Disputed questions of fact regarding land status cannot be adjudicated in writ petitions under Article 226 of the Constitution.

CAV JUDGMENT

Date: 17-01-2025

 The present writ petition has been filed for setting aside the order dated 16.01.2013, passed by the Circle Officer, Jagdishpur, i.e. the respondent no.5 in Encroachment Case No.6 of 2012-13, as also for setting aside the order dated 30.08.2019, passed by the Additional Collector, Bhagalpur, i.e. the respondent no.3 in Encroachment Appeal Case No.5 of 2018-19, whereby and whereunder the appeal filed by the petitioner against the aforesaid order dated 16.01.2013 has been rejected.

The petitioner has also prayed for quashing of the order dated 20.10.2021, passed by the learned Divisional Commissioner, Bhagalpur, i.e. the respondent no.2 in Misc. Encroachment Appeal Case No.64 of 2020-21 whereby and whereunder the appeal filed against the order dated 30.08.2019 has been dismissed as not maintainable.

2. The brief facts of the case, according to the petitioner, are that the petitioner purchased a piece of land from one Smt. Madhulika Singh, about 36 years back, adjacent to the land in dispute and constructed a residential house where he is residing along with his family members. The details mentioned in the sale deed shows that there is 10 feet Rasta for the common use of the petitioner and other people. In the west side of the house of the petitioner, there is passage/Rasta, which connects the Main Pucca Road. The door, window and ventilation of the house of the Petitioner opens towards west side/passage. In the North Side, there is main gate of the petitioner's house, which is being used by him. The passage/ rasta is being used not only by the petitioner but also by other persons, as such the same is known as common Rasta. It is further stated that Smt. Madhulika Singh W/o Rajshekhar Singh had purchased a piece of land situated on the western side of the House of the petitioner, leaving 10 feet wide passage in the Southern side of her boundary, which is adjacent to the western gate of the petitioner. Later on, the said Smt. Madhulika Singh sold 92 Sqft. land to the petitioner on 04.7.2002 through a registered Sale deed, in which 10 feet wide passage has been shown in between the land of Smt. Madhulika Singh and the western boundary of the petitioner. The respondent no.6, namely, Dr. Ajay Kumar Singh had also purchased a piece of land from Smt. Madhulika Singh, whereafter, he has closed the said 10 feet wide passage with a view to restrain the petitioner and others from using the same.

3. The petitioner, in view of the aforesaid facts and circumstances of the case, had represented before the respondent-authorities for removal of encroachment from the said common passage/Rasta and ultimately he had filed a Misc. Case No.892 of 2006, before the Sub-Divisional Magistrate, Sadar, Bhagalpur wherein the Circle Officer, Jagdishpur had submitted a report dated 24.06.2006, mentioning about existence of Rasta/passage, however, the said case remained undecided, leading to the petitioner filing a writ petition, bearing CWJC No.19262 of 2011, for directing the respondents, especially the SDO, Sadar, Bhagalpur to dispose of the aforesaid Misc. Case No.892 of 2006. A co-ordinate Bench of this Court by an order dated 09.04.2012 had disposed off the aforesaid writ petition bearing CWJC No.19262 of 2011, with a direction to the Circle Officer to make a spot inquiry, conduct measurement in presence of the parties and in case any encroachment is found on the public road, notices be issued to all concerned and the matter be disposed off, within a period of four months. Thereafter, the Circle Officer, Jagdishpur had passed an order dated 16.01.2013, in connection with Encroachment Case No.06 of 2012-13, holding that the land in dispute is a raiyati land, thus the proceedings under the provisions of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the ‘Act, 1956’) are not maintainable, hence he had dropped the proceedings. The said order dt. 16.01.2013 was then challenged by the petitioner, by filing an