Ranjit Kumar Singh vs State Of Bihar

The order dated 27.02.2024 is extracted hereinunder:

“ The writ petition was filed against the cancellation of jamabandi. The petitioner claimed absolute right over khata no. 79, plot no. 710. The 6th Respondent in the appeal had made a representation before the Government that plot no. 710 with khata no. 79 was a pond, on which there was encroachment case pending. The encroachment cases were directed to be disposed of by CWJC No. 1751 of 2021.

The cancellation subject matter of the present writ petition and appeal, was effected by the Collector on the finding that there is a manipulation done online and what now appears as Khata no. 79 was actually Khata no. 49 Tauji no. 4552. This was the basis of the cancellation which is challenged before this Court.

An interim order in a writ petition is challenged in appeal, we had called for the writ petition only so that the matter can be settled by this Court, on consent by all the parties.

We have heard the learned Counsel for the petitioner and the learned learned Government Advocates appearing in the writ petition and in the appeal, as also the 6th Respondent in the writ petition, who is the appellant herein.

The Government Advocate submits that based on the judgment in CWJC No. 1751 of 2021 Encroachment Case Nos. 19/2019-2020 and 20/2019-2020 initiated against the property, Khata no. 79, Plot no. 710 had concluded with an order of eviction on 26.10.2020, which has not been challenged. It is also submitted that the property was a pond as per the revenue records and remains as a government land, on which the writ petitioner had encroached.

It is also submitted that the cancellation now effected was of a manipulation done online wherein Khata no. 49 was changed to Khata no. 79.

The contention is hence that when the manipulation is proved, the petitioner cannot raise any claim with respect to Khata no. 49 and insofar as Khata no. 79, there is already an eviction order. The eviction order has not been produced before us.

We direct the learned Government Advocate to produce the eviction order within one week. Insofar as the cancellation made, there is also an appeal pending, in which circumstances, the writ petition under Article 226 would not be maintainable is the submission.

The Counsel for the writ petitioner submits that Title Suit No. 1027 of 2021 has also been filed.

The order under encroachment case shall be produced within a week.

Post on 12.03.2024.”

The writ petitioner is the 6th respondent and the appellant is the person concerned with the encroachment, who has been trying to get the encroachments removed, to restore the pond.

As of now, though the order has not been produced in the records, the learned Counsel for the appellant has produced a certified copy of the order in Encroachment Case Nos. 19/2019-2020 and 20/2019-2020 dated 26.10.2022 across the Bar. Therein encroachments were directed to be removed by the Circle Officer. The 6th respondent also has filed a Title Suit bearing No. 1027 of 2021 concerning the very same land. An appeal is said to have been filed from the common order, by the 8th respondent, under the Bihar Public Land Encroachment Act, 1956, which is pending as of now.

The learned Counsel for the 6th respondent submits that despite an application for furnishing the certified copy, the Circle Officer, Pachrukhi, Siwan, the 5th respondent has not issued the same.

The application for certified copy is produced as Annexure-6 along with the rejoinder filed by the petitioner in the writ petition dated 10.11.2022.

From the facts noticed in the order extracted above and that stated subsequently, we observe that the 6th respondent, if aggrieved with the order of eviction requires to file an appeal from the order in the encroachment case. He has also filed a Title Suit and in such circumstance, he cannot file a writ petition directly against the cancellation of Jamabandi. The cancellation of Jamabandi is specifically made on the basis of the facts noted in the impugned order.

Hence, as of now, there can be no interference caused to the cancellation. However, we also have to notice that it will be dependent upon the Title Suit filed by the 6th respondent also in which the 6th respondent has not obtained any interim order till date.

Considering the totality of the circumstances, we are of the opinion that the writ petition is not maintainable. The 6th respondent will have the remedies before the appellate authority under the Bihar Public Land Encroachment Act as also before the Civil Court, where he has filed the Title Suit.

The appeal against the order has not been filed, as submitted by the learned Counsel for the 6th respondent, only because of non-issuance of a certified copy. In such circumstance, we direct the 5th respondent, the Circle Officer to issue a certified copy of the order passed in Encroachment Case Nos. 19/2019-2020 and 20/2019-2020 within two weeks, as requested by the 6th respondent by Annexure-6. If Annexure-6 is not available in the files, the 6th respondent is given a further opportunity of two weeks to file a fresh application for certified copy, which shall be issued within the next two weeks. The 6th

respondent shall also file an appeal under the land encroachment case within one month of the receipt of the certified copy. The 6th respondent would be entitled to move an application for stay before the appellate authority.

We are of the opinion that at least till the application for stay is considered, no removal of encroachment shall be carried out. In such circumstances, we direct that for a period of three months, the 6th respondent will not be disturbed based only on the encroachment order. After the said period, it will depend upon the orders passed in the encroachment case and in any event it will depend upon the final orders passed in the Title Suit also.

If the delay occasioned in filing an appeal, the 6th respondent will be entitled to explain, based on the date of knowledge of the order.

We make it clear that we have not made any observation about the merits of the matter or on the delay condonation and it will be left to the appropriate authority to consider. If the 6th respondent succeeds in the encroachment case and also obtains a decree against the State, establishing his title, then necessarily he will be entitled to seek revocation of cancellation of his jamabandi.

The appeal and the writ petition stand disposed of with the directions and observations as above.