Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (C) No. 1515 of 2016 with W. P. (C) No. 1516 of 2016 with W. P. (C) No. 1527 of 2016 Baldev Singh Petitioner (WPC 1515/2016) 1. Birender Kumar Jaiswal 2. Uttam Kumar Jaiswal Petitioners (WPC 1516/2016) Md. Sakil Petitioner (WPC 1527/ 2016) Vs. 1. The State of Jharkhand 2. Deputy Commissioner, East Singhbhum, Jamshedpur 3. Sub Divisional Officer, Dhalbhum, East Singhbhum 4. Circle Officer, Jugsalai, East Singhbhum 5. DRM, South East Railway, Chakradharpur, West Singhbhum 6. Senior Section Engineer, SER, Tatanagar, Jamshedpur Respondents ( in all cases) ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH …... For the Petitioners : M/s. Indrajit Sinha, Rahul Gupta & Jitendra Nath Upadhyay For the State : Mr. Md. Shadab bin haque J. C to G. P. I For the Railways : M/s. Mahesh Tewari & Varun Prabhakar, Advs. ….. 08/17.05.2016: Petitioners came before this Court against the notices dated 10th March, 2016 and 11th March, 2016 issued by Senior Section Engineer, Land, South Eastern Railway, Tatanagar asking them to vacate the Railway land alleged to be occupied unauthorizedly by 17th March, 2016. 2. On 19th March, 2016 the following order was passed while granting time to the respondents to seek instructions in the matters: “Learned counsel for the petitioners submits that in each of the individual writ petitions, petitioners have been served with a notice dated 10.03.2016 and 11.03.2016 issued by the Senior Section Engineer, Land, South East Railway, Tatanagar to vacate the Railway land alleged to be occupied unauthorizedly by 17.03.2016. 2. Notice is completely vague and does not contain any description of any plot, area, etc, therefore, it suffers from vagueness. Individual petitioners have made their assertion in the respective writ petitions about continuance over pieces of land since long. It is submitted that in any case, no proper proceeding has been initiated, if at all the allegation is of unauthorized occupation of the Railway land. Therefore, petitioners have approached this Court. 3. Learned counsel for the respondent Railways seeks short time to obtain instructions in the matters. 4. Accordingly, list the cases on 29.03.2016. 2.
5. Till then, no coercive steps be taken pursuant to the impugned notices against individual petitioners, if not already taken”. 3. The matters were taken up after few adjournments on 12th April, 2016 upon filing of counter affidavit by the Railways. The order dated 12th April, 2016 is also being reproduced hereunder for better appreciation. A Pleader Commissioner, learned Advocate of this Court was appointed, acceding to the proposal of the parties, to carry out inspection of the area in question. “ In these individual matters, counter affidavit have already been filed by the respondent Railways taking a plea that petitioners are illegally and unauthorizedly occupying the Railway land which is coming in the way of construction of Rail Overbridge at Jugsalai at Tatanagar. 2. Petitioner in WPC No. 1515/2016 claims to be holding a plot of land over plot no. 177/232 under Khata No. 2 Ward No. 5 having an area of 0.512 decimal of Notified Area Committee, Jamshedpur. He has constructed a shop and house and is doing business from the said premises. 3. Petitioners in WPC No. 1516/2016 claim to be in possession over plot no. 114 under Khata no. 3, Thana No. 1161 having an area of 12 Katta since 1982 and doing business of scrap materials in the name of M/s King Metals. 4. Petitioner in WPC No. 1527/2016 claims to be in possession of an area of 30'x60' under Khata No. 2 Khesra No. 170 Ward No. 5 in Jamshedpur Notified Area Committee and running motor garage since 1980. 5. Learned counsel for the respondent Railways categorically submits by relying upon Railways Map of the area that the petitioners are encroaching within the demarcated area falling within the boundary wall of Railways property near LIC gate. It is submitted that the Road Overbridge (ROB) is part of modernization development programme of Railways at Tatanagar and its adjoining area which needs removal of encroachment from the Railways land. It is submitted that 77 out of 80 such encroachments have already been removed except three petitioners who have raised an objection by approaching this Court. 6. Learned counsel for the respondent Railways and petitioners both make a proposal that the area in question clearly defined with all necessary description be inspected by the Court appointed Pleader Commissioner through Survey knowing Amin in the presence of both the parties to find out, whether there is an encroachment over Railways land. Parties would abide by the decision of the Court on the basis of the Pleader Commissioner's report and if it is found that there is any encroachment over the Railways land, the same would be removed without any delay by the individual petitioners. 7. Having regard to the submissions made and exigency shown by the Railways in the matter of construction of Road Overbridge which would benefit a large number of people, this Court is inclined to accede to the proposal of the parties. Accordingly, Mr. Rohit Roy, learned counsel practicing in this Court, is appointed as Pleader Commissioner to carry out inspection of the area in question in the presence of both the parties with the help of Survey knowing Amin. Respondent Railway Authorities would provide the entire description of the land said to be under encroachment by the petitioners, to the 3. learned Pleader Commissioner within one week through the learned counsel for the Railways Mr. Mahesh Tiwari. Thereafter, Circle Officer of the concerned Jugsalai Block / competent authority having revenue jurisdiction over the area, would provide services of Survey knowing Amin to the learned Pleader Commissioner for carrying out inspection on the date and time fixed by the learned Pleader Commissioner after necessary description of the land is provided by Railways within a period of one week, as aforesaid. Learned Pleader Commissioner would inform the learned counsel for both the parties to ensure presence of the parties on the date so fixed for carrying out such inspection. Fee of the leaned Pleader Commissioner would be Rs. 20,000/ to be equally borne by Railways and the petitioners. Each of three petitioners would share the 50% of the amount of fee equally amongst themselves. Pleader Commissioner's fee will be deposited on the next date fixed before this Court. Let such a report be submitted by the learned Pleader Commissioner on the next date i.e. 03.05.2016. The Railway authorities would coordinate with the Circle Officer of the Revenue area / competent authority for providing the service of Survey knowing Amin for inspection and measurement of the area by the Pleader Commissioner. 8. Let a copy of the order be handed over to the learned Pleader Commissioner Mr. Rohit Roy and learned counsel for both the petitioners and Railways by tomorrow. All the authority concerned and the petitioners would cooperate with the Pleader Commissioner in carrying out the inspection. 9. Interim order dated 19.03.2016 shall continue till the next date”.
4. Learned Pleader Commissioner submitted his report on 3rd May, 2016. The parties were allowed to obtain copies of the report and assist the Court thereafter. The extract of the report of learned Pleader Commissioner is also quoted hereunder for proper appreciation. “ In presence of all the aforementioned persons, I commenced physical inspection of the site. Firstly, Anchal Amin identified the disputed land with Plot & Khata Nos. The structures of the petitioners was found to be comprised within Khat No. 3, Plot No. 183 of Mouza Jugsalai as per the Revisional Survey Record of Rights corresponding to New Plot No. 232/177 of Khata No. 2 of the Municipal Survey Record of Rights. Thereafter I inspected the respective structures of the petitioners. Petitioner namely, Baldev Singh is said to be the owner of several small structures about 1012 in numbers comprised within the aforesaid plot. The same are being used for running shops. The photographs of the structures of the petitioners namely Baldev Singh are enclosed with this report and identified as AnnexureA Petitioners namely Birendra Kumar Jaisal and Uttam Kumar Jaiswal are in possession of a big concrete structure situated on the aforesaid from which they are operating their business. The said structure has also a big vacant area on the rear side where some commercial activities are carried out by the said petitioners, though there are no concrete structures. The photographs of the structures of the petitioner namely Birendra Kumar Jaiswal and Uttam Kumar Jaiswal are enclosed with this report and identified as AnnexureB 4. Petitioner namely Md. Sakil is in possession of three shop rooms comprised within the aforesaid plot, from which he is running his business. The photographs of the structures of the petitioner namely Md. Sakil are enclosed with this report and identified as AnnexureC All the aforesaid structures are situated just beside the road which leads to Tatanagar Railway Station. Behind these structures there is a old dilapidated wall said to have been constructed by the railways in order to prevent humans and animals from straying into railway tracks. The photographs of the dilapidated boundary wall situated behind the structures of the petitioners are enclosed with this report and identified as AnnexureD The officers of the S.E.R who were present during the inspection claimed that S.E.R has acquired the land on which the structures of the petitioners are situated. They referred to the Revisional Survey Recored of Rights and the Survey Settlement map in support of their claim. It transpires from the Revisional Survey Record of Rights that the disputed plot i.e. R.S Plot no. 183 has been recorded in the name of South Eastern Railway. It was further claimed that the acquired land extends beyond the land in occupation of the petitioners i.e. till the road leading to railway station. The Anchal Amin measured the land true to scale by referring to the Settlement Map in presence of all the parties. It was found that the land acquired by S.E.R is between 145' to 275' from the railway track if measured from the Level Crossing Gate (wrongly referred as LIC Gate on behalf of Railway) to the disputed site. Distance between the Railway track and the dilapidated boundary wall was measured between 75' to 80' by Anchal Amin. I further found that save and except the dilapidated boundary wall behind the structures of the petitioners, there is no other physical demarcation that the land belongs to the railways. There is only one pillar at some distance from the structure of the petitioners which has been marked with the word “S.E.R.”. Save and except the said pillar, no other physical demarcation that the land has been acquired by S.E.R. was fond. Photographs of the disputed site take from across the road are enclosed with this report and identified as AnnexureE The learned counsel for the petitioners produced some maps and Municipal Survey record of rights to justify his clients claim over the disputed land asserting that the disputed land is recorded as Anabad Bihar Sarkar & possession of his client is entered. From the order datred 12.4.2016, I find that I have been asked to carry out physical inspection of the disputed land on basis of the documents produced by the respondents with the assistance of Anchal Amin. Hence, I am not referring to the documents produced by the counsel for the petitioners. On physical inspection of the disputed site/land conducted by me with the assistance of Anchal Amin in presence of all the concerned parties, I could ascertain as under: a. The structures of the petitioners are comprised within revisional survey plot no. 183 of khata no. 3, mouza Jugsalai. b. Railway acquired the disputed land and an entry in favour of South Eastern Railway has been recorded w.r.t. R.S. Plot No. 183 in the Revisional Survey Record of Rights published in the year 1965 as provided to me on behalf of the Railways. c. The extent of land acquired by the railway is between 145' to 275' from the railway track starting from Level Cross Gate to disputed site as measured by the Anchal Amin true to scale 5. with reference to the Settlement Map produced on behalf of the Railways. d. The structures of the petitioners fall within the land recorded in favour of South Eastern Railway in the Revisional Survey Record of Rights published in the year 1965. e. There is one old dilapidated boundary wall running across the disputed land which is said to have been constructed by the Railways. It is situated behind the structures of the petitioners. The structures of the petitioners do not extend beyond this boundary wall towards the railway track. f. Save and except the said dilapidated boundary wall, there is no other physical demarcation of the land identifying it to be the land of the Railways. With the aforesaid findings, I submit this report to the Hon'ble Court along with the photographs mentioned above, taken in course of physical inspection, as well as Field Book and documents submitted by both the parties.” 5. Learned Pleader Commissioner has carried out the inspection of the piece of land based upon the Revisional Survey Record of Rights prepared in the year 1965. The Anchal Amin has identified the disputed land and the structures of the petitioners were comprised within Plot no. 183, Khata no. 3 of Mouza Jugsalai as per the Revisional Survey Records of Rights corresponding to New Plot no. 232/177 of Khata no. 2 of the Municipal Survey Record of Rights. Plot no. 183 has been found to be recorded in favour of South Eastern Railway in the Revisional Survey Record of Rights published in the year 1965. The extent of land acquired by the Railway is between 145' to 275' from the railway track starting from Level Cross Gate to disputed site as measured by the Anchal Amin. The structures fall within the land recorded in favour of South Eastern Railway in the Revisional Survey Record of Rights published in the year 1965.
6. Petitioner in W. P. (C) No. 1515 of 2016 has contended that plot no. 177/232 under khata no. 2, Ward no. 5 having an area of 0.512 decimal of Notified Area Committee, Jamshedpur is occupied by the petitioner over which he is carrying on business since 1958. This petitioner through Interlocutory Application No. 2663 of 2016 has sought 6. to make correction in the area of plot as 12 decimal of land instead of 0.512. He submits that the Municipal Survey Record of Rights prepared in the year 1972 is of a later date than the Revisional Survey Record of Rights prepared in 1965 relied upon by the Railways which form the basis of Pleader Commissioner's report. 7. Counsel for the petitioner in W. P. (C) No. 1515 of 2016 has referred to the order dated 12th April, 2016 where submissions made by learned counsel for Railway has been recorded which is to the extent that demarcated area falls within the boundary wall of Railways property near LIC gate. In the Pleader Commissioner's report it has been stated that the structures of the petitioners fall behind the dilapidated boundary wall except part of the structures of one of the petitioners which falls within the area under dilapidated boundary wall. It is not disputed by counsel for the said petitioner that the disputed land even in the Municipal Survey Records of rights is recorded as Anabad Bihar Sarkar with the remarks as under illegal possession of the petitioners. 8. Reliance has been placed by the petitioner on an order of Deputy Commissioner, East Singhbhum, Jamshedpur in Misc. (P) No. 73/199697 in the case of Gurucharan Singh Vs. State & Ors. under the heading of demolition matters, to submit that learned Deputy Commissioner has taken into account that the said khata has been opened in the name of State of Bihar and Tisco Limited is a lessee under the State. Deputy Collector, Tata Lease and Khasmahal, Jamshedpur was directed to get the spot inquired into and to take necessary action in the matter within the stipulated period. 9. In that view of the matter, as per the counsel for petitioners the Respondent Railway cannot be the rightful owner of the said piece of land. Therefore, eviction of the petitioner from the land at the behest of the Railways based upon the Pleader Commissioner's Report would not be justified in the eye of law. 7. However, none of petitioners have been able to show any piece of document to justify their claim for ownership and title over the piece of land in question. Petitioners have not been able to show any document establishing their right, title and ownership over the property in question. 10. In the present matter, as per the order dated 12 April, 2016, the disputed area in question said to be occupied by the petitioners, was inspected through the Pleader Commissioner on the proposal of the parties with a purpose to ascertain whether the petitioners' structure are falling within the railway land or not? 11. It is to be pertinent to note that the instant exercise was undertaken to ascertain whether petitioners' structures fall within the railway land or not. Existence of a dilapidated boundary is not of much consequence. The exercise undertaken has led to the conclusion that the disputed structures held by the petitioners are falling within the revisional plot no. 183 under Khata no. 3 Mouza Jugsalai as recorded in the Revisional Survey Record of Rights published in the year 1965 and entered in favour of South Eastern Railway. 12. Even as per the assertion of the petitioner in W. P. (C) No. 1515 of 2106, the disputed plot as per the Municipal Survey Record of Rights prepared after 1965 shows the land as Anabad Bihar Sarkar with the remarks as under his illegal possession. In such circumstances, it is evident that petitioners have not been able to establish any claim of right, title and ownership of the property in question. In substance, therefore petitioners are unauthorized occupants of the piece of land falling within the railway property in plot no. 183 khata no. 3 Mauza Jugsalai as per the Revisional Survey Record of Rights published in 1965, which is an unimpeachable document. 13. In view of the discussions made hereinabove and the findings of facts ascertained through the report of Pleader Commissioner which have not been dislodged on any count by the petitioners, it can be safely 8. held that the petitioners are illegal encroachers over the railway land. The petitioners despite being conscious of the provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 had voluntarily proposed for an inspection through a Court appointed Pleader Commissioner to ascertain the area in question and whether it falls within railway land or not and to abide by the decision of this Court based on the Pleader Commissioner's Report. Once it has been determined that they are illegal encroachers over the piece of land held by the railways, as per their undertaking, they are now bound to vacate the land in question. As a result petitioners are required to vacate the piece of land within a period of 1 week from today, failing which the respondents railway would take steps for removal of unauthorized encroachments. 14. Accordingly, these applications are dismissed. Consequently I. A. No. 2663 of 2016 in W. P. (C) No. 1515 of 2016 stands disposed of. (Aparesh Kumar Singh, J.) jk