IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9669 of 2003 Upendra Thakur @ Lal Thakur, son of Sri Kari Thakur, resident of Village Madhepur, P.O. + P.S. Madhepur, District Madhubani...........Petitioner Versus 1. The State Of Bihar 2. The District Collector, Madhubani 3. The Anchal Adhikari (Circle Officer) Madhepur, P.S. Madhepur, District Madhubani...Respondents ----------- For the Petitioner: M/s Hamendra Prasad Singh, Mrityunjaya Kumar Gautam & Yogendra Kumar, Advocates For the State: Mr. A. Amanullah, S.C. 17 with Mr. S. Rahman, A.C. to S.C.No.17 For Respondent No.4: Mr.Prafull Chandra Jha, Advocate *** 6 08.07.2010 Heard learned counsel for the petitioner, learned counsel for the official respondents and learned counsel for respondent no.4. In this writ application, petitioner has challenged the order dated 07.08.2003 of the Collector, Madhubani by which encroachment appeal of respondent no.4 has been allowed by him and order dated 12.07.2002 passed by the Circle Officer, Madhepur in Encroachment Case No.1/1997-98 has been set aside. It has also been ordered that petitioner should remove encroachment from the land in question failing which steps shall be taken for removal of encroachment by the authorities at the cost of - 2 - the petitioner. Learned counsel for the petitioner submits that encroachment proceeding was started by the Circle Officer against petitioner on the basis of a report of Halka Karmchari and not on the application of respondent no.4. However, respondent no.4 was noticed and was heard and, after physical verification of the land and the alleged encroachment and after going through the documents placed by the respondent-authorities before him, the Circle Officer found that no order of removal of encroachment had to be passed against the petitioner under the provisions of the Bihar Public Land Encroachment Act, 1956. He submits that in fact, on physical verification, Circle Officer found that the petitioner was having brick house on the land and, on enquiry, he also found that the petitioner was in possession of the land for the last more than 12 years. He also submits that the Circle Officer has found that claim of respondent no.4 Gaushala Committee in respect of the land was not established. He submits that the appellate court, without going into the question with regard to possession of the land - 3 - and nature of claim of the respondent no.4, allowed the appeal primarily on the ground that petitioner had earlier applied for a purcha for the land under the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947, which was refused on the ground that the land belonged to respondent-Gaushala Committee. He submits that even if it is assumed that the land belonged to Gaushala Committee, it does not become a public land so as to attract the jurisdiction of the authority under the Public Land Encroachment Act for initiation of a proceeding for issuance of a direction for removal of encroachment. He also submits that land was in long possession of petitioner and even if he could not conclusively establish before the authorities with regard to his title, due to his long possession, no order could be passed for removal of encroachment. In reply, learned counsel for respondent no.4 submits that Gaushala Committee is registered with Government and, therefore, land is a public land. Hence, the authorities were well within the power to pass orders for removal of the encroachment. He has referred to - 4 - the order passed by the Circle Officer on the application of the petitioner for settlement of land under the provisions of the Privileged Persons Homestead Tenancy Act, annexed as Annexure-X with his counter affidavit, to show that, on enquiry, authorities had found that the land belonged to Gaushala Committee and also to show that the petitioner was found having sufficient land which disentitled him for settlement of land in his favour under the Bihar Privileged Persons Homestead Tenancy Act. After hearing learned counsel for the parties and after going through the said orders passed by the authorities annexed with the counter affidavit of respondent no.4, it appears that on 30.11.1997, petitioner was found residing in the house constructed on the land since last 8-10 years. The authorities also found that the Gaushala Committee was registered with the Government which claimed the land as belonging to it. So far as question of land falling within the definition of ‘public land’ as appearing under the provisions of Pubic Land Encroachment Act is concerned, except for the - 5 - claim that respondent Gaushala Committee was registered with the Government, learned counsel for the respondent has not been able to establish that the land comes within the strict definition of ‘public land’. Registration of Gaushala Committee with the Government is very vague claim. It may be that the Gaushala Committee was registered as Society under the Societies Registration Act or any authority or instrumentality of the Government. But by that the land held by it cannot be presumed to have automatically become a public land. This is also clear that the land has been in possession of the petitioner from long and the Circle Officer has rightly found that a house was existing on the land since last more than 12 years in which petitioner was residing. In these circumstances, this Court finds that the Circle Officer had rightly rejected claim of Gaushala Committee for removal of encroachment under the provisions of Bihar Public Land Encroachment Act. The Collector has wrongly interfered in the matter and therefore, the impugned order is not sustainable in law. It may be that remedy available under law to the - 6 - Gaushala Committee is to file a proper suit for the purpose, but a proceeding for removal of encroachment by the petitioner was misconceived. The impugned order of Collector, Madhubani dated 07.08.2003 passed in Encroachment Appeal No.37/2002 is, therefore, quashed and the writ application is allowed. B.T (J. N. Singh, J.)