Letters Patent Appeal No.179 OF 2000 ----- Against judgment and order dated 4.1.2000 passed by a learned single Judge of this Court in C.W.J.C.No.9289 of 1989. ----- Rajesh Kumar Agrawal & Ors.------------ Appellants Versus The Union of India & Ors. ------------ Respondents ----- For the Appellants : M/s Kaushlendra Kumar Sinha and Awadhesh Kumar Sinha,Adv. For the Respondents: Mr.Anil Kumar, G.P.-XI. ----- P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Barin Ghosh & Jayanandan Singh,JJ: In 1917 revisional survey was done. Upon conclusion thereof, it was reported that R.S.Plot No.1454 belongs to the then British Emperor. In 1947, upon independence, the Central Government, therefore, in terms of the findings of the said survey became the owner of the said property. Until date no one has taken any step to alter the said declaration made in the said survey. It appears that on 4th December, 1972 the Circle Officer of Gopalganj submitted a report that certain persons have unauthorisedly encroached upon the land situated in the said plot. The said report resulted in an encroachment case being initiated against the appellant. The case was decided against the appellant. Appeal preferred by the appellant - 2 - against the said decision was dismissed, whereupon appellant filed a writ petition registered as C.W.J.C.No.640 of 1976. The said writ petition was allowed by a Division Bench of this Court, where while both the orders passed in the encroachment proceeding were quashed, the matter was remitted back to the D.C.L.R. for fresh consideration. In terms thereof, the S.D.O., Gopalganj took fresh evidence, reconsidered the matter and disposed of the matter by the order dated 28th June, 1983. He held that the land is a public land and is used for various public purposes as mentioned in the order. 2. The appellant preferred an appeal and the appeal was allowed, whereupon the State Government made an application under section 13 of the Act. That having been allowed, the appellant approached this Court by filing a yet another writ petition. It had been the contention of the appellant that original C.S.Plot No.847 belonged to the Hathua Raj and the said plot had an area of 3.74 acres. It is the contention of the appellant that of the said 3.47 acres, 1.70 acres was acquired and the remaining 2.04 acres was recorded in R.S.Plot No.1454, but by mistake, in the revisional survey, it was indicated that Quaisre Hind was the owner thereof, instead of Hathua Raj. It was stated that Hathua Raj settled the land in favour of Kishun Sah on payment of Nazrana and rental and the appellant or his predecessor in interest is a transferee from - 3 - Kishun Sah by registered deeds. 3. What the appellant is contending may be correct, but at the same time there is a finding that the land in question is a public land and used for public purposes as that of Brahm Sthan, Sati Sthan, Durga Sthan, Hanuman Mandir, Gandhi Bhawan, Play Ground of children, and a Community Well, Rasta for public use, etc. It may also be possible that the land belonged to Hathua Raj and not to Quaisre Hind, but there is no evidence of settlement by or on behalf of Hathua Raj in favour of Kishun Sah and accordingly Kishun Sah could not transfer title to the land to the appellant or to his predecessor. However, these matters are required to be sorted out. The Court has, therefore, directed for sorting out these matters by filing a civil suit. 4. The appellant is contending that if the suit is required to be filed, the same must be filed by the State and the State cannot, by taking recourse to summary proceeding, dispossess the appellant from the possession of the land in question. In this connection, learned counsel for the appellant has placed reliance upon a judgment of the Hon’ble Supreme Court rendered in the case of Government of Andhra Pradesh Vs. Thummala Krishna Rao, reported in AIR 1982 S.C.1081. In that case, in no uncertain terms the Hon’ble Supreme Court has pronounced that if complicated questions - 4 - pertaining to the title to a land arises, recourse to summary proceeding, as is available under the Bihar Land Encroachment Act, should not be taken, instead the matter should be sorted out by a suit. In other words, the Hon’ble Supreme Court has pointed out that in the event in the encroachment proceeding it transpires that the title upon which the State is seeking to initiate summary action under the Encroachment Act is genuinely disputed on the strength of valid title or on the basis of entitlement pursuant to adverse possession, recourse to summary proceeding should not be taken. Learned counsel therefore submits that in such circumstances the order passed by the Collector under section 13 of the Act should be set aside with liberty to the Government to initiate a civil suit. 5. The fact remains that R.S.Plot No.1454, with which we are concerned, stands recorded in the name of Quaisre Hind since 1917. The alleged owner of the land, namely, Hathua Raj, since 1917 until today has not taken any step to have the said R.S.plot recorded in its name. Apart from a receipt said to have been granted on behalf of Hathua Raj, there is nothing on record which suggests grant of settlement by or on behalf of Hathua Raj in favour of Kishun sah. In such a situation, in the background of the fact that physically it has been found that the land in question has been used for - 5 - public purposes as mentioned above, it would be appropriate on the part of the appellant to file the civil suit and it would not be appropriate on our part to hold that summary proceeding in the instant case was uncalled for. Appeal accordingly fails and is dismissed. 6. It is made clear that in the event a suit is filed by the appellant, observations as above, as well as observations made by the learned single Judge, while rendering the judgment under appeal, shall not be taken to be conclusive. 7. Having regard to the fact that the present lis is pending for a long time and has been concluded only on today, it would be appropriate on the part of the authority under the Act to take steps pursuant to his order only after giving a fresh notice of at least fifteen clear days to the appellant. (Barin Ghosh,J.) (Jayanandan Singh,J.) Patna High Court 25th June, 2008 N.A.F.R./Pradeep