IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6780 of 2009 SANJAY KUMAR MALAKAR @SANJAY KUMAR Versus THE STATE OF BIHAR & ORS . ----------- 3/ 03/01/2011 Heard learned counsel for the petitioner and learned counsel for the State. Despite the passage of more than five months the respondents have not considered it necessary to file counter affidavit. A prayer is again made today for adjournment to do so. The Court is not inclined to grant any further opportunity to the respondents. The writ petition seeks a mandamus to forbear from demolishing the residential house of the petitioner on the lands in question since 1942. The interim order dated 27.5.2009 adequately notices that the apprehension was genuine in view of the demolition of the adjacent house. The statutory authority in Land Encroachment Case No.3/07-08 by his order dated 16.2.2009 has held that in the nature of the controversy the question of encroachment could not be decided in a summary proceeding, but only in a full-fledged suit. This is the correct position of law as enunciated in (1982) 2 SCC 134 that the Government in a summary proceeding cannot decide its own title to arrive at a conclusion of encroachment. The writ application is disposed in terms of - 2 - the order dated 16.2.2009 and the respondents are restrained from effecting any demolition till such time that they do not obtain appropriate orders from a competent civil court. KC ( Navin Sinha, J.)