CIVIL WRIT JURISDICTION CASE No 8508 OF 2009 *** In the matter of an application under Article 226 of the Constitution of India. *** Shyam Babu Rai, son of late Paremeshwar Rai, resident of Saristabad, Patna, P S – Gardanibagh, District – Patna Appellant Versus 1 The State of Bihar 2 Competent Authority, Building Construction Department, Government of Bihar, Patna Respondents *** For the petitioner : Mr Shashi Shekhar Dwivedi, Sr Advocate with M/s Sangeeta Sharma, Ranjan Kr Dubey, Advocates For the S t a t e : M/s Ray Shivaji Nath, AAG 4 & Sanjeev Kr, AC to AAG 4 *** P R E S E N T THE HON'BLE MR JUSTICE NAVANITI PRASAD SINGH Navaniti Prasad Singh, J The petitioner claimed to be in possession of certain properties in front of and across the main eastern gate of the Patna High Court. He challenges the proceedings for his removal as an encroacher from these lands and premises. Be it noted that petitioner created several small tenantments and let them out on rent to different service providers like photo copiers, eateries etc. It appears when the writ petition was filed, petitioner claimed a small portion of plot No 392. This Court ordered that except for plot No 392, the rest of the area 2 may be got vacated and possession resumed by the State after proper measurement. Upon proper measurement, it was found that plot No 392 lays squarely within the precincts of the High Court with which obviously the petitioner had nothing to do. The rest of the area, which were different plots, were demolished and taken possession by the State. Petitioner’s grievance initially was that the notice, as issued to him, referred to plots No 605 and 607 with which he had no concern but the premises being named, petitioner was fully aware that it was in respect of premises of which he had the possession. Thus, there was no dispute about the premises in respect of which encroachment proceedings were initiated yet the petitioner kept taking technical pleas to avoid the inevitable that is his summary eviction. Now, by an interlocutory application, petitioner has prayed for restitution of his possession having been wrongly evicted. To the straight question put by the Court as to what was his right to occupy the premises, the pleading and the answer was that in the year, 1962, being a contractor of PWD, he was allowed to occupy that land and construct a godown for storage of Government articles used in execution of Government contract by him. He remained in possession and now by adverse possession, he has perfected his title as against the Government. Beyond this, he claims no right. It is not in dispute that the property in question is of PWD that is State Government. 3 Mr S S Dwivedi, learned Senior Counsel in support of the writ petition then submits that in the year 1972, a proceeding under Section 144 of Criminal Procedure Code, as it then was, was initiated against him which was later converted to a proceeding under Section 145 of Criminal Procedure Code wherein the Subdivisional Officer, Sadar, Patna, found the possession of the petitioner and restrained the State from interfering with his possession otherwise than in accordance with law. The proceedings ended in the year, 1978. The civil revision filed by the State against the said order was dismissed for non-prosecution. Shri Dwivedi then contends that in the meantime, petitioner created several tenantments, obtained electric connections and started acting like a landlord adverse to the right, title and interest of the State. Thereafter again, a proceeding was initiated by the competent authority in the Department of Building Construction, Government of Bihar, Patna under the provisions of the Bihar Government Premises (Allotment, Rent, Recovery and Eviction) Act, 1956 for eviction of the petitioner early in 2008. Those proceedings were quashed by this Court by CWJC No 5704 of 2008 on 19.09.2008 on technical grounds. Thus seen, it is submitted by learned Senior Counsel that petitioner had perfected title by adverse possession as against the State and could not be evicted as an encroacher and/or an unauthorised occupier/user. In the meantime, the petitioner having been 4 deprived of his possession, he is now entitled to be put back in possession. Mr Rai Shivajee Nath, learned Advocate General No 4 counters the argument by stating that petitioner’s entry in the premises, as per petitioner’s own showing, was permissive which will not give him a right to claim right by prescription that is by adverse possession. Further, it is after the order under Section 145 of Criminal Procedure Code that petitioner became emboldened and constructed tenantments and put up tenants. The order was of the year, 1978. Proceedings were then taken up for his eviction. Even if he was claiming adverse possession within 30 years and eviction has been done, his claim for restitution cannot be entertained based either on adverse possession or possessory title on the principles enshrined in Section 6 of the Specific Relief Act which prohibits a suit for restitution of possession to be brought against the Government in respect of Government lands unless title is established in Civil Court first. He further submits that petitioner’s specific case was that he was on plot No 392 which was found to be factually wrong as plot No 392 was right in middle of the High Court. He was found on part of plot No 388 in respect of which he never laid his claims. Thus, it is submitted that his entry into the plot or the premises being permissive, he cannot claim adverse possession or posseessory title. Having heard the arguments and considered the matter, in my view, the writ petition cannot succeed. The 5 plea of the petitioner with regard to adverse possession has no legs to stand because firstly his entry and presence on the plot in question with the construction thereon was permissive and not adverse to the Government. His plea, that it became adverse after the order passed in Section 145 of Criminal Procedure Code proceedings but action for his eviction was taken before expiry of 30 years from then and that being so, he cannot be said to have perfected right by prescription and claim of adverse possession, cannot be accepted. If that be so then petitioner is a rank trespasser having no right, title or interest in the property and would be deemed to be wrongfully occupying Government property. This Court, in these circumstances, would not come to the aid of a person who is a wrongful trespasser on Government property. During pendency of the writ petition, petitioner being completely evicted, even the question of restitution cannot be considered in the facts and circumstances stated above. I, for one, would refuse to exercise my extraordinary discretionary jurisdiction in this matter upon the facts, as noted above. The writ petition is, accordingly, dismissed. (Navaniti Prasad Singh) Patna High Court, The 13th of April, 2010, N A F R, M E Haque/