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2022 DIGILAW 1127 (JHR)

Kailash Pasad 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. 01 of 2022-23 initiated by the Circle Officer, Kuru (the respondent no. 6) as well as the notices issued to the petitioners 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 they have been directed to remove the alleged encroachment from the land in question. 3. Learned counsel for the petitioners submits that some of the lands appertaining to old plot no. 813(P) under old Khata No. 01 corresponding to new plot nos. 937 and 1001 under new Khata No. 422 of Mouza-Kuru were purchased by one Smt. Geeta Devi wife of Bijay Prasad Sahu whereas lands appertaining to old plot no. 813(P) corresponding to new plot nos. 942 and 1003 were purchased by one Smt. Rajeshwari Devi from one M/s. Chotanagpur General Trading Company Limited through its Director-Bhuramal Tibrewal vide registered sale deeds dated 21.01.1975. Moreover, other lands appertaining to old Khata no. 01, old plot no. 813 corresponding to new Khata No. 422, new plot nos. 965 and 946 were purchased by Ram Prasad Sahu and Ram Pratap Sahu both sons of Late Ram Chander Sahu from M/s. Chotanagpur General Trading Company Limited through its Director-Bhuramal Tibrewal vide registered sale deed dated 25.01.1972. After death of Geeta Devi, her heirs permitted some of the petitioners to occupy part of the lands purchased by Geeta Devi for construction of residential houses over the same by entering into agreements. The petitioner no. 6 and the wife of petitioner no. 7 purchased respective lands in question from Ram Prasad Sahu and Ram Pratap Sahu vide registered sale deeds dated 26.06.2013 and 23.05.2014 respectively. It is further submitted that the respondent no. 4 issued notices as contained in Form-I under Section 3 of the Act, 1996 to the petitioners on 01.04.2022 alleging that they had encroached public land while constructing houses over the same. Pursuant to the said notices, the petitioners appeared before the respondent no. 4 and produced relevant documents relating to the land in question. They also made oral submission before the respondent no. Pursuant to the said notices, the petitioners appeared before the respondent no. 4 and produced relevant documents relating to the land in question. They also made oral submission before the respondent no. 4 stating the entire facts, however they did not file any written reply due to ignorance. Subsequently, the petitioners were issued notices by the respondent no. 4 in Form-II under Section 6(2) of the Act, 1956 whereby they were called upon to remove the alleged encroachment within 15 days. Surprisingly, the said notices did not contain any date except the notice issued to the petitioner no. 1-Kailash Prasad which contained the date of issuance of the said notice as 12.07.2022, however the same was served to him on 29.08.2022 at 12:25 p.m. 4. Learned counsel for the petitioners further submits that the petitioners are 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 petitioners apprehend that pursuant to issuance of notices 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 petitioners have 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 petitioners, submits that the main reason for invoking writ jurisdiction by the petitioners 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. 8220 of 2022 has been filed on behalf of the petitioners seeking interim relief against the order passed by the respondent no. 4 in Land Encroachment Case No. 01 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 Land Encroachment Case No. 01 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. 01 of 2022-23 directing the petitioners to remove the alleged encroachment from the land in question. Hence, this Court is of the view that the petitioners have efficacious remedy of preferring appeal under Section 11 of the Act, 1956. However, considering the concern shown by the learned counsel for the petitioners 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 petitioners are 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 petitioners’ application seeking interim relief. 10. The writ petition is disposed of with aforesaid liberty and direction. 11. I.A. No. 8220 of 2022 also stands disposed of accordingly.