IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.556 of 2011 (Arising out of Civil Review No. 338 of 2010) Lala Sao @ Lal Kanu & Anr . Versus The State Of Bihar & Ors . ----------- 2. 25.7.2011 Heard the parties. Private respondent Sri Lamxan Ram has appeared and filed Vakalatnama just now. From Annexure-9 which contains the judgment and order dated 11.10.2010 passed in C.W.J.C. No. 3899 of 2007 it appears that Encroachment Case No. 02/07-08 was initiated against Lal Sao @ Lal Kanu and Janardan Sao @ Janardan Kanu, the appellants with respect to plot No. 440 for an area of 10 decimal appertaining to Khata No. 121 of Thana No. 20, Mauza Akhtiyarpur, (Bihta) in the district of Patna and the said case was decided against the aforesaid encroachers. When the encroachment was not removed in spite of notice dated 29.6.2009 sent by Anchal Adhikari, Bihta, the respondent preferred the aforesaid writ petition for a direction to the authorities concerned to get the said encroachment removed, so that, a school may be shifted to that place within three months. It further appears that being aggrieved by the said order and because the appellants were not party to the said writ petition, they preferred an L.P.A. bearing No. 1846 of 2010 which was dismissed on 12.1.2011 for default. 2 The appellants had also preferred Civil Review No. 338 of 2010 against the final order dated 11.10.2010 passed in C.W.J.C. No. 3899 of 2007 which was dismissed on 25.2.2011. That order is under challenge in this L.P.A. Learned counsel for the appellant submits that the appellant is virtually a landless person and he has claimed possession over the said land since more than 80 years and in the recent survey operation a Purcha was issued showing his possession over the said land recorded as “Gairmazarua Aam”. According to the learned counsel for the appellants, these relevant facts were not considered by the Anchal Adhikari, acting as Collector under the provision of Section 6 of the Bihar Public Land Encroachment Act before passing final orders for removal of alleged encroachment by the appellant. On behalf of the respondents it has been submitted that Annexure-5 to the memo of appeal would show that the appellants did not give exact date as to when they got possession over the land but have made only a vague claim of possession since 70-80 years. It has further been submitted that no plea has been taken that they are landless persons or persons having such occupation and such quantity of land which may entitle them to the benefits of the Proviso and Explanation to Section 6 of the Act. It has further been submitted that pursuant to orders of 3 this Court, the State authorities have filed show cause in a Contempt petition bearing No. M.J.C. 197 of 2011, in which a categorical stand was taken that the encroachment has been removed on 28.5.2011. On the basis of aforesaid facts, it has been submitted on behalf of the respondent that the encroachment having been already removed, this appeal should be treated as infructuous. And, in any case, since the facts were not properly pleaded and there is no finding in favour of the appellants in respect of their claims, the appeal deserves to be dismissed. Having considered the rival submissions, we are of the view that it would not be proper for this Court to enter into disputed question of facts specially at appellate stage. Considering the entire facts and developments, the appeal is disposed of but in the interest of justice it is observed that if advised, the appellants may seek their remedy by approaching Civil Court of appropriate jurisdiction. In the event the Civil Court would be free to decide the relevant issues on their merits without being prejudiced by orders of this Court in the present proceeding. Mkc/- (Shiva Kirti Singh, J.) (Shivaji Pandey, J.)