MD.JILANI v. THE STATE OF BIHAR

order has been produced by Mr. Gupta to show that prior to initiation of the present proceeding any earlier proceeding under the Act has been dropped. How the petitioners came in the contact of Anchal Amin, how did the Anchal Amin call the petitioner for verification of his document, how an order was sought to be passed but could not be recorded in favour of the petitioner, cannot be subject matter of an enquiry in the writ petition, especially when the case of the respondents is that on earlier occasion certain misconduct were committed by the concerned Anchal Amin in submitting a false report. This aspect in fact has been 4 clarified in paragraph no.5 of the counter affidavit which for the sake of convenience is quoted hereinbelow: “ That the prayer made in the writ petition to restrain the respondents from demolition and interfering with the possession of the petitioner pucca- house, its Court‟s yard and bari situate at khata no. 1533, plot no. 6826, Khata no. 1532, Plot no. 6827, Khata no. 1532, plot no. 6848, Khata no. 1452 plot no. 6828 Area

0.14 acres in total, further prayer of the petitioner to quash the notice dated 13.3.2001 (annexure 1) issued by that time Anchal Adhikari (respondent no.4), Madhepur in Encroachment Case no. 3/99-2000 by petitioner mentioned land has been directed to be measured, in order to remove the encroachment, wholly misconceived is fit to be rejected as the land in question is recorded in survey khatiyan cadastral survey plot no. 6826 as Gair Mazarua Aam Road land at present also being used as road. Similarly plot no. 6848 is recorded as Gair Mazarua Khas Pokhara, which is used as Sairat from the very beginning and is settled by the Government, plot no. 6827 is recorded as Gair 5 Mazarua Khas Garha (Khanta) land, which is used as public drainage, plot no. 6828 is recorded as Be Lagan in the name of Shive Sharan Dixit, the Ex-landlord handed over the charge of this land to Govt. as be lagan and this land was also used by the public as parti land and as such the aforementioned land can not be settled to any one, and the petitioners reliance made over the registered sale deed (Annexures 2 to 6) by virtue of which the petitioners came in the possession of aforementioned plots, is not sustainable in the eye of law. More over the petitioners reliance made over to the Annexure 8 and 10, which are the reports of the Halka Karamchari Cum Circle Inspector is also not reliable as the same is made by the revenue, lower staff in collusion with the petitioner, and this collusive report contained in Annexures 8 and 10 are came into the notice of that time Anchal Adhikari, and the Anchal Adhikari has taken a very serious view in the matter and enquired into the matter, having aforementioned reports forged the issued show cause notice dated to Sri Naresh Prasad Singh, Revenue Karamchari cum Incharge Circle Inspector asking therein that why 6 he should not be dismissed from the service. That time Anchal Adhikari having found the aforementioned two reports collusive issued notice dated 13.3.2001 (annexure 1) which received petitioners and in their presence the lands in question has been measured by the Anchal Amin, a trace map has been sketch by the Anchal Amin both dated 16.3.2001, perusal of the enquiry report dated

18.12.99, measurement report dated

16.3.2001 and the sketch map dated

16.3.2001 petitioner possession over the disputed land is illegal and petitioner should vacate the land in question. Moreover, petitioners should also be held responsible as it appears that they are indulged with the revenue Karamchari in making illegal collusive reports as contained in Annexures 8 and 10.” It is very significant that the aforesaid paragraph being the gist the case of the respondents has been also answered by the petitioner in the reply to the counter affidavit in paragraph 7 which reads as follows: “ That the same part of statements 7 paragraph no.5 reproduction of the relief of the petitioner prayed for in this writ application and same part of the statement regarding the lands in question misconceived hereby denied and in reply the statements made in paragraphs 17 to 27 of the writ application be taken into consideration.” From the conjoint reading of the stand of the respondents in the counter affidavit and its rejoinder two things become clear, namely, that the earlier some Anchal Amin or subordinate staff in collusion with the petitioner had submitted a false report and secondly that the authorities under the Act having found that there was a clear case of encroachment in view of the land in question being recorded as a public land in the revenue records of the State have initiated a proceeding under the Act. In that view of the matter, this writ application must be held to be premature and in fact wholly misconceived. Counsel for the petitioners finally has contended that the impugned order, as 8 contained in Annexure 1, is malafide. In the opinion of this Court the malice has to be attributed either on fact or in law but this Court would find that there is absolute want of any pleading either with regard to malice inasmuch as no person has been made party by name much less the Circle Officer, who has initiated the proceeding and passed the impugned order. The question malice automatically ruled out when a finding has been recorded by this Court that as a matter of fact no proceeding under the Act was ever drawn against the petitioner and this is the first proceeding under the Act. Obviously if this is the first proceeding under the Act, there would be no issue as with regard to the proceeding being even malafide in law. That being so, the plea of malafide raised by the petitioner appears to be "the last refuge of a losing litigant" and must be rejected. The writ application thus is wholly misconceived and is accordingly dismissed with a direction to the authorities specially the Circle Officer, Madhepur 9 (Respondent no. 4) to ensure that the remaining encroachment proceeding initiated against the petitioners is completed within a period of three months from the date of receipt/ production of a copy of this order and in case the petitioner co-operate proceeding must be concluded ex-parte. (Mihir Kumar Jha,J.) Surendra/