IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4490 of 2002 1. USMAN MIAN. 2. KALIM ANSARI @ KALIM MIAN. 3. SIRAJ ANSARI 4. LOKMAN ANSARI. 5. WUHUB ANSARI. 6. NISAR ANSARI ALL SONS OF LATE GAFOOR ANSARI. RESIDENT OF VILLAGE-CHANDAN(GORA), P.S.-CHANDA, DISTRICT-BANKA. …………………………………………………. PETITIONERS Versus 1. THE STATE OF BIHAR. 2. COLLECTOR, BANKA. 3. SUB-DIVISIONAL OFFICER, BANKA. 4. CIRCLE OFFICER, CHANDAN BANKA. 5. CIRCLE INSPECTOR, CHANDAN, BANKA. 6. DEPUTY COLLECTOR LAND REFORMS, BANKA. 7. MASARAF ALI, SON OF LATE AZIZ ALI. 8. HAIDAR ALI, SON OF SUBEAR ALI, BOTH RESIDENTS OF VILLAGE-CHANDAN(GORA), P.S.-CHANDAN, DISTRICT- BANKA. ………………………………………………. RESPONDENTS ----------- 10. 16.4.2009 Heard counsel for the petitioners and the counsel for the State. In this writ application the prayer of the petitioner reads as follows : - “(a) A writ of mandamus be issued directing the respondent state to immediately handover vacant and peaceful possession of 1 Acres 56 Decimals of land situated in the Chandan (Gora) village of Banka District taken by respondent illegally. (b) Respondent state be directed to pay damages or heavy compensation to the petitioners for the unlawful 2 eviction from the said land, demolishing structures cutting of trees, destroying crops etc. (c) Heavy costs be awarded against the respondent state in favour of the petitioners for their (respondent) wholly unauthorized and illegal action.” Pursuant to the order of this Court dated 21.8.2002 and 20.4.2007 the respondents have not only filed counter affidavit but have also produced the original record of Settlement Case No. 7/1997-98 (Usman Mian vs. State of Bihar) and the record of Encroachment Case No. 2/2000-2001. If in the light of the two aforementioned records the aforesaid prayer of the writ petitioners in paragraph 1 is examined, it would be found that the petitioners actually want a declaration from this Court that they are the recorded Mokararidar (tenants) in the records of right and therefore, their being removed by way of encroachment of gaimajarua land was an illegal act on the part of the 3 authorities of the State i.e. official respondents 1 to 6. The inconsistent case of the petitioners, however, would not permit them to claim the ownership of the land because it is they who on 5.9.1997 had filed an application before the Anchal Adhikari, Chandan (Banka) saying that they had no piece of land anywhere and they belong to Muslim community (Annexure-I) and as such, 1.33 acres of land on which they have already constructed their house should be settled in their name. It also appears that on such prayer of the petitioners not only proceeding for settlement was started but certain queries were also made. At that stage there was a massive opposition to the proposal of the settlement on the ground that the land in question is land of Ibadat Idgah with a Mosque thereon and that very land is a place for Karballa and Taziya. The opposition to such settlement, therefore, was made by the Muslim community as a whole and it was in this background that the authorities had abandoned the proposal for settlement of the land in favour of the 4 petitioners. As a matter of fact having noted that the character of the land was not only for the public use for Muslim community as also covered by the definition of public land, a proceeding under the Public Land Encroachment Act was initiated and the notices were issued to the petitioners on 12.9.2001. The petitioners nowhere in response to the show cause notice served on petitioner no.1 on 7.1.2000 (at page 24 of the record of the encroachment case) came out with a plea of land belonging to them by way of being Khatiyani raiyat. It has to be noticed that by the said notice the petitioners were asked to remove their encroachment without any delay but the petitioners did not do so. On the other hand, the Muslim community being offended by the effort of the petitioners to grab the public land had repeatedly approached the District Administration and in that situation steps taken for removal of encroachment on the public land by the authorities does not seem to be unjustified. In fact if the volatile situation existing on account of encroachment of the land in 5 use of Muslim community for mosque, grave yard and other religious festivals as Karballa and Taziya by the petitioners could have been allowed by permitting the petitioners to continue with their forceful occupation of the public land it could have given rise to a serious law and order problem. It has to be noted that the Land Encroachment Act itself envisages removal of encroachment in case of emergency without passing a final order. Once this tense situation at the spot becomes clear, the consequential order directing the petitioners, with an earlier notice to them, to remove such encroachment can not be held to be bad and this Court would not find any illegality in the action taken for removal of encroachment made by the petitioners, especially when the petitioners even before this Court are not in a position to establish their right on the land in any manner. At this stage learned counsel for the petitioners would submit that the entire land which was being claimed by the petitioners was not being used for religious 6 purpose and the Karballa was only on 0.15 decimals. This Court is not going to decide as to how much land was for Ibadat, how much land for Idgah, how much land for Karballa and how much land for Taziya. This Court has to go by the records which would show that the entire land was for user of Muslim community in general and was recorded as gairmazurua aam land in the Khatiyan and revenue records. Infact if the petitioners were so sanguine about their title they ought to have approached the Civil Court for declaration of their right, title and possession. That having been not done, the petitioners may even now approach the civil court for a declaration that their removal from the land was an unauthorized act on the part of State but in such a civil suit they must implead not only the State and its officials but also Respondent no. 7 and 8 as also some other persons capable of representing the interest of Muslim Community of village Chandan. That being so, this application 7 being devoid of any merit is dismissed but in case the petitioners approach the civil Court, nothing said in this order would prejudice then in agitating their claim and their civil suit will be adjudicated on the basis of evidence led by the parties and decided on its own merit. (Mihir Kumar Jha,J.) Surendra/