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2017 DIGILAW 1965 (JHR)

Nasimuddin Haidery v. State Of Jharkhand

2017-11-16

RAJESH SHANKAR

body2017
JUDGMENT Rajesh Shankar, J. – The present writ petition has been filed for quashing the notice dated 4th October, 2017 issued under the signature of the Respondent No. 3 in Encroachment Case No. 06 of 2016-17, whereby the petitioner has been directed to remove the purported encroachment over Plot No. 729, Khata No. 205, Mouza Hinoo, Thana Doranda, measuring an area of 13.36 decimals. 2. This Court vide order dated 6th October, 2017 directed the Respondent No. 3 to appear before this Court along with records of Encroachment Case No. 06 of 2016-17, which was initiated against the petitioner. In pursuant of the said direction, the Respondent No. 3-Circle Officer, Argora appeared before this Court on 9th October, 2017 and on that day the respondent no. 3 was directed to remeasure the petitioner''s land vis-a-vis encroached part of the land on 13th October, 2017. 3. However, when the case was taken up on 1st November, 2017, it was informed by learned G.A., appearing on behalf of the State, that re-measurement of the petitioner''s land could not be done on 13th October, 2017 due to obstruction made by the private Amins brought by the petitioner. However, it was submitted by the learned Government Advocate that the land would again be remeasured on 24th October, 2017. 4. A counter affidavit has been filed by the respondent no. 3, stating, inter alia, that on 24th October, 2017 the land was remeasured in presence of the writ petitioner and to that effect a report along with measurement of the land in question was submitted by the Circle Amin, Argora on 25th October, 2017, which has been annexed as Annexure-C to the counter affidavit. 5. Learned counsel for the petitioner submits that the impugned notice dated 4th October, 2017 was issued by the Respondent No. 3 in the nature of final order. Even considering the fact that the land was remeasured in pursuance of the direction of this Court, the petitioner should be given an opportunity to respond/object the report submitted by the Circle Amin before the respondent no. 3 as well as sketch map drawn by the team of Amins so as to enable the petitioner to put forth his case in the land encroachment proceeding. The sketch map drawn by the team of Amins, which has also been signed by the respondent no. 3 as well as sketch map drawn by the team of Amins so as to enable the petitioner to put forth his case in the land encroachment proceeding. The sketch map drawn by the team of Amins, which has also been signed by the respondent no. 3, should not be treated as conclusive evidence so as to cause any prejudice to the petitioner in contesting his case before the respondent no. 3. 6. Having heard learned counsel for the parties and on going through the relevant documents placed on record, I find that in pursuance of the direction of this Court, the land in question was remeasured on 24th October, 2017 by a team of Circle Amins in presence of other Government officials and the petitioner. It also appears that the impugned notice dated 4th October, 2017 (Annexure-4 to the writ petition) has been issued by the Respondent No. 3 in the nature of final order, directing the petitioner to remove encroachment from the premises in question without any factual determination. Otherwise also, since the land has been remeasured in pursuance of the order of this Court and the said measurement is yet to be countered by the petitioner by laying down sufficient evidence, the notice dated 4th October, 2017 in its present form cannot be sustained and, thus, the same is hereby quashed/set aside. The respondent no. 3 shall issue fresh notice forthwith to the petitioner regarding alleged encroachment of government land. The petitioner in turn may file his reply including the objection with regard to the measurement done on 24th October, 2017 along with supporting documents before the Respondent No. 3 by 30th November, 2017. The respondent No. 3 shall look into all the relevant records pertaining to the land in question and pass reasoned and speaking order within a period of eight weeks thereafter, taking into consideration the reply of the petitioner without being prejudiced by the stand taken in the counter affidavit. 7. The writ petition stands disposed of with aforesaid observations and directions.