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2001 DIGILAW 1061 (PAT)

Surya Narayan Yadav v. State Of Bihar

2001-11-27

R.S.GARG

body2001
Judgment R.S.Garg, J. 1. The petitioner apprehending his dispossession and demolition in execution of the order passed by the Circle Officer, Andhrathari, has come to this Court making a complaint that the order passed by the Circle Officer is illegal as no reasonable opportunity of being heard has been given to the petitioner and that the authority concerned has been acting contrary to the earlier directions of this Court, In support of the submission the learned Counsel for the petitioner has relied upon as Judgment of this Court in the matter of Bechan Mandal V/s. State of Bihar and Ors. (C.W.J.C. No. 2997 of 1999) decided on 27-8-1999), to contend that the directions issued in the matter of Arun Mukherjee are not of universal application are to be read in reference to the context in which those have been made. He submits that two neighbours of the present petitioner had come to this Court and this Court directed the authorities not to take any action against the said petitioners contrary to law and further required the authorities to hold some enquiry or issue some directions in accordance with the law. 2. The respondents in their counter-affidavit submit that the petitioners contention that no hearing was afforded to the petitioner, no notice was issued and no enquiry was made by the Circle Officer, was wrong, placing reliance upon Annexure-D to the counter-affidavit it is contended that the petitioner was issued a notice, his reply was detained and after hearing the petitioner the Circle Officer concerned has recorded the finding that the petitioner made certain encroachment on the public land by stacking old articles which were creating disturbance in the free flow of traffic and was likely to create the same in future also. He submits that the petitioner is not entitled to raise all these questions of fact in proceeding under Art. 226 of the Constitution of India. 3. I have heard the parties at length and have perused the records. 4. From perusal of Annexure-D to the counter-affidavit, it would clearly appear that a show-cause notice was issued to the petitioner requiring him to satisfy the authority that the land in his possession was his personal land or he had some title over it. 3. I have heard the parties at length and have perused the records. 4. From perusal of Annexure-D to the counter-affidavit, it would clearly appear that a show-cause notice was issued to the petitioner requiring him to satisfy the authority that the land in his possession was his personal land or he had some title over it. The Circle Officer ultimately found that though he petitioner was ascertaining that he was the owner of the property but the petitioner had no supporting documents in his favour. From this order, it clearly appears that proper opportunity of hearing was given to the petitioner and on availability of certain facts the authority concerned had recorded a finding against the interest of the petitioner. 5. So far as the Judgment in the matter of Bechan Mandal is concerned, the same would have no application to the facts in this application. From perusal of the said Judgment it would appear that certain public authority being armed with the order passed in the matter of Arun Kumar Mukherjee started demolition, therefore, the High Court required the authorities to properly appreciate the effect and impact/directions made in the matter of Arun Mukherjee. The High Court observed that it was imperative on the part of the authorities to take some necessary steps before the execution and the authority could not forcibly demolish the structure alleging that it was causing obstruction in the free flow of traffic. In the present matter, the Circle Officer concerned has recorded a finding. Whether the said finding is correct or not and whether the petitioner is the owner of the property or not cannot be decided in these proceedings because the petitioner is free to challenge the said order passed by the said authority either in a duly constituted appeal u/s. 11 of the Bihar Public Land Encroachment Act, 1956 or by filing a review u/s. 13 of the said Act. At this stage, it would not be possible for this Court to hold that the title projected by the petitioner is absolute in his favour or that the order passed by the authorities is incorrect. So long the petitioner has a right to file an appeal u/s. 11 of the said Act, it would not be a proper for this Court to interfere in this matter. So long the petitioner has a right to file an appeal u/s. 11 of the said Act, it would not be a proper for this Court to interfere in this matter. The limitation for filing appeal under Sec. 11 is 60 days but as the petitioner has come to this Court, it appears that he did not propose to file appeal u/s. 11. I propose to dispose of this petition with an opportunity in favour of the petitioner that he may file appeal before the authority concerned within 30 days from today. If an appeal is filed, to the Collector of the District, within 30 days from today in accordance with sec. 11 of the Act, nobody shall be permitted to raise the question of limitation and the appellate authority concerned shall be obliged to dispose of the appeal oh merit. The petitioner shall be free to raise all questions before the appellate authority, who shall be obliged to hear and decide the matter in accordance with law. 6. The petition is disposed of with the aforesaid observation.