IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39902 of 2009 SHAHJAHAN KHATOON @ SHAHJAHAN, WIFE OF SALIM MIAN, DAUGHTER OF LATE ABDUL GANI, RESIDENT OF GANJ MOHALLA, P.S. AURANGABAD (T), DISTRICT AURANGABAD. ----- PETITIONER Versus 1. THE STATE OF BIHAR. 2. THE COLLECTOR, AURANGABAD 3. THE S.D.M., AURANGABAD. 4. THE ANCHALADHIKARI, AURANGABAD 5. THE OFFICER-IN-CHARGE, AURANGABAD (T), DISTRICT AURANGABAD. 6. BABUNI DEVI, WIFE OF NARAD PRASAD @ NARAD SINGH, RESIDENT OF GANJ MOHALLA, P.O. AURANGABAD, P.S. AURANGABAD (T), DISTRICT AURANGABAD. ----- OPPOSITE PARTIES ----------- 2 25.1.2010 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. Petitioner is aggrieved with the order dated 18.9.2009 passed by the S.D.M., Aurangabad in Case No. 1522/2009. The first party filed an application before the S.D.M., Aurangabad stating therein that the petitioner had occupied Khata No. 156, Plot No. 505 measuring 2 decimals. It was submitted on behalf of the first party that the land was „xSj et+:vk vke‟ and the petitioner by occupying the said land were blocking the view and the first party was having difficulty in opening windows. The S.D.M. proceeded on the ground that the land was „xSj et+:vk vke‟ and ordered that encroachment proceeding should be initiated against the petitioner, on the basis of the fact that the petitioner‟s application to mutate the lands in his name were rejected by the Circle Officer. The petitioner also draws this Court‟s attention to order dated 7.11.2008 wherein the first party had raised a similar objection against the petitioner leading to Case No. 1899 of 2008. At that stage the S.D.M., Aurangabad held that it was not within the jurisdiction of 2 the S.D.M. to hear the matter and proper procedure would be to approach the Municipal Corporation. The 144 proceeding was thus dropped. Both the orders relate to the same party and the same dispute. The officer concerned has come to different conclusions regarding the same subject matter. The proceeding under Section 144 Cr.P.C. now has lost its force as the order was passed on 18.9.2009. Nevertheless the petitioner submits that he would be effected by the order of the S.D.M. by which it has been said that an encroachment proceeding should be initiated against him. Petitioner‟s specific stand is that Cadastral Survey and the Khatihan prepared with respect to Plot No. 156 and 505 would show that the lands are „xSj et+:vk ekfyd‟ and the photo copy produced before this Court indicates that it has been recorded as “ xSj et+:vk ekfyd oks eksdfjjnkj” whereas Plot No. 505 has been recorded as “cdCts ehj gqlsu cD” oks djhe cD’k is’kjku lS;n vyh dkSe lS;n cfgLlk cjkcj pkgiks[rk 1] uhe 1] vukj 1”. In my opinion, the petitioner has right to appeal against the order of the Circle Officer rejecting his application for mutation of his name. As far as the encroachment proceeding is concerned, this aspect of the matter would have to be considered by the proper authority and the S.D.M. cannot in a proceeding under Section 144 Cr.P.C. direct that a proceeding under Encroachment Act should be initiated against the petitioner. This does not mean that the officers concerned or having the power cannot take steps in this direction but I do not think it proper that the petitioner should be disturbed without 3 any proper authority or a proper proceeding. The order dated 18.9.2009 has lost its force and, therefore, this application is disposed with the aforesaid comments and observations. Sanjay (Sheema Ali Khan, J.)