Chakradhari Sharan Singh JUDGMENT
Chakradhari Sharan Singh, J.
1. The Circle Officer, Khagaria, exercising his jurisdiction as Collector, within the meaning of the provisions of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as 'the Act'), had initiated a proceeding for removal of encroachment from public land with issuance of a notice dated 17.05.2019 in Encroachment Case No. 1/2019-20, treating the land to be a public land within the meaning of the Act, against the petitioner and several other persons. The petitioner appeared before the Circle Officer in response to the said notice but did not file his response despite opportunity having been given to him. The Circle Officer passed his final order in the encroachment case on 23.06.2019, asking the petitioner to vacate the land.
2. The petitioner, it may be noted, had preferred a writ application before this Court against the order of the Circle Officer dated 23.06.2019, giving rise to C.W.J.C. No. 12791 of 2019, which was subsequently withdrawn with a liberty to the petitioner to prefer statutory appeal.
3. The appeal of the petitioner, registered as Encroachment Appeal No. 2 of 2019, has been dismissed by the Additional Collector, Khagaria, the appellate authority, by an order dated 10.08.2019, which is under challenge in the present writ application filed under Article 226 of the Constitution of India.
4. I have heard Mr. Ashok Kumar Keshari, learned counsel, assisted by Ms. Shilpi Keshari, on behalf of the petitioner, Mr. Krishna Chandra, learned counsel representing the Khagaria Nagar Parishad and Mr. Birendra Prasad Singh, learned A.C. to S.C.-19.
5. I must record, at the outset, that whereas the petitioner has claimed his title over the land in question as private property mainly on the ground of a Hukumnama issued by the erstwhile Jamindar in favour of his ancestors, the respondents have denied such claim of the petitioner and have reiterated their plea that the land in question had always been a public land and the nature of which is recorded in Khatiyan, a Gaddha (ditch). A question has arisen, in that background, as to whether this Court, exercising power of judicial review under Article 226 of the Constitution of India, should enter into and determine the disputed question of title in respect of the land in question.
6. Before I take note of the facts asserted in the writ application and the pleadings made in the counter affidavits filed on behalf of the Nagar Parishad and the State of Bihar, I must record, at this stage, that the petitioner had relied on existence of mutation in his favour in respect of the land in question before the Additional Collector, i.e., the appellate authority. By the impugned order of the appellate authority dated 10.08.2019, exercising the power under Section 9 of the Bihar Land Mutation Act, 2011, the jamabandi created in favour of the petitioner has been ordered to be cancelled and the Circle Officer has been directed to make necessary correction in jamabandi accordingly.
7. The land in question appertains to Khesra No. 174, Mauza Hajipur in the district of Khagaria.
8. It has been vehemently argued on behalf of the petitioner, while assailing the impugned order, that exercising power of the appellate authority under the provisions of the Act, the Additional Collector could not have exercised power under Section 9 of the Bihar Land Mutation Act, 2011, cancelling the jamabandi existing in the name of the petitioner/his ancestors. It has been argu........