IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1743 of 2006 CHANDRIKA SINGH, SON OF LATE VIAYDANATH SINGH, RESIDENT OF VILLAGE INDAULI, P.S. MAHARAJGANJ, DISTRICT SIWAN . Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR, SIWAN. 3. THE ADDITIONAL COLLECTOR, SIWAN. 4. THE SUB-DIVISIONAL OFFICER, MAHARAJGANJ. 5. THE ANCHAL ADHIKARI, MAHARAJGANJ, DIST. SIWAN. 6. THE CIRCLE INSPECTOR, MAHARAJGANJ, DIST. SIWAN. For the petitioner : M/s Suresh Pd. Singh no.-I, Vitesh Kumar Singh, Advocates. For the intervener : M/s Udit Narayan Singh, Poonam Kumari, Advocates. For the State : Mr. Anil Kumar Verma, AC to AAG-13. ----------- 02. 28.01.2011 Re:- I.A. No.577 of 2011 Considered the prayer made in I.A. No.577 of 2011. It appears during the pendency of this writ petition, writ petitioner has left for heavenly abode leaving behind the heirs and legal representatives indicated in paragraph-1 of the interlocutory application. 2. Let name of petitioner be expunged from the records of this case and in his place heirs and legal representatives indicated in paragraph-1 of the interlocutory application be substituted. 3. I.A. No.577 of 2011 is, accordingly, disposed of. 4. Heard learned counsel for the petitioner, the State and the counsel for the intervener who filed I.A. No.1791 of 2008 opposing the prayer made in the writ petition. 5. Petitioner is the purchaser of Survey Plot No.2667 appertaining to khata no.146 of village Pasnauli measuring an area of 5 dhurs from which under the impugned order dated 30.9.2005 passed - 2 - in Encroachment Case No.01 of 2004-05, which is contained in Annexure-8 to this application he has been directed to remove the house. From perusal of order dated 30.9.2005, it appears that portion of plot no.2667 is recorded as “Aam Rasta” in the khatiyan. It also appears from the impugned order that Jamabandi of the lands in question was earlier recorded in the name of vendor of the petitioner as also one another, namely Sri Shivji Bharti. The impugned order however, states that Jamabandi of the lands in question was created without any order being passed to that effect. Such submission is being refuted by the counsel for the petitioner, as according to him the Jamabandi was created after enquiry and verification of the lands when the authorities were satisfied that the portion over which the house is situate does not come within the road or its flank as the entire plot no.2667 measuring area of 1 katha 7 dhurs does not comprise of the road and flank. Portion of the plot is road but other portion of the plot is the raiyati land over which house is situate. 6. Aforesaid contention of the petitioner is disputed by the counsel for the intervener, who states that the house in question is raised over portion of plot no.2667, which is recorded in the khatiyan as a road and the Additional Collector, Siwan after being satisfied that the house in question is raised on the portion of the road passed the impugned order dated 30.9.2005. Impugned order dated 30.9.2005 has been passed by the Additional Collector, Siwan, whereunder the Jamabandi of 5, 3 dhurs of land bearing plot no.2667 has been cancelled with direction to the petitioner to remove his house from 5 - 3 - decimals of the said plot. 7. In terms of the provisions contained in Sub-Section-(2) of Section-11 of the Bihar Public Land Encroachment Act, the order dated 30.9.2005, Annexure-8 is appealable before the Collector, Siwan as the same has been passed by the Additional Collector, Siwan, accordingly, this writ petition is disposed of directing the petitioner to file appeal against the order dated 30.9.2005, Annexure-8 before the Collector, Siwan on or before 25.2.2011, thereafter the memo of appeal be posted for hearing before the Collector, Siwan on 1.3.2011 when intervener should also appear to contest the appeal. The collector, Siwan shall proceed to hear the appeal with open mind without being impressed by the fact that the order dated 30.9.2005 has been countersigned by the Collector, Siwan. 8. The writ application is, accordingly, disposed of. Rajesh/ (V.N. Sinha, J.)