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2014 DIGILAW 945 (PAT)

Md. Nayyer Iqbal v. Awadesh Singh

2014-09-03

I.A.ANSARI, SAMARENDRA PRATAP SINGH

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CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH) The instant appeal is filed by respondent No.2, in C.W.J.C. No. 2965 of 2009, against the order, dated 09.10.2013, whereby a learned single Judge has directed the Principal Secretary, Department of General Administration, Government of Bihar, to initiate a departmental proceeding against him for major punishment. The learned single Judge, while making the aforesaid direction, observed that the appellant (respondent No.2 in the writ petition), knowingly and intentionally, violated the interim order, dated 04.08.2009, whereby the authorities were restrained from taking any coercive measures for demolition of the writ petitioner’s building. The learned single Judge also directed that the departmental proceeding must be initiated within a period of one month from the date of receipt of a copy of the order and that the proceeding so initiated shall be concluded within six months from the date of framing of charge. The learned single Judge further directed that in case a suit is filed by the writ petitioners and if he succeeds in obtaining a decree in the suit, that he had right, title and possession over the portion of the building constructed over Plot No. 3065, which was demolished, he would be entitled to compensation from the appellant herein and others equally responsible. 2. The case has a chequered history. On an application filed by one Bindeshwar Singh, an Encroachment Case was initiated, in the year 1996, alleging that the one of the writ petitioners, namely, Awadhesh Singh (i.e., respondent No. 2 herein), who was owner of Plot No. 3065, situated in village Basher, taking advantage of his position, encroached upon the land covered by plot No. 3066, which was a public road. The Anchal Amin, in his report, dated 03.10.1996, stated that the writ petitioner, namely, Awadhesh Singh, had encroached upon ‘Aam Rasta’ (i.e., public road). The writ petitioner, namely, Awadhesh Singh, expressed his grievances in an application addressed to the Collector, Gaya, which was rejected on 29.11.1999. The revision, bearing Revision Case No. 2 of 2000, preferred before the Divisional Commissioner, also met the same fate on 13.07.2000. The writ petitioners, then, moved this Court, in C.W.J.C. No.6837 of 2000, which was dismissed for want of prosecution vide order, dated 08.08.2003. Thereafter, a restoration application bearing M.J.C. No.1698 of 2003 was also dismissed on 13.10.2003. 3. It appears that the matter was not further pursued by the local administration. The writ petitioners, then, moved this Court, in C.W.J.C. No.6837 of 2000, which was dismissed for want of prosecution vide order, dated 08.08.2003. Thereafter, a restoration application bearing M.J.C. No.1698 of 2003 was also dismissed on 13.10.2003. 3. It appears that the matter was not further pursued by the local administration. However, the villagers, again, raked up the matter, which led to registration of Misc. Case No.2 of 2007-08, in the Office of the Circle Officer, Atri, Gaya, wherein a notice was issued to the petitioner no.1, namely, Awadhesh Singh. Again, a notice, dated 17.03.2008, was sent to the writ petitioners directing them to remove the encroachment. However, on failure of the writ petitioners to remove the encroachment, the Circle Officer, vide letter, dated 20.02.2009, wrote to the Sub-Divisional Officer to depute a Magistrate for the purpose of removing the encroachment. The Sub-Divisional Officer, Neemchak Bathani, vide his letter, dated 21.02.2009, granted permission for removal of encroachment with a copy to all officials; yet, for some reason or the other, the removal of encroachment from public road, bearing Plot No.3066, could not be carried out. Being aggrieved, the writ petitioners moved this Court in C.W.J.C. No.2965 of 2009 against order, dated 21.02.2009. The interim order of status quo was passed, on 05.03.2009, by a learned single Judge of this Court. On 04.12.2010, a portion of the building of writ petitioners was demolished in presence of the Anchal Amin and the appellant herein. 4. The case of the appellant herein is that the order, dated 05.03.2009, of this Court, granting status quo with respect to the plots, was never communicated to his office nor did the writ petitioners ever produce a copy of the order before the appellant herein. On the other hand, a Public Interest Litigation was filed by one Bindeshwar Singh giving rise to C.W.J.C. No.16414 of 2010 alleging therein that the Sub-Divisional Officer, Neemchak Bathani, had failed to perform his duty by not removing the encroachment from public road. In the writ petition, so filed, namely, CWJC No. 16414 of 2010, notice was issued to the appellant herein, vide order, dated 29.09.2010, which was made returnable on 08.12.2010. A communiqué was also received from the office of the Additional Advocate General for necessary instructions. In the writ petition, so filed, namely, CWJC No. 16414 of 2010, notice was issued to the appellant herein, vide order, dated 29.09.2010, which was made returnable on 08.12.2010. A communiqué was also received from the office of the Additional Advocate General for necessary instructions. It is the case of the appellant herein that being unaware of the order, dated 05.03.2009, passed in C.W.J.C. No. 2965 of 2009, a portion of the building of the writ petitioners was demolished in their presence and in presence of Circle Officer and others. 5. However, the case of the writ petitioners-private respondents herein is that they had not made any encroachment upon plot No. 3066, which is a public road, and the construction, raised by the writ petitioners, was on plot No. 3065. The writ petitioners, thus, submit that the appellant, in utter disregard of the interim order of this Court, had demolished a portion of the building standing over plot No.3065. 6. We have heard learned counsel for the parties and perused the materials on record. The writ petitioners have not brought any material on record to establish that the interim order passed by this Court was ever received in the office of the appellant herein or that the same was ever brought to the knowledge of the appellant herein. There is no averment, on their behalf, that they ever brought such an order to the notice of the appellant herein. The District Magistrate, in her affidavit, stated that no communication, with regard to any order granting status quo, in the matter, was ever received in her office. 7. Situated thus, it is not reasonably possible for us to hold that the appellant herein, willfully and knowingly, violated the interim order, granting status quo, passed by the Court on 05.03.2009. Consequently, the follow up order of the learned single Judge directing initiation of a departmental proceeding against the appellant herein is not sustainable in the face of the facts of the case and is, therefore, hereby set aside. However, if the writ petitioners establish that the portion of the said building demolished was constructed on plot No.3065, it would be remain open to them to claim damages from the appellant herein, if, otherwise, permissible in law. 8. With the aforesaid liberty to the writ petitioners-private respondents herein, this appeal is allowed. I. A. Ansari, J. - I agree.