The court emphasized that the possession of the petitioners shall not be disturbed unless an order of eviction is passed by a competent civil court following due process of law.

JUDGMENT :

The present writ petition has been filed for quashing the order as contained in Memo No. 228 Nya. dated 22.02.2021 (Annexure-5 to the writ petition) issued by the Sub-Divisional Magistrate, Garhwa (the respondent no.3) whereby the Circle Officer, Bardiha (the respondent no.4) has been deputed as magistrate with direction to get the crops harvested standing over the land appertaining to Khata no. 211/57, plot nos. 443/43 measuring an area of 2.43 acres, plot no. 1716/255 measuring an area of 0.29 acre and plot no. 441/43 measuring an area of 0.22 acre (total 2.94 acres out of 7 acres allegedly declared as the land belonging to “Anabad Jharkhand Sarkar”) of Village- Salga (hereinafter to be referred as “the said land”) and to deposit the sale proceeds in the district treasury by way of challan with further direction to restrain both the parties from going over the said land. Further prayer has been made for quashing the follow up notice dated 24.02.2021 (Annexure-6 to the writ petition) issued by the respondent no.4 whereby the petitioners as well as the respondent no. 5 have been restrained from going over the said land. The petitioners have also prayed for issuance of direction upon the respondents not to interfere with their peaceful possession over the said land.

2. Learned counsel for the petitioners submits that the ancestor of the petitioners namely Dhanpal Mahto reclaimed the land appertaining to aforesaid Khata and plots measuring total area of 07 acres and brought it under cultivation and in the revisional survey operation he was found in possession of the same which would be apparent from the remarks column of the R.S. Record of Rights. It is further submitted that the petitioners have their houses and wells over the part of said land and they have been cultivating the said land on which the wheat crop grown by them is still standing. The private respondent i.e. the respondent no. 5 filed an application on 23.07.2018 in the court of the respondent no. 3 to initiate a proceeding against the petitioners and others under section 144 of the Criminal Procedure Code over 07 acres of the land under Khata No. 57 Plot Nos. 43 and 255 and to demarcate his share of 3.50 acres by making measurement of the same. The said application was registered as Misc. Application No. 200 of 2018, however, no proceeding was initiated, rather vide letter no. 436 dated 15.06.2019, a direction was issued by the respondent no. 3 to the respondent no. 4 for demarcation of the land of the respondent no. 5 and pursuant thereto, the respondent no. 4 submitted a report vide letter no. 40 dated 17.02.2021 stating that demarcation of the disputed land was done by the Anchal Amin on 06.06.2020 wherein it was found that both the parties had unauthorisedly encroached the land of ‘Anabad Jharkhand Sarkar’ measuring area of 2.94 acres and it was requested to take action against the petitioners for growing up crop over the said land in order to avoid possibility of violence between the parties.

3. It is also submitted that the respondent no. 3 has passed the impugned order merely on the application of the private respondent and on the report of the respondent no. 4 without providing any opportunity of hearing to the petitioners. The respondent no. 4 is adamant to get the wheat crop of the petitioners harvested and is also putting pressure upon them to remove their residential houses from the said land which have been standing since long. An administrative authority is not vested with the jurisdiction to pass such an order restraining the petitioners from going over the land on which they have their houses and wells as well as have been in continuous possession for more than 70 years as their ancestors being ‘Debhi raiyat’ of the said village reclaimed the barren ‘Gairmajarua Khas land’. As such, occupancy raiyati right also accrues in favour of the petitioners.

4. It is further submitted that the State Government cannot claim its ownership over the prop