IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15623 of 2004 1. OM PRAKASH SINHA 2. GYANESHWAR PRASAD SINHA 3. SATYA PRAKASH SINHA 4. ARUN KUMAR SINHA 5. MUKESH KUMAR SINHA ALL SONS OF LATE INDU BHUSHAN SINHA AND LATE SMT.KRISHNA DEVI, RESIDENT OF LAKSHMI-HARI-NIWAS, ANISABAD, P.S. GARDANIBAGH, DISTRICT PATNA 6. UMA BHAIYA WIFE OF SHRI P.K.BHAIYA AND DAUGHTER OF LATE INDU BHUSHAN SINHA AND LATE SMT. KRISHNA DEVI. ……………PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR, PATNA 3. THE ADDITIONAL COLLECTOR, PATNA 4. THE DEPUTY COLLECTOR, LAND REFORMS SADAR COURT, PATNA 5. THE ENGINEER-IN-CHIEF, ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA 6. THE EXECUTIVE ENGINEER, NEW CAPITAL DIVISION, ROAD CONSTRUCTION DEPARTMENT, PATNA 7. THE S.D.O. ROAD CONSTRUCTION DEPARTMENT, NEW CAPITAL SUBDIVISION NO.2, PATNA …RESPONDENTS ----------- For the Petitioners: Mr.Ashwani Kumar Singh, Sr. Advocate M/s Manoj Kumar and Awdhesh Kumar For the State : Mr.Syed Arshad Alam, SC IV Mr.Anjum Perveen, A.C. to SC IV Mr.Gautam Kumar Yadav, AC to SC IV 9 4.3.2010 Heard counsel for the petitioners and the State. In the instant writ petition the petitioners pray for quashing the order dated 27.10.2004 passed by the Collector, Patna in Land Encroachment Appeal No.11/95-96, whereby the Collector, despite the direction of this court dated 14.5.1998, passed in C.W.J.C.No.11206 of 1996, instead of deciding the matter himself, remitted it to the court of D.C.L.R. for enquiry. A copy of the impugned order dated 27.10.2004 is at Annexure-1. This case has a chequered history. The petitioner states that he 2 purchased 7.6 Kathas of land appertaining to Plot No.668, Thana No.14, situated south of Mithapur-Khagaul Road from the heirs and legal representatives of Mrs.Mariam Gomez through a registered sale deed dated 12.6.1957. Thereafter, in accordance with duly sanctioned house plan, the petitioner constructed a house on it in the year 1958. In 1960, he applied for addition and extension for constructing a double storey on the existing structure which was sanctioned by the Patna Improvement Trust vide Case No.779 of 1960. However, in the year 1983, a land encroachment proceeding was initiated by respondent no.4, the D.C.L.R., vide Land Encroachment Case No.11 of 1983-84, on the report of the Executive Engineer, P.W.D., New Capital Subdivision. After due enquiry, the D.C.L.R. dropped the land encroachment proceeding on 12.10.1984. The petitioners state that after a lapse of five years, another proceeding was initiated against them, which was already the subject matter of an earlier encroachment proceeding and duly dropped after making due enquiry. The initiation of a fresh land encroachment proceeding led to filing of various cases including filing of writ petition before this court. One such writ petition bearing C.W.J.C.No.11206 of 1996 was filed by the late father of the now substituted petitioners against the order dated 9.3.1994, passed by the D.C.L.R. in Land Encroachment Case No.23/89-90 and also the order dated 10.9.1996 passed by the Collector in Land Encroachment Appeal No.11/95-96. In the aforesaid orders it was held that they had encroached a portion of plot no.471 which was recorded as Kaiser Hind. The case of the petitioners is that they made constructions of plot no.668 which he had purchased through a registered sale deed of the year 3 1957 and no part of his construction is over plot no.471. This court after hearing the parties, found that the order of the Collector did not address the claims of rival parties in detail. As such, this court by order dated 14.5.1998 quashed the order of the Collector dated 10.9.1996 and remitted the matter to him to decide afresh by a reasoned order after hearing the parties. The Collector instead of hearing the matter himself, remanded the case to the court of learned D.C.L.R. to hear both the parties and to do site inspection and measurement in presence of both the parties and pass a suitable order. The order dated 27.10.2004 passed by the Collector, Patna in L.E. Appeal No.11 of 1995-96 is contained in Annexure-1. The petitioner being aggrieved by the impugned order dated 23.10.2004 moved this court in the instant writ petition being C.W.J.C.No.15623 of 2004. During the pendency of this writ petition, the Collector realizing the mistake that he ought to have decided the matter, instead of remitting to the D.C.L.R, recalled the impugned order dated 27.10.2004 and decided the appeal vide his order dated 16.1.2006, contained in Annexure-20 of I.A.No.2648 of 2006. In fact, the petitioner by the aforesaid I.A.No.2648 of 2006 has challenged the correctness and legality of the order and has also sought for amendment of prayer made in the writ petition. The petitioners assert that their father made construction over the plot no.668 which he purchased on 12.6.1957 through a registered sale deed from the legal owners of the land. They submit that the construction is no where on plot no.471 or on any government land, and in any case even if the land in question is government land, the petitioners have perfected their 4 title by way of adverse possession over efflux of time, as the purchase of the land and construction over it are of the year 1957 and 1960 respectively. Learned counsel for the petitioners further submits that once a proceeding was initiated and dropped, no proceeding which already was subject matter of an earlier proceeding could be legally initiated. He submits that even adopting the line of least resistances, as petitioners have been in adverse possession for over the years, they cannot be evicted in a summary proceeding. In support of his contention he relied upon a decision of this court in the case of Mahant Rajagya Giri Vs State of Bihar, reported in 1991(2) P.L.J.R. 249, and Govt. of Andhra Pradesh Vs Thummala Krishna Rao & anr, reported in A.I.R. 1982 SC 1081. A Division Bench of this court in the case of Shri Kali Prasad Seal Vs State of Bihar & Ors, reported in 1969 PLJR 23 also held that second land encroachment proceeding cannot be initiated in respect of the same subject matter of proceeding. Mr. Syed Arshad Alam, learned State counsel submits that the writ petition has become infructuous. The petitioner was aggrieved by order dated 27.10.2004 passed by the Collector, Patna, whereby he instead of deciding the appeal himself as directed by this court, remitted the matter to the court of the D.C.L.R. to hear the parties and pass a suitable order. However, the Collector realizing his mistake has recalled the impugned order and decided the appeal himself vides order dated 4.5.2006 passed in L.E. Appeal Case No.11/95-96. Thus, he submits that the petitioners should have filed a fresh writ petition as it has given a fresh cause of action. He submits that as the main grievance of the petitioners was already redressed, nothing remains in this writ petition. 5 KHAN Heard counsel for the parties and on going through the materials on record, this court finds that the dispute in this case is whether the father of the petitioners had made construction over plot no.668, which he had purchased or has encroached upon portion of plot no.471 to the extent of 54 ft. x 22 ft. The further dispute is whether the petitioners have perfected their title by way of adverse possession over the years and in such circumstances whether they could be evicted in a summary proceeding. The order dated 4.5.2006 passed by the Collector in L.E. Appeal Case No.11/95-96, contained in Annexure-20 of I.A.No.2648 of 2006, pursuant to the order of this court dated 14.5.1998 passed in C.W.J.C.No.11206 of 1996 is a substantive piece of order. On the other hand, the impugned order dated 27.10.2004 passed by the Collector, Patna, contained in Annexure-1, which has been initially challenged in this writ petition, is in a form of an intermediary order. Thus, I am of the view that the petitioners, if so advised, may file a fresh writ application against the order dated 4.5.2006, contained in Annexure-20. The I.A.No.2648 of 2006 for amendment in prayer, challenging the final order dated 4.5.2006 was filed in the year 2006. This court further observes that status quo, as of today, shall be maintained for a period of three months from today in the facts and circumstances of the case. It goes without saying that if the petitioners file a writ petition; it would be open to them to pray for an early hearing of the case. With the aforesaid liberty, this writ petition stands disposed of. (S.P.Singh,J) 6