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2019 DIGILAW 1814 (JHR)

Ashiyana Housing Limited v. State of Jharkhand

2019-10-24

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : This writ petition is under Article 226 of the Constitution of India whereby and whereunder direction has been sought for upon the respondents to transmit the records of Encroachment Case 04 of 2013-14 and upon its perusal to quash the notice dated 25.02.2016 passed in Encroachment Case No. 04 of 2013-14 by the Collector-cum-Circle Officer, Chandil issued in exercise of power conferred under Section 6(2) of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956/2002. It is the case of the petitioner that encroachment proceeding has been initiated being Encroachment Case No. 04 of 2013-14 under the provision of Public Land Encroachment Act against the petitioner alleging therein about unauthorized encroachment over the land pertaining to Khata No.205, Plot Nos. 662 and 663 since according to the State respondents the land pertaining thereto is the Government land. In the said encroachment proceeding notice has been issued upon the petitioner and he has put his appearance but the proceeding has been kept at hold due to rainy season and thereafter all of a sudden the proceeding has been revived but without any notice making the petitioner aware about the initiation of the proceeding further and in absentia the order has been passed holding the petitioner as encroacher and in consequence thereof, order of removal of encroachment has been passed. Mr. Indrajit Sinha, learned counsel appearing for the petitioner has submitted that the power conferred under the Bihar Public Land Encroachment Act, 1956 and after creation of the State of Jharkhand now the Jharkhand Public Land Encroachment Act, 2002, there is no question of any jurisdictional error but the question is of providing adequate and sufficient opportunity before making a declaration of encroachment as provided under Sub-Section (1) to Section 6 of the Public Land Encroachment Act. Further submission has been made that prior to giving declaration under Sub-Section (1) to Section 6 specific provision has been made under Section 5 pertaining to providing an opportunity of hearing that suggests that before coming to a conclusive finding about encroachment it is to be declared in view of Sub-Section (1) to Section 6 and adequate and sufficient opportunity is to be provided but here in this case, although notice has been issued but as would appear from the order-sheet that due to rainy season the proceeding has been kept at hold and thereafter it has been initiated again without any knowledge to the petitioner and as such, the petitioner has been deprived from adequate and sufficient opportunity to put forth his defence. Learned counsel for the petitioner has further drawn the attention of this Court about the order dated 03.07.2019 as also order dated 17.07.2019 and submitted on the basis of the said orders that considering the aforesaid submission the specific direction has been passed by this Court directing the learned State counsel to come with the entire record in order to assess whether any notice has been issued after re-initiation of the proceeding after withholding the same for about two years. Mr. Navin Kumar, learned G.P.-IV appearing for the respondent State of Jharkhand has submitted that record has been furnished by the concerned respondents basing upon the same, affidavit has also been filed on 18.07.2019 annexing the entire order-sheet therein. He fairly submits that initially the notice was issued upon the petitioner and in terms thereof he has put his appearance but due to rainy season, seeing the practical difficulty in taking proper measurement of the land in question, the proceeding has been kept at hold but subsequently it has again been started but no notice has been issued in this regard to the petitioner. This Court, after having heard learned counsel for the parties and on perusal of the original record as also the supplementary counter affidavit wherein the entire order-sheet pertaining to Encroachment Case No. 04 of 2013-14 has been annexed as Annexure-A, has found that initially a notice has been issued to the petitioner to put forth his defence as to why the land in question be not declared to be a public land and thereby as to why the encroachment be not removed. But as would appear from the order dated 21.07.2014 the entire court proceeding has been kept at hold till further order and it started again as would appear from the order dated 06.02.2016 directing the Circle Amin and the Halka Karmchari to submit a report within two weeks after conducting an enquiry in this regard and further, as would appear from the order dated 24.02.2016, reminder to submit a report has been issued upon the Circle Amin and the Halka Karmchari which has been submitted, as would appear from the order dated 25.02.2016 and considering the said report, the declaration with respect to the encroachment has been recorded. It has further been recorded that in the notice dated 30.05.2014 a written consent has been given by the petitioner to remove the encroachment within a period of 30 days but as yet encroachment has not been removed. This petitioner, at this juncture, has approached to this Court by filing the present writ petition wherein interim order has been passed to the effect not to take any coercive measure and therefore, no further action has been taken by the authorities for removal of the alleged encroachment. It further appears from the order dated 27.09.2016 that in view of the interim order passed by this Court, the Circle Officer, Chandil has submitted a further report that the land has been measured but it appears that the measurement suffers from certain infirmity since the proper measurement could not have been taken due to rainy season and the other practical difficulties. This Court, before proceeding further, deems it fit and proper to deal with the order dated 25.02.2016 wherein reference of a consent dated 30.05.2014 has been recorded. The letter dated 30.05.2014 has been annexed as Annexure-5 to the writ petition and in course of scrutiny of the content of the said representation it does not find mention therein that the petitioner has given any undertaking for removal of encroachment, rather, he has made objection against that measurement saying that due to rainy season proper measurement could not have been conducted and had made a request to conduct proper measurement on the basis of original Government map and as such, this Court, taking into consideration the application dated 30.05.2014 has found that the contents of the reference made in the letter dated 30.05.2014 has wrongly been recorded in the order dated 25.02.2016. So far as the legal position is concerned, as per the provision provided under the applicable Public Land Encroachment Act is concerned, it is not in dispute that the spirit and object of the Public Land Encroachment Act is to save the public land from the clutches of unauthorized occupation and for that, power has been conferred upon the Collector or any other officer notified by the State Government to act as Collector under the Public Land Encroachment Act to conduct an enquiry, issue notice to the concerned, so that proper objections could be made and an opportunity of hearing as required to be provided under Section 5 of the Public Land Encroachment Act has been provided. It would be evident from the provision of Section 5 and intent of keeping the said provision to provide adequate and sufficient opportunity to the concerned by giving proper hearing and even to lead evidence in support of his defence as would appear from the provision of Section 5 of the Act which reads hereunder as :- “5. Hearing – On the date specified in the notice served under Section 3, the matter shall be heard, unless the hearing is adjourned by the Collector to a future day, and the Collector shall hear the applicant if any, the person on whom the notice has been served and any other person who may be interested either in the encroachment or in the removal thereof an take such other evidence as may be adduced in that behalf : Provided that, if the person on whom notice has been served under Section 3 or any other person interested in the encroachment, fails to appear and show cause on the date specified in the notice, or any other date to which the hearing may be adjourned, the matter shall be heard, ex-parte.” After conclusion of the hearing as provided under Section 5 of the Public Land Encroachment Act, a declaration is required to be given under Sub-Section (1) of Section 6 of the Act about encroachment holding therein if the finding of encroachment and in case of non-removal of the said encroachment the provision has been made under Sub-Section (2) of Section 6 for issuance of direction for removal of encroachment and the penal action in case of disobedience of the said order. Herein the admitted fact as would appear from the material available on record that the proceeding has been kept at hold in the midst due to the rainy season and after two years the proceeding has again been recommenced but petitioner has not been served with notice about the restarting of the proceeding from that stage and in his absentia, a declaration has been given with respect to the encroachment with a direction to remove it. It is further evident from the order dated 27.09.2016 wherein even the Circle Officer has reported about infirmity committed in course of measurement of the land. In view thereof and in entirety of facts and circumstances, the propriety demands that the Circle Officer, acting as a Collector under the Public Land Encroachment Act, is directed to take measurement of the land in presence of the petitioner and thereafter take decision in accordance with law within a period of six weeks from the date of receipt of a copy of this order. The future course of action will depend upon the consequence of the decision to be taken by the authority. This writ petition is accordingly disposed of.