Patna High Court
Arun Kumar Sinha vs The State Of Bihar on 17 January, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.275 of 2022
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Arun Kumar Sinha S/o Late Sachidanand Sinha R/o Mohalla-Veer Kunwar
Singh Colony, Swami Vivekanad, Path, Adampur, P.S.-Adampur, P.S.-
Adampur, District-Bhagalpur.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. The Commissioner, Bhagalpour Division, Bhagalpur.
3. Additional Collector, Bhagalpur.
4. Sub-Divisional Magistrate, Bhagalpur.
5. Circle Officer, Jagdishpur, Bhagalpur.
6. Dr. Ajay Kumar Singh R/o Aryabhatt School, Mohalla-Veer Kunwar Singh
Colony, Swami Viaka Nand Path, Adampur, P.S.-Adampur, District-
Bhagalpur.
... ... Respondent/s
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Appearance:
For the Petitioner/s : Mr. Rajesh Prasad Choudhary, Advocate
For the Respondent/s : Mr. Atul Shankar, AC to SC-19
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CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
CAV JUDGMENT
Date: 17-01-2025
The present writ petition has been filed for setting aside
the order dated 16.01.2013, passed by the Circle Officer,
Jagdishpur, i.e. the respondent no.5 in Encroachment Case No.6
of 2012-13, as also for setting aside the order dated 30.08.2019,
passed by the Additional Collector, Bhagalpur, i.e. the
respondent no.3 in Encroachment Appeal Case No.5 of 2018-19,
whereby and whereunder the appeal filed by the petitioner
against the aforesaid order dated 16.01.2013 has been rejected.
Patna High Court CWJC No.275 of 2022 dt.17-01-2025
2/10
The petitioner has also prayed for quashing of the order dated
20.10.2021, passed by the learned Divisional Commissioner, Bhagalpur, i.e. the respondent no.2 in Misc. Encroachment Appeal Case No.64 of 2020-21 whereby and whereunder the appeal filed against the order dated 30.08.2019 has been dismissed as not maintainable.
2. The brief facts of the case, according to the petitioner, are that the petitioner purchased a piece of land from one Smt. Madhulika Singh, about 36 years back, adjacent to the land in dispute and constructed a residential house where he is residing along with his family members. The details mentioned in the sale deed shows that there is 10 feet Rasta for the common use of the petitioner and other people. In the west side of the house of the petitioner, there is passage/Rasta, which connects the Main Pucca Road. The door, window and ventilation of the house of the Petitioner opens towards west side/passage. In the North Side, there is main gate of the petitioner's house, which is being used by him. The passage/ rasta is being used not only by the petitioner but also by other persons, as such the same is known as common Rasta. It is further stated that Smt. Madhulika Singh W/o Rajshekhar Singh had purchased a piece of land situated on the western side of the House of the Patna High Court CWJC No.275 of 2022 dt.17-01-2025 3/10 petitioner, leaving 10 feet wide passage in the Southern side of her boundary, which is adjacent to the western gate of the petitioner. Later on, the said Smt. Madhulika Singh sold 92 Sqft. land to the petitioner on 04.7.2002 through a registered Sale deed, in which 10 feet wide passage has been shown in between the land of Smt. Madhulika Singh and the western boundary of the petitioner. The respondent no.6, namely, Dr. Ajay Kumar Singh had also purchased a piece of land from Smt. Madhulika Singh, whereafter, he has closed the said 10 feet wide passage with a view to restrain the petitioner and others from using the same.
3. The petitioner, in view of the aforesaid facts and circumstances of the case, had represented before the respondent-authorities for removal of encroachment from the said common passage/Rasta and ultimately he had filed a Misc. Case No.892 of 2006, before the Sub-Divisional Magistrate, Sadar, Bhagalpur wherein the Circle Officer, Jagdishpur had submitted a report dated 24.06.2006, mentioning about existence of Rasta/passage, however, the said case remained undecided, leading to the petitioner filing a writ petition, bearing CWJC No.19262 of 2011, for directing the respondents, especially the SDO, Sadar, Bhagalpur to dispose of the aforesaid Patna High Court CWJC No.275 of 2022 dt.17-01-2025 4/10 Misc. Case No.892 of 2006. A co-ordinate Bench of this Court by an order dated 09.04.2012 had disposed off the aforesaid writ petition bearing CWJC No.19262 of 2011, with a direction to the Circle Officer to make a spot inquiry, conduct measurement in presence of the parties and in case any encroachment is found on the public road, notices be issued to all concerned and the matter be disposed off, within a period of four months. Thereafter, the Circle Officer, Jagdishpur had passed an order dated 16.01.2013, in connection with Encroachment Case No.06 of 2012-13, holding that the land in dispute is a raiyati land, thus the proceedings under the provisions of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the 'Act, 1956') are not maintainable, hence he had dropped the proceedings. The said order dt. 16.01.2013 was then challenged by the petitioner, by filing an appeal before the Additional Collector, Bhagalpur, which was numbered as Encroachment Appeal Case No.5 of 2018-19, however the same was rejected by an order dated 30.08.2019. The said order was then challenged by the petitioner before the respondent no.2 by filing a Misc. (Encroachment) Appeal Case No.64 of 2020-21, however the same has also stood dismissed, by an order dated 20.10.2021.
Patna High Court CWJC No.275 of 2022 dt.17-01-2025 5/10
4. The Ld. counsel for the petitioner has referred to Section 2(3) of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the 'Act, 1956') to submit that the Additional Collector, Bhagalpur has failed to understand the definition of "public land", which specifies that public land includes any land over which the public or the community has got a right of user, such as right of way, burials, cremation, pasturage or irrigation. It is thus submitted that in the instant case, the passage in question is not only being used by the petitioner and others since last 36 years but a PCC road had been constructed under the MP Fund Scheme from public money, which has been blocked by the private respondent No. 6 in collusion with the Circle Officer, Jagdishpur, thus, it is submitted that appropriate directions be issued for removal of the encroachment made over the aforesaid Rasta in question.
5. The learned counsel for the respondent-State has submitted that the aforesaid land in question is a raiyati land, hence the Circle Officer, Jagdishpur has rightly dropped the encroachment proceedings, vide order dt. 16.01.2013 passed in Encroachment Case No.6 of 2012-13. The learned counsel for the respondent-State has next referred to the enquiry report dated 21.02.2023, relevant portion whereof is reproduced herein Patna High Court CWJC No.275 of 2022 dt.17-01-2025 6/10 below:-
"mi;qZDr fo"k;d Hkonh; i=kad 1039@jk0 fnukad 15-02-2023 esa fn, x, funs'k ds vkyksd esa lh0MCyw0ts0lh0 la0& 275@2021 v:.k dqekj flUgk cuke fcgkj ljdkj esa ekuuh; mPp U;k;ky; }kjk fnukad 17- 01-2023 dks ikfjr vkns'k ds vuqikyu esa ftyk vfHkys[kkxkj] Hkkxyiqj ,oa cankscLr dk;kZy;] Hkkxyiqj ds vfHkys[kkxkj esa ekuuh; mPp U;k;ky; esa nk;j mijksDr okn esa lfUufgr [kkrk la0 781] [ksljk la0 947 okMZ ua0 05 uxj fuxe] Hkkxyiqj ls lacaf/kr dSMsLVªy losZ ,oa vU; dkxtkr dh [kkst dh xbZA ftyk vfHkys[kkxkj] legj.kky; Hkkxyiqj esa mDr [kkrk ,oa [ksljk la0 ls lacaf/kr dSMsLVªy losZ [kfr;ku ;k dksbZ dkxtkr miyC/k ugha ik;k x;k] ysfdu cankscLr dk;kZy;] Hkkxyiqj ds vfHkys[kkxkj esa fuEu dkxtkr [kkstchu ds i'pkr~ miyC/k ik;s x;s& 1 ;knnk'r iath& vehu ds ;nk'r esa u, [ksljk ds uhps yky jax ls vafdr iqjkuk [ksljk la0 ntZ ughaA 2 [ksljk iath& [ksljk iath ds dkWye 2 esa lkfcd [kkrk ¼iqjkuk [kkrk½ ,oa dkWye 5 [k esa lkfcd [kkrk dk bUnzkt ugha gSA 3 ewy [kfr;ku& ewy [kfr;ku ds dkWye 1 esa lkfcd [kkrk dk bUnzkt ugha gSA lkFk gh u, [ksljk ds uhps yky jax ls iqjkus [ksljk dk bUnzkt ugha gSA 4 vkifŸk okn& [kfr;ku cuus ds i'pkr~ lh0MCyw0ts0lh0 la0& 275@2021 ds vkosnd v:.k dqekj flUgk }kjk jdok lq/kkj gsrq nk;j vkifŸk okn la[;k 60@1978 ds vfHkys[k dh izfr ,oa lesfdr vkns'k vehu izfrosnu lfgrA mijksDr vfHkys[k ds voyksdu ds i'pkr~ Li"V :Ik ls ifjyf{kr gS fd lacaf/kr okMZ ua0 05 uxj fuxe Hkkxyiqj esa dSMsLVªy losZ dk dk;Z ugha gqvk gS rFkk lfUufgr Hkwfe dk;eh jS;rh gSA"
6. Thus, it is submitted by the learned counsel for the Patna High Court CWJC No.275 of 2022 dt.17-01-2025 7/10 respondent-State that apparently, the land in question is a raiyati/private land, regarding which no encroachment proceedings are maintainable under the provisions of the Act, 1956, hence the Circle Officer, Jagdishpur has rightly dropped the encroachment proceedings, vide order dated 16.01.2013. It is also submitted that the learned Court of Additional Collector, Bhagalpur has also passed a reasoned and a speaking order dated 30.08.2019, rejecting the appeal filed by the petitioner, which also demonstrates that the land in question is a raiyati land.
7. I have heard the learned counsel for the parties and perused the materials on record.
8. This Court finds that not even a chit of paper has been produced by the petitioner in the form of khatiyan/record of rights/ Revisional Survey Records to show that the aforesaid land in question is a public land/Rasta and mere reliance has been placed by the petitioner on a report submitted by the Circle Officer and the Deputy Collector Land Reforms in Misc. Case No.892 of 2006, veracity/authenticity whereof was never decided inasmuch as no final order has been passed in the said Misc. Case No.892 of 2006, thus it is premature to jump to any conclusion. Moreover, the averments made in the present writ Patna High Court CWJC No.275 of 2022 dt.17-01-2025 8/10 petition and the arguments advanced by the Ld. counsel for the petitioner shows that admittedly the disputed land/rasta in question is a part of raiyati land of Smt. Madhulika Singh, who had sold land to the petitioner and it is claimed that 10 feet wide passage has been shown in between the land of the said Smt. Madhulika Singh & the western boundary of the petitioner in the sale deed, which has been encroached by the private respondent no.6, hence admittedly the dispute in question is a private dispute, which cannot be adjudicated in a writ petition under Article 226 of the Constitution of India. Therefore, this Court is of the view that complex and disputed question of facts, regarding the nature of the disputed land in question, as to whether the same is a raiyati land or a public land exists in the present case, which cannot be adjudicated in a writ petition under Article 226 of the Constitution of India. In this connection, reference be had to the following judgments rendered by the Hon'ble Apex Court, wherein it has been consistently held that disputed questions of facts cannot be adjudicated in a writ petition, under Article 226 of the Constitution of India :-
(i) Judgment rendered in the case of Shri Sohan Lal vs. Union of India & Another, reported in AIR 1957 SC 529;
Patna High Court CWJC No.275 of 2022 dt.17-01-2025 9/10
(ii) Judgment rendered in the case of Punjab National Bank & Others vs. Atmanand Singh & Others, reported in 2020 SCC Online SC 433;
(iii) Judgment rendered in the case of Thansingh Nathmal and Ors. vs. Superintendent of Taxes, Dhubri and Ors., reported in AIR 1964 SC 1419;
(iv) Judgment rendered in the case of Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot, reported in (1974) 2 SCC 706;
(v) Judgment rendered in the case of Government of Andhra Pradesh vs. Thummala Krishna Rao & Anr., reported in (1982) 2 SCC 134.
9. Reference be also had to the judgments rendered by the Hon'ble Apex Court in the case of Orissa Agro Industries Corporation Ltd. & Others vs. Bharti Industries & Others, reported in (2005) 12 SCC 725, the one rendered by the Hon'ble Apex Court in the case of Radha Krishan Industries vs. State of Himachal Pradesh & Others, reported in (2021) 6 SCC 771, and the one rendered by the Hon'ble Apex Court in the case of Shubhas Jain vs. Rajeshwari Shivam & Others, reported in (2021) 20 SCC 454, apart from a judgment rendered by this Court in the case of Ripusudan Singh vs. State of Bihar & Ors.,reported in 2023 (5) BLJ 372.
10. Having regard to the facts and circumstances of the case Patna High Court CWJC No.275 of 2022 dt.17-01-2025 10/10 and for the foregoing reasons, I do not find any merit in the present writ petition, hence the same stands dismissed.
(Mohit Kumar Shah, J) kanchan/-
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