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2018 DIGILAW 1405 (JHR)

Nirmal Kumar Kanjilal v. State of Jharkhand

2018-07-03

RAJESH SHANKAR

body2018
ORDER : 1. The present writ petition has been filed for quashing the notice, contained in memo No. 345 dated 24th March, 2018 (Annexure-2 to the writ petition), issued under the signature of the Circle Officer, Nirsa (respondent no. 4), whereby the petitioner was directed to appear on 7th April, 2018 at 11:00 a.m. along with all original revenue documents with respect to the land pertaining to Khata No. 62, Plot No. 235, area 0.0253 acres, Mauja No. 64, Mauja Brindabanpur. Further prayer has been made for quashing the subsequent notice, contained in Memo No. 69 dated 21st April, 2018 (Annexure-3 to the writ petition), issued under the signature of the Collector-cum-Circle Officer, Nirsa (respondent no. 4), whereby the petitioner has been directed to remove the encroachment from the government land within a period of one week from the date of receipt of the notice. 2. Learned counsel for the petitioner submits that the name of the petitioner’s father has been recorded as raiyat in the Khatiyan, who along with his family members, on constructing a residential house over the said land, has been residing peacefully for the last forty years and the rent receipts have also been issued by the revenue authorities. Irrespective of the said fact, the respondent no. 4 issued a notice dated 24th March, 2018 directing the petitioner to appear on 7th April, 2018 at 11:00 a.m. along with original documents relating to the land and to present his case. Subsequently, another notice has been issued to the petitioner on 21st April, 2018 under Section 6(2) of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 (hereinafter to be referred as the Act, 1956), whereby the petitioner has been directed to remove the encroachment from the said land within a period of one week. 3. Learned counsel for the petitioner further submits that the notice dated 21st April, 2018 has been issued in violation of the principles of natural justice, as the petitioner has not been given opportunity of hearing. It is also submitted that even the statutory period of two weeks as provided in Section 3(2) of the Act, 1956 has not been provided to the petitioner to present his case before the respondent no. 4 and as such, the action of the said authority is highly unjustified. Thus, the impugned notices/orders dated 24th March, 2018 and 21st April, 2018 are liable to be quashed. 4 and as such, the action of the said authority is highly unjustified. Thus, the impugned notices/orders dated 24th March, 2018 and 21st April, 2018 are liable to be quashed. 4. Learned A.C. to G.A. appearing on behalf of the State, while opposing the writ petition, submits that the petitioner has an efficacious remedy of filing appeal under Section 11 of the Act, 1956 against the order passed by the respondent no. 4 and, therefore, the writ petition is not maintainable and the same is liable to be dismissed. 5. Heard learned counsel for the parties. On the perusal of the notice dated 24th March, 2018, it appears that the respondent no. 4 directed the petitioner to appear on 7th April, 2018 at 11:00 a.m. along with original revenue documents to place his case. However, as per Section 3(1) of the Act, 1956, at least two weeks’ time from the date of receipt of the notice is required to be given to the person concerned to submit his reply and not from the date of issuance of notice. The impugned notice dated 24th March, 2018 does not indicate as to on which date the same was served to the petitioner. On conjoint reading of Sections 3, 4 and 5 of the Act, 1956, it would be apparent that detailed procedure has been laid down for holding an encroachment proceeding. Before passing any order declaring a person to be an encroacher of the public land, the person concerned should be given due opportunity of hearing to place his case in terms with the procedure prescribed under Sections 3, 4 and 5 of the Act, 1956 which has not been followed in the present case by the respondent no. 4. 6. It may thus be inferred that the petitioner has not been given sufficient time to file his reply as mandated under Section 3(2) of the Act, 1956 and therefore the impugned notices appear to have been issued in violation of the principles of natural justice. 7. So far as the issue regarding maintainability of the writ petition in spite of availability of statutory remedy of preferring appeal under Section 11 of the Act, 1956 is concerned, the Hon’ble Supreme Court in the case of M.P. State Agro Industries Development Corporation Ltd. and Another vs. Jahan Khan, (2007) 10 SCC 88 in Para-12 has held as under:- “12. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar.” 8. In view of the discussions made herein above, the impugned notices dated 24th March, 2018 (Annexure-2) and 21st April, 2018 (Annexure-3) are hereby quashed and the matter is remanded to the Circle Officer, Nirsa (respondent no. 4) to pass fresh order in accordance with law after providing due opportunity of hearing to the petitioner. 9. The writ petition is, accordingly, allowed with the aforesaid observation and direction.