M.Y.EQBAL,J. - (1.) THIS appeal is directed against the judgment and order dated 28.2.2001 passed in CWJC No.819/2001, whereby the learned Single Judge dismissed the writ petition with the observation that the petitioner may file a suit for declaration of his title with respect to the land in question. The aforesaid writ petition was filed by the petitioner for quashing the order dated 6.1.2000/25.1.2000 passed by the Deputy Commissioner, Deoghar, whereby the petitioner was directed to remove the alleged encroachment from the public land. For better appreciation the impugned judgment and order dated 28.2.2001 passed by the learned Single Judge reads as under: "28.2.2001 After having heard the learned counsel for the parties and going through the materials on record, this writ application is being disposed of at the time of admission itself. The main prayer of the petitioner is for quashing the order dated 6.1.2000/25.1.2000 passed by the Deputy Commissioner, Deoghar, whereby the petitioner has been directed to remove the encroachment found on the public land. This is the second attempt on behalf of the writ petitioner for redressal of the grievance. The petitioner earlier came before this Court challenging the notice issued in terms of section 196 of the Bihar Municipal Act. The learned Judge while disposing of the writ application directed the respondent authority to measure the land and if, ultimately, it is found that the petitioner has encroached the public land, in that case, opportunity should be given to the petitioner first to remove the same within the time mentioned therein, failing which, the respondent will be at liberty to remove such encroachment. Pursuant thereto, it appears that the land was measured by the respondent authority and, ultimately, it was found that the petitioner has encroached the public land. Accordingly, the impugned order has been passed. It may be mentioned here that in a public interest litigation the High Court has issued a general direction to the District Administration to remove the encroachment from the public land. Pursuant thereto the District Administrations are taking steps fro removal of the encroachment from the public land. Accordingly, in the facts and circumstances of the case, I am not inclined to interfere with the order impugned. In the result, this writ application is dismissed. However, it will be open for the petitioner to file a suit for declaration of his title with respect to the land in question. This disposes of this writ application."
(2.) AGAINST the aforesaid judgment and order, the appellant preferred this appeal which was taken up by a Division Bench of this Court on 19.4.2001. The Division Bench dismissed the appeal in limine and refused to interfere with the order. The petitioner then moved the Supreme Court in Civil Appeal No.7172/2002. The Supreme Court allowed the civil appeal in terms of judgment and order dated 1.4.2009 and set aside the order passed by the Division Bench and remitted the matter back to the Division Bench for disposal in accordance with law. The Supreme Court in its order took notice of the fact that since the Deputy Commissioner, in his order, made observation that if the Municipality was not the owner of the land, it was the railway property. The Supreme Court, while remitting the matter, directed the appellant to implead the railway also as a respondent in the appeal. Pursuant to the aforesaid direction of the Supreme Court, an interlocutory application was filed by the appellant for impleading the railway as a party which was allowed on 3.8.2009. On 9.9.2009 the railway appeared through their counsel and sought time to file counter affidavit. Accordingly the appeal was adjourned for filing counter affidavit. Again the matter was taken up on 14.10.2009 and a prayer was made from the side of railway to allow further time for filing counter affidavit. This court passed the following orders on 14.10.2009: "The appeal was taken up on 3.8.2009 and in the light of the order of the Supreme Court prayer for impleading Union of India, Ministry of Railway was allowed. Since there was specific order of the Supreme Court dated 1.4.2009 to dispose of the appeal within a period of four months, the matter has again been listed to day for hearing and disposal. But since learned counsel appearing for Union of India, Ministry of Railway prays for some time to seek instruction and file counter affidavit to which the counsel for the appellant has no objection, we allow the said prayer and grant four weeks' time, as prayed for, to the Union of India to file counter affidavit. Put up after four weeks."
(3.) THE matter was taken up on 16.11.2009 and 21.12.2009, but no counter affidavit was filed and finally the appeal was listed on 18.1.2010. This court again allowed time to the railway for filing counter affidavit. The order dated 18.1.2010 reads as under: "Although on 14.10.2009, 16.11.2009 and 21.12.2009 at the request of counsel for the Railway, the matter was adjourned for filing counter affidavit but till date no counter affidavit has been filed. We grant, by way of last indulgence, ten days more time to the counsel appearing for the Railway to file counter affidavit, failing which the appeal will be decided in absence of the Railway." ;