Dharam Prakash vs The State of Bihar

Hemant Kumar Srivastava, J.—The petitioner has filed this writ petition for issuance of writ in the nature of certiorari for setting aside the impugned notices dated 15-06-2010 as well as dated 04-06-2010, which have been issued by the Circle Officer (respondent No. 4), Parwalpur, Nalanda and also prayed for setting aside the order dated 24-05-2011 passed by the respondent No. 2, the District Magistrate, Nalanda, in Encroachment Case No. 02 of 2010 as well as order dated 07-06-2011, passed by the Circle Officer (respondent No. 4), Parwalpur, Nalanda in Encroachment Case No. 03 of 2006-07.

The brief facts, which lie to file this writ petition, is that the house of the petitioner is stood over Khesera No. 3085 and the house of private respondent No. 5 is stood and constructed over Khesera No. 3084 and at the time of construction of house of private respondent No. 5 over the above-said plot, the plot belonging to the petitioner was vacant but later on, he got constructed his house over the above-said plot after construction of house of the private respondent No. 5. Furthermore, the private respondent No. 5 used to go through the above-said vacant land of the petitioner but when the house of the petitioner was constructed on Khesera No. 3085, the private respondent No. 5 filed an objection before the District Magistrate, Nalanda and other officials, regarding the so-called obstruction of his passage. Thereafter, spot inquiry was made by Anchal Ameen, who measured the lands, in question and sent his report dated 13-02-2006, specifically, mentioning therein that there was no sign of any passage and the complaint of private respondent No. 5 was found baseless. The report dated 13-02-2006 is annexed with this writ petition as Annexure-1. After the aforesaid report, private respondent No. 5 again filed a petition before the respondent No. 4, mentioning therein that the petitioner obstructed his passage by making encroachment on public land. On the complaint of private respondent No. 5, Encroachment Case No. 03/2006-07 was registered and in the aforesaid encroachment case, the Anchal Ameen submitted his report dated 22-09-2006 mentioning therein that the petitioner encroached 2� decimals area of plot No. 3108 and 1� decimal area of plot No. 2703 and furthermore, the Ameen reported that the petitioner encroached 16 Kari public land. The petitioner filed objection against the report dated 22-09-2006, mentioning this fact that in consolidation proceeding, Chak No. 3085 having an area of 9 decimals, was allotted to him but the concerned Ameen did not measure the land, in question, as per new map of the said land. The aforesaid Encroachment Case No. 03/2006-07 remained pending for a long period but in the meantime, private respondent No. 5 filed CWJC No. 7204 of 2009 before this court for disposal of Encroachment Case No. 03/2006-07 and thereafter, this court disposed off the writ petition vide order dated 30-06-2009 without touching the merit of the case and without issuance of notice to the petitioner with direction to the concerned authority to dispose off the Encroachment Case No. 03/2006-07 within a period of six months. The order dated 30-06-2009 passed by this court in CWJC No. 7204 of 2009 is annexed as Annexure-3 to this petition. Even after the aforesaid direction of this court, the Encroachment Case No. 03/2006-07 remained pending till 15-04-2010 and for the first time, the petitioner got notice dated 15-04-2010 from the Circle Officer and, thereafter, he appeared in the above-said encroachment case and filed his objection, mentioning therein that he had not encroached Survey Plot No. 2703. Furthermore, the private respondent No. 5 filed MJC No. 1387 of 2010 due to non-compliance of order dated 30-06-2009 passed in CWJC No. 7204 of 2009 and when the aforesaid MJC No. 1387 of 2010 was filed before this court, the Circle Officer, Parwalpur, in a very haste manner, procured a collusive report dated 03-05-2010 from Anchal Ameen and passed final order dated 13-05-2010, directing the petitioner to remove the so-called encroachment. The order of Circle Officer dated 13-05-2000 is annexed as Annexure-6 to this petition. The petitioner preferred an appeal vide Encroachment Appeal No. 02 of 2010 before the Collector, Nalanda. During pendency of the aforesaid appeal, the Circle Officer issued notice dated 15-06-2010 for demolition of house of the petitioner. Thereafter, the petitioner preferred CWJC No. 10022 of 2010, challenging the notice dated 15-06-2010 (Annexure-7) and CWJC No. 10022 of 2010 was disposed off by a coordinate bench of this court vide order dated 05-07-2010 with a liberty to the petitioner to file an interlocutory application before the Collector, Nalanda in Land Encroachment Appeal No. 02 of 2010 for staying the operation of order dated 13-05-2010 passed by the Circle Officer in Encroachment Case No. 03/2006-07 and till disposal of interlocutory application of the petitioner, the notice dated 15-06-2010 issued by Circle Officer was ordered to be remained stayed. However, the aforesaid Encroachment Appeal No. 02 of 2010 was heard and the petitioner came to know that the aforesaid appeal had been dismissed vide order dated 24-05-2011. The order dated 24-05-2011 passed in Encroachment Appeal No. 02 of 2010 is annexed to this petition as Annexure-9. After dismissal of the aforesaid encroachment appeal, again, a notice dated 07-06-2011 was served upon the petitioner fixing 10-06-2011 for demolition of dwelling house of the petitioner and, thereafter, the petitioner preferred the present writ petition.

The State as well as private respondent No. 5 filed their separate counter affidavits, pleading therein that the petitioner encroached the public land and, therefore, the orders of the Circle Officer as well District Magistrate were quite genuine.

During pendency of this writ petition, this court vide order dated 03-02-2014 directed the District Magistrate-cum-Collector, Nalanda to get the survey plot No. 3108, 3184 & Chak Plot No. 2848 as well as Chak plot No. 3070 measured considering the area and description in the Chakbandi map as well as records of rights after comparing it with the revisional survey record of rights. In compliance of the aforesaid order, the District Magistrate got measured the aforesaid plots and submitted his report before this court, mentioning therein that total area of old plot No. 3085 was only 7 decimals but when in consolidation proceeding, new Chak bearing Chak No. 2852 was allotted to the petitioner, the aforesaid Chak bearing plot No. 2852 was prepared for an area of 9 decimals and 2 decimals area of old plot No. 2703 corresponding to new plot No. 2848 was allotted in Chak No. 2852 and the petitioner has constructed his house over old plot No. 3085 as well as some portion of old plot No. 2703 and according to map of Chak plot No. 2852, there was no encroachment of new Chak No. 2848. Furthermore, the Collector reported that old plot No. 3108, corresponding to new plot No. 3070 is Gair Majarua Aam Rasta and the petitioner has encroached 2.25 decimals of land of new plot No. 3070 by constructing his house and using the aforesaid area as a SAHAN. Similarly, the Collector reported that the private respondent No. 5, too, encroached some portion of old plot No. 2703 corresponding to new plot No. 2848 which is admittedly, Gairmajarua Paine. Furthermore, the Collector reported that in lieu of encroachment, made over plot No. 3180 corresponding to new plot No. 3070, the petitioner had given his raiyati land of old plot No. 3215 corresponding to 3071 for use of public passage and the aforesaid raiyati land of the petitioner is being used by the villagers as passage.

Learned counsel, appearing for the petitioner submits that admittedly, old plot No. 3085 having an area of 7 decimals was raiyati land of the petitioner and in consolidation proceeding, Chak No. 2852 having an area of 9 decimals was allotted to the petitioner in place of old plot No. 3085 and the Collector, specifically, mentioned in his report that as per new Chak map, there is no encroachment of old plot No. 2703 corresponding to Chak No. 2848. Learned counsel for the petitioner submits that the consolidation proceeding has already been finalized in the concerned village and, therefore, the allotment of Chak No. 2852 having an area of 9 decimals to the petitioner cannot be disturbed in this summery proceeding. He further submits that similarly, the Collector has reported that the petitioner has given his raiyati land for use of public passage and villagers are using the raiyati land of the petitioner as passage and in lieu of the aforesaid land, he constructed his house over some portion of old survey plot No. 3108 corresponding to Chak No. 3070. Therefore, the aforesaid complicated question of title cannot be decided in this summery proceeding.

Learned counsel for the petitioner relied upon a decision reported in 1984 BBCJ 316 (Nagendra Narayan Prasad and Ors. vs. Lakshman Goswami & Ors.) wherein Division Bench of this court held that the order of consolidation authorities, passed in accordance with the Consolidation Act, cannot be challenged in the civil court and the Magistrate cannot ignore the orders of consolidation authorities while exercising its power vested u/s. 145 of the Criminal Procedure Code.

Learned counsel further submits that even if, this court comes to the conclusion that the petitioner has encroached the old survey plot No. 3108 corresponding to Chak No. 3070 and old survey plot No. 2703 corresponding to Chak No. 2848, then also, admittedly, the petitioner has left some portion of his raiyati old plot No. 3215 corresponding to Chak No. 3071 for use of passage in lieu of portion allegedly, encroached by him over old plot No. 3108 corresponding to new plot No. 3070.

On the other hand, learned counsel, appearing for the State submits that admittedly, old survey plot No. 2703 corresponding to Chak No. 2848 has been recorded Gairmajarua Paine whereas; old survey plot No. 3108 corresponding to Chak No. 3070 has been recorded as Gair Majarua Aam Rasta and the petitioner has encroached some portions of both the above-said plots as per measurement. He further submits that the consolidation authorities wrongly allotted 2 decimals area of plot No. 2703 to the Chak No. 2852 of the petitioner because according to Consolidation Act, the consolidation authorities has got no right to take Gair Majarua Aam Paine as well as Gair Majarua Aam Rasta for consolidation purposes and, therefore, the Circle Officer as well as the District Magistrate rightly ordered for removal of the encroachment, made by the petitioner. He, further submits that in course of hearing, it came to light that private respondent No. 5 has also encroached public land and, therefore, this writ petition may be dismissed on admission stage itself.

Learned counsel, appearing for private respondent No. 5 submits that according to report of Ameen, the petitioner has encroached some portion of plot No. 2703 as well as plot No. 3108 and as a matter of fact, the petitioner blocked the passage of private respondent No. 5 as well as other villagers. He further submits that the private respondent No. 5 has not encroached any public land and private respondent No. 5 has made his entire construction over Chak No. 2851, which is, admittedly, his raiyati land.

Having heard the contentions of the parties as well as having perused the pleadings available on the record, I find that certain facts are admitted in this matter. It is an admitted position that old plot No. 3084 corresponding to Chak No. 2851 is a raiyati land of respondent No. 5 and similarly, old plot No. 3085 corresponding to Chak No. 2852 is raiyati land of the petitioner. Furthermore, old survey plot No. 2703 corresponding to Chak No. 2848 is a Gair Majarua Paine. Similarly, old survey plot No. 3108 corresponding to Chak No. 3070 is a Gair Majarua Aam Rasta. Furthermore, it is an admitted position that the original area of survey plot No. 3085 was only 7 decimals but in course of consolidation proceeding, when new Chak No. 2852 was prepared, 9 decimals area was allotted to the aforesaid Chak No. 2852. Furthermore, it is an admitted position that the consolidation proceeding in the concerned village has already been completed and now, no consolidation proceeding in the concerned village is pending. It is also an admitted position that neither the State nor any other person raised any objection in respect of allotment of area of 9 decimals to Chak Plot No. 2852 during course of the consolidation proceeding in accordance with Consolidation Act. Now, the order of the consolidation authorities has already become final and in my view, learned counsel for the petitioner has rightly submitted that the order of consolidation authorities cannot be tested or judged in a summery proceeding under the Bihar Public Land Encroachment Act, 1956. Furthermore, it is apparent from the measurement report, submitted by the District Magistrate, Nalanda at the direction of this court that the petitioner got constructed his house over Chak plot No. 2848 and some portion of old survey plot No. 3108 corresponding to Chak No. 3070. Admittedly, the petitioner left some portion of his raiyati old plot No. 3215 corresponding to Chak No. 3071 for use of passage in lieu of some portion of encroachment, made by him over old plot No. 3108 corresponding to new plot No. 3070. It is clear that the petitioner encroached some portion of old survey plot No. 3108 corresponding to Chak No. 3070 in lieu of his raiyati old plot No. 3215 corresponding to Chak No. 3071. It has been argued on behalf of the petitioner that at the time of construction of the above-said road, due to mutual understanding between the petitioner and other villagers, the petitioner left his raiyati land for use of passage and in lieu thereof, he took some portion of plot No. 3108 in his possession. The aforesaid fact is fortified by the report of District Magistrate, Nalanda. Therefore, in my opinion, even if, it has been found in inquiry that some portion of plot No. 3108 has been encroached by the petitioner, then also, the stand of the petitioner is that he left some area of his raiyati land in lieu of the aforesaid encroached area. Therefore, it would appear from the aforesaid facts that a complicated question of title was involved before the Circle Officer in Encroachment Case No. 03/2006-07 and it is well settled principle of law that the complicated question of title cannot be decided in summery proceeding.

So far as the so-called encroachment, made by private respondent No. 5 is concerned; the same cannot be decided in this writ petition because if, any encroachment has been made by the private respondent No. 5 on public land, the authorities may initiate proceeding against him and pass order in accordance with law.

On the basis of the aforesaid discussions, this writ petition stands allowed and the impugned notices dated 15-06-2010 and 04-06-2010 contained at Annexures-7 & 7/1 respectively to this writ petition as well as the order dated 24-05-2011 passed by the District Magistrate, Nalanda in Encroachment Appeal No. 02 of 2010 contained at Annexure-9 and also the order passed by the Circle Officer in Encroachment Case No. 03/2006-07 are, hereby, quashed.

In the aforesaid manner, this writ petition stands disposed off.