Kashi Prasad Saha vs The State of Bihar and Others

M.Y. Eqbal, J.—Heard Mr. M.M. Banerjee, learned Counsel for the Petitioner and Mrs. Indrani Senchaudhuri, learned Standing Counsel for the Respondents and perused the show cause filed on behalf of the Respondents.

In this writ application, the Petitioner seeks issuance of an appropriate order for payment of compensation on account of illegal demolition of the building standing on plot No. 31 under khata No. 94 of village Behragora. The Petitioner''s case is that sometime in the year 1988, a land encroachment proceeding was initiated against the tenants inducted by the Petitioner''s father in respect of plot No. 135. It appears that in the said proceeding, final order was passed for removal of encroachment. Against that order, the Petitioner''s father preferred two appeals being BPLE Appeal No. 32 and 33 of 1989-90. The stand taken by the father of the Petitioner was that actually the building stands over plot No. 31 and not over Plot No. 135, which is evident from the memo of appeal filed by the father of the Petitioner, which is annexure-1 to this writ application. The appellate authority i.e. the Addl. Dy. Commissioner by order dated 18.5.1990 remitted the matter to the circle officer for passing an order afresh after physical verification of the land/plot in question. The contention of the Petitioner is that without disposing of the appeal the concerned Respondents demolished a portion of the building of the Petitioner standing over plot No. 31 (old plot No. 20).

A counter affidavit has been filed by the Respondent State stating inter alia, that the encroachment proceeding was initiated in respect of unauthorised construction over plot No. 135 of mouza Radhala Bandh and not against plot No. 31 of mouza Behragora. It is further stated that pursuant to the order passed by this Court in CWJC No. 2290 of 1990 at Patna, the Dy. Commissioner, Singhbhum was directed to direct the concerned officers to take action for demolition of encroachment over the public land. Pursuant thereto, a public notice was circulated and announcement was made by loud speaker to all concerned to remove encroachment and, thereafter illegal encroachments have been demolished. It is further contended on behalf of the Respondents that the building which was demolished falls under plot No. 135 and that construction was in the midst of road.

Whatever be the stand taken by the Respondent, this fact has not been denied that a proceeding was initiated in respect of plot No. 135 in which the Petitioner''s father raised objection about the existence of the building on a different plot i.e. plot No. 31 and the matter was ultimately remitted to the circle officer by the Addl. Dy. Commissioner, Singhbhum for physical verification. In such circumstances, further steps could have been taken by the Respondents after passing of the final order by the circle officer. Be that as it may, the question involved in this writ application is whether the building in existence was over plot No. 135 or 31. This fact cannot be decided by this Court in exercise of writ jurisdiction. It is not disputed that the matter after remand is pending before the circle officer for passing a fresh order after physical verification. In that view of the matter, the circle officer before whom BPLE cases No. 15 and 16 of 1987-88 are pending, is directed to proceed with the hearing of the case, if not already disposed of, and pass a final order after physical verification and after giving reasonable opportunity to the Petitioner. The circle officer, if so desired, on an application filed by the Petitioner may take the help of a survey knowing pleader commissioner for purpose of ascertaining the actual plot over which the building was constructed and is in existence.

With the aforesaid observation/direction, this application is disposed of Show cause filed by the Respondent is accepted, subject to warning that the Respondent concerned shall not repeat such an act in future.