Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12891 of 2010 ====================================================== 1. Kanhaiya Lal Bubna S/O Late Kedar Nath Bubna @ Kedar Lal Bubna R/O Vill.- Sonaili, P.O.- Sonaili, P.S.- Kadwa And Distt.- Katihar 2. Dilip Kumar Bubna S/O Sri Hari Prasad Bubna R/O Vill.- Sonaili, P.O.- Sonaili, P.S.- Kadwa And Distt.- Katihar 3. Gautam Bubna @ Gautam Kumar Bubna S/O Late Kamal Kishore Bubna R/O Vill.- Sonaili, P.O.- Sonaili, P.S.- Kadwa And Distt.- Katihar 4. Mohan Banka S/O Late Kanhaiya Lal Banka R/O Vill.- Sonaili, P.O.- Sonaili, P.S.- Kadwa And Distt.- Katihar 5. Sanwar Lal Bubna S/O Late Madan Lal Buna R/O Vill.- Sonaili, P.O.- Sonaili, P.S.- Kadwa And Distt.- Katihar .... .... Petitioner/s 1. The State Of Bihar 2. The Collector, Katihar 3. The Circle Officer, Kadwa, Distt.- Katihar Versus .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.4249 of 2012 ====================================================== 1. Shyam Sah @ Shyam Kumar Sah S/O Late Makhan Sah R/O Village- Pelagarh, Sonaili Bazar, P.O.- Sonaili, P.S.- Kadwa, Anchal- Kadwa, District- Katihar .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Commissioner, Purnea Division, Purnea 3. The Collector, Katihar 4. The Additional Collector, Katihar 5. The Circle Officer, Kadwa, District-Katihar .... .... Respondent/s ====================================================== Appearance : (In CWJC No.12891 of 2010) For the Petitioner/s : Mr T. N. Maitin, Sr. Advocate Mr. Ramesh Kumar Agrawal, Advocate For the Respondent/s : Mr. Sanjay Kumar No.1, SC 12 Mr Ram Das Singh, AC to SC 12 (In CWJC No.4249 of 2012) For the Petitioner/s : Mr. Gyanand Roy, Advocate Mr Sheo Nandan Mishra, Advocate For the Respondent/s : Mr. Lalit Kishor, AAG 1 ====================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI ORAL ORDER 10 20-06-2013 Both the writ applications are required to be disposed of Patna High Court CWJC No.12891 of 2010 (10) dt.20-06-2013 2/8 by a common order as they all arise from common bundle of facts and background. An encroachment Case No.2 of 2010 was initiated by the Circle Officer, Kadwa for removal of illegal encroachments by many a persons including the present petitioners. Vehement opposition was placed on behalf of petitioners by learned senior counsel appearing in the matter taking a stand that the Circle Officer had no business to initiate an eviction proceeding in a land belonging to the Union of India nor did the appellate authority had any business to put its seal of approval over the said order of eviction. The petitioners have been in adverse possession of the property in question for more than 60 years and they have acquired right, title and interest by way of adverse possession. The relevant Act also supports them because no suit will now lie against them for claiming any right over the property. The land belongs to the Union of India, which is not disputed. The plea of learned senior counsel that the State of Bihar has no business to initiate a proceeding is a misplaced submission taking into consideration the definition of public land, which has been provided in Bihar Public Land Encroachment Act, 1956. The Court reproduce the definition of “public land” as defined under Section 2 (3) as under :- “public lands” means any land managed by or
Legal Reasoning
Patna High Court CWJC No.12891 of 2010 (10) dt.20-06-2013 3/8 vested in the Union of India or the State of Bihar, or in any local authority or statutory body, public undertaking educational institution recognized by the Government or by any University established under any law for the time being in force, Railway Company or Gram Panchayat established under Section 3 of the Bihar Panchayat Raj Act, 1947 and includes any land over which the public or the community has got a right of user, such as right of way, burials, cremation, pasturage or irrigation.” A plain reading of the above provision would show that plea of the petitioner that the State has no business or power to initiate a proceeding for eviction for a land relating to Union of India is a misplaced submission as the requisite power emerges from the definition of public land which includes land of Union of India. Another significant aspect has emerged and has been rightly pointed out by the counsel representing the State that the eviction proceeding, which has been initiated against the petitioners, is not a flash in the pan. It is because of a judicial direction, which was issued by the Court in CWJC No.8488 of 2010, that the State authorities including the Circle Officer, Kadwa was egged on to expedite the proceeding, which has culminated into the final order. This Court would like to reproduce the order dated 10.3.2011, which has bearing on the Patna High Court CWJC No.12891 of 2010 (10) dt.20-06-2013 4/8 issue and the same is reproduced herein below for ready reference: “The earlier order dated 04.01.2011 indicates that this Court found merit in the grievance raised by the petitioner in public interest that concerned authorities should be directed to remove the encroachments made on the approach road to a newly constructed bridge on or near Sonaili Bazar Road in Block-Kadwa, District-Katihar to ensure free flow of traffic on the bridge that to National Highway No-31. The counter affidavit filed on behalf of the State and the District Magistrate, Katihar shows that order for removal of the alleged encroachment was passed by the Circle Officer, Kadwa in Encroachment Case No.2/2010 on 19.08.2010. Notice under Section-6 of Public Land Encroachment Act, 1956 appears to have been issued upon the encroachers to vacate the land by 03.09.2010. It further appears that only on account of filing of Miscellaneous Encroachment Appeal No. 5/2010-11 & Other analogous Appeals pending before Additional Collector, Katihar, the encroachers have not been evicted from the public land so far. The District Magistrate, Katihar, Respondent No.6 is directed to take all lawful steps expeditiously to ensure that pending appeals are disposed of, in case any interim order of stay has been passed in those appeals, at an early date so that action for removal of encroachment ultimately found by the authorities is taken without any delay and completed within two months from today. Let this order be handed over to learned Patna High Court CWJC No.12891 of 2010 (10) dt.20-06-2013 5/8 counsel for the State for communication and compliance. (emphasis is mine) Put up under the same heading after two months.” No doubt, the above writ application was by ay of a PIL. Details of the issue which was dealt with by the Division Bench subsequently and the disposal of the writ application has been crystallized in the order dated 9.8.2011. Even this order is required to be reproduced herein below – “This writ petition under the caption “Public Interest Litigation” has been filed seeking a direction to remove the encroachment of the land from both sides of the State High Way constructed over the land owned by the Govt. of India over Tauzi No.65 Thana no.494 Khata no.488 of Sonaili Bazar Road, P.O. Sonaili, District Katihar, Block Kadwa, Sub Division Katihar effecting the public at large due to hurdle of free flow of traffic and construction of proposed bridge to connect National High Way No. 31. A report has been called for by this Court from the Revenue officials, in pursuance of which a report has been submitted by the Bihar State Bridge Construction Corporation. The project report was prepared by Bihar Rajya Pul Nirman Nigam Ltd. at the estimated cost of Rs.405.795 lacs.
Legal Reasoning
The learned counsel appearing on behalf of the Bihar Rajya Pul Nirman Nigam Ltd. submits that the High Level RCC bridge was constructed over the said river and it has become operational for the traffic and Patna High Court CWJC No.12891 of 2010 (10) dt.20-06-2013 6/8 general public. In the meanwhile, a writ petition has been filed before the learned Single Judge being writ petition No.12891 of 2010 for quashing the show cause notices all dated 14.07.2010 (Annexure-2 series to the writ petition), issued by the respondent Circle Officer, Kadwa, District Katihar under Section 3 of the Bihar Public Land Encroachment Act, 1956 to the petitioners in land encroachment proceeding bearing Case No. 02/2010-11. Subsequently, an appeal has been filed before the District Magistrate, Katihar. Final orders of eviction have been passed which has been subsequently brought on record by filing an amendment petition and the writ petition was also consequently amended. The matter was listed before the learned Single Judge and subsequently, it is tagged with the present writ petition filed under the caption “Public Interest Litigation”. But in view of the fact that the final order of encroachment has been passed under the encroachment Act which is the subject matter of C.W.J.C. No.8488 of 2010 filed under the caption “Public Interest Litigation”, we are of the opinion that C.W.J.C. No.12891 of 2010 can be de-linked with the present file and the same shall be posted before the learned Single Judge for disposal in accordance with law. The learned Government Pleader has filed a Supplementary Counter Affidavit in C.W.J.C. No. 12891 of 2010, which should also be placed on record. We make it clear that the learned Single Judge Patna High Court CWJC No.12891 of 2010 (10) dt.20-06-2013 7/8 may look into the records of C.W.J.C. No. 8488 of 2010, if the Court deems it necessary for disposal of C.W.J.C. No.12891 of 2010. We also make it clear that the records of C.W.J.C. No. 8488 of 2010 must also be tagged as part of record of C.W.J.C. No. 12891 of 2010. The C.W.J.C. No. 12891 of 2010
Decision
should be disposed of as expeditiously as possible. C.W.J.C. No. 8488 of 2010 is accordingly disposed of.” (emphasis is mine) The Court would specially like to take note of the concluding part of that order which says that we make it clear that the learned single Judge may look into the records of CWJC No.8488 of 2010 … … . The said record was also ordered to be tagged along with CWJC No.12191 of 2010, the present writ. The Division Bench obviously did it with a purpose. If this background is taken into consideration and even if the contention of the counsel with regard to an observation or judgment of a learned single judge rendered in the case of Krishna Kumar Sah v. State of Bihar, reported in 2013 (1) PLJR 31 is gone through, the Court comes to a considered opinion that the petitioners are not entitled to any relief by way of interference either with the order of the Circle Officer passed in the Eviction Case No.2 of 2010-11 or the order passed by the appellate authority i.e. Collector. Despite taking note of the Full Bench decision of the Patna High Court and other decisions, the learned Patna High Court CWJC No.12891 of 2010 (10) dt.20-06-2013 8/8 single Judge came to one conclusion- “I dispose of the writ petitions granting liberty to the petitioners to approach the civil court of competent jurisdiction within two months from today and obtain interim order of protection from the competent civil court.” In other words, this Court cannot be unmindful of the adjudication, which has been made in CWJC No.8488 of 2010. The judgment of the learned single Judge also does not help the petitioners in getting a final relief against the process or the decision taken contrary to their interest, since after all the arguments they have only been given an opening to approach a civil court for appropriate declaration which could include the question of adverse possession, which is their best piece of defence which the petitioners have put out against the action initiated against them. The Court, therefore, is left with no option but to dismiss these writ petitions with a liberty to the petitioners to approach a civil court of competent jurisdiction within two months from today and obtain an interim order of protection from the said competent court on its own merit. Writ is not the answer for them in the above noted background. (Ajay Kumar Tripathi, J) sk