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Judgment
Heard Learned Counsel for the petitioners and the Learned Counsel for the State.
The present writ petition has been filed for the following relief(s):
[i] For issuence of appropriate writ/writs. Order/Orders, direction/directions commanding the Respondants to protect the life and liberty of the pettioners as well as forcibly being dispossessed (Boundry wall/ Main way of the petitioners) by the Respondants No 7-9 with the help of local administration official Respondants/Local police officials over the land appertaining to Mouza Sajour, P.S. Shahkund, Thana No-311. Khata No-1422, Khesra No-4447. Area-0.031/2 & 0.021/2 Dicimal within District Bhagalpur.
[ii] For issuence of appropriate writ/writs direction/directions commanding the respondants to lodge criminal case against the respondents No 7-9 for their unsocial activities who further traying to enter the house of the petitioners and they are forces to the official respondants for demolishing the houses of the petitioners by saying that the petitioners are encroached the public Land.
[iii] For issuence of appropriate writ/writs direction/directions commanding the respondnts to protect the possession of the petitioners over the aformentioned land including the residential house which is being threaten by the private Respondant No 7-9 to be dispossesed forcibly acting as "MIGHT IS RIGHT instead OF RIGHT IS MIGHT"
[iv] For issuence of appropriate writ/writs direction/directions commanding the respondants especially Respondant No 2-7 may be directed to immidiately restore the possession of the petitioners. over their plot in question where from on 13/03/24 the petitioner's boundry wall including the main way forcibly by Respondants No 7 & 8 in colusion with the private respondants has been handed over the illegally to the private respondants.
[v] For quashing the order dt. 24/04/23passed by the Respondant No 6 (The Public Redressal Grevances Cell Bhagalpur) whereby the petitioners were dispossesed from their plot in question as well as residential house by the local administration and police may be declared as illegal, bad in law, beyond their jurisdiction, arbitrary and malicious and as appropriate order may be passed against the respondants concern.
[vi] For to pass other order/orders as this Hon'ble High Court may deem fit and proper.
The petitioners are aggrieved by the demolition of their boundary wall and main way on 13.03.2024 by Respondent Nos. 7 and 8, allegedly in collusion with the private Respondent Nos. 9 to 11, over land appertaining to Mouza Sajour, P.S. Shahkund, Thana No. 311, Khata No. 1422, Khesra No. 4447 and 4448, District Bhagalpur, treating the same as encroachment upon public land, and by the order dated 24.04.2023 passed by Respondent No. 6, the Public Grievance Redressal Cell, Bhagalpur, directing removal of such encroachment.
Learned Counsel for the petitioners submitted that the petitioners have been residing since long on the land in question, being their ancestral land, and that though a notice was earlier served in the year 2019 in Encroachment Case No. 13/2019-20 upon petitioner No. 2 and one Yogendra Jha, alleging encroachment, the petitioners submitted a reply and were not thereafter compelled to vacate. It is submitted that private Respondent Nos. 9 to 11 (Savita Devi, Radha Devi and Fuko Devi), who number about 100 households in the village as against the petitioners' 10 to 15, had earlier constructed houses adjacent to the petitioners' boundary wall, and that they, having obtained a 15-decimal plot through Government Bandobasti, in collusion with the local police and revenue officers, have been obstructing the petitioners' way (Darwaja) by "planting pillars" (खमभा-बुट्व गाडना).
Learned Counsel for the petitioners submitted that the petitioners made a detailed representation dated 31.01.2023 to the S.D.O. Sadar, Collector and Commissioner, Bhagalpur, and thereafter filed applications dated 14.02.2023 before Respondent No. 6, the Public Grievance Redressal Cell; that Respondent No. 6, vide order dated 24.04.2023, without going into the real controversy, directed the Circle Officer, Shahkund, to remove the encroachment, even though the Circle Officer's own report dated 24.03.2023 did not disclose which part of the land was demarcated as public land or how the petitioners had encroached upon it. It is further submitted that a subsequent notice dated 30.01.2024 was issued in Encroachment Case No. 20/2023-24, to which the petitioners appeared and filed their reply, but nonetheless their boundary wall was demolished on 13.03.2024.
Learned Counsel for the petitioners further submitted that being a middle-class family with no recourse but Puja-path, the petitioners were dispossessed at the instance of the private respondents, who enjoy political connection and influence with the local police; that the petitioners filed Sanha No. 1631/24 before the Chief Judicial Magistrate, Bhagalpur, on 18.03.2024, and a representation before the Senior S.P., Bhagalpur, but no action was taken; and that the land being in the peaceful possession of the petitioners with tenancy rights, and not having vested in the State of Bihar or been shown to be public land, the very initiation of the Public Encroachment Case, and the consequent demolition, without ascertaining the true nature of the land, is wholly illegal, arbitrary, and violative of Article 21 of the Constitution of India, being "might is right instead of right is might."
Learned Counsel for the State/Respondent submitted, that as per the report of the Circle Officer, Shahkund, dated 06.05.2024, the land in question, Khesra Nos. 4447 (08 decimal) and 4448 (18 decimal), total 26 decimal, is recorded as Anabad Bihar Sarkar land, of the type "Parti" as per the Khatiyan, and that petitioner No. 2, Niranjan Jha, was duly served notice in Encroachment Case No. 20/2022-23 for encroachment on Government land, but neither appeared nor filed any reply before the Circle Officer.
Learned Counsel for the State/Respondent further submitted that a separate 15-decimal plot of Government land had been settled (Bandobasti) in favour of the three private respondents, Fuko Devi, Savita Devi and Radha Devi, and that this is distinct from the 26-decimal encroached land which is the subject matter of the present dispute; that pursuant to the order of the Sub-Divisional Public Grievance Redressal Officer, Sadar, Bhagalpur, notice in Form-I was issued to the encroachers, which the petitioners refused to accept, whereupon notice in Form-II was issued and received by them; and that one Saurabh Jha, who appeared, claimed to have filed an appeal but produced no evidence thereof and took no steps to remove the encroachment.
Learned Counsel for the State/Respondent submitted further that the encroachers were given a final opportunity to remove the encroachment by 09.03.2024, failing which it was to be removed by police force on 14.03.2024; that a Magistrate and police force were accordingly deputed vide letter No. 270 dated 13.03.2024, and the encroachment over the said Government land was removed on 14.03.2024 in the presence of the Magistrate and police force, with only the encroachment on public land being removed and nothing done in respect of private land. It is further submitted that the petitioners, without exhausting the statutory remedy of appeal available under Section 11 of the Bihar Public Land Encroachment Act, 1956, against an order passed under Sections 6, 7 or 8 of the said Act, have directly approached this Hon'ble Court, and that the writ petition is liable to be dismissed on this ground alone, apart from being devoid of merit.
Having heard the parties and perused the records,writ proceedings are summary in nature. They are meant for the public law remedy and deciding matters based on affidavits rather than a full trial. Determining a property title requires oral and documentary evidence, examination of witnesses and cross examination.
In this context, the decision of the Hon’ble Supreme Court in the case of Sohamlal v Union of India and Ors reported in AIR 1957 SC 529 is quite relevant. In the case of the Sohamlal (supra) Hon’ble Supreme Court has observed as under :-
"We do not propose to enquire into the merits of the rival claims of title to the property in dispute set up by the appellant and Jagan Nath. There are questions of fact and law which are in dispute requiring determination before the respective claims of the parties to this appeal can be decided. Before the property in dispute can be restored to Jagan Nath it will be necessary to declare that he had title in that property and was entitled to recover possession of it. This would in effect amount to passing a decree in his favour. We do not think that in a petition under Article 226 of the Constitution such a declaration ought to be made and restoration of the property to Jagan Nath be ordered."
In the present case, it is evident that the encroachment has been removed after following the procedure laid down under the Act of 2016. The Petitioner disputed the fact that the encroachment has been removed from the public land, but the state’s stand is clear the land in question is an Anabad Bihar Sarkar.
In view of the disputed question of fact, this Court is not inclined to interfere with the order of authorities. However, the petitioner is at liberty to approach the appropriate forum for the redressal of their grievance. If such an application, petition, or appeal is filed, it shall be considered by concerned authorities on merit.
14 . The present writ petition is disposed of with aforesaid direction.