the contention of Mr. Pandey that the house in question was built by the ex-landlord. It was not the case of the State of Bihar either before the authorities which is apparent from the impugned Annexure as well as in the absence of any categorical statement in the counter-affidavit that the house in question was built by the ex-landlord and not by the petitioner’s case that the had built the house. Had the house been of the ex-landlord be would have been called upon to remove the alleged encroachment. Annexure-2 clearly says that “Vipakshi Ke dwara banays gaya makan mor par hai.” The statement made in paragraph 5 of the writ petition has also not been countered in the counter affidavit by the State. It ii thus not permissible for the respondents to make out a new case before me during submissions. The submission in this regard is thus hereby rejected.
16. There is merit in the submission of Mr. Trivedi that Respondent No. 3 had erred in directing initiation of a proceeding under Section 188 of the Indian Penal Code. In my view, Respondent No. 3 has completely misconceived his jurisdiction under the Act in this regard. The proceeding under the Act is civil in nature. Under Section 16 of the Act the jurisdiction of the Civil Court hat been ousted. Under Section 6(2) of the Act it has been laid down that a person who does not comply with the orders passed by the Collector under Section 6, be shall be punishable with imprisonment for a term which may extend to one year or with fine up to Rs. 2000, or with both. In the said view of the matter, direction of initiation of a proceeding under Section 188 of the Indian Penal Code was utterly misconceived.
17. The petitioner is, accordingly, entitled to the reliefs prayed for but not in their entirety as submitted by Mr. Trivedi as in C.W.J.C. No. 1476 of 19/7 all the findings recorded by Respondent No. 3 were in favour of the petitioner of that case, but still he had lost the case as Respondent No. 3 relied upon the judgment of this Court in C.W.J.C No. 75 of 1968 which was nullified by this Court for the reasons mentioned therein referred to by me as well and that facts of C.W.J.C. No. 1480 of 1977 (Annexure-4) are slightly different.
18. For the reasons aforesaid, I am of the view that justice requires remittance of the case and its fresh disposal in accordance with law keeping in view the ratio
decided of this Court in various judgments concerning the plot in question, referred to above, passed while quashing other encroachment proceedings as well as the observation made in this judgment, with option to the respondents to get even an
annulment proceeding started under Section 4(h) of the Bihar Land Reforms Act, 1950, if so advised.
19. The impugned order accordingly, as contained in Annexures-2,3 and 5, all are quashed. The case is remitted back to the original authority, namely, Respondent No. 3, who is directed to give an amended notice in regard to 2 kathas 8 dhurs of land to the petitioner, and for disposal in accordance with law. Respondent No. 3 is also directed to give an adequate opportunity to both parties to lead evidence, if prayed for by them in terms of Section 10 of the Act after permitting the petitioner to file a show cause in relation to 2 kathas 8 dhurs of land of the plot in question.
20. This writ application is allowed to the extent indicated above but without cost. Consequently, let a writ of certiorari issue. Let a writ of mandamus also issue restraining the respondents from demolishing the house in question during the pendency of the encroachment proceeding.