IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6447 of 2008 1. Ataur Rahman. 2. Enayatur Rahman. 3. Ziyaur Rahman. 4. Obeidur Rahman, All sons of Late Rahamtullah. All residents of Village Churamanchak, P.O. Bhagwat Parsha, Anchal and P.S. Phulwariya, District Gopalganj. ------ Petitioners. Versus 1. The State of Bihar through the District Magistrate, Gopalganj. 2. The District Magistrate, Gopalganj. 3. The Sub-divisional Magistrate, Gopalganj. 4. The Circle Officer, Phulwaria, Gopalganj. ---- Respondents 1st set. 5. Islam, Son of Late Suleman. 6. Aanish, Son of Late Lukhman. 7. Kalamuddi. 8. Safid. 9. Rafi Ahamad, All sons of Late Salim. 10. Enamul Haque. 11. Ekramul Haque., All sons of Late Khursheed Ali. 12. Mazhar Imam. 13. Safdar Imam. 14. Saukat Imam., All sons of Late Aehshanul Haque. 15. Matiure, Son of late Zaheddin. 16. Aainul Haque, Son of Late Nabi Miya. 17. Sherazul Haque, Son of Late Naki Miya. All residents of village Churamanchak, P.O. Bhagwat Parsha, Anchal and P.S. Phulwariya, District Gopalganj. ----- Respondents 2nd set. ------------- 6 15.12.2011 Heard learned counsel for the petitioners, counsel for the private respondents and the counsel appearing on behalf of the State. The petitioner has challenged the order dated 14.2.2008, passed by the Collector, Gopalganj rejecting the petitioners’ appeal in a rent fixation proceeding. The lands in question relate to Plot 2 No. 132, Khata No. 117 measuring 30 decimals. The entire land was recorded as ‘Gair Mazarua Malik’. It is not in dispute that the land was demarcated/partitioned between the heirs of the Ex-Malik. These lands were rent free and as such each of the six sons of the Malik came into possession of their respective shares and they filed a case for fixation of rent. Specifically the petitioners filed case 1 of 2003 in which they claimed that they have their house over 3 decimals of land. The case of the petitioner is that the entire family had given three decimals of land for the road and the petitioners in addition had purchased 3 decimals of land which also forms part of the village road, to facilitate his movement from their house. When the proceeding was initially initiated in the year 1998-99, the prayer of the petitioners was accepted and rent was fixed for 3 decimals of land. The proceeding was apparently closed in 1998 itself. It remained pending only on account of approval of the D.C.L.R. Certain queries were put by the D.C.L.R. which led to variation in the order, although the D.C.L.R. had not made any 3 comment with respect to the area of the land in possession of the petitioners. The Circle Officer thereafter commented that on inspection he found that the petitioners were in occupation of 2 decimals of land and as such fixed the rent for 2 decimals. This was by an order in the year 2003. On the basis of the rent fixation proceeding, notice was issued to the petitioners and the proceeding was initiated under the Encroachment Act. The petitioners filed an appeal 1 of 2003 challenging the order of the Circle Officer, Phulwariya which was dismissed on the ground that this case has been filed only to overcome the proceedings under the Encroachment Act. The case of the opposite parties on the other hand is that the petitioners have encroached upon the village road (Rasta) and they are entitled to only 2 decimals of land. It is not disputed that the lands in question i.e. Plot No. 132 is a ‘Gair Mazrua Malik’ land and that the State Government has no authority with respect to settlement or starting encroachment proceeding on a ‘Gair Mazrua Malik’ land. The question of starting 4 a proceeding thus arose because of the order passed in the rent fixation case. In order to determine as to whether the petitioners were residing over 3 decimals of land or whether the petitioners had in fact encroached upon the land, is a question of fact, which ought to have been determined at the stage of restarting the rent fixation case. Normally it is not the practice to reopen the case which has been closed in the year 1998 without any apparent reason. It would appear that on 15.5.1998 the matter was perhaps before the Deputy Collector Land Reforms who put up certain queries. On 14.6.2002 it went to the Circle Officer who thereafter began to take up the matter afresh without really replying to the Deputy Collector Land Reforms and thereafter reduced the area of land in possession of the petitioners for the purposes of fixation of rent on the basis of queries which was not even raised by the Deputy Collector Land Reforms and on the basis of the so called order of the Deputy Collector Land Reforms which did not even question the fact as to whether the petitioners had encroached upon 5 the road or not. I, therefore, find that there is illegality in the order of the Circle Officer, Phulwariya as well as the District Magistrate, Gopalganj who has rejected the appeal of the petitioners on the ground that it has been made to overcome the encroachment case. The Circle Officer, Phulwariya should examine the matter afresh on production of this order, after due measurement, examination of documents etc. pass an appropriate order expeditiously. It goes without saying that all interested parties must be heard in this matter. This writ application is thus, disposed of with the aforesaid observations and directions. Sanjay (Sheema Ali Khan, J.)