Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12712 of 2012 ====================================================== 1. Asharfi Dass S/O Late Janak Dass R/O Village- Shubhapatti, P.S.- Ashokpaper Mill, Rameshwar Nagar, District- Darbhanga Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Collector-Cum-District Magistrate, Darbhanga 3. The Deputy Development Commissioner, Darbhanga 4. The Sub Divisional Officer, Darbhanga 5. The Block Development Officer, Hayaghat, Distt.- Darbhanga 6. The Mukhia, Gram Panchayat Sidhauli Prakhand, Hayaghat Distt.- Darbhanga 7. The Panchayat Secretary-Cum-Panchayat Sewak Gram Panchayat Sidhauli, Prakhand Hayaghat, Distt.- Darbhanga 8. The Assistant Engineer Prakhand Hayaghat, Rastriya Gramin Niyojan Karkram, Distt.- Darbhanga .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Narsingh Tanti For the Respondent/s : Mrs. Nivedita Nirvikar G.P.3 Mr. Anil Kumar Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 5 17-09-2013 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner has approached this Court for a direction upon the respondent No.3, Deputy Development Commissioner, Darbhanga and respondent No.4, Sub-divisional Officer, Darbhanga to comply with the order dated 23.11.2009 passed by the Collector in Encroachment Appeal Case No. 16 of 2008-09. The case of the petitioner, in brief, is that the
Legal Reasoning
Patna High Court CWJC No.12712 of 2012 (5) dt.17-09-2013 2 petitioner is in possession of land bearing old Khata No.193, Plot No.167, area 2 kathas 5 dhurs, new Khata No.243, Plot No.647, Mauza-Subhepatti, Thana No.578, Anchal-Hayaghat, District- Darbhanga, where he has his residence and some portion of land is being used as Sahan. It is the specific case that the Mukhiya and the Panchayat Secretary forcibly broke the old boundary wall of the petitioner and got a road constructed through the land of the petitioner. The petitioner approached the Collector, Darbhanga by filing a petition on 2.5.2005 but no action being taken, he filed C.W.J.C. No.6997 of 2005 before this Court which was disposed of by order dated 21.8.2007 with a direction to the Circle Officer to ensure that the land is measured again in presence of the petitioner and thereafter the Circle Officer should pass appropriate orders in accordance with law. Ultimately, only after filing of a contempt application by the petitioner before this Court, the Circle Officer measured the land and passed an order dated 25.9.2007 and M.J.C. No.76 of
Decision
2008 was disposed of by order dated 23.4.2008 with liberty to the petitioner to challenge the order dated 25.9.2007 of the Circle Officer by filing an appeal before the Collector, Darbhanga, who should proceed to hear the matter on merits and pass appropriate order in accordance with law. The petitioner filed Encroachment Patna High Court CWJC No.12712 of 2012 (5) dt.17-09-2013 3 Appeal Case No.16 of 2008-09 before the Collector, Darbhanga which was disposed of by order dated 23.11.2009 holding that there was no reason to disagree with the report of the Deputy Collector, Land Reforms, Darbhanga that the road has been constructed in the middle of the raiyati land purchased by the petitioner and the Basgit Parcha issued in favour of the father of the petitioner. It was also held that the construction had been made without acquiring the said raiyati land and without taking the consent of the owner of the land which is clear from the measurement of the Circle Amin. The Collector, accordingly, directed to take disciplinary action against the then Mukhiya and the Panchayat Secretary and the officials who had given technical and administrative approval to the proposal, to the Deputy Development Commissioner, Darbhanga and to further take steps for recovery of the Government money from them. The Sub- divisional Officer, Sadar, Darbhanga was further directed to take action under Section 147 of the Code of Criminal Procedure in the matter. The petitioner finding that the order of the Collector has not been complied with filed a representation and thereafter he has come to this Court. In the counter affidavit filed on behalf of the Patna High Court CWJC No.12712 of 2012 (5) dt.17-09-2013 4 respondents, it is stated that steps have been taken by the Sub- divisional Officer, Darbhanga and the Deputy Development Commissioner, Darbhanga in the matter in terms of the order of the Collector. It is further stated that one Sibu Paswan, co-villager of the petitioner filed a case before the Deputy Collector, Land Reforms, Sadar, Darbhanga under the Land Disputes Resolution Act, 2009 vide Land Dispute Case No.237/2011-12 against the petitioner on 4.1.2012. The Deputy Collector, Land Reforms by order dated 4.1.2012 dismissed the case holding that the applicant Sibu Paswan, if so desires, may file his case before the competent Court. Aggrieved by the same, the said Sibu Paswan filed Land Dispute Appeal No.28 of 2012 before the Divisional Commissioner, Darbhanga, in which notices have been issued to the petitioner and the matter is still pending. It is further stated therein that the said land appeal is still pending and the next date fixed for hearing the matter is 24.9.2013. Learned counsel for the petitioner submits that the respondents are deliberately trying to avoid implementing the order of the Collector by removing the encroachment from the land of the petitioner and it is they who have set up the said Sibu Paswan to ensure that the order is not complied with. However, I find no such statement made in the Patna High Court CWJC No.12712 of 2012 (5) dt.17-09-2013 5 pleadings of the petitioner. It has also come to light that not knowing the entire facts, the Commissioner has passed an ad- interim status quo order in the matter. It is the stand of the Divisional Commissioner in his counter affidavit that the said status quo order was passed on 5.7.2013 as she was not aware of the proceedings before this Court. On a consideration of the entire facts and circumstances of the case, it appears that the right of the petitioner has been adjudicated in his favour by the order of the Collector but in the meantime, a case has been filed by one Sibu Paswan under the Bihar Land Disputes Resolution Act. Although the said case was dismissed by the Deputy Collector, Land Reforms, but statutory appeal has been filed which is pending before the Divisional Commissioner. In the aforesaid view of the matter, this Court is of the view that since the order of the Collector does not appear to have been passed in any statutory capacity but as an executive authority and the matter is pending before the statutory authority, namely, the Commissioner, Darbhanga Division, the best course would be that the petitioner should appear before the Commissioner and contest the appeal filed by the said Sibu Paswan. It is evident that Patna High Court CWJC No.12712 of 2012 (5) dt.17-09-2013 6 the so-called measurement case was not filed under the Bihar Public Land Encroachment Act, rather it was on the basis of a petition filed by the petitioner before the Circle Officer regarding encroachment of his raiyati land by constructing a road over it by the Mukhiya and the Panchayat Secretary and thus all such orders are merely executive in nature. The writ application is, accordingly, disposed of with liberty to the petitioner to contest the matter pending before the Commissioner, Darbhanga. V.P.Sinha/- (Ramesh Kumar Datta, J)