Disputed questions of title and possession involved in public land encroachment proceedings are not to be resorted to, and the matter has to be left to the decision of the Civil Court.

1. On 8.1.2010, the writ petition was filed by the petitioners. They alleged that they are in peaceful possession of a piece of land appertaining to Khata No. 112, Plot No. 196, Thana No. 132 at Kishanganj. They are being threatened by the State to be dispossessed. Fearing dispossession in an unlawful manner, they had filed a Title Suit being Title Suit No. 12 of 2009 in the Court of Munsif, Kishanganj asserting their right, title and possession. In respect of the aforesaid lands, a public land encroachment proceeding was initiated against the petitioners for removal of their house from the piece of land allegedly on the ground that that land belongs to the Government and was required for some public project. The notice itself assumed peaceful possession of the petitioners and the house of the petitioners on the land in question. Petitioners filed their show cause stating that the land was settled to them by the ex-landlord who, on abolition of zamindari, filed his returns showing ancestor of petitioners as the raiyat in respect of the said land. State and the authorities were all parties in the suit and had appeared in the suit which was for the same land but even though disputed questions of title were involved, authorities, in anxiety to get the land cleared so that the contractor could carry out his work, heard the matter, passed orders for eviction declaring it to be public land. The said order was passed on the 21st of December, 2009. No copy of the order was served nor was it made available to the petitioners who had statutory right to appeal against the said order within 30 days. Directions were issued on 21.12.2009 for removal of encroachment by 25.12.2009. As noted above, the writ petition was filed on 8th of January, 2010, on 18th of January 2010, the writ petition was taken up and noticing the controversy, this Court ordered that till further orders, further proceedings of any nature in Encroachment Case No. 1 of 2009- 2010 pending before the Circle Officer, Kishanganj shall remain stayed. Petitioners, thereafter, filed LA. No. 722 of 2010 on 27.1.2010 after serving a copy thereof on the learned State Counsel. The matter was then taken up on 11.2.2010. The averments made in the interlocutory application was brought to the notice of the Court which disturbed the Court. This Court on 18.1.2010 had ordered that no further action be taken pursuant to the aforesaid encroachment proceedings. This order was passed in presence of the learned counsel for the State. What is disclosed in the interlocutory application and not denied by the respondents is that on 19th of January, 2010, with police force and Magistrate, the Circle Officer ensured that the house of the petitioners was raised to ground even though the petitioners, their lawyers protested specifically saying that High Court had passed interim orders, certified copy whereof was yet to be obtained. That did not deter the authorities. Right to property, though not specifically a part of fundamental rights being a right under Article 300A of the Constitution was brutally murdered in day light defying orders of this Court.

2. Without going into the question whether such an action of State would be deprivation of petitioners life and liberty in terms of Article 21 of the Constitution, a fundamental right or not, suffice to say that even the respondents accept the fact that the house in question which was there for at least two years from before, on their own showing, was demolished. The orders of this Court having been violated with impunity, this Court took suo motu notice of the facts. One important aspect may also be mentioned here. When the matter was taken up on 11.2.2010, the learned State Counsel fairly stated that he had received instructions in the matter to file counter affidavit and has very fairly even today stated that though those instructions were received by him only recently, there were no mention about demolition of the house and throwing away