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2022 DIGILAW 853 (JHR)

Jhari Oraon v. State of Jharkhand

2022-07-14

RAJESH SHANKAR

body2022
ORDER : 1. Since similar issue is involved in both the writ petitions, the same are being taken up together with the consent of learned counsel for the parties and are being disposed of by this common order. 2. In W.P. (C) No. 2713 of 2022, the petitioner has prayed for quashing the notices dated 18th February, 2022 and 12th April, 2022 (Annexures-4 and 5 to the writ petition, respectively) issued by the Circle Officer, Ormanjhi, Ranchi- respondent no. 3 in Encroachment Case no. 03 of 2021-22, whereby he has been directed to remove the encroachment, measuring an area of 45’ x 6’ = 0.620 decimal (RCC roof) and 45’ x 7’ = 0.724 decimal (Tina shed), appertaining to Khata No. 50, plot no. 32 of village Dardag, Thana no. 33, P.S. Ormanjhi, District Ranchi. 3. In W.P. (C) No. 2101 of 2022, the petitioner has prayed for quashing the notices dated 18th February, 2022 and 12th April, 2022 (Annexures-6 and 10 to the writ petition, respectively) issued by the Circle Officer, Ormanjhi, Ranchi- respondent no. 3 in Encroachment Case no. 03 of 2021-22, whereby he has been directed to remove the encroachment, measuring an area of 30’ x 34’ = 2.34 decimals, appertaining to Khata no. 15, plot no. 110 of village Dardag, Thana no. 33, P.S. Ormanjhi, District Ranchi. 4. The petitioners of both the cases have contended that the aforesaid land encroachment proceeding has arbitrarily been initiated by the respondent no. 3, as the land over which they are in possession is not a public land within the purview of Bihar (now Jharkhand) Public Land Encroachment Act, 1956 (hereinafter to be referred as ‘the Act 1956’). In fact, they are in lawful possession of their respective land and on payment of rent to the State Government, rent receipts for the same are being issued to them. Earlier, part of their land measuring an area of 04 decimals and 01 decimal, respectively, were acquired by the State Government on the request of the National Highways Authority India for widening of NH-33 (Hazaribagh-Ranchi Section) in Land Acquisition Case no. 26 of 2009-10. The compensation for acquisition of part of the same was paid to the wife of the petitioner of W.P. (C) No. 2713 of 2022 and the petitioner of W.P. (C) No. 2101 of 2022. 26 of 2009-10. The compensation for acquisition of part of the same was paid to the wife of the petitioner of W.P. (C) No. 2713 of 2022 and the petitioner of W.P. (C) No. 2101 of 2022. According to the petitioners, after acquisition of their respective lands made in terms with the notification dated 13th July, 2009, there could not have been any dispute with regard to possession of rest of the said land by them and the respondent no. 3 by initiating the impugned land encroachment proceeding has unnecessarily harassed the petitioners with an intention to deprive them of their lawful possession of the land. 5. Counter affidavits have been filed on behalf of the respondent no. 3 as well as respondent no. 4 in both the writ petitions. It has been stated in the counter affidavit filed on behalf of the respondent no. 3 that the land encroachment proceeding has been initiated against the petitioners on the basis of report made to him by the General Manager-cum-Project Director, NHAI, Ministry of Road Transport and Highways, Government of India vide letter no. 1842 dated 7th February, 2022, informing, inter alia, that a flyover would be constructed over NH-33 for which measurement of acquired lands situated at Mouja Harchanda, Dardag & Chakla were jointly done by Ormanjhi Circle Amin, Land Acquisition Amin, Ranchi and NHAI Amin on 3rd February, 2022. Accordingly, a list of 79 persons including the petitioners was made available to the respondent no. 3 for removing encroachment made by them so as to start construction of flyover. Thereafter, the respondent no. 3 initiated Encroachment Case no. 03 of 2021-22 and vide order dated 18th February, 2022 notice under Section 3 of the Act, 1956 was issued to the aforesaid 79 persons fixing the next date of hearing on 7th March, 2022. However, out of 79 noticees, only 17 persons including the petitioner of W.P. (C) No. 2101 of 2022 appeared and file their objection. So far as the petitioner of W.P. (C) No. 2713 of 2022 is concerned, he neither appeared nor filed any objection in the said land encroachment proceeding. However, out of 79 noticees, only 17 persons including the petitioner of W.P. (C) No. 2101 of 2022 appeared and file their objection. So far as the petitioner of W.P. (C) No. 2713 of 2022 is concerned, he neither appeared nor filed any objection in the said land encroachment proceeding. Thereafter, the objections of 17 persons including the petitioner of W.P. (C) No. 2101 of 2022 were considered and it was decided to take a fresh measurement of their respective lands on 11th March, 2022 in presence of NHAI Amin, Circle Amin and Land Acquisition Amin, however, measurement could not be done on the said date. Subsequently, on 24th March, 2022 measurement was jointly done by the aforesaid Amins after issuing notices to the objectors, whereby encroachment of 30’ x 34’ of land was found to have made by the petitioner of W.P. (C) No. 2101 of 2022 instead 30’ x 37’ of land as per the earlier measurement. Thereafter, on 12th April, 2022 second notice in Form-II under Section 6(2) of the Act, 1956 was issued to all 79 encroachers fixing next date in the said case on 27th April, 2022. 6. The stand taken by the respondent no. 4 in its counter affidavit is that the land measuring 5.94 acres, situated at village Dardag, Thana no. 33, Ormanjhi, District Ranchi had been acquired by the Deputy Commissioner, Ranchi-respondent no. 2 vide declaration no. 1259-R dated 19th April, 1976, published at page no. 1-2 of the district gazette dated 16th May, 1976 for the purpose of widening of NH-33 and possession of the same was handed over to the NH Division vide certificate of possession with respect to the land dated 28th March, 1977, a copy of which has also been annexed as Annexure-CA/1 to the said counter affidavit. 7. So far as the petitioner of W.P. (C) No. 2713 of 2022 is concerned, the land measuring 0.0062 decimal (appears to be wrongly mentioned instead of 0.620 decimal) (RCC roof) and 0.072 decimal (appears to be wrongly mentioned instead of 0.724 decimal) (Tina shed), appertaining to plot no. 32 of village Dardag, Thana no. 33, Ormanjhi, District Ranchi also formed part of the land acquired in the year 1976 vide declaration no. 1259-R dated 19th April, 1976 against which encroachment notice was initially issued to the petitioner by the respondent no. 32 of village Dardag, Thana no. 33, Ormanjhi, District Ranchi also formed part of the land acquired in the year 1976 vide declaration no. 1259-R dated 19th April, 1976 against which encroachment notice was initially issued to the petitioner by the respondent no. 3 and on enquiry the plot in question was found to be public land. 8. In the matter of the petitioner of W.P. (C) No. 2101 of 2022, the land measuring 2.34 decimals, appertaining to Khata No. 15, plot no. 110 of village Dardag, Thana No. 33, Ormanjhi, District Ranchi also formed part of the land acquired in the year 1976 vide declaration no. 1259-R dated 19th April, 1976 against which encroachment notice was initially issued to the petitioner by the respondent no. 3 and on enquiry the plot in question was found to be public land. 9. Considering the aforesaid stand taken in respective counter affidavits filed on behalf of the respondent nos.3 and 4 in both the writ petitions, it appears that the part of the lands for which the impugned notices have been issued to them for removal of encroachment are said to have been acquired way back in the year 1976, possession of which was also handed over to the concerned N.H. Division. Hence, this Court is of the view that the said factual aspect with respect to acquisition of part of the aforesaid lands of the petitioners in the year 1976 itself as asserted by the respondent nos.3 and 4 cannot be adjudicated in writ jurisdiction of this Court in absence of any contrary material brought on record by the petitioners. 10. So far as the land encroachment proceeding initiated by the respondent no. 3 is concerned, it appears that pursuant to the notices issued under Section 3 of the Act, 1956 the petitioner of W.P. (C) No. 2101 of 2022 filed his objection. Thereafter, a joint measurement of the land was made wherein encroachment was found to the extent of 30’ x 34’ (2.34 decimals) over plot no. 110. Therefore, there is no reason to interfere with the impugned notices dated 18th February, 2022 and 12th April, 2022 to the said petitioner. 11. Thereafter, a joint measurement of the land was made wherein encroachment was found to the extent of 30’ x 34’ (2.34 decimals) over plot no. 110. Therefore, there is no reason to interfere with the impugned notices dated 18th February, 2022 and 12th April, 2022 to the said petitioner. 11. However, so far as the petitioner of W.P. (C) No. 2713 of 2022 is concerned, though learned counsel for the State respondents while referring to the notice dated 18th February, 2022 issued under Section 3 of the Act, 1956 submits that the said notice has duly been served to the petitioner, yet on perusal of the same it appears that one Manoj Kumar Gari had received the said notice on behalf of the petitioner but his relationship with the petitioner has not been mentioned therein and hence it cannot be said that the said notice has validly been served to him by following the procedure as provided in Section 3 of the Act, 1956. 12. Accordingly, this Court is not inclined to interfere with the impugned notices, so far as W.P. (C) No. 2101 of 2022 is concerned. 13. However, since the notice issued under Section 3 of the Act, 1956 has not been properly served to the petitioner of W.P. (C) No. 2713 of 2022, the respondent no. 3 is directed to provide an opportunity of hearing to the petitioner of the said case and to raise his objection against the said notice. Therefore, the petitioner-Jhari Oraon is directed to appear before the respondent no. 3 on 20th July, 2022 at 11:00 a.m. and to file his objection. On receipt of the said objection, the respondent no. 3 after making due enquiry including joint measurement of the land, as has been done in the case of 17 persons, shall pass an appropriate order under Section 6 of the Act, 1956 on the basis of the said measurement. The impugned notices dated 18th February, 2022 and 12th April, 2022 issued by the respondent no. 3 in Encroachment Case no. 03 of 2021-22 to the petitioner of the said case are set aside. Encroachment, if any, over the land in question shall be subject to the fresh order under Section 6 of the said Act, as would be passed by the respondent no. 3 14. W.P. (C) No. 2713 of 2022 is disposed of with the aforesaid observations and directions. 03 of 2021-22 to the petitioner of the said case are set aside. Encroachment, if any, over the land in question shall be subject to the fresh order under Section 6 of the said Act, as would be passed by the respondent no. 3 14. W.P. (C) No. 2713 of 2022 is disposed of with the aforesaid observations and directions. I.A. No. 6095 of 2022 in W.P. (C) No. 2713 of 2022 is also disposed of. 15. W.P. (C) No. 2101 of 2022 is dismissed. I.A. No. 4124 of 2022 in W.P. (C) No. 2101 of 2022 is also dismissed.