Mohit Kumar Shah, J. – The present writ petition has been filed for quashing a part of the order dated 24.02.2018, passed in Case No.59 of 2016, by the Municipal Commissioner, Nagar Nigam Begusarai, i.e. the respondent no.2 herein, whereby and whereunder the respondent-authorities have directed the petitioner to remove 18 feet of encroachment made over government tubewell.

2. The brief facts of the case, according to the petitioner, are that the grandfather of the petitioner, namely, Ram Gulam Sahu along with his brother Gandhari Sahu had purchased 11 katha, 8 dhur of land by a registered sale deed dated 03.02.1953 from Baijnath Jha, appertaining to Khata No.353, Khesra No.102, Thana No.342, Tauzi No.766, situated at Mauza-Mirjapur Bandwar, Anchal Begusarai, District-Begusarai. The aforesaid land had fallen in the share of the father of the petitioner, whereafter the father of the petitioner had become exclusive owner thereof. Subsequently, a portion of the land to the extent of 5 katha, 16 dhur, 5 dhurki was sold by the father of the petitioner in the year 2000 by a registered sale deed, however, the land admeasuring 5 katha, 11 dhur, 5 dhurki was retained by the family. It appears that on account of complaint filed by the private respondent before the Municipal Commissioner, Nagar Nigam, Begusarai, alleging therein that the petitioner is constructing a boundary wall on the land of Nala, which belongs to the irrigation department, the respondent no.2 had directed for a spot inquiry, whereafter a notice dated 02.11.2015 was issued by the respondent no.2 to the petitioner regarding illegal construction being made by him on the land of the tubewell without approval of the respondent-authorities, as also directed the petitioner to stop construction and appear before the respondent no.2 on 06.11.2015 along with relevant documents, whereupon the petitioner had appeared before the respondent no. 2 on 06.11.2015 and had submitted a detailed reply stating therein that he had not encroached on any Government land and only to protect his land, he was erecting a boundary wall for which no permission is required. Thereafter, the respondent no.2 had issued a letter dated 18.02.2017, directing the Amin to measure the land in question. The petitioner had then produced the sale deed/title deed and other relevant documents before the Amin, who had arrived at the spot on 28.02.2017, and then the Amin had demarcated 18 feet land of Nala, However, subsequently, the measurement report and consent letter were prepared behind the back of the petitioner regarding encroachment made by the petitioner.

3. The further case of the petitioner is that he had filed his written statement on 05.03.2018 in the aforesaid Case No.59 of 2015, whereafter the respondent no.2 has passed the impugned order dated 24.02.2018, directing the parties to vacate the encroachment made over 18 feet Nala and not to make any construction without approval of the Nagar Nigam, Begusarai.

4. The learned counsel for the petitioner has submitted that the Nala in question belongs to the irrigation department and in case the respondent-authorities so decide to remove unauthorised occupation made over public land, the only recourse is to initiate appropriate proceedings under the provisions of the Bihar Public Land Encroachment Act, 1956, hence the respondent no.2 has transgressed his jurisdiction and illegally passed the impugned order dated 24.02.2018 directing the petitioner to remove encroachment from the Nala in question. The learned counsel for the petitioner has further submitted that the Amin has circumspectly recorded consent of the parties to the effect that Nala is 18 feet and is situated on government land and starts from the ridge of the private respondent without ascertaining the location of the ridge of the private respondent, with reference to the sale deed in question, inasmuch as the sale deed of the private respondent shows that he had only purchased only 5 katha 11 dhur