IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10953 of 2010 UMESH RAI @ UMESH KR.ARYA & ANR . Versus THE STATE OF BIHAR & ORS . ----------- 3/ 28/04/2011 Heard learned counsel for the petitioner, for the State and for respondent Nos.6 and 7. The petitioner is aggrieved by the order dated 16.11.2009 passed in Land Encroachment Case No.1/09-10 by the Circle Officer, Riga Circle that the petitioner had encroached 3.5 decimals of land on Plot No.30 from the north-east direction directing him to vacate within one month. Land Encroachment Appeal No.29/09 preferred against the same has been rejected by the District Magistrate on 18.5.2010. Learned counsel for the petitioner submits that at stake is the demolition of the house of the petitioner. The writ petition was filed on 15.7.2010 after serving two copies in the office of the Advocate General, the second one to facilitate the quick filing of a counter affidavit. On 21.9.2010 on a challenge laid out by the petitioner that the Circle Officer, Riga has no territorial jurisdiction as the area fell within Dumra Circle, the Court granted time to the State to file counter affidavit while issuing notice to respondent Nos.6 and 7 restraining any demolition in the disputed area. On 27.8.2010 itself, the petitioner had filed I.A. 2 No.7647/10 enclosing at Annexure-9 an information furnished by the Circle Officer, Riga under the Right to Information Act in context of the present controversy that area in question was outside his territorial jurisdiction. No counter affidavit to the writ petition or the I.A. has been till date. At this stage, learned counsel for the State produces a counter affidavit on behalf of respondent Nos.2 to 5 affirmed on 28.4.2011. respondent No.4 is none other than the Circle Officer, Riga. The letter of the Circle Officer, Riga dated 21.8.2010 that the disputed land was beyond his territorial jurisdiction is preferred not to be answered and complete silence is maintained upon it by the respondents in the counter affidavit. Learned counsel for the petitioner submits that before the appellate forum he had filed a list of documents and which included a Xerox copy of Title Suit No.68/09 preferred by the petitioners against respondent Nos.6 and 7 which has not been dealt with or considered in the appellate order at all. Title Suit No.68/09 was for declaration of title and confirmation of possession of the lands which are the subject- matter of the alleged Land Encroachment Case. Dealing with the pleadings in respect of the same in paragraph-10 of the writ petition the respondent Nos.6 and 7 in their counter affidavit at 3 paragraph-10 admit the pendency of the suit. The defence of the title suit was therefore a relevant event to be considered by the Appellate Authority. What would have been its effect is a completely different matter which had to be decided by the Appellate Authority. But, when the Appellate Authority ignores a relevant material from consideration that renders the appellate order arbitrary to the extent that it refuses to take into consideration relevant materials leaving them out from the discussion. The appellate order therefore is not sustainable and is accordingly set aside. This would, in normal circumstances, have necessitated a remand to the Appellate Authority. But, when the petitioner has been able to demonstrate that the original order in Land Encroachment Case No.1/09-10 by the Circle Officer, Riga suffered from lack of territorial jurisdiction and to which this Court is satisfied stands confirmed on the principles of ‘non traverse’ by the official respondents, the question of any remand does not arise. The original order dated 16.11.2009 being without jurisdiction automatically becomes unsustainable and only requires a formal declaration of its being set aside being unenforceable in law. The 4 appellate order dated 18.5.2010 therefore automatically collapses on the aforesaid technical ground. The writ application stands allowed. KC ( Navin Sinha, J.)