1. This application has been filed by the petitioner under Articles 226 and 227 of the Constitution of India, praying that the proceedings of L.E.R. Case No. 33 of 1963-64 in the Court of the Deputy Collector In-charge, Land Reforms, Pakur, in the district of Santhal Parganas, which was instituted on a report made by the Subdivisional Officer, P.W. D., Pakur on the 17th February, 1964 (Annexure G) may be quashed. The further prayer is to the effect that two orders passed in that case, on the 6th September, 1966, by the Additional Collector, Santhal Parganas, and on the 30th June, 1967, by the Commissioner of Bhagalpur Division against the petitioner may be quashed and cancelled.
2. The relevant facts are as follows : It is stated in the application that in 1945 the petitioner had purchased a pucca residential house at Pakur, situated on plot No. 1903 along with the land and to the south of this plot of land there is a road bearing plot No. 1865, In the proceeding in question the road has been described as Litipara-Pakur Road. It is stated that in 1957 there was a proceeding under the Bihar Public Land Encroachment Act, 1956 (Bihar Act XV of 1956) on a report filed by the S.D.O.P.W.D., Pakur, alleging that the house in question had extended over a portion of plot No. 1865. The proceeding was numbered as L.E.R. Case No. 45/71 of 1957-58. The case appears to have been that there had [been an encroachment on a road by the house standing on plot no 1903 to the extent of 31 feet X 6 feet. The petitioner had filed a show cause petition dated the 29th October, 1957, contending inter alia that he and his pre-decessors-in-interest were in possession of plot No. 1903 for more than sixty years and the alleged encroachment, if any, had become part of this plot of land by adverse possession to the knowledge of the Government. In due course, measurements were taken of the alleged encroachment and a report was given by the then Kanungo, dated the 16th May, 1958, The substance of this report was that the house standing on plot No. 1903 was an old one and there was an encroachment on plot No. 1865, to the extent of 46 links X 3 links and the encroachment also appeared to be an old one. It appears that the original case was converted into L.E.R. Case No. 49 of 1959-60, in the Court of the Deputy Collector Incharge, Land Reforms, Pakur, and a further report was submitted by the Kanungo dated the 6th February, 1960. The substance of the report was also the same regarding the extent of the alleged encroachment. It appears that there was a joint report later on, dated the 22nd December, 1963, made by the Kanungo and the Circle Inspector in the presence of the P.W. D. Amin and one Bagala Prasad Seal (said to be representing the petitioner) with respect to this alleged encroachment and the substance of this report was to the effect that there was an encroachment on plot No. 1865 to the extent of 3 links in average. It was stated in this report that the house in question was an old one and the extent of the encroachment was negligible and it was suggested that the proceeding may be dropped on condition. The condition appears to be that when the report dated the 6th February, 1960 was given, the petitioner had asked for settlement of the encroached portion through the Public Works Department. The final order in this L.E.R. Case No. 49 of 1959-60 was passed by the Deputy Collector Incharge, Land Reforms Pakur, on the 18th January, 1964. The order stated that perhaps there was some very negligible encroachment on the road. No party had appeared before this officer and in view of the joint measurement report, mentioned above, the proceeding was dropped. It appears that for some reason or other a fresh report was made by the S.D.O., P.W.D., on the 17th February, 1964, to the S.D.O., Pakur in connection with the same alleged encroachment. The report showed that a portion of plot No. 1903 had encroached on plot No. 1865 (road) to the extent of 31 feet X 6 feet. Upon this, a new case was started, numbered as L.E.R. Case No. 33 of 1963-64 in the Court of the Deputy Collector Incharge, Land Reforms, Pakur. The same officer dealt with the matter again on the 14th February, 1966 and he stated as follows:
This proceeding was lingering since a (sic) long because the S.D.O., P.W.D. was filing petitions on every day to file certain papers and documents. Sufficient opportunities were given to the 1st party (S.D.O., P.W. D.) but no papers and documents relating to this case were filed before me.
Considering the records of the earlier case the proceeding was again dropped by the officer. Thereupon an appeal was carried to the Court of the Additional Collector, Dumka, by the State through the S.D.O., P.W.D., Pakur and the Additional Collector passed the first impugned order on the 6th September, 1966 on appeal, holding that the new encroachment report on which the later case had started should be verified by deputing officers of higher responsibility. This order has been affirmed by the second impugned order passed on the 30th June, 1967 by the Commissioner, Bhagalpur Division. He has also agreed that the alleged encroachment should be measured by a competent, senior person for re-consideration of the matter.
3. In the circumstances mentioned above, learned Counsel for the petitioner has contended that the same matter which had been dropped by the Land Reforms Deputy Collector on the 18th January, 1964 has been raked up in this new case numbered as L.E.R. Case No. 33 of 1963-64 and the entire proceeding of the pending case should be quashed on the ground that the same matter cannot be reopened over and over again. Sri Katriar appearing for the respondents has contended that the present case is with respect to a different encroachment and, therefore, the petitioner's case must fail, when all that has happened is that competent officers have ordered fresh measurement by responsible persons. On the materials on record, however, I do not think that the argument of Sri Katriar is valid at all. If a comparison is made of the earliest report given by the S.D.O., P.W.D., Pakur (Annexure A), on which L.E.R. Case No. 45/71 of 1957-58 had proceeded, with the new report dated the 17th February, 1964, given by the S.D. O., P.W.D., Pakur (Annexure G) on which L.E.R. Case No. 33 of 1963-64 has commenced, it will appear that the complaints about the encroachment are identical. Annexure A mentioned that the encroachment was by the owner of plot No. 1903, named Kali Seal on a road, by a pucca house, to the extent of 31 feet X 6 feet, measuring in area 186 square feet. Annexure G also gives identical details by stating that plot No. 1903 has encroached on the road plot No. 1865 to the extent of 31 feet X 6 feet, totalling 186 square feet in area. It appears from the order of the Deputy Collector Incharge, Land Reforms, Pakur, dated the 14th February, 1966 that Kali Ptasad Seal had urged that the same old matter had been re-opened and the Deputy Collector had called for the record of L.E.R. Case No. 49 of 1959-60 and on going through the record, he had come to the conclusion that the same alleged encroachment matter had been re-opened in the second case. In my opinion, the officer was right in his conclusion. With respect to the observations made in Annexure I and J, to the effect that the alleged encroachment may be verified by responsible senior officers, it may be mentioned that in the order dated the 18th January, 1964, passed by the Deputy Collector Incharge. Land Reforms in L.E.R. Case No. 49 of 1959-60, it is stated that the S.D.O., P.W.D., Pakur had been informed to remain present to see how far the joint measurement report made on the 22nd December, 1963 was correct. Therefore, there is no validity in the contention raised by Sri Katriar thatthis Court should not interfere at this stage, when all that has been ordered is fresh measurement by responsible officers. It is clear from the annexures filed by the petitioner, that, the old matter finally concluded on the 18th January, 1964 is being raised again, under a new garb. From the measurement reports, dealt with earlier, it is clear that the first encroachment case was based on the allegation of an encroachment of 31 feet X 6 feet on the road and the fresh report on which L.E.R. Case No. 33 of 1963-64 has been started is with respect to the same allegation of encroachment. When the order passed on the 18th January, 1964 became final, the case of this alleged encroachment must also be taken to have been finally concluded and there was no jurisdiction in the officers concerned to reagitate the matter in L.E.R. Case No. 33 of 1963-64. Therefore, the proceeding pending as L.E.R. Case No. 33 of 1963-64 in the Court of the Deputy Collector Incharge, Land Reforms, Pakur, in the district of Santhai Parganas (S.D.O., P.W.D., Pakur, S.P. v. Kali Prasad Seal of Hiranpur, P.S. Hiranpur) is quashed In the result, the appellate order dated the 6th September, 1966 (Annexure I) and the revisional order dated the 30th June, 1967 (Annexure, J.) are quashed.
4. Learned Counsel for the petitioner has urged that the appeal which was disposed of on the 6th September, 1966 (Annexure I) had been filed beyond the period of limitation envisaged by Section 11(3) of the Bihar Public Land Encroachment Act and, therefore, the appeal was incompetent with the result that the revisional order was also without jurisdiction. It is not necessary to deal with this contention as on the merit of the case I have come to the conclusion that the petitioner is entitled to obtain the reliefs claimed by him.
5. The application is, therefore, allowed; but, under the circumstances, there will be no order for costs of this Court.
Kanhaiyaji, J.
6. I agree.