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2022 DIGILAW 963 (JHR)

Shiv Narayan Sahu v. State of Jharkhand

2022-08-03

RAJESH SHANKAR

body2022
ORDER : 1. The present writ petition has been filed for quashing the notice dated 6th July, 2022 (Annexure-3 to the writ petition) issued under the signature of the Circle Officer, Ormanjhi-respondent no.6 in Encroachment Case no.03 of 2021-22, whereby the petitioner has been directed to remove encroachment from the land measuring an area of 0.019 decimal, appertaining to Khata no.4, plot no.135 of village Dardag, P.S. Ormanjhi, District Ranchi. 2. A counter affidavit has been filed on behalf of the respondent no.6. It has been stated in paragraph nos.12 and 13 of the said counter affidavit that out of 79 persons, who were noticed earlier, only 17 persons including the petitioner appeared in the concerned encroachment case on 7th March, 2022, raising objection with regard to measurement. Accordingly, it was decided that a fresh measurement would be done on 11th March, 2022 in presence of NHAI Amin, Circle Amin and Land Acquisition Amin. The objectors including the petitioner were also directed to engage private Amin on their behalf. The said re-measurement of the acquired land for construction of flyover on the said part of NH-33 was thereafter done on 24th March, 2022, however, some differences were found relating to the encroached area of five persons including the petitioner. Accordingly, records were ordered to be placed on 8th April, 2022. Thereafter, hearing was done on the said objection and decision was taken on 12th April, 2022 to issue notice to all 79 encroachers under Section 6(2) of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956. However, on perusal of the notice dated 12th April, 2022, a copy of which has been annexed with the counter affidavit, it does not appear that encroached area shown in the said notice has been changed after the differences were found with respect to the encroached area of five persons including the petitioner, while making re-measurement of the acquired land on 24th March, 2022. 3. It has been pointed out by the learned counsel for the respondents that similar issue has already been dealt with by this Court in writ petitions being W.P.(C) No.2713 of 2022(Jhari Oraon Vs. The State of Jharkkhand & Ors.) and W.P.(C) No.2101 of 2022 (Braj Kishor Keshri Vs. The State of Jharkhand & Ors.), which have been disposed of vide order dated 14th July, 2022, the relevant paragraph nos.9 to 13 of which read as under:- “9. The State of Jharkkhand & Ors.) and W.P.(C) No.2101 of 2022 (Braj Kishor Keshri Vs. The State of Jharkhand & Ors.), which have been disposed of vide order dated 14th July, 2022, the relevant paragraph nos.9 to 13 of which read as under:- “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. 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. 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.” 4. Considering the facts and circumstances of the case, the present writ petition is disposed of with the following directions :- (i) Let re-measurement of the petitioner’s structure in question be done on 12th August, 2022 at 12:00 noon; (ii) The said measurement will be jointly done by NHAI Amin, Circle Amin and Land Acquisition Amin; (iii) The petitioner is also at liberty to engage his own Amin during the said measurement, who will also participate in the measurement; (iv) A copy of the said measurement shall be handed over to the petitioner on the spot itself; (v) The petitioner shall also remain physically present during joint measurement process; (vi) It is open to the respondent no.6 to proceed in accordance with law after the said measurement; and (vii) The impugned notice dated 6th July, 2022 shall be kept in abeyance till the said re-measurement is done.