- (1.) IN the instant writ petition the petitioner prays for issuance of an appropriate writ for quashing the entire proceeding of B.P.L.E. Case No.02 of 2006 including notice No.3234 dated 08.08.2007 issued from the office of the respondent No.2 to the petitioner restraining him from doing any kind of construction over plot No.370, area 0.52 decimal of Mouza Kamaldih, P.S.Case District Bokaro and the petitioner also prays for issuance of any other appropriate writ, order or direction for which the petitioner be found entitled to.
(2.) THE facts, in brief, are set out as under: - The petitioner purchased plot No.370, area 0.52 decimal of mouza Kamaldih Chas Bokaro from Khatani Raiyat in his wifes name Sunita Devi and after the purchase he is in peaceful possession of the same without any interruption from any corner including from the side of the respondents and he is also paying rent to the State after mutation and thereafter he made construction on the plot. In exercise of the power conferred under Section 29 of the Indian Forest Act the Governor issued a notification on 9.7.1958 declaring the lands mentioned in schedule as protected forest. It was subject to the enquiry with regard to the nature and extent of rights of the Government and private parties. Accordingly a Forest Settlement Officer was appointed vide notification dated 9.7.1958 to enquire and decide the right, title and interest of the parties. The land acquisition case No.4 -3/60 -61 was initiated on 2.8.1963 before the Land Acquisition Officer, Dhanbad in respect of plot No.370, 337/335/20 and 24 area 60 -26 and the same was finally dropped. The Forest Settlement Officer, Dhanbad after making enquiry released the land of plot in question i.e. plot No.370, Khata No.48 Mouza Kamaldih, Chas, Bokaro vide order dated 28.11.1964 in Settlement Case No.55/63 -64 after hearing the parties. It was also held that unless the State of Bihar acquires any portion of the land under the Land Acquisition Act, the said land cannot form part of protected forest. In the order sheet dated 30.8.1964 after perusal of the document it was held that the land in question was raiyati land and the petitioners had raiyati rights and the same was accordingly released and a direction was issued to correct the map and pillars. The notification based upon which this proceeding was initiated against the petitioner, has already been declared ineffective by the Commissioner, Hazaribagh in C.N.T. Appeal filed by one similarly situated persons namely Navchetan Sahkari Grih Nirman Samittee and also by the Charge Officer, Dhanbad in Remand Case No.16523 of 1992. The petitioner has further vide supplementary affidavit stated that during pendency of this writ petition the respondent No.2 has passed an order on 28.03.2008 holding that the land purchased is a Government land and he, respondent No.2, has snatched the right, title, interest and possession of the petitioner over plot No.370 of Khata No.98, Kamaldih Chas Bokaro. He has further directed the petitioner to remove the encroachment within a period of fifteen days otherwise encroachment will be removed and cost, compensation will be recovered from the petitioner and the copy of order was served on 01.07.2008, upon the petitioner. The petitioner has also sought amendment of prayer accordingly challenging the same. The main contention raised by the petitioner is that respondent No.2 has no jurisdiction to initiate the proceeding under the Bihar Public Land Encroachment Act and the power is only vested in the State i.e. Special Divisional Officer and even the earlier proceeding under the B.P.L.E. Case No.13 of 1984 initiated against the vendor of the petitioner was directed by S.D.O. to be dropped on 9.10.1984 and an appeal was preferred challenging the order dated 9.10.1984 vide M.R.A. No.46 of 1984 and the said appeal was dismissed on 11.9.1985 by the Additional Collector, Dhanbad and the D.F.O. has now filed the second appeal which is pending. It has also been contended by the learned counsel for the petitioner that once plot No.370 has already been declared raiyati land and was released from acquisition in the year 1964 itself by the Forest Settlement Officer, Dhanbad and the land acquisition proceeding having been dropped then the respondent No.2 has neither any power nor authority or jurisdiction to initiate a second land proceeding under the Bihar Public Land Encroachment Act upon a raiyati land. It has also referred and relied upon a judgment of the Division Bench passed by this Court in L.P.A. No.528 of 2003 dated 15th December, 2008 which is on similar footing and at paragraph 4 it has been held as under: - "At this stage we find no justification as to how the State authorities can be permitted to issue a show cause notice to the appellants when the matter is subjudice before the High Court in Second Appeal in regard to the title, nature and character of the land, which is alleged to have been encroached by the appellants. We see no reason as to why the appellants should have been directed to appear before the Collector -cum -Divisional Forest Officer, Dhanbad Forest Division for which a show cause notice has been issued to the appellants as that would amount to allowing a parallel proceeding of eviction of the land, in question. 
(3.) THE respondents in their counter affidavit themselves at para 9 have admitted that the Forest Settlement Officer was appointed by the Government to enquire into and determine the existence nature and extent of any right. It has also admitted as under: "It is only the competent Civil Court to decide the right, title and interest of the parties.  ;