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2011 DIGILAW 1644 (PAT)

Jai Narayan Bhagat v. State of Bihar

2011-08-04

body2011
ORDER Heard learned counsel appearing on behalf of the parties. As notice to show cause was issued to the respondent no. 4, to show cause vide order passed on 9.2.2010, hence before proceeding to deal with the issue raised in the writ petition, I would first deal with the show cause filed on behalf of the respondent no. 4, Ram Dayal Rai. 2. It is submitted by the respondent no. 4, that he is an illiterate person and that there was no attempt on his part to mislead the authority inasmuch as the petition filed before the Collector, Vaishali at Hajipur was accompanied with the order dated 16.8.2005 passed by this Court in C.W.J.C. No.16293 of 2004 (Annexure-3). 3. It is submitted that the only prayer made by the respondent no. 4 before the Collector, Vaishali was to act in accordance with the directions of the High Court and remove the encroachment accordingly. It was thereafter for the Collector to take into consideration the order passed by the High Court and to proceed accordingly. Thus there was no attempt on the part of the respondent no. 4 to mislead the authority into carrying out the demolitions. 4. The explanation is accepted and the respondent no. 4 is discharged from the notice. With the consent of the parties, the matter has been taken up for disposal at the stage of admission itself. 5. The dispute finds it origin from Encroachment Case No.3 of 2004-05 initiated under the provisions of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the 'Act'), by the Circle Officer, Hajipur in relation to Plot No.1367 situated at Village Dighi Talab, Hajipur in the District of Vaishali. 6. Pursuant to the proceedings initiated under the Act, an order came to be passed on 30.7.2004/4.8.2004 declaring encroachment by the petitioners? Over plot No. 1367. The appeal filed by the petitioners giving rise to Appeal Case NO.72 of 2004-05 before the Collector, Vaishali was dismissed vide order passed on 18.10.2004/ 29.10.2004 placed at Annexure-2 to the writ petition and the order of the Circle Officer, Hajipur was upheld. 7. The petitioners, aggrieved by the order passed by the statutory authorities under the Act, filed C.W.J.C.No.16293 of 2004 before this Court. 8. A contention was advanced on behalf of the petitioners that they are not in occupation of any part of the land bearing Plot No.1367. 7. The petitioners, aggrieved by the order passed by the statutory authorities under the Act, filed C.W.J.C.No.16293 of 2004 before this Court. 8. A contention was advanced on behalf of the petitioners that they are not in occupation of any part of the land bearing Plot No.1367. It was stated that a title suit has been filed by the State bearing T.S. No.80 of 1988 for declaration of their title and possession over certain plot of land, the details of which are given in the plaint and includes plot no. 4682, on which the dwelling of the petitioner is situated. The suit is pending in the court of the Sub judge, Vaishali. It was thus contended that as the petitioners have no right, title or possession over Plot No.1367, hence, no question of their removal from the said plot, did arise. 9. This court upon consideration of the rival contentions was pleased to dispose of the writ petition with the following observations: "At the same time, on the garb of removing the petitioners from R.S. Plot No.1367, the petitioners cannot be removed from plots of lands being the subject matter of suit until such time the suit is decreed in favour of the State. In such view of the matter, a mandamus is issued in the instant case restricting the respondents from using any material to dispossess the petitioners from the plots of lands being the subject matter of suit on the garb that the petitioners are occupying any portion of the plot No.1367:'' 10. By the said order a responsibility was put on the respondent authorities of the State Government in the district administration of Vaishali not to disturb the possession of the petitioners in the garb of removal of encroachment from Plot No.1367. 11. The title suit filed by the State bearing T.S.No.80 of 1988 after being dismissed for non prosecution, is pending consideration for its restoration in Misc. Case No.10 of 2003 before Sub Judge, Hajipur, Vaishali. Learned counsel for the petitioner informs that the suit is yet to be restored. 12. Even while the title suit stands dismissed and its restoration is pending before the trial court and even when there exists a dispute as to whether the dwelling house of the petitioners was situated over plot no. 1367 as claimed by the respondents or plot no. 12. Even while the title suit stands dismissed and its restoration is pending before the trial court and even when there exists a dispute as to whether the dwelling house of the petitioners was situated over plot no. 1367 as claimed by the respondents or plot no. 4682 as claimed by the petitioners and there being a specific order of this Court while disposing of the writ petition bearing C.W.J.C.no.16293 of 2004 restraining the respondents from disturbing the possession of the petitioners in garb of removal from Plot No.1367, inter alia, on grounds that the said plot is not the subject matter of the suit; a petition came to be filed by the respondent no.4 on 20.11.2009 before the District Magistrate-cum-Collector, Vaishali enclosing the copy of the order dated 16.8.2005 passed by this court in C.W.J.C.No.16293 of 2004 and requesting for taking appropriate steps for removal of encroachment in the light of the directions of this court. The respondent Collector cum District Magistrate, Vaishali without examining the intent of the order passed by this Court, proceeded to issue directions in the marginal column of the petition itself directing the Circle Officer, Hajipur to take steps in terms of the earlier orders of the statutory authorities under the Act. Surprisingly there is neither any word of caution nor any whisper as to the restraint put on the respondents, under the order dated 16.8.2005 of this court, passed in C.W.J.C.No.16293 of 2004. 13. Following the directions of the Collector Vaishali, a fresh proceeding was registered by the Circle Officer, Hajipur giving rise to Misc. Case No.06 of 2008-09 and in which, notice was issued under section 6(2) of the Act to the petitioners directing them to remove their encroachments from Plot No.1367 vide notice dated 11.12.2009. The said direction was followed by another notice dated 22.12.2009 placed at Annexure-1 to the writ petition, asking the petitioners to remove the encroachments from Plot No.1367 by 31.12.2009 failing which the said encroachment would be removed taking recourse to the provision of the Encroachment Act. 14. The said direction was followed by another notice dated 22.12.2009 placed at Annexure-1 to the writ petition, asking the petitioners to remove the encroachments from Plot No.1367 by 31.12.2009 failing which the said encroachment would be removed taking recourse to the provision of the Encroachment Act. 14. The petitioner immediately represented before the Collector, Vaishali on 31.12.2009 (Annexure-6) requesting him to restrain the authorities concerned from taking any action pursuant to the notices aforesaid and from interfering with their possession over the dwelling which is situated over plot no.4682 and not over plot no.1367, keeping in mind the directions of the court contained in the order dated 16.8.2005 passed in C.W.J.C.No.16293 of 2004, but to no avail. 15. The authorities without having regard to the directions of this court and without giving any opportunity of hearing to the petitioners, proceeded to dismantle the structure inter alia on grounds of being allegedly situated on Plot No.1367 and hence the present writ petition. 16. The matter was taken up on 9.2.2010 when this court, considering the conduct of the respondents, directed the Collector, Vaishali to immediately restore the possession of the petitioners over the plots where the dwelling were situated and inform the court accordingly, failing which it could entail severe consequences. A further restraint was put on the respondents from disturbing the possession of the petitioners on plot no. 1367. But, by this time the damage had been done. 17. A supplementary affidavit filed on behalf of the petitioners mentions that the authorities proceeded in furtherance of their impugned orders and demolished the dwelling consisting of eight rooms. It is stated that the location of the dwelling was got determined by a survey knowing Advocate who has reported that the structure which was demolished by the respondent authorities of the district administration, was on. Plot No.4682. 18. A counter affidavit has been filed in which a stand has been taken that the respondents have not touched any property of the petitioners which was situated on the plot which is the subject matter of the suit proceedings. It is contended that as the petitioners had encroached upon an area of almost 16 decimals on Plot No.1367 which is not the subject matter of the suit proceedings and hence, the encroachments has been removed in furtherance of the direction of the respondent Collector dated 23.11.2009 and the directions passed in the Encroachment proceedings. It is contended that as the petitioners had encroached upon an area of almost 16 decimals on Plot No.1367 which is not the subject matter of the suit proceedings and hence, the encroachments has been removed in furtherance of the direction of the respondent Collector dated 23.11.2009 and the directions passed in the Encroachment proceedings. 19. Despite supplementary affidavit having been served on the learned counsel appearing on behalf of the State on 21.6.2011, there is no response thereto nor the statements made therein have been controverted by the respondents. 20. Admittedly, a civil dispute is pending between the State and the petitioners with regard to title and possession over some plots. Whether or not the dwelling demolished by the respondents is situated over any of the plots which is the subject matter of the title suit, is yet to be determined by a civil court of competent jurisdiction and each party has its own stand. It is another story that the suit filed by the state stands dismissed for default and although a restoration application is pending but the suit is yet to be restored. Thus, at present, no proceeding is pending in between the parties. 21. In these circumstances where there exists a dispute as to the very 'situs' of the dwelling of the petitioners and each party has its own version with the respondents holding it to be situated on plot on 1367 and the petitioners countering the same by stating that it was situated on plot no, 4682, the issue certainly could not have been decided in a summary manner by the Collector, as having been done in the present case. The Collector, Vaishali, has proceeded in a most irresponsible and whimsical manner, to say the least and which has resulted in demolition of the dwelling of the petitioners. 22. Whether or not the structure was standing on the suit property or was away from the suit property, encroaching over Plot No.1367 could only be determined through the process of civil law remedies and not by a summary proceeding under the Act. The action of the respondents is palpably arbitrary and the consequences have been disastrous. 23. 22. Whether or not the structure was standing on the suit property or was away from the suit property, encroaching over Plot No.1367 could only be determined through the process of civil law remedies and not by a summary proceeding under the Act. The action of the respondents is palpably arbitrary and the consequences have been disastrous. 23. The impugned direction of the Collector cum District Magistrate, Vaishali dated 23.11.2009 as would be evident in the marginal column of the application placed at Annexure-7 and the directions issued by the Circle Officer, Hajipur as contained in Annexures-1 and 4 are quashed and set aside. 24. The damage having been done, the respondents having demolished the dwelling of the petitioners in the garb of removal of encroachment even when they were restrained from doing so under the directions as contained in Annexure-3, and in absence of any conclusive finding by a Civil Court of competent jurisdiction, as to the actual location of the dwelling in question, the petitioners need to be amply compensated. The action of the authorities is not only violative of the rights guaranteed to the petitioners under the Constitution but also amounts to overreaching and circumventing the direction of this court as contained in the order dated 16.8.2005 passed in C.W.J.C.No.16293 of 2004 (Annexure-3). 25. I, thus hold the State liable to pay a compensation of Rs.100000/- (one lakh) to the petitioners. The payment is to be made through the District Magistrate, Vaishali at Hajipur within a period of three months from the date of receipt/production of a copy of this order. 26. Until the finalization of the suit pending before the Civil Court, and determination by a Civil Court of competent jurisdiction as to whether the petitioners have encroached over plot no.1367 and that the dwelling in question was situated over the said plot, the respondents would not interfere with the possession of the petitioners over the piece of land where the dwelling/structure was situated. The writ petition is allowed.