Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 1187 (JHR)

Amitabh Pankaj v. State of Jharkhand

2017-07-18

APARESH KUMAR SINGH, B.B.MANGALMURTI

body2017
ORDER : Heard counsel for the parties. 2. Petitioner, an Advocate practicing in the Judgeship of Gumla, has preferred this Public Interest Litigation for removal of encroachment caused by the Respondent No. 5 on a public road/land as it causes inconvenience to the general public of the locality. He has also averred that though, he resides in the locality but he has no personal interest, direct or indirect, in the subject matter of Public Interest Litigation. The land over which encroachment is alleged is situate at Khata No. 429, Plot No. 676, Thana No. 59 of Mouza Gumla, having an area of 38 decimal said to be recorded as Gairmajarua Aam Land in the Record of Rights. Petitioner contends that the land has been used as a road by the people of locality which connects important places like Civil Court, S.D.O. Office, D.C. Office within the locality. 3. Earlier, vide order dated 02.02.2017, notices were issued upon the Respondent State Officials as well as Respondent No. 5. State has appeared and filed a counter affidavit and thereafter a supplementary counter affidavit on 14.07.2017. The stand of the State, as contained in the counter affidavit, is to the effect that the public road has not been encroached and is being used by the public without any disturbance over an area of 0.10 ¼ acre out of total area of 0.38 acre. In reply to the averments made at para-7 of the writ petition, it is stated that the Respondent No. 5 has constructed a building over 0.20 acre of Gairmajarua land. It has been further stated that a pipeline has been installed just behind the building of Respondent No. 5. Further, a drain is existing on the other side of road from the building of Respondent No. 5 on the side of west and south. It is also their contention at para-19 that except the petitioner, nobody else has filed any objection. The Circle Officer, Gumla has issued a show-cause notice on Respondent No. 5 on complaints filed by the petitioner. In response to the statements made at para-16 of the writ petition, it is stated that the land has not been settled to the Respondent No. 5 as it is a Gairmajarua Aam Land. The Circle Officer, Gumla has issued a show-cause notice on Respondent No. 5 on complaints filed by the petitioner. In response to the statements made at para-16 of the writ petition, it is stated that the land has not been settled to the Respondent No. 5 as it is a Gairmajarua Aam Land. Since the instant affidavit was not supported by any enclosures including the show-cause notice, indicating the nature of proceedings initiated, Respondent State were asked to file a comprehensive stand. Thereafter, a supplementary counter affidavit was filed wherein it has been stated that a Demarcation Case No. 33/2015 was initiated by the Circle Officer, Gumla in which Respondent No. 5 was noticed. In view of pendency of this PIL, he had stayed the proceedings on 29.01.2016 till further orders of this Court. Petitioner is fully aware of the Demarcation proceedings pending before the Circle Officer, Gumla since 2015. Notice and order sheet of Demarcation Case No. 33/2015 is also enclosed. 4. Learned counsel for the State submits that the procedure, as established by law, should be followed by the competent authority in case, any encroachment is found on the public land by anyone. 5. Learned counsel for the Respondent No. 5 submits that the instant petition is motivated and is not in the nature of Public Interest Litigation. Petitioner has also some nexus with the instant issue. Therefore, the writ petition should not be entertained at first instance. 6. We have noticed the pleadings on record above. The stand of the Respondent State indicates that the proceeding is underway for demarcation in the background facts as contained in their first counter affidavit. Section 3 of Jharkhand Public Land Encroachment Act, 1956, which relates to initiation of the proceedings for removal of encroachment on public land, reads as under: “3. We have noticed the pleadings on record above. The stand of the Respondent State indicates that the proceeding is underway for demarcation in the background facts as contained in their first counter affidavit. Section 3 of Jharkhand Public Land Encroachment Act, 1956, which relates to initiation of the proceedings for removal of encroachment on public land, reads as under: “3. [Initiation of the proceedings.- (1) If it appears to the Collector from an application made by any person or upon information received from any sources that any person has made or is responsible for the continuance of any encroachment upon any public land, the Collector may cause to be served upon such person a notice in the prescribed form requiring him to appear on a date which shall not be less than two weeks from the date of service of notice to show-cause:- (a) Why he should not be restrained from making such encroachment by issue of injunctions; or (b) Why such encroachment should not be removed. (2) Under clause (a) of sub-section (1) the Collector shall have power to issue temporary injunction at any stage to restrain such encroachment till the disposal of the proceeding or till further orders or he may pass such orders as he deems proper for preventing such encroachment. Provided that where the encroachment on public land is in the nature of exposure of articles for sale, or opening temporary booth for vending, the Collector may without the formality of issuing a notice as required under sub-section (1) order for its immediate removal or cause it to be removed immediately and for the purpose he may use such force as is necessary in the case. Provided further that where the encroachment on public land is of such a nature as the Collector considers its immediate removal for the safety of general public or for the safety of any other structure on the public land and the notice cannot be served without unnecessary delay upon the person responsible for the encroachment or his representative owing to his absence or for any other reason, he may order the removal of encroachment or if necessary cause it to be removed immediately and may use such force for the purpose as is necessary. (3) If the person who has made or is responsible for the continuance of the encroachment is not known or cannot be found, the Collector may cause notice to be affixed in the neighbourhood of the alleged encroachment requiring any person interested in the same to show cause by the date specified in the notice why the encroachment should not be removed and it shall not be necessary to name any person in such notice.]” In terms of statutory provisions, Collector designated under the Act of 1956 is required to satisfy himself on an application made by any person or upon information received from any sources that encroachment on public land has been made by a person, whereupon he may caused to be served notice in the prescribed form upon such person asking him to explain as to why he be not restrained from making such encroachment or as to why such encroachment should not be removed. The provisions of Section 3 and other provisions thereafter prescribe the procedure to be followed by the Collector for removal of any such encroachment. 7. On the basis of facts on record, and the stand of the Respondent State, it is evident that the Collector has to take steps under the provisions of the Act of 1956 on being satisfied on any such encroachment made by any person, whether be it Respondent No. 5 or anyone else. We refrain from observing anything further on the merits of the case, as determination of the encroachment, if any made on public land, is to be arrived at after observing procedure established by law and after due notice to the affected parties. Having taken note of the stand of the Respondent State, we therefore do not attach much significance to the presence of the present petitioner, so far as initiation of this Public Interest Litigation is concerned. If the authority/Collector under the Act of 1956 is satisfied on the basis of any such information/inquiry made, he is obliged to follow the process of law. The demarcation case is reportedly pending with notice to the Respondent No. 5 also. Such proceedings should be concluded without any delay. However, the Collector under the Act of 1956 on objective satisfaction from the relevant record and facts, is obliged to proceed thereafter, in accordance with law, so far as removal of any encroachment on a public land is concerned. 8. Such proceedings should be concluded without any delay. However, the Collector under the Act of 1956 on objective satisfaction from the relevant record and facts, is obliged to proceed thereafter, in accordance with law, so far as removal of any encroachment on a public land is concerned. 8. The instant Public Interest Litigation is disposed of with the aforesaid observations. Needless to say, in any such proceedings, the person affected/Respondent No. 5 shall be given opportunity, as prescribed by law, to defend himself.