- (1.) HEARD the counsel for the parties. Petitioners in both the cases have preferred the writ petitions seeking quashing of the order dated 7.9.2006 in Public Land Encroachment Case No. 2/06 -07 & 3/06 -07 respectively, which are said to have been initiated pursuant to the order dated 16.7.2006 passed in W.P. (PIL). No. 2309 of 2005.
(2.) IT is submitted on behalf of the petitioners that they are the person out of the 14 persons upon whom notices were issued in the said Public Land Encroachment cases but by the order dated 7.9.2006 the Circle Officer recorded that issues involved in the instant cases are to be governed in terms of the order to be passed in an appeal before the Deputy Commissioner, Godda in R.M.A. Case No. 2/06 -07. It is contended on behalf of the petitioners that R.M.A. Case No. 2/06 -07 was preferred by the other two persons Puran Sah and Sushil Sah against the order dated 7.6.2006 passed in the said Encroachment Cases. However, the case of the present petitioners along with 10 others were segregated and in respect of these 12 persons an order dated 7.9.2006 was passed without proceeding to take any coercive action against the said persons, while observing in the said order that the persons named therein including the present petitioners are shown to be residing for the last 25 -30 years by constructing pucca houses with boundary wall on the land in question. It was also observed in the said order that order passed by the High Court in other cases were also adduced on behalf of the parties. However, the Circle Officer has observed that the fate of the instant case would be governed by what is to be decided by the Deputy Commissioner in R.M.A. Case No. 2/06 -07. Counsel for the petitioners, therefore, submits that the original authority did not have reason to proceed against the petitioner, but the Deputy Commissioner, in a separate appeal not preferred by these petitioners but by 2 other persons against another order dated 7.6.2006 in R.M.A. Case No. 2/06 -07 has proceeded to hold that the inquiry report in respect of the alleged encroachment is correct and encroachment were required to be removed in pursuance, thereof. It is submitted that as a result both the petitioners were not party in the said appeal before the Deputy Commissioner and no final order was passed by the Circle Officer for removal of their alleged encroachment, though they have been treated to be bound by the order passed by the Deputy Commissioner dated 19.9.2006 where they never got an opportunity to defend themselves. It is further been pointed out that contempt proceeding were being pursued for alleged disobedience of the order passed in W.P. (PIL) No. 2093 of 2005 being Cont.(Civil) No. 230 of 2007 in which show cause was filed on behalf of the opposite party - Deputy Commissioner on 7.12.2007. In para 8 of the said show cause it has been stated that the encroachment proceeding were initiated against 14 persons for alleged encroachment of old drain and in R.M.A. Case No. 2/06 -07 the said persons have been declared as encroachers. However, in para 9 and 10 it has been stated that on personal spot inspection the answering opposite party - Deputy Commissioner found that the disputed land is recorded as "Danr" in the last survey "Gantzers", but physically there is no such"Danr" existing at the said place. No inlet and /or outlet at such drain are found existing. It is further stated that large number of old pucca houses are found standing over this area including plot no.8 and on verbal inquiry local people submitted that there was no drain in the said place but there was only temporary channel constructed for irrigation purpose of the bagicha of Banalee Estate existing at that time. However erroneously the said temporary channel was recorded as 'Danr' in the survey record.
(3.) COUNSEL for the petitioner further submitted that the land in question which is being referred to in the said para of the show cause is the same plot of land where petitioners are residing over the said plot no. 8 for more than 3 decades by now. It is further submitted that plot no.6 and 7 are contiguous to plot no. 8, which have been declared as rayati land in view of the decision of the Patna High Court reported in 1969 PLJR 373 in C.W.J.C. No. 738 of 1967. In that view of the matter, counsel for the petitioners submitted that though the petitioners are residing there in their houses constructed over the plot no. 8 in question and have not been threatened for any coercive action till date but the order passed in R.M.A. Case no. 2/06 -07 still stand on the face of it against the petitioners though they were never parties in the said appeal and never allowed to defend in the findings of the said appeal.;