IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1196 of 2009 THE EXECUTIVE ENGINEER, DRAINAGE DIVISION, Gandak Project Compound Jituearpur, Samastiput. ……….Respondent no.8- Appellant. Versus 1. THE STATE OF BIHAR 2. The Principal Secretary-Cum Commissioner, Department of Water Resources, Government of Bihar, Sinchai Bhawan, Baily Road, Patna. 3. The District Magistrate Cum Collector, Samastipur. 4. The Additional Collector, Samastipur. 5. District Land Acquisition Officer, Samastipur. 6. Sub Divisional Magistrate, Rosera, Samastipur. 7. Circle Officer, Rosera, Samastipur. 8. Assistant Engineer, Drainage Division, Gandak Project, Compound Samastipur. 9. Superintendent of Police, Samastipur. 10. Officer in charge, Rosera Police Station, Samastipur. ………………………Respondents- Respondents. 11. Rambinod Rai 12. Lalan Rai. Both sons of late4 Tripti Narayan Rai 13. Bibhuti Shankar Rai S/o late Rajnarayan Rai. 14. Rambabu Rai s/o late Hari Kant Rai. Respondents no. 11- 14 residents of village & P.O. Bhirha, P.S. Rosra district Samastipur. 15. Manikant Issar, s/o Asharfi Issar resident of village & P.O.Surauli Shapur, P.S. Bibhutipur, district Samastipur. …………………Petitioners- Respondents. ----------- 6 11.02.2011 The present Letters Patent Appeal has been preferred by the Executive Engineer, Drainage Division, Samastipur only in respect of the order dated 31st July, 2009 passed in C.W.J.C. No.9546 of 2008 by which Collector of Samastipur district as also the present appellant were directed to pay a cost of Rs.7,000/- to the writ petitioners on account of the reason that their raiyati lands had been utilized in constructing the drainage claiming the same to be a Gairmajarua Khas land for which they could not be any need of initiating the proceedings for acquisition of land for public purposes or in respect of which no compensation was required to 2 be paid under law. After having heard the learned Senior counsel for the appellant as also learned counsel for the petitioners and learned counsel appearing for the State and after having gone through the order passed in the writ petition, there is no doubt that initially in their affidavits filed for the Collector Samastipur were castigating the stand of the writ petitioner when they were claiming a few particular plots to be their raiyati land on account of having acquired the interest in those land due to certain settlement proceedings carried out in their favour on account of change in the nature of the land. The writ petitioners were not disputing that in cadastral survey khatiyan entries made by the Collector or other officials of the State were claiming them to be Gairmajurua Khas land, but in course of time the nature of lands changed and the lands were settled to the writ petitioners or their forefathers. The dispute was in respect of plots which appear to be described in paragraph nos. 8, 9 and 10 of the writ petition, area of which came to about 66 decimals. Subsequently, it came into light on account of production of the revisional survey khatiyan that those were raiyati lands, for utilizing them for public purposes, the proper orders of acquisition of those lands were required to be made in the light of the prevailing law. The learned Single Judge was mainly concerned with the mis-statement of facts which were presented by the authorities like the present appellant or the Collector of the district. It is duly 3 highlighted in the impugned order as follows:- “This Court is surprised at the callous manner in which the counter affidavits are filed before this Court by the State Authorities. The Collector who is the head of the district and also the Officer. Incharge of all the revenue records of the district ought to have confirmed the facts before authorizing the Executive Engineer to file an affidavit in Court giving absolutely false facts. Equally, the Executive Engineer, Drainage Division, Samastipur who has sworn the affidavit cannot be exonerated for filing an affidavit without confirming the facts relating to the status of the lands which were being utilized by the Land Acquisition Officer, It is also surprising that the Land Acquisition Officer, issued form 17 under the Land Acquisition Act and seeks to take possession over lands in excess of what was notified under Section 45 (1) of the Land Acquisition Act.” This appears one of the reasons besides the reason of utilizing the raiyati land for creating the drainage and the learned Judge was imposing a cost of Rs.7,000/-. It was contended by learned senior counsel appearing for the appellant that the Collector of the district being overall incharge of all revenue matters and as such being the custodian of revenue records could never have ignored the facts as regards the status of the land and if at all he was ordering for utilization of those particular land for construction which appears further justified by him in the parawise statement of facts which is Annexure-8 to the present Letters Patent Appeal, then responsibility of this petitioner for utilizing the land disappears, inasmuch as, the affidavit which was directed to be filed by the present appellant in the light of Annexure-9 was filed only on the instructions as received with regard to the facts of 4 the case from the Collector of the District. We have considered the two annexures, i.e., 8 and 9 and we find that the plots which are mentioned in paragraph nos. 8, 9 and 10 of the main writ petition, have been stated by the Collector and the Additional Collector besides this petitioner to be Gairmajarua Khas land which did not require any order of payment of compensation which fact appears subsequently controverted by the revenue records. It was rightly contended by the learned counsel for the appellant that as the Collector of the District being overall custodian of all informations regarding nature of land, it could be his responsibility when mis-statement of fact was made on affidavit, which could have prompted the learned Single Judge to slap a cost of Rs.7,000/- while disposing of the writ petition with certain observations. We do not find any difficulty in accepting the contention of learned counsel for the appellant. We find that the Executive Engineer who is the present appellant could be executing the orders of the authority like the Collector of the district as per instruction which was received under the joint signatures of the Collector and the Additional Collector as regards the nature of the lands especially the nature of those plots which get mentioned in paragraph nos. 8, 9 and 10. The technical expert, that the appellant was, may not be knowing exactly as to what would be the nature of the land and what would be the legal fall out with regard to use of the land and as such we are of the 5 opinion that the direction of the learned Single Judge to the appellant to share the burden of payment the cost of Rs.7,000/- and payment by the Collector of Samastipur may not be reasonably upheld. It could be the solitary act of the Collector, Samastipur on account of creating an impression in the mind of the present appellant as appears through Annexure-8, the statement of facts, that the petitioner was led to file an incorrect statement of facts on affidavit. The appellant has filed a written apology and has expressed his unqualified apology. In that view of the matter, we modify the order passed by the learned Single Judge to the extent that the appellant shall not be required to pay any part of the cost as directed by the learned Single Judge. With the above modification this appeal is allowed. Abhay Kumar/Namita ( T. Meena Kumari, J.) (Dharnidhar Jha, J.)