Bhartendra Jha @ Bhartendra vs The State Of Bihar & Ors.

Heard Learned Counsel for the petitioner and the Learned Counsel for the State.

In the instant Writ petition, the petitioner has prayed for the following relief(s):-

The petitioner is aggrieved by Notice-II dated 08.12.2023 issued by the Circle Officer, Sadar, Darbhanga, in Encroachment Case No. 3/2014-15, directing him to remove the alleged encroachment over Khesra No. 865.

Learned Counsel for the petitioner submitted that the petitioner's mother, Ashoka Shastri, purchased 2 Katha 16 Dhur of land vide three registered sale deeds dated 01.10.1977, 03.01.1978 and 28.06.1978, mutated her name in the Government Sherista, and was issued Jamabandi No. 1251; that upon her death on 27.10.1986, followed by the deaths of the petitioner's father on 18.04.1998 and his unmarried brother on 17.09.2001, the petitioner inherited the property and got his own name mutated under the same Jamabandi, paying rent up to date; and that a pucca house was constructed on the land in 1979-80, where the petitioner has been residing with his family ever since, the house standing in one compact block under defined boundary over C.S.P. Nos. 838, 846 and 828.

Learned Counsel for the petitioner submitted that Encroachment Case No. 3/14-15 was initiated on the basis of a report of the Anchal Amin alleging encroachment over Khesra No. 865, area 1.00 decimal, without any actual measurement having been carried out or notice of measurement given, and that the Circle Officer, vide order dated 23.12.2014, mechanically and in a cryptic manner rejected the petitioner's claim of Jamabandi/mutation and declared him an encroacher; that the petitioner thereafter filed Title Suit No. 445 of 2019 for a declaration that no portion of C.S. Plot No. 865 stood encroached by him, in which the Circle Officer and District Magistrate have appeared and filed written statements, and also moved an application under Order XXXIX Rules 1 and 2 CPC, to which the State itself filed a show-cause reply relying upon the continuing stay/status quo order dated 18.06.2019 passed in C.W.J.C. No. 24638 of 2018 to oppose any parallel proceeding.

Learned Counsel for the petitioner further submitted that despite the pendency of Title Suit No. 445 of 2019 and the continuing status quo order in C.W.J.C. No. 24638 of 2018, the respondents proceeded to re-measure the land and issued Notice-II dated 08.12.2023 alleging encroachment over 1904 sq. ft. of Khesra No. 865, which figure itself differs from the figure in the original 2014 report, demonstrating that the respondents have not reached any definite conclusion as to the area of alleged encroachment; that the petitioner has repeatedly requested measurement in accordance with the Revisional Survey rather than the Cadastral Survey, relying on the settled principle that the Revisional Survey Khatiyan prevails over the Cadastral Survey in case of conflict; and that so long as ? Jamabandi/mutation stands in his favour and has not been set aside by a competent civil court, the Circle Officer could not proceed with a parallel encroachment proceeding under the Bihar Public Land Encroachment Act, 1956.

Learned Counsel for the State/Respondent submitted that upon coming to know of the interim order dated 22.03.2024 passed by this Hon'ble Court in the present writ application, the Circle Officer, Sadar, Darbhanga, vide letter No. 1017(MU) dated 22.03.2024, has already stayed the operation of the impugned encroachment proceeding; that for proper development of the ponds Gangasagar, Harahi and Dighi Pokhar in Darbhanga town, a report of the Revenue Clerk and Anchal Amin found the land of Gangasagar Pokhar (C.S.P. No. 865) encroached by 48 persons including the petitioner, pursuant to which the Circle Officer passed an order dated 23.12.2014 declaring the encroachers; and that certain other encroachers, namely Sangita Devi and others, having preferred Encroachment Appeal No. 50 of 2015 and thereafter C.W.J.C. No. 24638 of 2018, this Hon'ble Court, vide order dated 18.06.2019, directed status quo and a fresh measurement of the tank and the land under construction.

Learned Counsel for the State/Respondent submitted that in compliance with the said order dated 18.06.2019, the land was re-measured in the presence of the encroachers, including the present petitioner, and a joint report dated 03.07.2019 was prepared and signed by them, showing the petitioner at Serial No. 20 as an encroacher of 1904 sq. ft., out of 36 encroachers in total; that the petitioner, upon finding himself declared an encroacher in the re-measurement, filed Title Suit No. 445 of 2019, ignoring the statutory remedy of appeal available under Section 11 of the Bihar Public Land Encroachment Act, 1956, before the District Magistrate, Darbhanga; and that it is not disclosed in the writ petition whether the injunction application filed in the said suit has been allowed or rejected.

Learned Counsel for the State/Respondent submitted that pursuant to the directions of this Hon'ble Court dated 21.07.2023 in C.W.J.C. No. 9692 of 2015 (Ram Punit Chaudhary v. State of Bihar & Ors.), and Memo No. 1359 dated 25.11.2021 of the Additional Chief Secretary, Revenue and Land Reforms Department, directing that public land and water bodies be kept free of encroachment, the Circle Officer passed an order dated 08.12.2023 in Encroachment Case No. 3/2014-15 directing issuance of Notice-II to the encroachers, excluding only the three encroachers (Sangita Devi and others) who are petitioners in C.W.J.C. No. 24638 of 2018, it being against this very Notice-II that the present writ application has been filed; that online Jamabandi No. 1251 relied upon by the petitioner does not bear C.S.P. No. 865, which alone is the subject matter of the encroachment proceeding; and that the Revisional Survey operation of Darbhanga town has not yet been completed and no Revisional Survey Khatiyan has been published for the Municipal area, rendering the petitioner's reliance on the Revisional Survey misconceived at this stage.

Learned Counsel for the State/Respondent, further submitted that Title Suit No. 445 of 2019 is pending before the Civil Judge, Senior Division-I, Darbhanga, with issues having been framed on 12.08.2026 and the matter fixed for evidence of the plaintiff; that C.W.J.C. No. 24638 of 2018, filed by Sangita Devi, Sunil Kumar Mishra and Shikhar Vasini on the very same dispute, is also pending, with status quo continuing thereunder since 18.06.2019; and that as per the joint measurement report dated 03.07.2019, the petitioner has been found to be an encroacher of 1904 sq. ft., while the said three other petitioners of C.W.J.C. No. 24638 of 2018 have been found encroachers of 375, 586 and 1155 sq. ft. respectively, one of whom, Shikhar Vasini, has also filed a separate Title Suit No. 446 of 2019, now pending along with Title Suit No. 445 of 2019.

Having heard the parties and perused the record, it is evident that Title Suit no. 445 of 2019 is pending before the Sub-Judge - I, Darbhanga. Given the pendency of the Title Suit, it is relevant to discuss the judicial procurement on whether an encroachment processing can be initiated under the Bihar Public Land Encroachment Act, 1956,, while title suit is pending.

This court in Smt. Uma Devi Sinha v State of Bihar as reported in 2001 (2) PLJR 587 held that where a serious question of title is involved, it cannot be decided under the Bihar Public Land Encroachment Act, 1956. The proper remedy to get the right declared by competent civil court and until the right is declared in favour of the state the person in occupation cannot be evicted by summary proceeding under 1956 Act.

The same view has been reiterated by a co-ordinate Bench of this Court in Shaila Devi & Ors. v. State of Bihar & Ors. (Misc. Appeal No. 318/2014), that where the occupant raises a bona fide dispute of title, the State cannot take recourse to summary proceedings under the Bihar Public Land Encroachment Act, 1956 and must first get its right declared by a competent civil court.

From the perusal of the above it is quite clear that the Bihar Land Encroachment Act, 1956 provides a summary procedure for quick removal of unauthorised occupants from the public land. It is not meant to resolve complicated title disputes or ownership claims and the same ought to be adjudicated by a competent civil court.

In the view of the above, the encroachment removal notice dated 08.12.2023 issued by the Circle Officer, Sadar, Dharbhanga is hereby quashed, and the authorities concerned are directed not to evict the petitioner till the disposal of the title suit.

Accordingly, the present Writ petition stands allowed.