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2022 DIGILAW 162 (JHR)

Ram Sevak Yadav v. State of Jharkhand

2022-02-10

RAJESH SHANKAR

body2022
JUDGMENT : The present case is taken up through video conferencing. 2. The present writ petition has been filed for quashing notice dated 10.08.2019 purportedly issued under Section 6(2) of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 by the Circle Officer, Itkhori (the respondent no. 2) in Land Encroachment Case No. 01/2013-14 whereby the petitioner and 10 others have been directed to remove the alleged encroachment from their respective land, failing which action under Section 188 of the I.P.C. would be taken. 3. Learned counsel for the petitioner submits that on 16.03.1980, a meeting of village committee was convened wherein it was decided that 20 decimals of land of Degan Yadav (petitioner’s father) and others would be given to the government for construction of school and in lieu thereof, they would be allowed to use ‘Gair Mazarua Khas’ land appertaining to Khata no. 64, plot no. 1166, Mouza-Chakrawar, Thana No.-33/295, District- Chatra. As per information provided to the petitioner under Right to Information Act, 2005, the school building was constructed in the year 1980 over the ‘raiyati’ land of the petitioner and others appertaining to Khata No. 51, plot no. 1189, however the school management has no valid document executed by the petitioner’s ancestors to show title of the concerned land. Learned counsel further submits that so far as the procedure followed by the respondent no. 2 in Land Encroachment Case No. 01/2013-14 is concerned, on perusal of copy of the order-sheet of the said case, it would be evident that no hearing as required under Section 5 of the Act, 1956 has been done by the respondent no. 2, rather a direction was straightaway issued to the petitioner and others vide order dated 10.08.2019 to remove the alleged encroachment from their respective land which led to issuance of impugned notice on the same date in form-II of Section (6)2 of the Act, 1956. 4. The respondent nos. 2 and 3 have filed two separate counter affidavits. In both the counter affidavits, the said respondents have justified issuance of impugned notice dated 10.08.2019, however nothing has been averred particularly in the counter affidavit filed on behalf of the respondent no. 2 that before issuance of the impugned notice dated 10.08.2019, any hearing under Section 5 of the Act, 1956 was done and thereafter final order under Section 6(1) of the said Act was passed. 5. 2 that before issuance of the impugned notice dated 10.08.2019, any hearing under Section 5 of the Act, 1956 was done and thereafter final order under Section 6(1) of the said Act was passed. 5. The petitioner has clearly averred in paragraph-5(vii) of the writ petition that pursuant to notice issued in the said encroachment case, he appeared before the respondent no. 2 on 29.09.2016 and filed his show cause reply stating the fact that his ancestors had donated 10 decimals of ‘raiyati’ land for construction of the school and in lieu thereof, they were allowed to occupy 10 decimals of ‘Gair Mazarua Khas’ land appertaining to Kahta no. 64, plot no 1166. The fact with regard to filing of the show-cause reply by the petitioner has not been denied in the counter affidavit filed on behalf of the respondent no. 2. On perusal of the copy of order-sheet of Land Encroachment Case No. 01/2013-14 (Annexure-2 to the writ petition), it appears that vide order dated 29.09.2016, it was observed by the respondent no. 2 that out of all the noticees/encroachers, one of them i.e. Ram Sevak Yadav (the petitioner herein) stated in his defence that in the year 1980-81, his ancestors permitted for construction of school over 10 decimals of ‘raiyati’ land in lieu of which, they were allowed to take possession of 10 decimals of ‘Gair Mazarua Khas’ land and on the said basis, the petitioner requested that the government should first settle 10 decimals of land in his favour so as to remove the alleged encroachment. After recording the aforesaid fact in the order dated 29.09.2016, the respondent no. 2 issued third notice to the rest of the encroachers who had not appeared in the encroachment proceeding till then. Thereafter, the case was taken up on 10.08.2019 wherein it was recorded that though the notices were earlier issued on 25.08.2015, 23.09.2015, 03.10.2016 and 20.02.2018, yet no further action was taken. Accordingly, the respondent no. 2 ordered to issue notices to all the encroachers of the land in question to vacate the same. Though Annexure-2 does not contain any order passed by the respondent no. 2 between 29.09.2016 and 10.08.2019, however the respondent no. Accordingly, the respondent no. 2 ordered to issue notices to all the encroachers of the land in question to vacate the same. Though Annexure-2 does not contain any order passed by the respondent no. 2 between 29.09.2016 and 10.08.2019, however the respondent no. 2 in his counter affidavit has not stated that he has conducted hearing under Section 5 of the Act, 1956 and has passed a final order as required under Section 6 (1) of said Act. 6. Considering the aforesaid facts and circumstance, this Court is of the view that the order dated 10.08.2019 suffers from procedural impropriety and accordingly, the impugned notice of the same date has to be treated bad in law. 7. Accordingly, the order dated 10.08.2019 passed by the respondent no. 2 as well as the impugned notice dated 10.08.2019 so far as the same relate to the petitioner-Ram Sevak Yadav, are set aside. The matter is remanded to the respondent no. 2 to provide an opportunity of hearing to the petitioner as required under Section 5 of the Act, 1956 and thereafter to pass a final order under Section 6(1) of the said Act. While passing the said order, the respondent no. 2 shall not be influenced by the stand taken by him in the counter affidavit in the present case and shall apply his independent mind based on the record. 8. The writ petition is accordingly allowed with aforesaid observation and Direction.