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2022 DIGILAW 1126 (JHR)

Rohit Kumar Madhur v. State of Jharkhand

2022-09-08

RAJESH SHANKAR

body2022
ORDER : 1. At the request of learned counsel for the petitioners, the defects, as pointed out by the office, are ignored. 2. The present writ petition has been filed for quashing the entire proceeding of Public Land Encroachment Case No. 02 of 2022-23 initiated by the Circle Officer, Kuru (the respondent no. 6) as well as the notices issued to the petitioner by the said respondent initially under Section 3 and subsequently under Section 6(2) of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 (in short “the Act 1956”) whereby he has been directed to remove the alleged encroachment from the land in question. 3. Learned counsel for the petitioners submits that the petitioner purchased the land appertaining to old Khata No. 2, old Plot no. 776 corresponding to new Khata No. 422, plot no. 446, Mouza-Kuru measuring an area of 3½ decimals (hereinafter to be referred as “the said land”) from one Awadhesh Singh vide registered sale deed dated 01.02.2005. After purchasing the said land, the petitioner constructed house as well as a hospital namely “Madhur Seva Sadan” over the same in the year 2006 which is being run by his father, the registration of which has provisionally been renewed for one year vide certificate dated 24.06.2022. Surprisingly, the respondent no. 4 issued notice as contained in Form-I under Section 3 of the Act, 1996 to the petitioner on 31.03.2022 alleging that he had encroached public land to the extent of 0.54 acre over the said land while making illegal construction over the same. Pursuant to the said notice, the petitioner appeared before the respondent no. 4 and filed reply producing relevant documents relating to the land in question, however the same was not at all considered by the respondent no. 4 while passing the final order under Section 6(1)(e) of the Act, 1956. Subsequently, the petitioner was issued notice by the respondent no. 4 in Form-II under Section 6(2) of the Act, 1956 whereby he was called upon to remove the alleged encroachment within 15 days. 4. Learned counsel for the petitioners further submits that the petitioner is in lawful possession over the land in question and the same cannot be said to be public land. Hence, initiation of land encroachment proceeding by the respondent no. 4 is itself without jurisdiction. 4. Learned counsel for the petitioners further submits that the petitioner is in lawful possession over the land in question and the same cannot be said to be public land. Hence, initiation of land encroachment proceeding by the respondent no. 4 is itself without jurisdiction. The petitioner apprehends that pursuant to issuance of notice under Section 6(2) of the Act, 1956, the structures standing over the land in question will be forcibly removed by the authorities on 09.09.2022 at 11:00 a.m. as would be evident from the letter contained in memo no. 846 dated 29.08.2022 issued by the respondent no. 4 to the Officer-in-Charge, Kudu P.S. 5. Mr. Mrinal Kanti Roy, learned GA-I appearing on behalf of the respondents, raises preliminary objection with regard to maintainability of the present writ petition on the ground that the petitioner has efficacious/statutory remedy of preferring appeal under Section 11 of the Act, 1956 before the Deputy Commissioner, Lohardaga (the respondent no. 2). 6. On this, learned counsel for the petitioner, submits that the main reason for invoking writ jurisdiction by the petitioner is that the structures standing over the land in question may be removed by the authorities even before filing of the statutory appeal. 7. I.A. No. 8221 of 2022 has been filed on behalf of the petitioner seeking interim relief against the order passed by the respondent no. 4 in Land Encroachment Case No. 02 of 2022-23. 8. Heard learned counsel for the parties and perused the content of the writ petition. 9. It appears that the final order under Section 6 (1)(e) of the Act, 1956 has already been passed by the respondent no. 4 in Encroachment Case No. 02 of 2022-23 directing the petitioner to remove the alleged encroachment from the land in question. Hence, this Court is of the view that the petitioner has efficacious remedy of preferring appeal under Section 11 of the Act, 1956. However, considering the concern shown by the learned counsel for the petitioner that even before filing of the statutory appeal against the impugned order passed by the respondent no. 4, the authorities may take steps for removal of alleged encroachment from the land in question, without entering into the merit of the case, following orders are being passed: (i) The petitioner is at liberty to prefer an appeal before the respondent no. 4, the authorities may take steps for removal of alleged encroachment from the land in question, without entering into the merit of the case, following orders are being passed: (i) The petitioner is at liberty to prefer an appeal before the respondent no. 2 under Section 11 of the Act, 1956 against the final order passed by the respondent no. 4 in the aforesaid encroachment case along with an application seeking interim relief. (ii) On fling the said appeal along with application seeking interim relief, the respondent no. 2 shall take up the same within 48 hours and will pass an appropriate order on the petitioner’s application seeking interim relief. 10. The writ petition is disposed of with aforesaid liberty and direction. 11. I.A. No. 8221 of 2022 also stands disposed of accordingly.