ORDER By the Court - The petitioner has challenged the impugned order (Annexure-10) dated 11.9.1999 passed by the Anchal Adhikari, Dhanbad in B.P.L.E. Case No.9/1998-99, whereby learned Circle Officer has held that the land of Khesra No.432, 433, 471, 472 and 480 measuring a total area of 2.97 acres appertaining to Khata No.28 of village Kharikabad, P.S. Dhanbad is a public land and the same has been encroached upon by the petitioner. The petitioner has been directed to remove the encroachment. The petitioner is also aggrieved by the appellate order passed by the Collector, Dhanbad (Annexure-15) dated 14.3.2000 whereby the petitioner's appeal has been dismissed. 2. According to the petitioner, the land in question is within its boundary wall and is in possession of the petitioner since 1959-60. The plan was approved by the Deputy Commissioner, Dhanbad long back on 3.8.1972 vide letter No. 2020 dated 4.8.1972. The Anchal Adhikari, without taking into consideration the said approval by the Deputy Commissioner and the petitioner's long possession since 1959-60 and without taking any measurement in presence of the petitioner, arbitrarily held that the land was encroached upon by the petitioner. 3. It has been stated that the said land is a part and parcel of the lease land of the petitioner. The Circle Officer arbitrarily recorded his finding declaring that the petitioner has encroached the said land. The petitioner preferred appeal against the said order before the Collector/Deputy Commissioner, Dhanbad which was registered as BPLE Appeal Case No.2/1999. The appellate authority also failed to appreciate the said legal and valid right over the land and the illegality of the proceeding against the petitioner and arbitrarily and summarily dismissed the appeal. 4. Learned counsel appearing on behalf of the petitioner submitted that the Anchal Adhikari as well as the appellate authority did not consider the petitioner's valid claim and continuous possession over the land since 1959-60. They also failed to consider the earlier approval of the plan by the Deputy Commissioner and even without giving the petitioner proper opportunity of adducing evidence and hearing, arbitrarily held and declared that the land is public land and has been encroached upon by the petitioner. Both the impugned orders are wholly arbitrary, illegal and liable to be quashed. 5. Learned J.C. to G.P.II appearing on behalf of the respondents opposed the writ petition. Both the impugned orders are wholly arbitrary, illegal and liable to be quashed. 5. Learned J.C. to G.P.II appearing on behalf of the respondents opposed the writ petition. It has been submitted that land in question is beyond the lease area granted by the then Government of Bihar and has been encroached upon by the petitioner. The petitioner has also admitted that the land in question was not within the lease area and they had applied for extension of the lease to the extent of land in question. The land is in illegal occupation of the petitioner and comes within the definition of encroachment by the petitioner. Learned Anchal Adhikari as well as learned appellate authority have duly considered the said facts and have rightly directed the petitioner to remove encroachment. There is no arbitrariness or illegality in the impugned orders and no interference is warranted with the same. 6. I have heard learned counsel for the parties and considered the facts and materials on record. I also closely perused the impugned orders. The Anchal Adhikari has passed the order rejecting the petitioner's claim of approval of the plan by the Deputy Commissioner. It has been observed that the plan was sanctioned only with respect to the land which was given in lease to the petitioner and the same has no connection with the land in question. The petitioner's claim for long possession has no legal basis. 7. While coming to the said finding the Anchal Adhikari has not given any description as to which land was given in lease, what was the area of the lease and on what basis it is held that the sanctioned plan does not cover the land in question. 8. The grievance of the petitioner is that the land was not measured in their presence and an encroachment by the petitioner has been shown in the map prepared behind the petitioner's back. The map showing encroachment was not prepared by any survey knowing expert and sanctioned plan has not been taken into consideration. 9. On perusal of the order passed in appeal, I find that the appellate authority has also not considered the said facts and grounds taken by the petitioner. He has solely relied upon the order of the Anchal Adhikari which was challenged on several grounds. Learned Collector-cum-Deputy Commissioner has disposed of the appeal cryptically and mechanically without any application of mind. On perusal of the order passed in appeal, I find that the appellate authority has also not considered the said facts and grounds taken by the petitioner. He has solely relied upon the order of the Anchal Adhikari which was challenged on several grounds. Learned Collector-cum-Deputy Commissioner has disposed of the appeal cryptically and mechanically without any application of mind. 10. Bihar Land Encroachment Act provides for thorough enquiry before coming to the conclusion that the land is a public land and the same is encroached upon by somebody else. Before holding any land as a public land and encroachment by any person of any public land, the State has to prima-facie establish that the land is a public land and once any material is brought on record, the burden shift on to the person who asserts that the land is not a public land and there is no encroachment. For the purpose of coming to the said conclusion, Sections 9 and 10 of the said Act provides powers and procedures for recording evidences, holding inspection and production of documents, etc. 11. Section 9 deals with the burden of proof. It runs as follows :- “9. Burden of proof - Where any public land was acquired under the provisions of the Land Acquisition Act, 1894 (1 of 1894), for the purpose of the Government, any local authority, any educational institution or a railway company, or where the land is recorded in any public or other official book, register or record or surveyed under Bengal Survey Act, 1875 (Ben. Act V of 1875), or other local or special law as belonging to the Government, local authority, educational institution or railway company, or where the land is recorded as public land within the meaning of this Act, the burden of proving that the land is not public land or has ceased to be public land shall lie on the person who raises such a defence.” 12. From the above provision, it is clear that the State has to prima-facie discharge its burden by showing that the land is recorded as public land within the meaning of the Act or the land has been acquired under any Act. If the person, against whom the proceeding is initiated, does not accept the position, it is incumbent on the Collector to make an enquiry. 13. If the person, against whom the proceeding is initiated, does not accept the position, it is incumbent on the Collector to make an enquiry. 13. For the purpose of making enquiry power has been given under Section 10 of the said Act, which reads as follows : “10. Power of Collector to summon witnesses, etc. in enquiries under this Act --The Collector shall, for the purposes of enquiries under this Act, have powers to issue commission, to hold local inspection, to summon and enforce the attendance of witnesses and to compel the production of documents as a Civil Court under the Code of Civil Procedure, 1908 (V of 1908).” 14. The said two provisions read together give clear indication that before holding that the other party has encroached upon the public land, it has to be prima-facie shown that the land is recorded as public land in survey record or official book or register or is acquired under the provisions of law for the purpose of Government or any other public purpose. If any such prima-facie proof is on record, burden of proving that land is not public land or ceased to be public land lies on the person who raised such defence. 15. On the basis of the documents and in some cases after holding local inspection and examining the witnesses and considering the documents, the Collector has to record its finding. 16. In the instant case admittedly neither any document was produced to show that land is a public land nor any evidence was adduced to prove that the land in question is a public land. The Anchal Adhikari as well as the Collector have arbitrarily and mechanically passed the impugned order holding land in question a public land encroached upon by the petitioner. 17. The findings recorded by the Anchal Adhikari as well as by the appellate authority, being not in accordance with the said legal provisions, are vitiated and unsustainable in law. 18. In the result, this writ petition is allowed. The order of the Anchal Adhikari (Annexure-10) as well as the order of the appellate authority (Annexure-15) are quashed. The case is remitted to the Anchal Adhikari to proceed with the case and dispose of the same in accordance with law after giving proper opportunity to the petitioner to adduce evidences and hearing.