Patna High Court dismisses PIL seeking withdrawal of restrictions on sale, purchase of gair majarua aam land

The Patna High Court dismissed a Public Interest Litigation (PIL) filed seeking direction to treat all persons in continued possession of gair majarua aam land, to be "Raiyat" of the land in question and withdrawal of the restriction imposed on sale and purchase of this category of land.

The Petition filed by one Arun Kumar Verma seeks a declaration regarding unconstitutionality of clause 3(ii)(Gh) of a Government Resolution dated 11.11.2014 bearing no. 924, which reads as follows:

"3(ii)(Gh) Leaving aside the situations of 'A', 'B' and 'C' aforesaid, if someone is found to be in possession of a gairmajarua owner's land, then to establish the argument of adverse possession, the claimant will have to show when he or his forefathers dispossessed the actual owner from the land in question so as to determine the date of commencement for computing the statutory period of adverse possession.

For determining the title of adverse possession against the government, a period of 30 years should be completed as per provision contained in Article 112 of the Limitation Act 1963, but only the possession over the land, no matter how long the period may be, does not create the legal right of the land holder, if it is not a grant given by the government. The possession over the land for such a long period protects his legal right only against any other person.

The competent authority has to rely on clear, complete and definite evidence relating to different points of time. If the entry in the revenue registers reveals the holding on the land of a claimant, then it can be considered correct. Any claimant can establish it with record, land receipts and zamindari return. If a claimant proves this, his holding is proved for thirty continuous years, then after the expiry of the period of thirty years, his title will be created under prescription and thus he will come under the definition of raiyat.

But if the illegal occupiers are landless of eligible category, then according to the government circular land will be settled with them to the prescribed extent and thereafter the land will be considered as raiyati tenant land."

The brief factual background, as per petitioner’s case, is that there are several farmers who are in continuous possession and enjoyment of lands for much more than 30 years, even since prior to coming into force of the Bihar Public Land Encroachment Act in the Year, 1956. Placing reliance on Articles 111 and 112 of the Limitation Act, the writ petition seeks to assert rights arising of continued possession of such farmers over the pieces of Government lands in their continued possession for long more than 30 years. It also seeks to assert the right to have such land mutated in favour of such occupants who are in continued possession over such a long period of time.

The Division Bench of Chief Justice K. Vinod Chandran and Justice Madhuresh Prasad examined clause 3(ii)(Gh) of the Resolution, which as per submission of the petitioner’s counsel, is unconstitutional. The Court observed that whether a particular farmer fulfills the requirement for raising the plea of adverse possession and asserting his right in respect of any land, is an issue which is to be decided with reference to the individual’s claim based on facts which would be distinct and unique to every individual. The Bench thus leaves it open to the individuals to raise such a plea in appropriate proceedings before the appropriate forum.

"No issue of public interest has been espoused warranting issuance of a sweeping declaration as has been sought in the instant writ proceedings in exercise of discretionary extraordinary writ jurisdiction."

The counsel for the petitioner has placed reliance on certain decisions. In the case of Institute of Law & Ors. vs. Neeraj Sharma & Ors. reported in 2015 (1) PLJR 32 (SC), the High Court finds that the Apex Court was considering huge loss to the public exchequer as reported by the Audit Department in allotment of property belonging to the Union Territory of Chandigarh Administration at throwaway prices. The Apex Court found that settlement was done without following the mandatory procedure for allotment of land. The Hon'ble Apex Court taking note of the fact that loss to the public exchequer could have been avoided, if the land in question had been settled by way of public auction for eligible persons has interfered in the matter. We find no such issue being raised in the instant writ proceedings. The petitioner, therefore, cannot be permitted to place reliance on judgment of the Hon'ble Apex court in the case of Institute of Law (supra) as the facts in the instant case are totally different and the judgment of the Supreme Court has no application here.

Insofar as decision in the case of the State of Bihar & Ors. vs. Harendra Nath Tiwary reported in (2015) 1 PLJR 606, the High Court finds that in that case, the co-ordinate Bench was dealing with an intra-court appeal arising out of writ proceedings by individuals, who had challenged cancellation of their Zamabandi, by raising a plea that Zamabandi was created in favour of the petitioner in 1946 and that it cannot be interfered with after seven decades. The competence of the Collector to cancel the Zamabandi in view of the provisions contained in the Bihar Land Mutation Act 2011 was also raised by the petitioner (individual), and not by way of a PIL.

The other two decisions, reported in (2005) 4 PLJR 654 (Mangru Singh & Ors. vs. the State of Bihar & Ors.) and (2017) 1 PLJR 818 (Vijay Kumar Prasad vs. the State of Bihar & Ors.), relied upon by the petitioner's counsel are judgments of a Single Judge and are not binding precedents for the High Court.

It is, however, noted by the High Court that in these two cases also, petitioners were aggrieved individuals who had approached the Court.

In view of consideration above, the High Court found that petitioner has not been able to make out any case for proceeding further in the matter by invoking extraordinary, discretionary jurisdiction under Article 226 of the Constitution of India.