IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1187 of 2009 2 6.10.2009 Vijay Kumar Pandey @ Banke Bihari Pandey son of Jitan Pandey resident of village- Barki Sanadia, Police Station- Arrah Mufassil, District Bhojpur .... Appellant (Petitioner) VERSUS 1. The State of Bihar 2. The Collector, Bhojpur at Arrah 3. The Anchal Adhikari at Arrah within the district of Bhojpur .... Respondents (Respondents) -------- Heard learned counsel for the appellant and learned counsel for the State. The appellant preferred writ petition in this Court for quashing the order dated 14.7.2009 contained in Annexure- 5 passed by Collector of Bhojpur in appeal (Encroachment Case No.2 of 1999- 2000) in which order passed on 15.10.1999 by the Anchal Adhikari in Encroachment Case no.1 of 1999 was affirmed. The writ petition has been dismissed by a short order holding that the nature of dispute is such which cannot be decided in writ application under Article 226 of the Constitution of India. Liberty has been granted to the petitioner/ appellant that if so advised, he may invoke the jurisdiction of the competent civil court. 2 On behalf of the petitioner/ appellant reliance has been placed upon an order dated 6.9.1999 passed by Settlement Officer in case no.138/99 contained in Annexure-6. That order shows that in the Khatian, R.S.Khesra no.2692 which petitioner claims to be his, is recorded to be land measuring three decimals but on measurement of the map, the area of that Khesra comes to only 1 ½ decimals. That order further records that R.S. Khesra no.2691 is shown as five decimals in Khatian but on measurement as per map, area of this plot comes to 5 ½ decimals. According to the petitioner, the land in Khesra no.2691 belongs to the State and if the State wants to interfere with the possession of the petitioner/ appellant over three decimals of land in plot no.2692 then the State must go to the civil court instead of proceeding under the Act relating to removal of encroachment from public land and it cannot take possession through summary proceeding for removing such alleged encroachment. From Annexure-6, it is clear that there is some discrepancy between the area as mentioned in the Khatian with respect to recent plot no.2691 and 2692 when compared to the area appearing from the survey map. There is no case made out 3 in Annexure-6 that land of the State measuring five decimals in Khesra no.2691 belongs to the petitioner/ appellant hence, in respect of 5 ½ decimals, the State, prima facie, appears to be entitled to claim only five decimals of land of recent survey plot no.2692. For claiming any further area on the basis of map, it is the State which is required to go to the civil court and not the petitioner/ appellant. But in order to remove encroachment over five decimals of State’s land, the encroachment proceeding is maintainable. The State authorities may proceed with the encroachment case only in accordance with aforesaid clarification. This will not stand in the way of the petitioner/ appellant in moving the civil court if he finds that attempt by the State to take possession of five decimals of its land in Khesra no.2691 has the effect of depriving the appellant of possession over three decimals of his land in plot no.2692. With this clarification, the appeal is disposed of. (Shiva Kirti Singh, ACJ.) (Shyam Kishore Sharma, J.) sk