IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3263 of 2003 RABINDRA PRASAD SINGH son of Sri Fulena Pd. Singh R/o Mohalla Saktinagar North Dahiywa Tola Chapra P.S. Chapra Moffassil District Saran, Bihar. ....petitioner. Versus 1. THE STATE OF BIHAR 2. The District Magistrate, Saran at Chapra 3. The Sub-Divisional Magistrate, Sadar Chapra at Saran 4. The Circle Officer, Sadar, Chapra at Saran 5. Sri Jitendra Nath Trivedi son of late Dhram Nath Trivedi, Resident of Mohalla Dahiyawa Tola P.S. Chapra Moffassil, district-Saran ................Respondents. ----- For the petitioner: Mr. Harsh Anuj,Advocate Mr. Mithilesh Kumar,Advocate Mr. Ram Narayan Mahto,Advocate. For the State : Mr. Ajay Kumar Sharma A.C. to AAG.III For the respondent no.5 : Mr. Anil Kumar Tiwary, Advocate. --------- 7 08.12.2010 Heard the parties. 2. The petitioner has filed the present petition with a prayer for setting aside the order contained in memo no 52 dated 15.2.2003 (Anexure-1) issued by respondent Circle Officer (Anchaladhikari),Sadar, Chapra, whereby the petitioner has been restrained from making any construction work over a piece of land bearing survey Khata no. 24,appertaining to survey plot no.37 area 16 dhurs situate at Dahiyawan in the town of Chapra. He has further sought a direction that the order passed by the District Magistrate on 18.1.2003 in compliance of order passed by this Court on 2.2.2001 in C.W.J.C. No. 1282 of 2001 (Annexure-2) and order dated 2.8.2001 passed in C.W.J.C. No. 9014 of 2001 2 (Annexure-3) for removal of encroachment from the public land be implemented. 3. The facts in the present case can be put under narrow compass. The petitioner claims to be the owner of survey plot no. 38 situated at Mohalla Dahiawan Tola (Shakti Nagar) in the town of Chapra. Respondent no.5 Jitendra Nath Trivedi @ Jiveendra Nath Trivedi claims to be owner of survey plot no. 37. Survey Plot No. 61 is a Government land and has been recorded in the survey khatiyan as Kaishare-Hind. Neither petitioner nor respondent no.5 claim any right and title over survey plot no. 61. The respondent no.5 had earlier moved before this Court in C.W.J.C. No. 1282 of 2001 challenging the order passed by the authority under the provisions of the Bihar Public Land Encroachment Act. After hearing the parties including the present petitioner, who was arrayed as respondent no.6 in that proceeding, the aforesaid writ petition was disposed of by judgment an d order dated 2.2.2001 (Annexure-2) and operative portion of the order is reproduced hereinbelow ; “On hearing counsel for the parties, this court would only recommend that before the use of force fresh measurements may again be taken in presence of Dy. Collector Land Reforms, Chapra to ensure that all the structures, whether belonging to the petitioner 3 or respondent no.6 or to any one else, standing on plot no. 61 be removed.” 4. When for compliance of aforesaid order dated 2.2.2001, certain actions were taken by the authorities concerned, and a notice was issued to respondent no.5 herein for removal of the alleged encroachment from survey plot no. 61, admittedly a Government land, then he again approached this court and filed C.W.J.C. No. 9014 of 2001, which was finally dismissed of by an order dated 2.8.2001 (Annexure-3) and again a learned single Judge of this Court reiterated the order and directions issued previously by an order dated 2.2.2001 passed in C.W.J.C. No. 1282 of 2001 (Annexure-2). 5. Learned counsel for the petitioner submits that in view of directions issued by this Court measurement of all the plots, namely, survey plot nos. 61, 37 and 38 were taken by the authorities and, therefore, impugned order dated 15.2.2003 (Annexure-1) issued by respondent Circle officer is completely misconceived, as there was no occasion for taking a fresh measurement of any of the plots much less the survey plot no.37. 6. Learned counsel appearing on behalf of respondent State submits that as a matter of fact in compliance of order dated 15.2.2003 (Annexure-3), the 4 measurements have already been taken. Therefore, the present petition has become infructuous. 7. Learned counsel appearing on behalf of respondent no.5 submits that in view of orders passed by this Court on 2.2.2001 (Annexure-2) and 2.8.2001 (Annexure-3) measurements are required to be taken over survey plot no. 61, and all other disputed plots including plot nos. 37 and 38. In his submission the dispute is still subsisting between the parties, and therefore, there is no harm if all the three plots are measured once again in presence of the parties. He has fairly conceded that respondent no.5 does not have any claim or authority to encroach any portion of survey plot no. 61 or survey plot no.38. He submits that only grievance of respondent no.5 is that neither the petitioner nor anybody else should encroach over any portion of his land over survey plot no.37. He has also fairly submitted that petitioner is entitled to have his possession over entire survey plot no. 38, but, at the same time, he cannot be permitted to encroach over survey plot no. 61, which is admittedly a Public land. 8. In view of controversy in the present proceeding and in view of previous orders passed by this Court, I am of the considered opinion that fresh measurement with respect to survey plot nos. 37, 38 and 5 61 are required to be taken by the authorities concerned in presence of all the contesting parties. After such measurement, if any encroachment is found over survey plot no. 61 either made by the petitioner or the respondent no.5, then that has to be removed by the authorities concerned. 9. In the aforesaid circumstances, this writ petition is disposed of with a direction to respondent District Magistrate, Saran at Chapra to depute the competent officer with police force to get the aforesaid three plots measured on a date fixed by him with a prior information given to the petitioner as also respondent no.5 and all other concerned persons. After such measurement, the petitioner shall confine his possession only with respect to plot no.38 and respondent no.5 shall confine his possession only with respect to plot no. 37. If any encroachment is found over plot no.61 either by the petitioner or by respondent no.5, then that has to be removed even by using force, if so required. 10. Learned counsel for the petitioner undertakes to file a representation before the respondent District Magistrate-cum-Collector along with a copy of this order within a period of one month from today. Thereafter, the District Collector shall take follow up 6 action and would make all endeavor to comply with the order and directions of this Court within a period of three months from the date of filing such representation. It is made clear that if the petitioner does not file such a representation before the District Collector along with a certified copy of this order within the time prescribed by this court, then it would be construed that the present application has stood rejected by this orddr. There shall be no order as to costs. Rahman (Birendra Prasad Verma, J.)