Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5752 of 2012 ====================================================== Sk. Abdul Hai Son Of Late Abdul Rauf @ Sk. Rauf Resident Of Village- Sekhi Chakia, P.S Chakia, District-East Champaran .... .... Petitioner/s Versus 1. The State Of Bihar 2. The District Collector, Motihari, East Champaran 3. The Deputy Collector, Land Reforms, Chakia Sub-Division Chakia, Distt. East Champaran 4. The Circle Officer, Chakia, East Champaran 5. Md. Fasiuddin Son Of Late Imamuddin Resident Of Village-Sekhi Chakia, P.O. Bara Chakia, P.S. Chakia, District-East Champaran 6. Sk. Jiyauddin Son Of Late Imamuddin Resident Of Village-Sekhi Chakia, P.O. Bara Chakia, P.S. Chakia, District-East Champaran ====================================================== .... .... Respondent/s Appearance :
Legal Reasoning
petitioner relies upon a Division Bench judgment of this Court in the case of Niranjan Prasad Mandal & Ors. Vs. The State of Bihar and Ors: AIR1978 Patna 1, in the relevant part of para 4 of which it has been held as follows:- “…..It is now well settled that if the alleged encroachment is less than 5 links, it cannot be held with certainty that there is an encroachment at all. That is a question of law and if party is entitled to succeed on a question of law, it is not necessary for him to raise a question of fact. Since the encroachment alleged is less than 5 links, the orders for removal passed by Respondents 2 and 3 are bad and in that view of the matter we do not consider it necessary to examine the other point raised by learned counsel for the petitioner, namely, that his claim that the house was standing there in the same condition for over 50 years has not been considered by 5 Patna High Court CWJC No.5752 of 2012 (12) dt.21-08-2013 5 / 8 Respondents 2 and 3. In the circumstances, it is also not necessary to examine the point raised by the petitioner of CWJC No. 193 of 1976 (R) that the orders must be set aside as she had no notice of the proceeding and was not made party to it.” It is further submitted by learned counsel that the action of the respondents in demolishing the encroachment being contrary to law, the petitioner is entitled to compensation for such unlawful act of the respondents which has caused substantial damage to the house of the petitioner. Learned counsel for the State does not dispute the factual aspect of the matter that the alleged encroachment was less than 1 link. It is however, the stand of the respondents that the action has been taken on the basis of final order passed in Encroachment Case No. 16/2006-07 on 22.2.2007 by the Circle Officer with respect to the encroachment made by the petitioner in plot no. 4775 which is Gairmajarua Aam road and the said order had acquired finality and the petitioner had not even challenged the same by invoking statutory remedy of appeal against the said order. It is further submitted that thereafter on 6 Patna High Court CWJC No.5752 of 2012 (12) dt.21-08-2013 6 / 8 the basis of the order dated 4.1.2010 passed by a Division Bench of this Court in CWJC No. 18656/2009, wherein a direction was issued to give effect to the order passed by the Circle Officer on 22.2.2007, steps were taken by issuing notice to the petitioner on 15.7.2011 and on the petitioner’s failing to remove the encroachment, the portion encroached by the petitioner was
Arguments
For the Petitioner/s : Mr. Vijay Shankar Shrivastava For the Respondent/s : Mr. Kumari Amrita Gp10 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 12 21-08-2013 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner had filed the writ application seeking a direction upon respondent Nos. 1 to 4 not to demolish any part of the residential house of the petitioner situated on Khata No. 471, 2 Patna High Court CWJC No.5752 of 2012 (12) dt.21-08-2013 2 / 8 Plot No. 5134, area 13 dhoors on which mark of red colour has been made for demolition and further seeking quashing of the order dated 22.2.2007 of the Circle Officer, Chakia in Encroachment Case No. 16 of 2006-07 by which the petitioner has been declared encroacher on Government land and for quashing all other consequential orders. Shorn of unnecessary details the Encroachment case No. 16 of 2006-07 was initiated for removal of encroachment by some seven persons over Gairmazaurua Aam Land which has been used as road. All the seven alleged encroachers including the petitioner were noticed in the matter and none of them raised any objection. Ultimately by order dated 22.2.2007 the petitioner and other six persons were declared as encroachers by the Circle Officer and directed to remove the encroachment by 5.3.2007 and inform him. Admittedly the petitioner never challenged the said order before the statutory appellate authority or even by filing writ petition at any earlier stage. Subsequently one Md.Fasihuddin had approached this Court by filing CWJC No. 18656 of 2009 seeking a direction on the respondents specially the Circle Officer, Chakia to implement the order dated 22.2.2007 passed in Encroachment Case No. 16 of 2006-07 which was disposed of by a Division Bench of this Court by 3 Patna High Court CWJC No.5752 of 2012 (12) dt.21-08-2013 3 / 8 order dated 4.1.2010 with a direction to the Circle Officer, Chakia, East Champaran, Motihari to give effect to the order passed by him in the encroachment case unless the same has been interdicted by any court of law. Pursuant to the aforesaid direction of this Court a notice dated 15.7.2011 was issued to the petitioner and other encroachers with a direction that they should remove the encroachment by 30.7.2011 failing which the Administration will forcibly get the same removed and cost of which shall be payable by the petitioner. It appears that even thereafter the petitioner took no step and finally when the respondents marked the house of the petitioner for removal of encroachment he filed the writ application on 12th March, 2012. However, the respondents immediately after filing of the writ application demolished the encroached portion of the house of the petitioner. Learned counsel for the petitioner submits that admittedly the encroachment, alleged to have been made by the petitioner, was only to the extent of 4.75 inches which is less than even one Kari/link, the link being equal to 7.92 inches. It is submitted that it is a well settled principle of law that if the encroachment is less than 5 links then the same should not be disturbed and no proceedings can be taken. More so, in the 4 Patna High Court CWJC No.5752 of 2012 (12) dt.21-08-2013 4 / 8 present matter, the house, the wall and roof of which has been demolished, has been standing thereon for a very long period of time. In support of his aforesaid stand learned counsel for the
Decision
measured in the presence of the writ petitioner and others and re- ascertained and marked on 17.2.2012 and subsequently, in the presence and supervision of the Magistrate, the encroachment was removed. It is asserted by the respondents that no portion in excess of the encroachment was disturbed and statement regarding removal of excess area of house has been denied. On the basis of the aforesaid facts learned counsel for the State submits that no question of payment of any compensation can arise as the petitioner himself allowed the order dated 22.2.2007 passed in the Encroachment Case to acquire finality without challenging the same and the respondents were duty bound to implement such order, especially after the order dated 4.1.2010 passed by this Court. I have considered the rival submissions of the parties. The plea raised by learned counsel for the petitioner regarding the encroachment being less than 5 links and therefore not fit to be 7 Patna High Court CWJC No.5752 of 2012 (12) dt.21-08-2013 7 / 8 removed in view of the well settled proposition of law reiterated by a Division Bench of this Court in Niranjan Prasad Mandal’s case (supra) can be of no avail at this belated stage. Evidently the order dated 22.2.2007 passed by the Circle Officer had been allowed to acquire finality and the same was not challenged at any stage either before the appellate authority or before this Court by the petitioner. Thereafter the only question was the implementation of the order; even a wrong order if passed in accordance with law and there being no jurisdictional error therein, can be required to be implemented as was earlier directed by a Division Bench of this Court by order dated 4.1.2010 to the Circle Officer to implement the earlier order dated 22.2.2007, unless the same had been interdicted by any Court of law, which admittedly has not happened. The implementation of such an order which has gone unchallenged and has acquired finality cannot be considered to be a wrongful and illegal act on the part of the respondents so as to entitle the petitioner to any compensation on that count. The fact that the encroachment has been removed a day or two after the filing of the writ application can be of no avail to the petitioner in the aforesaid facts and circumstances. 8 Patna High Court CWJC No.5752 of 2012 (12) dt.21-08-2013 8 / 8 The writ application is therefore devoid of merit and it is, accordingly, dismissed. However, in case the respondents have demolished more than the encroached portion as per the order dated 22.2.2007 and the admitted measurements made by the respondents, then it would be open to the petitioner to claim compensation for the same in appropriate proceedings before the Civil Court. S.Pandey/- (Ramesh Kumar Datta, J)