IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18525 of 2010 TARKESHWAR PATHAK & ANR . Versus THE STATE OF BIHAR & ORS . ----------- 3. 17.01.2011 Heard learned Counsel for the petitioners and the learned Counsel for the State. The petitioners are aggrieved by the order dated 28.9.2010 passed in Encroachment Case No. 1 of 2006-2007 directing the petitioners to remove their encroached possession upon the lands in question described as public land. It is submitted that CWJC No. 13334 of 2004 came to be filed for removal of certain encroachment. The official respondents informed the Court that they have initiated Encroachment Case No. 1 of 2006 in which show cause notices had been issued. The Court opined that there was no occasion to express any view on the merits of the case and that the encroachment proceeding be taken to its logical conclusion. A contempt application was filed thereafter by the writ petitioners. Counsel for the petitioners submitted that they had specifically raised an objection that their residential houses stood upon the land in question for years together. They had earlier filed a title suit which was defective for want of proper notice under Section 80 CPC whereafter fresh Title Suit No. 74 of 2007 has been instituted in accordance with law which is pending. The official respondents in their counter affidavit to CWJC No. 13334 of 2004 had annexed several documents upon which the petitioners rely to urge that even their spot enquiry report confirmed existence of their old houses upon the land in question. The rejection of their application on the ground that 2 they had not furnished any documentary evidence without any discussion whether residential houses stood upon the land or not is arbitrary and unsustainable. Counsel for the State submits that in Title Suit No. 74 of 2007 the petitioners had sought injunction which has been refused by order dated 25.11.2010. Further objections are sought to be raised with regard to absence of payment of rent etc by the petitioners. The refusal of injunction in the title suit does not appear to have been on merits after considering the contesting claims. It appears that the learned Munsif more in awe of the orders of this Court in the writ petition and pendency of a contempt petition simply concluded that the petitioners had failed to make out a prima facie case without any discussion of their claims. The Court therefore does not consider the order dated 25.11.2010 as any impediment in consideration of the present claim of the petitioners. The impugned order notices the objection of an old house standing on the lands in question but fails to decide as a matter of fact whether a house actually stood or not. From the annexures to the counter affidavit filed by the official respondents in CWJC No. 13334 of 2004 enclosed as Annexure 2 to the writ application this Court is satisfied that there were certain documentary evidence available with the respondents with regard to the claims of the petitioners and even if the petitioners had not produced them, fairness impartiality and reasonableness on the part of the respondents required them to 3 look into their own documents which prima facie appears to contain materials with regard to the petitioners. The order dated 28.9.2010 is therefore set aside in so far as the present petitioners are concerned and the matter is remanded to the respondent no. 4 to pass a fresh reasoned and speaking order containing adequate discussion of the stand taken by the respondents in their counter affidavit in the aforesaid writ and along with the annexures to the same based on government orders, preferably within a maximum period of two months from the date of receipt and/or presentation of a copy of this order. The Court is of the further opinion, on going through the counter affidavit of the respondents referred to above, that if any others whose lands find mention in the reports annexed to the counter affidavit approach the Circle officer that they are similarly situated as the present petitioners, the Circle Officer is required to decide that preliminary issue by a reasoned and speaking order. This is considered necessary to prevent litigation being thrust directly upon the Court so that the matter may be judicially reviewed if need arises and to shorten litigation. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)