IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9050 of 2007 1. SHANKAR RAWAT Son of Late Musho Rawat. 2. Fakira Yadav son of Late Ramlal Yadav Both residents of village- Mahisauri, Police Station and District- Jamui. . . . . . . Petitioners. Versus 1. THE STATE OF BIHAR 2. The Sub-Divisional Magistrate, Jamui. 3. The District Magistrate, Jamui. 4. The Officer incharge Jamui, Police Station Jamui. 5. Jagdamba Prasad Singh Son of Late Gajo Singh, resident of Village- Rampur, Police Station-Itaun (Chanan), District-Lakhisarai. . . . . . Respondents. ----------- 10/ 07.12.2009 Heard learned counsel for the petitioners and the State. The petitioners pray for quashing the order dated 07.11.2006 passed by Sub-Divisional Magistrate, Jamui in Case no. 02 of 2006 whereunder the Sub-Divisional Officer, Jamui has directed the petitioners to vacate the house of respondent no. 5. The petitioners state that they have been residing in the house of respondent no.5 situated in Mohalla Mahisauri, P.S. Jamui, District Jamui bearing Khata no. 125, plot no. 650, Area 4 decimals and Khata no. 08, plot no. 849, area 4 decimals. The respondent no.5 filed an application before the Sub-Divisional Officer, Jamui stating therein that his house is a dilapidated condition and can fall any moment, as such he wants to demolish the same and construct a new one. However, the inmates of the house including these petitioners are not vacating the same. The respondent no. 2, the Sub-Divisional Officer, Jamui issued notice to the inmates namely Sudhir Mandal, Jai Prakash Gupta and these two petitioners. However, the other two tenants namely - 2 - Sudhir Mandal and Jai Prakash Gupta agreed to vacate the house but these petitioners did not appear in the proceeding. Thus, Sub- Divisional Officer, Jamui vide order dated 07.11.2006 directed the tenants including the petitioners to vacate the premises. The petitioners submit that the Sub-Divisional Officer, Jamui did not have any authority under the B.B.C. Act to pass order of eviction. He submits that the petition of petitioners was disposed of under B.B.C. Act. He submits that pursuant to the aforesaid order the petitioners were evicted and the house in question was demolished and respondent no.5 has constructed a new building. A counter affidavit has been filed on behalf of respondent no. 2. He submits that one Arjun Ram, Vice Chairman of Nagar Parishad, Jamui vide letter dated 20.06.2006 made a complaint and requested to remove the obstruction, as it was causing hindrance in movement of traffic. It has been stated in paragraph 10 that the aforesaid structure encroached on some portion of the flank of the road. He submits that the District Magistrate also wrote a letter dated 05.05.2008 for removal of the encroachment from public road. Another counter affidavit has been filed on behalf of respondent no.2. In the said affidavit it has been stated that on petition of respondent no.5, a proceeding under B.B.C. Act was started and police report was called for. Thereafter the impugned order was passed on the basis of the police report. These petitioners did not appear in the proceeding. A counter affidavit has been filed on behalf of respondent - 3 - no.5 also. The main contention of respondent no.5 and the State is that aforesaid order was passed under Land Encroachment Act but by mistake the same was labelled under Bihar Building Control Act. They state that in paragraph 7 of the writ petition that petitioners have stated that no relationship of landlord and tenant exist between them and respondent no.5. After hearing the parties, this Court finds that the impugned order passed by Sub-Divisional Officer, Jamui dated 07.11.2006 is totally without jurisdiction. In his impugned order, he has nowhere stated that the house in question, encroached on portion of the road. Neither there is any reference in the impugned order regarding any complaints made by any authority regarding obstruction in free flow of traffic. It would appear from Annexure 2 that respondent no. 2, the Sub-Divisional Officer, Jamui has referred to the petitioners as tenant. On the other hand the affidavit filed by the petitioners also unfolds a piquant situation as they denied being a tenant in paragraph 7 of the writ application. They have not sated as to in what capacity they were residing in the said house. Had it not been the aforesaid statement, this Court would have considered awarding compensation against respondent no.2, the then Sub-Divisional Officer, Jamui, as he had no authority under the law to evict the tenant under B.B.C. Act. The concerned respondent no.2 would be careful in future in exercising powers not vested under the law. - 4 - With the aforesaid direction, this writ application is disposed of. Uday/ (Samarendra Pratap Singh, J.)