IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4053 of 2011 RAM CHANDRA PRASAD . Versus THE STATE OF BIHAR & ORS . For the Petitioner:- Mr. Birendra Nath Mishra, Advocate & Mr. Shailendra Kr. Singh, AAG-2 For the State:- Mr. D.K. Sinha, Sr, Advocate For the IGIMS:- Mr. Lalit Kishore, Sr. Advocate & Mr. Sunil Kr. Singh, Advocate ---------- 03. 13.05.2011 Heard learned counsel for the petitioner, the State and the Indira Gandhi Institute of Medical Sciences (hereinafter referred to as the I.G.I.M.S.) The petitioner seeks mandamus for restoration of his possession over the lands identified as Khata No. 258, Plot no. 689 having an area of 9 decimals in Mauza Sheikhpura. The further grievance is that his permanent residential house situated over the same for over the last 50 years has been forcibly demolished by the State officials and has been fenced by a boundary wall. Further prayer has been made to quash the order dated 10.1.2011 passed by respondent no.3 in Land Encroachment Case No. 04 of 2010-11 affirmed in Land Encroachment Appeal No. 01 of 2010-11. Learned counsel submits that the petitioner earlier approached this Court in C.W.J.C. No.284 of 2010 to restrain the respondents from constructing the boundary wall and illegally grabbing his lands. This 2 Court on 22.2.2010 noticing the claim of ancestral rights over the plot gave liberty to the authorities to hold appropriate proceedings under the Land Encroachment Act. The impugned orders are not sustainable as the title of the petitioner could not be decided in a summary proceeding under the Land Encroachment Act. The lands in question were acquired by his father in 1950 from the khatiyani raiyat Jagawan Singh. Mutation has been done and Municipal tax was being paid by the petitioner. Plot No. 689 was in fact, never acquired. The residential house was built in 1960. The respondents have therefore wrongly demolished the residential house. Learned counsel for the respondents have relied upon the impugned orders dated 10.1.2011 and 5.2.2011 to submit that in the Land Encroachment Proceedings the statutory authority on perusal of the statutory documents pertaining to L.A.Pat.-80-86/61-62 dated 22.1.2962 as published in the gazette, copy of which was duly produced, held that Plot nos. 689, 692 and 693 had been acquired for the I.G.I.M.S.. If the petitioner was in occupation of acquired lands, he cannot claim a right to continue in illegal possession by seeking protection of the Court. The records of the case revealed that the mother of the petitioner had earlier approached this 3 Court in C.W.J.C. No. 15359 of 2005. The petitioner has not made any statement in the writ application with regard to the same. On the query of the Court, a copy of the order passed in that writ petition was placed by the counsel for the petitioner. The I.G.I.M.S. wrote to the authorities for having the acquired lands vacated. From the order of the Court, it does not appear that even in that case the petitioner’s mother placed any documents in support of title but simply claimed mutation and electric connection along with the name figuring in the voters list and Ration Card. The Court directed her to represent before the I.G.I.M.S. and the Sub Divisional Officer. At this stage, learned counsel for the State produced an order in Civil Review No. 22 of 2010, arising out of C.W.J.C. No. 15359 of 20025, recalling the order on the writ petition as the petitioner therein was deceased prior to passing of the order with liberty to pursue appropriate remedies in law. The aforesaid discussion confirms that the petitioner has not approached this Court with clean hands by disclosing full and material facts to the Court. In a writ petition disputed facts cannot be investigated. The primary evidence in a writ petition consists of documents. It is the duty of the party claiming a relief to place the documents as necessary Annexures. 4 The petitioner claims title to the Plot no. 689, but has not annexed any title deeds in support of the claim. It does not appear that any documents of title were placed before the authority under the Land Encroachment Case also. If the petitioner has been unable to demonstrate lawful ownership of the lands in question, and the respondents claim that it was part of acquired lands, mere alleged long continued possession is of no avail to the petitioner. In A.I.R.1988 SC 2181 (Bharat Singh and others vs. State of Haryana and others) it has been held at paragraph 13 as follows :- “13…..In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter- affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable….” 5 Mere possession of Municipal rent receipts or an electric connection or a Ration Card or the Voters list may be physical proof of possession. These documents do not establish title. Title and possession are entirely different matters. Title may presume possession, but possession shall not presume title. The petitioner claims to have raised permanent constructions on the lands, but has made no statement in the writ petition that it was a sanctioned construction along with details of the sanction order. This Court in C.W.J.C. No. 284 of 2010 noticed the contention of both sides and then directed proceedings under the Land Encroachment Act. The petitioner accepted that order and participated in the Land Encroachment Proceeding. The contention that in a summary proceeding under the Land Encroachment Act, questions of title cannot be gone into is no more available to the petitioner after he accepted the order of this Court and participated in the Land Encroachment Proceeding. It was for the petitioner to challenge the order of this Court in C.W.J.C. No. 284 of 2010 that no directions could have been given for deciding questions of title in a summary proceeding. Once the petitioner accepted the order of the Court participated in the proceedings, he cannot cry foul now that the order is without jurisdiction, 6 if the order has gone against him. Explaining the principle of approbate and reprobate in (1992) 4 SCC 683( R.N. Gosain v. Yashpal Dhir) at paragraph 10 it has been held as follows:-, at page 687 : “10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that “a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage”. [See : Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd.4, Scrutton, L.J.] According to Halsbury’s Laws of England, 4th Edn., Vol. 16, “after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside”. The I.G.I.M.S. in the Land Encroachment Proceedings, specifically asserts that Plot Nos. 692, 693, 689 and 699 were acquired consisting of a total area 130.22 Acres. It further stated at paragraph-4 of its show cause by identification the plots which had not been acquired. Learned counsel for the petitioner sought to persuade the court that Plot no. 689 had not been acquired as it is only mentioned as the boundary of Block-B of the acquired lands. To the query of the Court that what were the boundaries of plot no. 689, to decipher whether it came within the other three blocks 7 acquired, no materials has been placed before this Court and does not placed before the Land Acquisition Authorities also. In the entirety of the discussions, the Court finds it difficult to interfere with the impugned order in writ jurisdiction. The application is dismissed. P.K. (Navin Sinha, J.)