CIVIL WRIT JURISDICTION CASE No.8418 OF 1994 In the matter of an application under Articles 226 and 227 of the Constitution of India. BAJRANGI DAS, SON OF LATE PHULCHAND DAS, RESIDENT OF VILLAGE ASWARI, P.S. TISIOUTA, DISTRICT VAISHALI.-------------------------------- PETITIONER Versus 1. THE STATE OF BIHAR. 2. THE COLLECTOR, VAISHALI AT HAJIPUR. 3. CIRCLE OFFICER, PATEPUR BLOCK, DISTRICT VAISHALI AT HAJIPUR 4. CIRCLE INSPECTOR, PATEPUR BLOCK, DISTRICT VAISHALI AT HAJIPUR 5. RAM ISHWAR SINGH, SON OF LATE MUSADDI SINGH, RESIDENT OF VILLAGE ASWARI, P.S. TISIOUTA, DISTRICT VAISHALI.--------------------- RESPONDENTS For The Petitioner : MR. RAM SHANKAR DAS, ADVOCATE For The State : MR. RABINDRA KR. PRIYADARSHI, A.C. TO A.A.G. III For Respondent No. 5 : MR. BALBHADRA SINGH, ADVOCATE MR. ASHOK KUMAR SINGH, ADVOCATE P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. Petitioner is aggrieved by order dated 10.8.1994, passed by the Collector, Vaishali at Hajipur by which he has rejected the application of the petitioner on the ground that there is no provision under the Bengal Survey Act to allow the Collector to order for measurement of land or demarcating the land of the petitioner or any one else. 2. The facts are that the petitioner filed an application before the Collector, Vaishali at Hajipur making a prayer that his land appertaining to R.S. Plot No. 409 and 410 measuring 26 decimals may 2 be measured and the petitioner may be granted protection for constructing a boundary or in any other way to demarcae his lands. The recorded tenant of the lands in question was one Jariya Devi, dauther-in-law of Meghu Das. The petitioner is said to have purchased the lands from Jariya Devi. It has been submitted on behalf of the petitioner that the respondent no. 5 has built a Phus Pilani etc. on part of the land of the petitioner. 3. In pursuance of the order of the Collector, Vaishali at Hajipur, measurement report was submitted, which is marked as Annexure-B of I.A. No. 3383 of 2009 filed on behalf of the petitioner. The measurement report indicates that the respondent no. 5 had grabbed/encroached on some land of the petitioner. 4. The case of the respondent is that he has his house and lands on R.S.P. Plot No. 411 and 412 which is just west to the land of the petitioner. It is submitted that he has his residential house etc. on the lands in question and that the allegation that he has encroached on the land is false and fabricated. It is submitted that in the revisional survey his lands have been shown to be measuring .02 decimals and .21 decimals. It is also submitted that the Collector has no power to order for demarcating or for providing protection to the petitioner for building his boundary. 5. The aforesaid facts reveal that the respondent no. 5 does not claim that he has title on Plot No. 409 and 410 belonging to the petitioner. The only claim is that he owns and possesses Plot No. 411 and 412. The respondent should have no objection if the 3 petitioner wants his lands to be measured or that the petitioner requires protection for putting up a boundary, if he has no title and does not claim possession over any part of the petitioner’s land. The shoe pinches, inasmuch, as that the Circle Officer has found that the respondent has encroached upon the land of the petitioner. An encroacher in the opinion of the Court cannot be given any protection by a Court. It would be fallacy if the law will permit persons to encroach upon the lands of other persons and allow them to raise a plea that no measurement is permissible and the only relief open to the rightful owner would be to file a suit. In that case any one would conveniently by virtue of being powerful take possession of a house and then claim that the matter should be resolved by the Civil Court and in this manner deprive the rightful owner from possessing and living in peace without hindrance on piece of land to which he has title, knowing very well that civil suits take several years to conclude. In this case there is no dispute with respect to title between the parties, as such it would be well within the powers of the Collector to provide protection to citizens, to ensure that they are not deprived of what is rightfully theirs. If this Court does not interfere with the order of the Collector by quashing his order, as it would amount to perpetuating an illegality. This taking or grabbing land not only of private person, but also the State, is a common phenomena in Bihar. This Court in a P.I.L. has recently ordered encroachments to be removed, some have been removed, but a number of Khatals etc. still subsist. 6. The Collector has rejected the application of the 4 petitioner on the ground that provisions of Section 40 and 41 of the Bengal Survey Act do not clothe the Collector with the power to accede to the prayer of the petitioner which is to get the lands measured. Strictly speaking, may be the Collector, may be right in his view, the scope and of the Bengal Survey Act is to vest the Collector with power to define, identify the boundary of lands for the purpose of maintaining revenue records. The purpose being for better security of landed property and the prevention of encroachments (emphasis supplied by me) and disputes, during survey proceedings. The Collector has wide powers with respect to maintenance of peace, prevention of encroachment and protecting the rights of citizens. Thus, the nomenclature under which the application for measurement was filed is immaterial, as the Collector could have ordered that the measurement may be done by the Circle Officer, or D.C.L.R. of the District or Anchal, as the case may be. 7. The counsel for the respondents refers to Section 19 of the Bihar Tenancy Act and submits that the order for measurement can only be passed in terms of Section 19 of the Act aforesaid. Section 19 of the Bihar Tenancy Act envisages that a land can be measured only with the consent of the landlord. In this case the measurement to be made is not of the respondent’s land and, therefore, the respondent cannot claim that Section 19 is applicable. In fact Section 19 would aid the petitioner rather than act as a detriment and stand in the way of getting his even land measured. The petitioner has filed an application for measurement of his land and not 5 the measurement of the land of the respondent. 8. From the pleadings and arguments made before this Court, it appears that the dispute lies in the fact that the respondent is claiming that his land measures more than what the revenue records indicate which has created this problem. At the most the respondent may pray before the Collector that his lands should also be measured, in order to reach a just conclusion with respect to the area of lands of each of the parties. 9. Considering all aspects and equity, I direct that the petitioner and respondent both should appear before the Collector (who may entrust the matter to Additional Collector) with their documents, which would indicate the area of the lands belonging to them, the Collector after determining the area of the land by measurement after noticing the parties may pass an appropriate order. The parties may appear with their respective documents within six weeks on receipt/production of a copy of this order. The Collector, Vaishali at Hajipur may dispose of the application filed by the petitioner and respondent within a period of three months on receipt thereof. 10. This writ application is disposed of with the aforesaid observations and directions. A copy of this order may be sent to the Principal Secretary, Land Reforms and Revenue Department to be transmitted to the Collectors in the State of Bihar. Patna High Court 8th of July, 2010 A.F.R./Sanjay (Sheema Ali Khan, J.)