R.K. Merathia, J.

1. Heard the parties.

2. The petitioners have prayed for quashing the order dated 13.04.1993 passed by the Deputy Commissioner, Sahibganj in R.M.A. Case No. 32 of 1991-92 as well as the order dated 02.08.1991, passed by the Deputy Collector, Land Reforms Sahibganj in R.E. Case No. 20 of 1988-89/7 of 1988-89 directing them to remove the encroachment over the land in question.

3. Petitioners case is that their ancestral house was constructed on Plot No. 1067 for more than 65 years and the same is recorded in the Survey Record of 1935. This encroachment case has been initiated by the respondent No. 4, who is the neighbour due to jealousy. A blind road measuring 70 fts. in length and 810" in width exists adjacent to the petitioners house on plot No. 1068, which is being used only by the petitioners and the respondent No. 4. The chhajja (projected balcony), the septic tank and the water pipes underground the road do not cause any obstruction to the public. Erection of chhajja (projection) is no encroachment in the eye of law. The construction of septic tank was never objected by any authority.

Petitioners were not given opportunity of hearing by the L.R.D.C.; he passed an ex parte order by antedating; their case was not properly considered by the Deputy Commissioner. The dispute over the land in question being a bona fide land dispute, cannot be decided under the Bihar Public Land Encroachment Act, 1956 as has been held in the case of Smt. Rekha Singh v. The State of Bihar 1992 (2) PLJR 854; the learned Land Reforms Deputy Collector relied on the Amins Report, which was filed by the respondent No. 4.

4. Mrs. Sen Chaudhary, learned S.C. III appearing for the respondent No. 1, 2 and 3 submitted that it is the admitted position by the petitioners that they encroached upon the public land. Petitioner No. 1 himself filed an application before the Sub-Divisional Officer, Rajmahal, District-Sahibganj, in the year 1960 saying that the said plot No. 1068 is public road which had been encroached by the respondent No. 4. Encroachment was found and it was upheld up the Revisional Authorities. Plot No. 1068 is a public road and is being used by the public of the locality and encroachment is causing difficulties. She further submitted that petitioners never objected to the filing of the reports of the Amin by the respondent No. 4 before the Land Reforms Deputy Collector. Moreover, the correctness of the said Report was never questioned by the petitioners either before the Land Reforms Deputy Collector or before the Deputy Commissioner.

5. Mr. Birendra Kumar Assisting Mr. Shivnath, learned Counsel appearing for the respondent No. 4 adopted the submissions of Mrs. Chaudhary and submitted that petitioner No. 1 himself admitted in his deposition made in Criminal Case No. 460 of 1962 that a plot No. 1068 is a Road and if the same is encroached, the public shall be put in difficulties as the said road has gone up to Bararwa Hatia, which is most important place of Bararwa. Mr. Birendra Kumar further submitted that a notice was given to the petitioner and the respondent No. 4 by the Circle Officer. An enquiry was made and joint measurement was done in which encroachment on public land was found. He further submitted that as per the report of the Anchal Amin on the northern side of the said road, the house of the respondent No. 4 is situated over plot No. 1064 and on the southern side of the said road, petitioners house is situated on plot No. 1068 which is confirmed by the extract copy of Parcha in respect to plot No. 1067 filed by the petitioners (Annexure-3), in which on the northern side of plot No. 1067, Rasta in question is shown. He further submitted that the encroachment having been admitted, petitioners have not been prejudiced if the report of the Anchal Amin was filed by the respondent No. 4 before the Land Reforms Deputy Collector.

6. The Land Reforms Deputy Collector found that the petitioners have encroached upon the land