IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16306 of 2001 1. Anil Singh. 2. Awnindra Singh. Both Sons of Late Chandraket Narayan Singh. 3. Pushplata Kumari, Daughter of Late Chandraket Narayan Singh. 4. Priya Dambda Devi, Wife of Late Chandraket Narayan Singh. All resident of Moh. Bahulia Road, Siwan, P.O. and P.S.-Siwan, District-Siwan. …………………………… Petitioner Versus 1. The State of Bihar. 2. The Collector, Siwan at Siwan. 3. The Sub-divisional Officer, Siwan Sadar, Siwan. 4. The Sub-divisional Officer, Public Works Department, Siwan. 5. The Circle Officer, Pachrukhi, District-Siwan. 6. The Deputy Development Commissioner, Siwan, District-Siwan. 7. The Municipality, Siwan. 8. The District Board, Siwan. ……………………… Respondents ----------- 6 24/4/2009 Heard Mr. Shashi Shekhar Dwivedi, learned counsel for the petitioners and Mr. Dhananjay Kumar, learned counsel appearing on behalf of Zila Parishad, Siwan. In this writ application prayer of the petitioners as made out in paragraph no.1 read with paragraph no.4 reads as follows:- “(a)The respondents be commanded to refrain from demolishing the house/shops of the petitioner standing over plot no. 571, fully detailed in paragraph-4 of this petition, or from disturbing the possession in any manner whatsoever. (b)The respondents be commanded to protect and maintain the peaceful possession of the petitioner over the lands, detailed in paragraph 4 of this petition. (4)That the dispute in this case relates to plot no. 571 area 2 katha 31/2 dhurs khata No.137 of village Fatulihi, P.S. Siwan, District Siwan. Earlier it was a rural land and with the passage of time it has become urban and has been included within the parameters of Siwan Municipality.” 2 It is the case of the petitioners that the said piece of land was purchased by the original writ petitioner late Chandraket Narayan Singh (since dead and substituted) from one Nawaj Mian who according to revenue records was recorded tenant in the khatian of the year 1898. The petitioners therefore claims to be the purchaser of the land and it is their case that ever since such purchase they have remained in continuous possession and the repeated efforts made by the Zila Parishad claiming the land to be of Zila Parishad was found to be incorrect in course of measurement made by the various authorities. In paragraph nos. 20 and 21 of the writ application cause of action for filing this writ application has been spelt out which reads as follows:- “20.That, however, in the back-ground of conspiracy as stated above, between the respondents and the antagonists of the petitioner, taking undue advantage of the recording of khata No. 137 in favour of the District Board, Siwan in Column II on 18.12.2001, the respondents got made a publick announcement on mike that the construction over the disputed lands should be removed within three days failing which the same shall be removed by force and the costs of the removal would be realized from the petitioner. The petitioner immediately rushed to the respondents individually and demonstrated the real facts on the basis of the documents as stated and mentioned above but nonetheless they are adamant to demolish the house of the petitioner illegally and hence filing of this application is necessitated. 21.That it is submitted that no land encroachment proceeding or proceeding of any kind under any law being time in force has ever been initiated by the respondents by any court of competent jurisdiction nor a notice to show-cause has been served on him nor they were prepared to look to the documents of the petitioner and to act in accordance with law and as such the petitioner is left with no equally speedy and efficacious remedy other than by way of filing of this 3 application.” The State and the Collector of Siwan district have not filed their counter affidavit despite expiry of period of more than seven years. However, an application for intervention was filed by the Siwan Zila Parishad was allowed by this Court by an order dated 10.4.2009 and its counter affidavit was taken on record. In that counter affidavit the Zila Parishad has taken a plea that the title conveyed to the original writ petitioner by his vendor, namely, Newaj Mian was itself defective because Newaj Mian was a licensee of the Zila Parishad and therefore he did not have power to execute any sale deed for the land in question. A further stand has been taken in the counter affidavit that the land in question belongs to the Zila Parishad exclusively and only after the records by Siwan District Board, after bifurcation of Old Saran district, were received from Chapra it could be discovered only at a later stage that the original writ petitioner had no valid title and as such steps by district administration were taken for his removal at the instance of Siwan Zila Parishad. All these defences, however, taken by the Zila Parishad would itself make the case of a bonafide dispute regarding ownership of the land in question. If the land belongs to Zila Parishad obviously it has to be held as a public land and therefore the petitioners may have to explain not only regarding genuineness of the sale deed but also regarding right which was conveyed to them by their vendor. On the other hand, if the Zila Parishad proceeds on the assumption that the said vendor of the 4 petitioners was a licensee of Zila Parishad, the onus will lie on Zila Parishad to prove its ownership/title. All these matters, therefore, can be only decided in a properly constituted civil suit. Admittedly, no proceeding under Public Land Encroachment Act was initiated and yet an attempt was made for removal of structure of the petitioners on the land in question, which has also been admitted by the respondent-Zila Parishad in its counter affidavit. That being so, this Court must hold that the petitioners would not have been and in fact even today cannot be removed by merely alleging them to be encroachers unless there is an adjudication on this issue by the competent Civil Court and a decree is passed that the Zila Parishad being the owner is entitled for recovery of possession of land from the petitioners. Since the petitioners are in possession of land in question on the basis of a valid sale deed, the Zila Parishad, if so advised may file a suit for getting its right, title and also recovery of possession of the land in question adjudicated before a competent Civil Court. In that view of the matter, the respondents are restrained from taking any action with regard to demolition of house/shops of the petitioners standing on plot no. 571 in village Fatulihi, within the district of Siwan till they would be evicted by judgment and decree of a civil court. With the aforementioned observations and directions this writ application is allowed. Abhay kumar (Mihir Kumar Jha, J.)