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Judgment
This writ petition is under Article 226 of the Constitution of India, whereby and whereunder the order passed in B.P.L.E. Case No.60 of 2016 issued
under the signature of respondent no.2 vide order dated 07.06.2016 upon which the petitioners were directed to appear before the respondent no.2 to
showing cause to him as to why the encroachment over the said forest land as described in the notice pertaining to Plot No.2 of Khata No.44
measuring 0.10 Acre be not removed.
It is the case of the petitioner that land measuring 38 Acres within Khata no.44 situated at village Ghurnibera, Thana No.210, P.S. Tundi, District-
Dhanbad, is the khatiani land of the petitioner and the proforma respondent, originally the said land was in the name of first ancestor Jahlu Mian and
since then the ancestor of the petitioners and proforma respondents have been coming to the rightful and peaceful possession over the land by paying
rent on accepting the same, in view thereof, the petitioner is having perfect title over the land in question, the issue of title has been raised by filing
case being Case No.175 of 2001 initiated under the provision of Section 87 of the Chota Nagpur Tenancy Act, whereby and whereunder the Revenue
Officer, Dhanbad has passed an order dated 19.11.2007 by which it has been ordered to treat the entry of the name of the ancestor of the petitioners
in the record of rights, against which the appeal has been preferred before the District Judge cum Judicial Commissioner, Dhanbad being Title Appeal
No.52 of 2008 but the same has been dismissed for non-prosecution vide order dated 20.12.2013, against which no steps have been taken by the State
authority for its restoration while on the other hand only in order to harass the petitioners, has issued notice directing them to show his cause as to why
they be not vacated by removing them from the encroached area, against which this writ petition has been filed.
It is the contention of the learned counsel for the petitioner that when the competent authority under the provision of Section 87 of the Chota Nagpur
Tenancy Act, 1908 has passed an order declaring therein that the name of the ancestor of the petitioner is to be entered in the record of rights, against
which an appeal has been filed under the provision of Section 90 of the Chota Nagpur Tenancy Act, 1908 but the same has been dismissed, although
on default vide order dated 20.12.2013, but till date no steps have been taken for its restoration, therefore, the order passed by the original authority on
19.11.2007 has attained its finality but ignoring the same, notice are being issued treating the petitioners as encroacher of the land, therefore action of
the authorities is per se illegal and only to harass and, therefore, is not sustainable.
Counter affidavit has been filed on behalf of the respondents on 16.12.2016, whereby and whereunder, inter alia, it has been stated that the land in
question is recorded in the name of the Forest Department as reserved forest, therefore question of title and for that reason notice has been issued
upon the respondents since they are illegally occupying the said land, the fact about dismissal of the appeal against the order dated 19.11.2007 vide
Title Appeal No.52 of 2008 has been admitted as also it is dismissed on default.
Having heard learned counsel for the parties and on appreciation of the rival submissions, the fact which is not in dispute is that petitioners are
claiming to be ancestors of the recorded raiyats over the land in question which was subject matter of proceeding initiated under Section 87 of the
Chota Nagpur Tenancy Act, 1908, which contains a provision that if any entry under Section 84 of the Chota Nagpur Tenancy Act, 1908 has been
made and if a party is aggrieved with the said entry may file objection under Section 87 of the Act, 1908 before the Revenue Officer, Dhanbad. Case
No.175 of 2001 (Annexure-1) wherefrom it is evident that on contest the order has been passed by the revenue authority treating the name of the
petitioner as entered in the record of rights.
The State authorities have filed an appeal before the District Judge by invoking the provision of Section 87 Clause 2 read with Section 75 of the Act
before the concerned District Judge but the same has been dismissed on 20.12.2013 although on default.
From perusal of the statement made in the counter affidavit that after dismissal of the Title Appeal No.52 of 2008 no steps have been taken by the
State authority for restoration of the said appeal, nothing has been averred in the counter affidavit although exhaustive counter affidavit has been filed.
The normal corollary therefore would be that the Title Appeal No.52 of 2008 has been dismissed on 20.12.2013, therefore, the order passed on
19.11.2007 has attained its finality.
In the backdrop of the factual aspect of the matter, it is to be examined that the issuance of notice by the respondent authority can be said to be legal
course of action.
It is not in dispute that if any person has made encroachment on a Government land, the State or its authority being the custodian of the Government
land is to act upon it taking appropriate action in this regard to get the land encroached free by initiating a proceeding under the Public Encroachment
Act but while doing so the authority needs to apply its mind as to whether land in question is a public land or not? Although in the counter affidavit
respondents are claiming it to be forest land but the question is that when the competent authority in exercise of statutory provision as conferred under
Section 87 of the Chota Nagpur Tenancy Act, 1908, has passed an order by ordering to enter the name of the ancestor of the petitioner in the record
of rights which has attained its finality after dismissal of the title appeal being Title Appeal No.52 of 2008 vide order dated 20.12.2013, therefore,
merely by taking aid of the survey as has been pleaded in the counter affidavit, the State authority cannot sit upon the order passed by the competent
authority under the statutory provision.
Learned counsel for the respondent has, however, submitted that since the appeal has been dismissed in default, therefore, the finality of the order
dated 19.11.2007 as has been claimed by the petitioner, is not worth to be considered but this argument is not acceptable to this Court as appeal has
been dismissed vide order dated 20.12.2013 and we are in the month of June, 2019 and even if, the appeal or any proceeding has been dismissed on
default it is the prime responsibility of the party to make an application for its restoration.
Here the State is the aggrieved party and the authority of the State has filed counter affidavit and for restoration of the title appeal which has been
dismissed on default vide order dated 20.12.2013 even after lapse of six years, no such application has been filed, therefore, without doing so having
come out with the notice (impugned) that cannot be appreciated by this Court.
In view thereof, the notice dated 07.06.2016 is not sustainable in the eye of law, accordingly quashed.
In the result the writ petition stands allowed.
Needless to say that if the State authority will make an application for restoration and if the appeal would be restored on its own merit, liberty would
be upon the State authority to proceed in accordance with law depending upon the outcome of appeal.