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2016 DIGILAW 1386 (PAT)

Sheikh Ishrafil v. State of Bihar

2016-10-25

AHSANUDDIN AMANULLAH, HEMANT GUPTA

body2016
JUDGMENT : Hemant Gupta, J. 1. The challenge in the present Letters Patent Appeal is to an order passed by the learned Single Bench on 20th November, 2013 whereby a direction was issued to ensure that the order passed under the Bihar Public Land Encroachment Act (hereinafter referred to as the 'Act') is implemented within a period of two months. The said order dated 29th February, 2008 passed by the Circle Officer in Public Land Encroachment Case No. 16 of 2007-08 under the Act. Learned counsel for the appellants vehemently argued that there is no order which records a finding that the appellants are encroachers and that no order of removal of encroachment has been passed in terms of the provision under the Act. Learned counsel refers to Annexure-B filed by the State by way of a counter affidavit which shows that proceedings under Section 133 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') was initiated but an order has been passed on 29th February, 2008 that the encroachment has not been removed, thereafter proceeding of removal of encroachment be initiated. 2. We have heard learned counsel for the parties and find that there is no order of removal of encroachment in terms of the Act. The proceedings appear to have been initiated under Section 133 of the Code but again there is no categorical order of removal of encroachment. A perusal of order dated 29th February, 2008 shows that encroachment has not been removed and therefore, fresh notice be issued but in the absence of any categorical order of returning a finding that the appellants have encroached upon the public land such as aam rasta, there could not be any direction for removal of encroachment. Even if such an order is passed under Section 133 of the Code, the appellants' would have a right to avail the remedy against such order in accordance with the provision of the Code. 3. Thus, We find that the proceedings have been conducted in a perfunctory manner without giving any categorical finding with regard to encroachment by the appellants. Therefore, we set aside the order passed by the learned Single Bench. The official respondents are directed to initiate proceedings of removal of encroachment in accordance with law and pass a speaking order, after giving an opportunity to the persons likely to be affected by such an order. Therefore, we set aside the order passed by the learned Single Bench. The official respondents are directed to initiate proceedings of removal of encroachment in accordance with law and pass a speaking order, after giving an opportunity to the persons likely to be affected by such an order. The authorities shall try to pass an order expeditiously, preferably within a period of six months from the date of certified copy of the order is received. The present Letters Patent Appeal stands disposed off in the aforementioned terms. Disposed off.