IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.904 of 2011 Vinay Kumar, Son of Sri Anil Kumar, Resident of Mohalla- Hajipur Thana Chowk, P.S. Khagaria, District Khagaria Versus 1. The State Of Bihar 2. Sri Abhay Kumar Singh, District Magistrate, Khagaria 3. Manohar Kumar Yadav, Son of Chhotelal Yadav, Resident of Baluhai, P.S. Khagaria, District Khagaria, the Chairman, Nagar Prishad, Khagaria with MJC No.1867 of 2011 Anil Kumar Yadav, Son of Maheshwar Yadav, Resident of Village- Baluahi, Ward No. 24, P.S. & District Khagaria Versus 1. The State Of Bihar 2. Smt. Palka Sahani, H/o name not known to the petitioner, District Magistrate, Khagaria 3. Sri Subhash Chandra Mandal, son of name not known to the petitioner, Sub-Divisional Officer, Khagaria 4. Sri Ashok Kumar Singh, S/o name not known to the petitioner, Circle Officer, Khagaria, District Khagaria 5. Manohar Yadav, S/o Chhote Lal Yadav, Resident of Village Baluahi, P.S. & district Khagaria, The Chairman, Khagaria Municipality, Khagaria 6. Manohar Yadav, S/o Chhote Lal Yadav, Resident of Village Baluahi, P.S. & district Khagaria ----------- For the Petitioner (in MJC No. 904 of 2011) : M/s Dhirendra Nath Jha & Dinesh Kumar Gupta, Advocates For the Petitioner (in MJC No. 1867 of 2011) :Mr. Dronacharya, Advocate For the State :M/s P.K. Verma, AAG-5, Dr. Mankeshwar Tiwari, AC to AAG-5 & Sanjeev Kumar, Advocates For the opposite party nos. 5 & 6:Mr. Rakesh Chandra, Advocate 09/ 20.10.2011 Heard learned counsel for the petitioners, the State and opposite party nos. 5 and 6, who desired to file counter affidavit, but the counter affidavit was not entertained as the copy of same was not served on the 2 counsel for the petitioners and the State 24 hours earlier. 2. Petitioners in MJC No. 904, 1867 both of 2011 claim to be the raiyat of plot nos. 194 and 218 respectively. The two contempt petitions have been filed asserting that the orders of the High Court dated 31.5.2010 and 6.1.2011 passed in C.W.J.C. Nos. 1431 of 2010 and 16356 of 2009 have not been complied with by the opposite parties and have requested to initiate proceedings for contempt against them. 3. By filing show cause in MJC No. 904 of 2011, opposite parties have refuted the prayer made in the two contempt petitions with reference to the orders dated 6.7.2011 and 19.9.2011 passed by the Circle Officer and the Deputy Collector, Land Reforms, Khagaria, which are Annexures-B and G to the show cause and the supplementary show cause filed on behalf of opposite party no.2. 4. From perusal of the order dated 6.7.2011 itself, it is evident that on the raiyat plot no. 218, brick soling has been laid by the authorities of the Nagar Parishad. Plot no. 218 being the raiyati land, any brick soling over the same could have been made only with the 3 consent of the owner. 5. Let the Collector of the District seek report from the Executive Officer of the Municipality whether brick soling over plot no. 218 was laid after seeking written consent of the raiyat or his successor-in-interest of plot no. 218. Report received from the Municipality be considered in the light of the appeal filed by the Chairman of the Municipality against the order dated 6.7.2011, bearing Encroachment Appeal No. 1 of 2011-12 and brick soling from the land be removed if the same has been laid without the consent of the raiyat or his successor-in- interest, including vendee- petitioner of MJC No. 904 of 2011. 6. During dictation, learned counsel for the State, opposite party nos. 5 and 6 submitted that the brick soling may have been laid recently but the portion of plot no. 218 over which brick soling has been laid is being used as pathway since long. The brick soling, even if directed to be removed, portion of plot no. 218, which is being used as public pathway from before, should be allowed to be used as public pathway. 7. Let the Collector of the District ascertain 4 whether any portion of plot no. 218 was being used as public pathway from before and if he comes to the conclusion that the same was being used as public pathway, then after removal of the brick soling, the parties herein are directed to maintain status quo until any order to the contrary is passed by the Civil Court of competent jurisdiction. 8. Perusal of the other order dated 19.9.2011, Annexure-G to the supplementary show cause passed by the DCLR referred to above indicates that he found encroachment over plot no. 211, which was removed in presence of DCLR but by filing reply to the show cause, petitioner in MJC No. 904 of 2011 has asserted that removal of encroachment in presence of the DCLR and other officials was only in part, which was again made. It is further submitted that not only encroachment reappeared over plot no. 211 but encroachment from the public land, bearing plot nos. 188 and 189 over which the protection Bandh has been raised, was never removed together with encroachment made over acquired portion of plot no. 210. In support of such fact, reliance was placed on the photographs, Annexure-9 series to the reply to the 5 supplementary show cause wherefrom it appears that public toilet without due approval from the competent authority and other temporary structures have been raised over those plots. 9. Having heard counsel for the parties, I direct the Collector of the District to visit the site and see for himself whether there is any encroachment over plot nos. 188, 189, 211 and acquired portion of plot no. 210 and ensure that any encroachment found over the aforesaid plots including public toilet raised without due sanction and other temporary structures are removed. After removal of the encroachment, the Collector shall also ensure that the encroachment does not appear again by raising temporary shed etc., as has been shown in the photographs, Annexure-9 series. 10. Let the petitioners of the two contempt petitions appear with my order before the Collector, Khagaria, who should take appropriate steps in the matter, as early as possible, in any case within two months from the date of appearance of the petitioners along with a copy of this order before the Collector, Khagaria. Final order be passed by the Collector after hearing not only the two 6 petitioners and the Chairman of the Municipality, but also the encroachers. After removal of the encroachment if the Collector is of the opinion that the drain raised over plot nos. 187, 189 and 211, as shown in the earlier raiyati records, is required to be further deepened for smooth flow of drain water into river Burhi Gandak, he shall take appropriate measure through Mahatma Gandhi National Rural Guarantee Scheme or any other Government schemes for removal of the soil from the drain raised over plot nos. 187, 189, 211 and 210 ( acquired portion). 11. Both the contempt petitions are, accordingly, disposed of. Arjun/ ( V. N. Sinha, J.)