Birendra Prasad Singh vs The State Of Bihar
2021 Latest Caselaw 936 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.12161 of 2019
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Birendra Prasad Singh, Son of Late Yogendra Pd. Singh, Resident of Mohalla- Bangali Tola, Ward No. 25, At, P.O. and P.S.- Samastipur, District- Samastipur.

... ... Petitioner/s Versus

1. The State of Bihar through Chief Secretary, Govt. of Bihar, Deptt. of Revenue.

2. Deputy Development Commissioner-cum- Chief Executive Officer Zila Parisad, Samastipur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Narayan Singh, Sr. Advocate Mr.Subodh Kumar, Advocate For the State : Mr.Rishi Raj Sinha (SC19) Mr. Saurabh Kumar, AC to SC-19 For the Zila Parishad : Mr. Sanjeev Kumar Singh, Advocate Mr. Pramod Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL JUDGMENT Date : 18-02-2021 Heard learned counsel for the petitioner, learned

counsel for the State and learned counsel appearing for the Zila

Parishad, Samastipur.

In the present case, the petitioner is challenging the

Notice bearing Memo No. 432 dated 26.02.2019 issued by D.D.C.-

cum-Chief Executive Officer, Zila Parishad, Samastipur by which

the petitioner has been directed to vacate the encroached land, but

from the records, it appears that this letter was not acted upon by

the D.D.C., but the D.D.C. has addressed a letter dated 15.06.2019

to the Circle Officer, Jitwarpur, Samastipur wherein a request was

made that the encroachment of land of Zila Parishad should be

removed, whereupon, encroachment proceeding was initiated in Patna High Court CWJC No.12161 of 2019 dt.18-02-2021

which notice was given to the petitioner, but the petitioner has not

participated in the proceeding and finally, the order dated

11.02.2020 for removal of encroachment has been passed.

In the present case, the petitioner is not challenging the

order of initiation of encroachment proceeding passed by the

Circle Officer, but he is challenging the notice issued by the DDC-

cum-Chief Executive Officer, Zila Parishad, Samastipur which

was never acted upon, but on his request a separate proceeding

was initiated.

Counsel for the petitioner has placed reliance on the

order of permanent injunction passed in T.S. No. 85 of 1976 by the

Munsif 2nd, Smastipur wherein the subject matter of consideration

was Khesra No. 231 measuring 1 katha 13 dhurs appertaining to

Khata No. 55, which was Gairmazaura land of Tauzi No. 929 C

and one Ram Dayal Sah was one of the co-sharer in the said Tauzi.

From the records, it appears that the impugned action,

which should have been challenged in the present proceeding, has

not been challenged in the writ application, rather a notice issued

by the D.D.C.-cum-Chief Executive Officer, Zila Parishad,

Samastipur has been challenged, which was never acted upon and

that too it also appears that the petitioner after receiving the notice

failed to participate in the encroachment proceeding initiated by Patna High Court CWJC No.12161 of 2019 dt.18-02-2021

the Circle Officer and finally, it appears from the order dated

11.02.2020 that all the encroachments have been removed.

Counsel for the petitioner has placed reliance on the

judgment reported in 2011 PLJR (4) 504, which is quite different

from the facts of the present case and does not apply in the present

case and he can only claim his right over the property, which has

been declared by the civil court in T.S. No. 85 of 1976.

During conversation with the counsel for the

respondents, he has submitted that they have not removed the

petitioner from the land, which has been declared to exclusive

right by an ex-parte order dated 11.02.2020, as the same was not

challenged in any court of law, it has remained in force till today.

However, the petitioner, if so aggrieved, may challenge the order

of Circle Officer before the appellate forum or he may file a suit

for declaring of title and recovery of possession as per the law.

With the aforesaid observations and directions, this writ

application is dismissed.

(Shivaji Pandey, J) V.K.Pandey/-

AFR/NAFR                N.A.F.R.
CAV DATE                N.A.
Uploading Date          20.02.2021
Transmission Date       N.A.