(1) This Act may be called the Bihar Public Land Encroachment Act, 1956.

(2) It extends to the whole of the State of Bihar.

(3) It shall come into force on such date1 as the State Government may, by notification, appoint in this behalf.

In this Act unless there is anything repugnant in the subject or context:

(1) Collector means the Collector of the district and includes any officer empowered by the State Government to discharge all or any of the functions of the Collector under this Act;

The definition shows that the Collector of a district is the Collector under this Act by virtue of his post, may be popularly called ex-officio Collector. For smooth running of administration many persons may be required to work as a collector and, therefore, the State Government by notification 23rd August, 1957 empowered all Sub divisional officers to function as a collector under this Act. The Copy of Notification is placed below which is as:

[Notifn. No. 2832-R, dated the 23rd August, 1957. In exercise of the powers conferred by sub-section (1) of Section 2 of the Bihar Public Land Encroachment Act, 1956 (Act XV of 1956), the Governor of Bihar is pleased to empower all Sub-divisional Officers to discharge all or any of the functions of a Collector under the said Act within their respective jurisdictions.

Further, the State Government empowered all Deputy Collectors, incharge Land Reforms and Development to discharge all or any of the functions of a Collector under the said Act, within their respective jurisdiction.

Copy of the notification is placed below which is as follows:

Extract from the Bihar Gazette Notification no. B/E 203/59-LR dated the 14th/18th July, 1959 by the Secretary, Revenue Department. In exercise of the powers conferred by clause (1) of Section 2 of the Bihar Public Land Encroachment Act, 1956 (Bihar Act XV of 1956), the Governor of Bihar is pleased to empower all Deputy Collectors, incharge Land Reforms and Development to discharge all or any of the functions of a Collector under the said Act, within their respective jurisdiction.

Author's View.

By Notification dated 3rd June, 1974 the State Government has appointed all the Anchal Adhikaris of the State to discharge the functions of a Collector under the said Act within the limits of their respective jurisdiction. The notification is placed below which is as follows:

S.O. 770 dated the 3rd June, 1974. In exercise of the powers conferred by Section 2(1) of the Bihar Public Land Encroachment Act, 1956 (Bihar Act 15 of 1956) the Governor of Bihar is pleased to appoint all the Anchal Adhikaris or the State to discharge the functions of a Collector under the said Act within the limits of their respective jurisdiction:

S.O. 417, dated the 1st April, 1975. In exercise of the powers conferred by Section 2(1) of the Bihar Public Land Encroachment Act, 1956 (Bihar Act 15 of 1956) the Governor of Bihar is pleased to appoint all the Sub-divisional Officers of the State to discharge the functions of a Collector under the said Act within the limits of their respective jurisdictions:

S.O. 971 dated the 8th July, 1977. In exercise of the powers conferred by clause (1) of Section 2 of the Bihar Public Land Encroachment Act, 1956 (Bihar Act XV of 1956) the Governor of Bihar is pleased to empower the Resident Magistrate at Bokaro Steel City to discharge the functions of the Collector under Sections 3, 6 and 7 of the said Act within the limits of his jurisdiction.]

2[(1A) encroachment means unauthorised occupation of any public land and includes

(a) the erection of a building or any other structure, balconies, proches or projections, over or over hanging the public land;

(b) occupation of the public land for stacking building materials, or goods of any other description for exhibiting articles for sale, for erecting poles, tents, pandals, etc., or for parking vehicles or establing domestic animals or for any other purposes; and

(c) excavations or embankments of any sort on the public land;

(2) prescribed means prescribed by rules made under this Act; and

(3) public land means any land 3[managed by or] vested in the Union of India or the State of Bihar, or in any local authority 4[for statutory body], 5[public undertaking] educational intitution recognised by the Government or by any University established under any law for the time being in Torce, Railway Company or Gram Panchayat established under, Section 3 of the Bihar Panchayat Raj Act, 1947 (Bihar Act VII of 1948)6, and includes any land over which the public or the community has got a right of user, such as right of way, burials, cremation, pasturage or irrigation.

5[Explanation I. For the purpose of this clause and Section 9 the expression public undertaking shall mean

(i) any industrial undertaking owned by a corporation constituted under any law for the time being in force; or

(ii) any industrial undertaking in which the Government owns' more than fifty per centum of the share capital thereof; or

(iii) any other industrial undertaking which is declared to be a public undertaking by the State Government, by notification in the Official Gazette.

Explanation II. All notifications under item (ii) paragraph (I) shall be laid before the Legislature of the State, as soon as may be, after they are issued.]

The definition of land has been changed by Amendment Act 3 of 1982. For taking possession the Collector had to initiate a proceeding. State or its officials, in exercise of their rights as superior landlord or lessor, cannot take possession of disputed buildings and structures by using force under executive decisions. However, State can adopt summary procedures and remove encroachment from public land. State of Bihar v. Dr. Md. Laiquz Zaman, 2010 (3) PLJR 15.

Appellate provision. The Act has made provision for appeal in the Act it self. Per arrangement Additional Collector/Additional Dy. Commissioner can hear appeal against order passed by DCLR. Raj Nath Jha v. State of Bihar, 1985 PLJR (NOC) 47 : 1985 BLJR 608 : AIR 1985 (Pat.) 340.

Even State can be encroacher. Rights of State over public land is regulated by right of user of public. In to this right is an encroachment any unauthorized interference by the Statae State can act only in accordance with law. Birendra Prasad Singh v. State of Bihar, 1999 (3) BLJ 836 : 1999 (3) PLJR 467 : 1999 (2) BBCJ 404.

Order for removal of encroachment in view of illegal administrative order cannot be sustained. Settlement cancelled without any show cause notice. Occupation of such persons is not encroachment. Babulal Paswan v. State of Bihar, 1995 (2) PLJR 37.

A proceeding for removal of encroachment has nothing to with the value of the land. How so much value of the land may be the proceeding has to be initiated in the same manner. Encroachment cannot be linked with value of property under encroachment. Laddu Lal Sahu v. Dharnidhar Sahu, 1984 PLJR 692.

Summary remedy for eviction under BPLE Act can be resorted to by State Government only against grabbers of Government property. Whenever title dispute is involved, such dispute must be resolved by court. Summary procedure envisaged under BPLE Act can not be invoked in such cases. Rekha Singh v. State of Bihar, 1992 (2) PLJR 854. In the proceeding under the Act only question of encroachment will be examined.

Section 6 declared as ultra vires in a different case will have effect in other cases also where section 6 is involved. Prasad Ranjan Das v. State of Bihar, 1984 PLJR 19.

The High Court explained the nature of the term encroachment and said, constructions made by State on roads or road flanks cannot be called encroachment. Birendra Prasad Singh v. State of Bihar, 1999 (3) BLJ 836 : 1999 (3) PLJR 467.

7[ (1) If it appears to the Collector from an application made by any person or upon information received from any sources that any person has made or is responsible for the continuance of any encroachment upon any public land, the Collector may cause to be served upon such person a notice in the prescribed form requiring him to appear on a date which shall not be less than two weeks from the date of service of notice to show cause:

(a) Why he should not be restrained from making such encroachment by issue of injuctions; or

(b) Why such encroachment should not be removed.

(2) Under clause (a) of sub-section (I) the Collector shall have power to issue temporary injunction at any stage to restrain such encroachment till the disposal of the proceeding or till further orders or he may pass such orders as he deems proper for preventing such encroachment:

Provided that where the encroachment on public land is in the nature of exposure of articles for sale, or opening temporary booth for vending, the Collector may without the formality of issuing a notice as required under sub-section (1) order for its immediate removal or cause it to be removed immediately and for the purpose he may use such force as is necessary in the case:

Provided further that where the encroachment on public land is of such a nature as the Collector considers its immediate removal essential for the safety of general public or for the safety of any other structure on the public land and the notice cannot be served without unneccessary delay upon the person responsible for the encroachment or his representative owing to his absence or for any other reason, he may order the removal of encroachment or if necessary cause it to be removed immediately and may use such force for the purpose as is necessary.

(3) If the person who has made or is responsible for the continuance of the encroachment is not known or cannot be found, the Collector may cause notice to be affixed in the neighbourhood of the alleged encroachment requiring any person interested in the same to show cause by the date specified in the notice why the encroachment should not be removed and it shall not be necessary to name any person in such notice.

Issuance of writ of Mandamus. Writ of mandamus is issued to command and execute and not to enquire and adjudicate. Legal right has to be established first and then question of enforcement arises. There is adequate efficacious summary procedure established under Bihar Public Land Encroachment Act, 1956 for eviction of unauthorized occupants. Competent authority under said Act has power to enquire and adjudicate and then to order eviction. Writ of Mandamus would not be maintainable where a fact of unauthorized possession is required to be inquired into and to be adjudicated upon. It is only in case of enforcement of legal right and not to establish a legal right, writ of Mandamus would be maintainable. Prahalad Ray Puranmalka v. State of Bihar, 2017 (2) BLJ [F.B.] 235 (PHC).

Removal of encroachment. Alleged encroachment of public land by Deity When there are serious disputes in right, title and interest or possession of property, summary procedure under encroachment law cannot be restored to by State State must, in such a situation, resort to regular proceedings of suit and then set a decree for evicting a person from unauthorized occupation Appeal allowed. Sri 108 Shyamajee v. State of Bihar, 2016 (3) BLJ 6 (PHC).

Removal of encroachment. Notice is required to be issued to a person who is alleged to have encroached upon Public land. Person against whom such notice is issued is entitled to file his defence. Defence raised on behalf of such person is required to be treated as defence raised on behalf of defendant in a properly framed suit for removal of such encroachment. Final order passed by Collector is appealable under Section 11. Matter remitted to Anchal Adhikari for starting proceeding afresh. Md. Naseem Alam v. State of Bihar, 2015 (3) BLJ 55 (PHC).

Removal of encroachment. No fresh encroachment proceeding can be initiated in respect of disputed plots on same and similar lines when orders passed in earlier encroachment proceedings have attained finality. Besides, when question of title of parties as well as nature of possession is in dispute, same cannot be decided in a summary procedure. Respondents restrained from demolishing structure and from initiating fresh encroachment case till State gets its title declared in its favour. Tapeshwar Prasad Singh v. State of Bihar, 2014 (4) BLJ 73 (PHC) : 2014 (3) PLJR 798.

Demolition of dwelling house. Where there exists dispute as to very situs of dwelling of petitioners and each party has its own version, issue could not have been decided in a summary manner by Collector. Respondents have demolished dwelling of petitioners in garb of removal of encroachment even when they were restrained from doing so and in absence of any conclusive finding by Civil Court. Action of authorities is violative of constitutional right of petitioners. Compensation of Rs. One Lac awarded. Jai Narayan Bhagat v. State of Bihar, 2011 (4) BLJ 332 (PHC) : 2011 (4) BBCJ 599 : 2011 (4) PLJR 504.

Acquisition of rural lands for construction of roads under Prime Minister's Rural Construction Scheme. There is no provision for acquisition for construction of road over raiyati lands of villagers without their consent. Prime Minister's Rural Construction Scheme does not envisage that raiyati lands of citizen should be used for construction of road, it requires that an existing road should be upgraded. Authorities should restrain themselves from laying down road or encroaching lands of petitioners without following due process of law. Narendra Kumar v. State of Bihar, 2011 (1) BLJ 38 (PHC) : 2011 (1) PLJR 812 : 2011 (1) BBCJ 513.

Removal of encroachment. Direction for removal of encroachment from land belonging to petitioner-deity on the ground that land was recorded as Gairmazarua Aam and Kaiser-e-Hind. Dismissal of appeal. Earlier, suit filed by petitioner was decreed in his favour giving exemption from payment of land revenue. Issue with regard to validity of gift deed in favour of petitioner in respect of each and every plot included in gift deed was not before Trial Court Mere finding that plots were being used as homestead of petitioner cannot be treated as conclusive finding with regard to title of petitioner over plots. This is a case of bonafide dispute of title over the plots This issue cannot be decided by Writ Court in writ jurisdiction. Petitioner giving liberty to file civil suit. Sri 108 Shyamajee v. State of Bihar, 2010 (3) BLJ 292 (PHC) : 2011 (1) PLJR 532.

Notice issued-Effect of vesting of Zamindari. The Supreme Court of India in Sharda Devi v. State of Bihar on 8 January, 2003 examined effect of vesting of Zamindari and said, public land and held, the premise that consequent upon vesting of zamindaris, the said land had stood vested in the State of Bihar and was, therefore, public land within the meaning of clause (3) of Section 2 of the Bihar Public Land Encroachment Act, 1956.

Proceeding u/s. 4(h) of Land Reforms Act for annulment Collector reluctant to make award. In the said case in the year 1981, proceedings u/s. 4(h) of the Bihar Land Reforms Act, 1950 proposing to annul the settlement of land in question in favour of Deo Narain Prasad were initiated. The proceedings were founded on the premise that the said settlement was done with the object of defeating the provisions of the Act. An inquiry was held. Once again the appellant filed a Writ Petition seeking quashing of these proceedings. The petition was registered as CWJC No. 1663 of 1981 (R) and disposed of by the High Court by order dated 25.03.1987.

During the pendency of these proceedings, notification u/s. 4(1) of the Act was published on 16.02.1982 as already stated. It appears that the Collector was reluctant to make an award in favour of the appellant determining the quantum of compensation and directing its release to the appellant. On 07.01.1985 the Collector (Addl: Collector, exercising powers of Collector) passed an order holding that the land had vested in State and hence no award directing payment of compensation to the appellant was called for.

In a writ petition a mandamus was issued to the Collector to prepare the award in the name of the appellant. The High Court went on to observe if there be any dispute thereafter, the matter be referred to the Civil Court under Sections 18 and 30 of the Land Acquisition Act for adjudication of any claim in accordance with law. The order dated 07.01.1985 passed by Additional Collector, Lohardaga was directed to be quashed. On 19.02.1986, the Collector (Land Acquisition) prepared an award in the name of Smt. Sharda Devi directing the amount of compensation as determined by him to be paid to Smt. Sharda Devi, the appellant.

By order dated 25.03.1987, the High Court allowed the Writ Petition filed by the appellant (CWJC 1663 of 1981 (R)) laying 1990 (2) BLJ 142 Reforms Act. The result of this decision of the High Court is that the effort of the State seeking annulment of settlement and cancellation of the zamabandhi entries standing in the name of the appellant failed. The appellant was held to have acquired the status of raiyat in respect of the land in question.

Section 3 read with Rules 1 and 4 framed under the Act. In Awadh Bihari Gupta v. State of Bihar, 1990 (2) BLJ 142 the High Court of Patna relied upon AIR 1982 SC 1081 and said, Summary procedure for eviction from Government lands-can be resorted to by the Government only against persons who are in unauthorised occupation of any Government land-but where there is a bonafide dispute regarding title and possession over the property, the Government cannot take any unilateral decision in its own favour at a summary proceeding.

Rule have been framed under the Act. Rule 1 requires the notice to show cause under Sec. 3 of the Act to be given in Form I prescribed in the Rules, section 4 of the Act enables the person on whom such notice is served to appear before the Collector and to raise any defence which he could raise as if he was a defendant in a properly framed suit from removal of the encroachment. Therefore other sections provide as to how the matter has to be heard and final order is to be passed. The aforesaid view is being supported by a case of Jagannath Jha v. State of Bihan - reported in 1984 BBCJ 820.

Now the next stand of the respondents in the counter affidavit is that the demolition was in the public interest and for widening of the road, therefore, their action was bonafide and not in deliberate violation of the provisions of the Act. Since the land belong to the State, it was not necessary to initiate any proceeding. Learned counsel for the petitioners submitted that from the counter affidavit itself it appears that there was a bonafide dispute of title and possession. According to him, where there is a bonafide dispute regarding title and possession, the Government cannot take any unilateral decision even in a summary proceeding. In this connection reliance has been placed over a case of Government of Andhra Pradesh v. Thummala Krishna Rao, reported in AIR 1982 SC 1081. In the said case it has been held that the summary remedy for eviction which is provided for by Sec. 6 of the Act, can be resorted to by the Government only against persons, who are in unauthorised occupation of any land which is the property of Government , it there is a bonafide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the properly belongs to it and on the basis of such decision take recourse to the summary remedy provided by Sec. 6 for evicting the person who is in possession of the property under a bona fide claim or title.

Initiation of proceeding by the Collector. Section 3 has been substituted by the Amendment Act 3 of 1982. The Collector under this provision may proceed either on a petition or even suo motu. The Condition is that it appears to the Collector that a public land has been encroached upon.

Appears to be. The term appears to be means that there must reasonable grounds and materials before the Collector to presume that the opposite party has encroached upon a public land.

Public Land. Public land means the land as defined under section 2(3) of the Act.

To take possession. Even if the Collector Finds that some public land has been encroached upon the authority may not take possession forcefully. A proceeding for the removal has to be initiated. The High Court of Patna in the case of Md Latique said, State or its officials, in exercise of their rights as superior landlord or lessor, cannot take possession of disputed buildings and structures by using force under executive decisions, However, State can adopt summary procedures and remove encroachment from public land. State of Bihar v. Dr. Md. Laiquz Raj Yadav said, Zaman, 2010 (3) PLJR 15.

In the case of Prithwi Raj a land encroachment proceeding the moment there is order for taking measurement copy of such measurement report even if conducted in presence of petitioners is to be supplied to petitioners and they should be given opportunity of hearing. Impugned order passed by circle officer cannot be sustained on the ground of violation of principles of natural justice. Prithvi Raj Yadav v. State of Bihar, 2010 (1) PLJR 816.

Orders passed in land encroachment removal proceeding attained finality. Orders having been passed by an Authority under the Act cannot be challenged in Civil Court due to specific bar provided in Bihar Public Land Encroachment Act. Tej Narain Singh v. State of Bihar, 2009 (3) PLJR 563.

Direction for removal of encroachment from land belonging to Railway authorities. The High Court in the case of Suresh Choudhary said, where land belongs to Railways and is required by Railways for various expansive programmes. Petitioners have only put a semblance of evidence in support of their stand that land had been settled by ex-intermediary in favour of their forefathers. No error in fact or law. Impugned order affirmed. Suresh Choudhary v. State of Bihar, 2010 (1) PLJR 374.

In a case where order was passed to demolish unautorised construction made by the High Court held, order to demolish unauthorised and illegal construction made within civil court premises by District Bar Association. Bar is not supposed to break law. No interference called for in impugned direction. District Bar Association v. State of Bihar, 2004 (2) PLJR 521.

The Collector or any person may not be condoned. Court cannot suggest that illegal construction should be condoned or regularised. Illegal constructions must be dealt with sternly. Sudha Devi v. State of Bihar, 2002 (4) PLJR 278.

Encroachment in areas which are earmarked for planned development cannot be allowed to stand. Rehabilitation cannot be a condition precedent for eviction of such encroachers. Milk Producers Association v. State of Orissa, 2006 (2) PLJR (SC) 175.

Order rejecting claim of the petitioner and removal of structure.

Notice under section 3 while the order of Collector had already become final. In Mahanth Ramagya Giri v. State of Bihar the land in dispute is a Bakast Malik land and the petitioner has the title and possession over the same and he is paying the rent to the State. According to the petitioner the land in dispute is 12 decimal out of plot No. 123 situated in village Gurhanwa, whereupon since 1946 the house of the petitioner exists for keeping catties and implements etc. for the purposes of agriculture and for keeping grains.

In the year 1978 a Land Encroachment Case No. 10 of 1978-1979 was initiated for removal of the alleged encroachment from the 12 decimal of the said land of survey plot No. 123. After making due enquiry and after hearing the parties respondent No. 3. By his order dated 23-2-79 concluded and dropped the said proceeding after holding that the land encroachment case did not appear to be justified against the petitioner. In other words, the said land encroachment case was finally dropped on 23-2-1979 (Annexure-3). The State did not prefer any appeal against the said order, which they could have and were as such entitled to under the provisions of the Act. Thus, the order of respondent No. 3, the Collector under the Act, became final in the year 1979. After long nine years, thereafter, on 23-6-1988 a notice under Sec. 3 of the said Act was issued by the respondent No. 3 to the petitioner to show cause as to why the encroachment over the said area be not removed (Annexure-4). The petitioner filed show cause and on the same allegation, as was made earlier in the year 1979 under the Bihar Public Land Encroachment Act, this proceeding was revived again and a fresh proceeding was started (Encroachment Case No. 9/88-89) and thereafter, the impugned order contained in Annexure-6 was passed by the respondent No. 3 ordering the demolition of the said construction.

After considering the matter on the record and the rival contention of the parties, admittedly the fresh proceeding after long nine years under the Act was initiated on the same allegation on which the earlier proceeding under the Land Encroachment Act had been finally concluded in the year 1979 and the proceeding had been finally dropped. I, therefore, hold that for the same reason and on the same allegation there was no jurisdiction in the officers concerned to initiate a fresh proceeding after long nine years when the matter had been finally concluded regarding the land encroachment. If the State was aggrieved by the earlier order of the Collector under the Act whereby the proceeding had been finally dropped and concluded, they could have preferred an appeal or revision but nothing of the kind was availed and I do not see any reason how after long nine years for the same cause and on the same allegation another fresh proceeding under the Land Encroachment Act could be initiated. Thus, there was no jurisdiction left with the respondent No. 3. The collector under the Act passed the impugned order contained in Annexure-6. The orders contained in Annexure-6 as also the order in appeal dated 30-8-1988 are quashed and the application is allowed but without cost.

Orders of Court-Relevancy. In the case of Anadi Prasad the High Court said, demolition of shop by going against order of court. Such action cannot be justified on any plea. Respondents directed to restore the land to petitioner with compensation of Rs. 50,000. Anandi Prasad v. State of Bihar, 2005 (3) PLJR 465.

In Niranjan Mandal v. State of Bihar, 1978 AIR (Pat) 1 the petitioner of C.W.J.C. 193 of 1976 (R) is the mother of the petitioner of C.W.J.C. 192 of 1976 (R). In C.W.J.C. 192 of 1976 (R), the petitioner has prayed for quashing of Annexures 1, 6, 7 and 8. Annexure-1 is a notice dated 8-3-1975 from the Anchal Adhikari, Potka, District Singhbhum (Respondent No. 2) calling upon the petitioner to show cause as to why he has constructed a house on Government land, bearing plot No. 158 of village Bara Bhuwri by encroaching upon the said land to the extent of 5 decimals. Plot No. 158 is stated to be a road. The notice was issued under the Bihar Land Encroachment Act, 1956. Annexure-6 is an order of Respondent No. 2 calling upon the petitioner to remove the encroachment. It appears that after the order as contained in Annexure-6 was passed, the petitioner preferred an appeal before the District Judge of Singhbhum at Chaibassa (Respondent No. 3) which was numbered as Misc. Appeal No. 66 of 1975. The appeal was dismissed by order dated 19-3-1976. Annexure-7 is a copy of that order. Annexure-8 is the final notice after the dismissal of the appeal by Respondent No. 3 to remove the encroachment.

The High Court said, Neither of the two respondents (Respondents 2 and 3) has applied himself to the question whether the case of the petitioner of C.W.J.C. 192 of 1976 (R) that the house was standing there in the same condition for more than 50 years was correct or not. While rejecting the argument of the petitioner that as the encroachment was less than 5 links, there should be no order for its removal, the learned District Judge has observed that it was not open to the petitioner to take up that point as he did not pray before Respondent No. 2 for getting the land re-measured. In our opinion, it was not necessary for the petitioner to make any petition before Respondent No. 2 for getting the land re-measured when, admittedly, the encroachment was less than 5 links. It is now well settled that if the alleged encroachment is less than 5 links, it cannot be held with certainty that there is an encroachment at all. That is a question of law and if party is entitled to succeed on a question of law, it is not necessary for him to raise a question of fact. Since the encroachment alleged is less than 5 links, the orders for removal passed by Respondents 2 and 3 are bad and in that view of the matter we do not consider it necessary to examine the other point raised by learned Counsel for the petitioner, namely, that his claim that the house was standing there in the same condition for over 50 years has not been considered by Respondents 2 and 3.

Proceedings before the civil courts. Orders passed-Notice u/s. 3 for initiating a proceeding for removal of encroachment held not sustainable. In Sudama Sah v. State of Bihar, 1995 2 BLJR 1334 : 19952 PLJR 109 the High Court noted, from the record, it appears that earlier on 27.8.1962 an order was passed by the Land Reforms Dy. Collector, Motihari under the Bihar Public Land Encroachment Act, 1956, directing for the eviction of the petitioners from the disputed land. A similar order was again passed on 26.6.1966 by the Land Encroachment Officer, Motihari under the Bihar Public Land Encroachment Act, 1956. The aforesaid two orders were passed at the instance of the Motihari Municipality. At that stage, petitioners No. 1 and the father of petitioner No. 2 filed T.S. Nos. 256 and 257 of 1962 against the Commissioners of Motihari Municipality in the Court of Munsif, Motihari. In these suits, two reliefs were claimed, first, a declaration that the plaintiffs (the petitioners here) had acquired title over the disputed land by adverse possession and the second also a declaration, that the orders of eviction passed by the Revenue Courts were without jurisdiction. The suits were decreed by the trial court in favour of the petitioners. The Municipality preferred appeals, which were dismissed by a common judgment and order dated 12.1.1972 passed by the Subordinate Judge, Motihari. A copy of the judgment is the Annexure-1 and from its perusal, it appears that the question whether the disputed land was municipal land was left open in those suits with an observation that for evicting the plaintiffs (petitioners in this application) from the disputed land the Municipality would have to file a fresh suit and the question whether the land was municipal land could be examined in case such a suit was filed by the Municipality. As regard the orders of eviction it was held that both the Acts of 1950 and 1956 having been held by the Patna High Court to be ultra vires the orders passed thereunder were clearly unsustainable. The relevant extract from the judgment in appeal is as follows:

Accordingly the two orders in question must to held to be void, illegal and without jurisdiction irrespective of the fact whether the land is a public land or not. The plaintiffs cannot be evicted from the suit land on the basis of the two orders referred to above by the revenue authorities under the Land Encroachment Act. The remedy of the defendants, if any, is to file a fresh suit for eviction in Civil Court.

No further appeal was taken from the aforesaid judgment and order dated 12.1.1972 and no suit for the eviction of the petitioners was apparently filed within three years from the date of the judgment either by the Motihari Municipality or the District Board or the State of Bihar.

In view of the statements made in the petition filed on behalf of the Motihari Municipality in the Court of the 3rd Addl. District Judge, Motihari and in view of the other facts and circumstances brought on the record of this case, including some photographs, of the disputed land, the petitioners allegation that the district administration had removed the structures from the disputed land by use of force does not appear to be wholly without substance. The use of force was apparently without any sanction of law inasmuch as no proceeding appears to have been initiated against the petitioners which could lead to their forcible eviction. In view of the aforesaid facts and circumstances it would not have been unwarranted to get an enquiry made as to whether or not the administration had tried to evict the petitioners forcibly from the disputed land on 16.6.94.1 however, do not propose to issue any direction for an enquiry as it would not serve any useful purpose. I cannot, however, refrain from expressing my anxiety and uneasiness over the manner in which repeated attempts have been made to short circuit the Courts, bye-pass the due process of law and to obtain the desired results by forceful means without any regard to the rule of law. I am further of the opinion that the plea that the removal of the petitioners from the disputed land was necessary for the beautification of the town and was in the larger public interest is of hardly any relevance because an administrative action cannot be justified or defended on the basis of goodness of intentions alone. The executive is also obliged to act within the four corners of law. There is no room for benevolent despotism under our Constitution and all the administrative actions must have a legal sanction.

Proceding for contempt-Direction was to hold an enquiry. In Vishwanath Dubey v. The State of Bihar, 2014 (4) PLJR 412 in the show cause it has been pleaded that the Collector, Rohtas has not been able to take any decision on account of pendency of CWJC No. 4191 of 2010 in which an interim order for maintaining status quo was passed on 30.3.2010.

In our considered view, the order of the Division Bench has been carried out and complied with substantially be getting an enquiry done through the Additional Collector, Rohtas (Sasaram). Now, the Collector, Rohtas has to take a final decision as to what should be done on the basis of the said report. He has to take a decision in accordance with law keeping in view all the materials including the opinion of the Government Pleader and orders, if any, passed in the pending civil matters before the Civil Court, Rohtas relating to Plot Nos. 231, 239 and 241.

The Collector will be well advised to keep in mind that where there is a bona fide dispute of title and possession, summary proceeding under the Act is not advisable and the authorities may have to wait for decision by the Civil Court if the matter has been taken to the Civil Court. In other cases where there is no dispute of title or possession and only a pretence of possession over public land meant for road has been raised and the matter has not been taken to Civil Court, the matter would be different and the Collector, in the facts and circumstances of the case, may take a decision that the suitable action should be taken further under the provisions of the Act. We would not like to go into the merit of the matter because the Collector has been left free to decide the relevant issues as per law and the policy because some of the matters are said to be pending before the Civil Court, Sasaram.

It is made clear that if the land, in the opinion of the Collector, is a public land then he will depute some responsible officer so that matters pending before the Civil Court are contested in proper spirit and not allowed to stagnate for want of proper action by the State and its officials.

In view of aforesaid discussion and direction, no further decision is required in the matter. Both the matters i.e. contempt matter and the Writ Petition are accordingly disposed of.

Plea of equity against eviction. The High Court of Patna in the case of Dharikshan Sah made it clear that mere payment of rent for occupying a particular piece of land would not create any right for allotment or settlement. They have to leave if owner is willing to evict them. Encroachers cannot resist eviction by raising plea of equity. Dharikshan Sah v. State of Bihar, 2005 (2) PLJR 99.

Encroachment must be measured and specified. Encroachment cannot be removed without measurement. Measurement must be done in presence of petitioner. But, if petitioner does not appear measurement can be done in his absence. Ram Naresh Singh v. State of Bihar, 2005 (1) PLJR 99.

In case there is any challenge to removal of encroachment on public road or public land, proper measurement must be done by competent authority in presence of petitioner. Without proper assessment demolition cannot be carried out. Sanjeev Prasad v. State of Bihar, 1997 (1) PLJR 24.

Eviction can only be made in accordance with law by initiating a proceeding as provided under the Act. In Kamal Kishore v. State of Jharkhand, 2013 (1) JCR 277 : 2012 4 JLJR 122 after hearing the parties and perusing the record the High Court said, it is not in dispute that the petitioners have not been able to show any document or evidence to establish that they have been living in the said piece of land for more than 40 to 45 years. The documents annexed to the writ petition being Ration Cards, Voter Identity Cards have already been referred to hereinabove do not show that petitioners have been living over the said piece of land for more than 10 to 15 years. On the other hand, it is also not in dispute that the aforesaid piece of land being Khata No. 242 Plot No. 1030 Sakchi, Jamshedpur is a Government Land undertaken by the Public Works Department. It further appears that earlier proceeding for eviction of encroachment under the-Bihar Public Land Encroachments Act was initiated by the Court of Circle Officer, Jamshedpur being B.P.L.E. Case No. 86/96-97 which is annexed as Annexure-B. However, from perusal of the aforesaid order and from the submissions of counsel for the parties, it does not appear that the said proceeding was conducted against these petitioners by passing any order by the competent authorities under the BPLE Act. It appears that respondents have in their zeal to remove the encroachers from the Public Land by issuing notice straightway in the manner as contained in impugned Annexures directed the petitioners and other persons to vacate the land in question peacefully failing which steps would be taken for forceful eviction against the said persons.

From the aforesaid facts, it appears that no proceeding under the BPLE Act in order to remove the encroachment of unauthorized encroachers over the public land, has been initiated before issuance of the impugned notice. Although the contention of the petitioners that they were living since last 40-45 years on the PWD land is not substantiated by any piece of evidence, but at the same time, forcible eviction has been sought as per the impugned notice. In the aforesaid facts and circumstances even though the petitioners are the encroachers over the public land, their eviction can only be undertaken in accordance with law by initiating a proceeding in a proper manner before the competent authorities as provided under the BPLE Act by following the procedure established by law. In the circumstance, since it appears from the face of the record that the aforesaid proceedings have not been initiated in accordance with law for removing petitioners, the impugned notices are set aside and respondents are directed to take steps in accordance with law by initiating appropriate proceeding under the BPLE Act, 1946 as adopted by the State of Jharkhand against unauthorized occupants including the petitioners after giving proper opportunity and following due procedure under the said Act. It is also expected that when the proceedings under the BPLE are concluded finally against the unauthorized occupants and the unauthorized occupants are evicted from the Government land or property, it is the responsibility of the respondent authorities to ensure that no further encroachment over the said public land is made by the encroachers and such situation does not arise again and again which is clearly against the larger public interest. In the circumstances, the said writ petition is allowed with observations given hereinabove with liberty to the respondents to proceed against the petitioners and other persons under the provisions of Bihar Public Land Encroachment Act adopted by the State of Jharkhand in accordance with law for unauthorized occupation of public land. The said proceedings should be concluded within a reasonable time by following mandate of the law.

Removal of encroachment Direction given to appropriate authority to get the disputed land measured according to Survey Map of 1929. In Vivek Sarawgi (Minor) v. Ranchi Municipal Corporation, 2009 (1) JCR 149 : 2009 2 JLJR 181 the High Court of Patna directed to appropriate authority to get the disputed land measured according to Survey Map of 1929 and if on measurement any encroachment is found over municipal land necessary steps for demolition of land may be taken.

In the case under reference by earlier order dated 14.7.2008, a point was raised by the learned counsel for the petitioner that the respondent Municipal Authorities have wrongly claimed that the petitioner had made encroachment on the disputed land without carrying out on spot measurement on the basis of the revisional survey map of 1935 and instead by placing wrong reliance upon the survey carried out in the year 1929, the respondent municipal authorities have been claiming that the boundary constructed by the petitioner is an encroachment. Learned counsel had relied in this context on the judgment of the Supreme Court in the case of Shri Raja Durga Singh of Solon v. Tholu reported in AIR 1963 SC 361 and another judgment passed by this court in Dwarika Sonar v. Most. Bilguli reported in 2003 (2) JCR 134 (Jhr) as also the case of Rajendra Khalko v. The Ranchi Municipal Corporation, Ranchi passed in WPC No. 3075 of 2002. It further appears that on the above issue, learned counsel appearing for the municipal corporation had sought for time for obtaining instruction and to file supplementary counter-affidavit.

In the said case it was not disputed that the petitioner's name has been mutated in the Government revenue record in respect of the land in question along with its measurement. It is also not in dispute that after the year 1929, survey of the land within the area was conducted by the Revenue Department in the year 1935. It is not understood as to why respondent municipal authorities are insisting upon conducting measurement of the petitioner's land in accordance with the survey map of 1929 and why are they feeling shey to rely on the revised survey of 1935. The petitioner's claim that he is the owner of the disputed land is prima facie acknowledged by the revenue authorities of the State Government and the issue involved in the present writ application is only relating to the ascertainment of the actual area and demarcation of boundary which needs to be finally settled between the parties.

In view of the aforesaid facts and circumstances, the Court held that the respondent municipal authorities are not showing any inclination to carry out the measurement in accordance with the revisional survey map of 1935. It is therefore deemed appropriate that the measurement be carried out by the Survey Amin duly authorized by the Deputy Commissioner, Ranchi. Accordingly, Deputy Commissioner, Ranchi is directed to get the disputed land measured in accordance with the revenue record pertaining to the land which has been recorded in the name of the petitioner and demarcate the boundary on the basis of the revisional survey of 1935. This exercise must be carried out in presence of both parties after giving them advance notice of a fixed date, preferably within two months from the date of this order. Put up this case after eight weeks on 24th October 2008. Till the next date, the interim order dated 14.7.2008, as passed by this court, shall continue.

The court directed, needless to state that in the event it is found on measurement being taken, that there is any encroachment made by the petitioner over the land, belonging to the municipal corporation, then the municipal corporation may take necessary steps in accordance with law for demolition of such illegal construction, if any.

Eviction from demised property after expiry of lease period. Order for eviction passed after starting proceeding under Section 3, pursuant to order passed by court. Such order of eviction is not illegal. Md. Mehandi Imam v. State of Bihar, 2001 (3) PLJR 762.

Status of Chajjas etc. Construction of Chaijas, platform etc. on public lands are encroachment and hence, liable for removal by initiating a due proceeding. In the case of Amarendra Narayan Prasad the High Court said, Chajjas, Platforms and projections on public lands or byelanes are to be removed after giving notice and hearing. Amrendra Narain Prasad v. State of Bihar, 2001 (3) PLJR 132.

Final order passed under section 6 after duly initiating proceeding under section 3. No illegality attached in impugned action. Md. Mehandi Imam v. State of Bihar, 2001 (3) PLJR 762.

Installation of statutes on public land-Not legal. Statues of national leaders cannot be installed on public roads. Community and social services can be carried out from space reserved for roads and parks. Chandan Kumar Singh v. State of Bihar, 2000 (4) PLJR 362.

Encroachment on Public roads. Authorities must identify the road by reference to latest survey maps available and limit demarcated to find the encroacher. Middle of road cannot be taken as basis to determine encroachment. Arun Kumar Mukherjee v. State of Bihar, 1999 (3) PLJR 272.

Encroachment on public road on the basis of sanctioned plan. Where structure has been raised with a sanctioned plan, no part of structure should be demolished, even if width of road in front of such structure is less than 20 feet. In such cases, prior consent of landowner or acquisition of land is necessary for any demolition. Arun Kumar Mukherjee v. State of Bihar, 1999 (3) PLJR 272.

A building constructed in accordance with sanctioned plan cannot be even partly demolished by simply putting a mark on it. Building constructed in accordance with sanctioned plan should not be disturbed. Khurshid Alam v. Md. Zahir, 1997 (2) PLJR 847.

No class of lands or people specified under this Act Bihar Public Land Encroachment Act does not contain any guideline regarding class of cases in which Collector will take action under BPLE Act. Ramzan Mian v. Executive Engineer, 1969 PLJR 241.

Proceeding under BPLE Act can be initiated only in respect of public land. No proceeding can be initiated in regard to land which is not a public land. Devendra Prasad Nayak v. State of Bihar, 1995 (2) PLJR 105.

Proceeding under BPLE Act is not maintainable in respect of Khas Mahal land. Ashwani Kumar Gupta v. State of Bihar, 2000 (2) PLJR 221.

Summary remedy for eviction under BPLE Act can be resorted to by State Government only against grabbers of Government property. Whenever title dispute is involved, such dispute must be resolved by court. Summary procedure envisaged under BPLE Act can not be invoked in such cases. Rekha Singh v. State of Bihar, 1992 (2) PLJR 854.

Proceeding under BPLE Act is a judicial proceeding and Collector is a court. Provisions of Evidence Act apply to proceedings under BPLE Act. Ravi Pratap Singh v. State of Bihar, 1995 (1) PLJR 657.

Order of removal by an illegal order. Order for removal of encroachment in view of illegal administrative order cannot be sustained. Settlement cancelled without any show cause notice. Occupation of such persons is not encroachment. Babulal Paswan v. State of Bihar, 1995 (2) PLJR 37.

Encroachment cannot be linked with value of property under encroachment. Laddu Lal Sahu v. Dharnidhar Sahu, 1984 PLJR 692.

Notice issued to petitioner for removal of encroachment despite contra order passed in land encroachment case is illegal. A person who has acquired title on public property by passage of time cannot be removed in summary manner. Nagendra Mistry v. State of Bihar, 2000 (1) PLJR 209.

Forceful dispossession of petitioner during pendency of title suit. In Arun Kumar Singh v. State of Bihar, 2001 (1) BBCJ 513 : 2001 1 PLJR 526.

The High Court of Patna said, authorities are required to clear any encroachment over Government land through a proper encroachment proceeding after proper service of notice-Forcible dispossession is illegal.

In the said case the High Court held, the plaintiff has claimed in the suit that he has right, title and interest over the suit land and he has not encroached any Government land. Some Government officials, who were added as defendants, were making all attempts to dispossess the petitioner illegally and forcefully. On previous occasion also he moved before this Court under writ jurisdiction and it was observed that the petitioner shall be at liberty to move before the civil court for his right and title etc. It is the settled principle of law that even if there is any encroachment to Government land by any individual then the authority of the Government is entitled to make clear of such encroachment through encroachment proceeding being brought after giving notice as contemplated under Bihar Public Land Encroachment Act, 1994,

It does not appear from the orders passed by both the courts below as to whether there was any initiation of encroachment proceeding under the Act and the petitioner has filed an affidavit to the effect that up-till-now to his knowledge no such encroachment proceeding has been initiated by the opposite party. In that view of the matter, when the opposite parties have not initiated an encroachment proceeding up-till-now, the appreciation (sic apprehension?) in the mind of the petitioner can be set at rest only with this observation and direction that the petitioner should not be dispossessed by the opposite parties during the pendency of the suit forcefully but they shall be at liberty to proceed legally as per the Act itself. In that way, the petitioner shall get opportunity to raise his case.

Long possession No plea against order to remove encroachment. In Santosh Yadav v. State of Jharkhand, 2010 (4) JLJR 94 the Court held, encroachment from land in question was removed in accordance with law after issuing notice to all concerned persons-.-Petitioners could not establish their right over land in question.

In the said case, according to the petitioners, the respondents cannot evict or dispossess them from the land bearing Plot No. 911, under Khata No. 312 within Mouza Katras No. 329, as they are residing on the said land continuously and peacefully from several years' with permission of the ex-landlords of Katras and that they cannot be evicted on the basis of the order passed by this Court in W.P. (PIL) No. 2561 of 2007 as well as in Contempt Case (Civil) No. 585 of 2008 as the orders therein were obtained wrongly. Petitioners have also prayed for restraining the respondents from making any construction over the land in question.

The petitioners themselves are not clear about the nature of their occupation. Different and contradictory statements have been made in the writ petition. At one place, it is said that petitioners and others are residing in thatched house with tarpaulin ; at another place, it is said that they are residing in Kacha hutment and at another place, it is said that they have constructed pucca residential house . It is admitted by the petitioners that alongwith their residential houses there are Khatals (dairy).

It is also admitted that notices were issued to the residents of Khatals , against which petitioners and others filed their show causes analogously but it is said that without disposing the same, several houses have already been dismantled.

According to the respondents, the said PIL was filed alleging that illegal encroachment on the public land near one primary school was made causing serious problems to the public; and that in compliance of the directions of this Court, enquiry was made and it was found that altogether 36 persons including Kalinath Yadav, in whose house petitioner no. 1 used to reside have encroached upon the public land bearing plot no. 911, khata no. 312, which is also recorded as Gairabad land . Accordingly, notices under the provisions of Bihar Public Land Encroachment Act against all 36 persons, who encroached upon the land in question, were served and ultimately the illegal encroachment has already been removed in accordance with law.

Petitioners have not produced anything to show their right over the land in question, whereas from the order dated 8.10.2009, passed in WPC No. 6021 of 2008, Chandra Nath Singh v. State of Jharkhahd, relied by the petitioners, it appears that petitioner in the said writ petition produced some material to prima facie show his right over the land and in that view of the matter, this Court remitted the matter to the Deputy Commissioner.

In the facts and circumstances, noticed above, and for the reasons aforesaid, this writ petition was dismissed.

Trespassers on GM lands. A trespasser on gairmazarua-aam-land has no right to complain about violation of his right and he cannot file any suit in this regard. Md. Zikrul Islam v. State of Bihar, 2001 (1) BLJ 487 : 2000 (4) PLJR 790.

When there is claim by owner that land is his private land, demolition of buildings standing on such land without following due process of law, is not justified. Petitioner is entitled for restoration of his possession. However, compensation cannot be awarded by court without proper assessment. Parties given liberty to file civil suit. Bhola Sah v. State of Bihar, 1999 (2) PLJR 851.

Municipal and District Authorities cannot take any step for eviction of alleged encroachers by flouting judicial orders. Such action cannot be justified on the plea of public good. Order of court cannot be violated. Sudama Sah v. State of Bihar, 1995 (2) PLJR 109.

When any disputed question of title is raised, summary proceeding under BPLE Act cannot be invoked. Card Board Products v. State of Bihar, 1994 (1) PLJR 99.

No forceful entry permitted. Anchal Adhikari could not have forcibly entered into the premises and caused damage to construction when matter was pending adjudication before him. Such biased action cannot be tolerated. Action to be taken against Anchal Adhikari. Card Board Products v. State of Bihar, 1994 (1) PLJR 99.

Government officers cannot initiate fresh proceeding for same reason and on same allegations many years after order for dropping earlier proceeding had become final. Mahanth Ramagya Girl v. State of Bihar, 1991 (2) PLJR 249. See also: Kali Prasad Seal v. State of Bihar, 1969 PLJR 23.

Where petitioner is rightful owner of property. Application filed by petitioner for removal of encroachment is not barred by Section 15 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Union of India v. Additional Collector, 1984 PLJR 505.

Disputed question of title and possession cannot be decided in summary proceeding envisaged by BPLE Act. Party must take recourse to civil court. Apna Grihi Nirman Sahyog Samiti v. L.N. Mithila University, 1998 (2) BLJ 594 : 1998 BBCJ 404.

Power under the Act limited to encroachment Question of title cannot be decided. The High Court said, Collector cannot determine question of title on a summary way. Fraud, collusion, concotion etc. which requires strict proof can only he decided by Civil Court. Kaushalya Devi v. State of Bihar, 1999 (2) BLJ 361.

Any encroachment on public land can be removed only in accordance with procedure permitted by law. Awadh Bihari Gupta v. State of Bihar, 1990 (2) BLJ 142.

Proceedings for removal of encroachment once initiated and then dropped. Subsequently, fresh proceeding can be initiated in respect of same land. Maheshwari Devi v. State of Bihar, 1988 BLJ 1051.

Removal of encroachment-Alleged encroachment made by Municipal Council. Md. Parvez Alam: Petitioner v. The State of Bihar, 2016 (2) PLJR 48; Alleged encroachment made by Municipal Council, Araria over public land belonging to Road Construction Department which were acquired for widening of public road-Respondent Municipal Council has not brought on record any material to show that lands in question were ever allotted to it Illegal constructions are required to be demolished as early as possible and thereafter lands to be restored to RCD for widening of public road.

The High Court said, after having heard the parties and on consideration of the materials available on record, it is apparent that there is no dispute that the lands in question belong to the Road Construction Department, Government of Bihar and it was acquired for widening of the public road. It is further apparent that the lands in question is situated near the Sadar Hospital Araria within the township of Araria, the headquarter of the District. According to the respondent no. 4, the public road in the town of Araria is required to be widened. The respondent no. 5 has not brought any material/document on record to show that the lands in question was ever allotted to the Municipal Council, Araria by any competent authority of the respondent State. In the counter affidavit filed on behalf of the respondent no. 5 also no document has been brought on record to show that the respondent Municipal Council (Nagar Parishad), Araria is having any valid title and possession over the lands in question. Evidently, the respondent no. 5 is encroacher over the lands in question, which is meant for the use of common people and was acquired for widening of public road.

In above view of the matter, any construction made by the Municipal Council, Araria (respondent no. 5) over the lands in question has to be held illegal and void. Since the respondent no. 5 is not claiming right, title and valid possession over the lands in question on the basis of any lawful document, therefore, there is no necessity for starting any encroachment proceeding for removal of the aforesaid encroachment. In fact, in view of the admission made by the respondent no. 5, noticed above, simply steps are required to be taken by the respondent District Magistrate and other functionaries of the State of Bihar for removal of the aforesaid encroachment made by the Municipal Council, Araria over the lands in question. The illegal constructions made over the same are required to be demolished as early as possible and thereafter lands in question is required to be restored to the Road Construction Department for widening of the public road.

Encroachment proceeding-No encroachment if the land is rayati. In Haranganj Grih Nirman Sahyog Samiti v. State of Jharkhand, 2009 (1) JCR 13 : 2009 (1) JLJR 126 the Court held, where Revenue Courts recorded their findings about the land in question that the said land is not Government land rather it is Raiyati land no case of encroachment should have been instituted. However, if the appellant-petitioner has any grievance he should apart alternative remedy of civil suit.

This appeal had been preferred by Haranganj Grih Nirman Sahyog Samiti against the order dated 03.07.2008 passed in W.P.(C) No. 6904/2007 by which the ??? petition filed by the petitioner-appellant herein was dismissed holding therein that the land on which Encroachment Case no. 4/2003-2004 was instituted was a raiyati land in the survey records of right which has been concurrently held by all the revenue authorities which include Circle Officer, Sub Divisional Officer, and the Deputy Commissioner and therefore, no action could have been taken under the provisions of Bihar Public Land Encroachment Act.

Counsel for the appellant assailing the order passed by the learned Single Judge has submitted that the land in question is used as a public road and according to their averment, the road was constructed by the respondent-State.

Mr. L.K. Lal, counsel appearing for the respondent-State however submitted that the land was constructed by the Cooperative Society itself and the land being raiyati land, the respondent-State has no concern with the said land. It is thus obvious that the land in question, according to the petitioner-appellant herein, is a public land due to which Encroachment Case no. 4 of 2003-2004 was instituted at the instance of the petitioner-appellant and therefore, the land, according to the authority, is a raiyati land.

The Court held, the learned Single Judge could not have-been expected to enter into a scrutiny of the evidence and decide the nature and character of the land. Once the finding of fact was recorded by the revenue courts that the land in question is a raiyati land, obviously the encroachment case could not have been instituted. However, if the petitioner-appellant still insists that the land in question is not a raiyati land and that it is a public land, it obviously will have to avail the alternative remedy including the filing of a civil suit for adjudication of the question regarding the nature and the character of the disputed land.

Notice issued to remove encroachment Writ petition dismissed reserving the right of petitioners to approach the appellate authority and produce the entire evidence with respect to their title and lawful possession or possession of their vendors over the land in question of Jharkhand, 2015 (3) JCR 329 the Court held, Keeping in view totality of the facts and circumstances and without expressing any opinion on the merits of the case, least it may prejudice the case of either side before the appellate authority, we grant two weeks' time to the petitioners-appellants to approach the appellate authority, throwing challenge to the legality and validity of order dated 16.3.2015/17.3.2015 passed by Circle Officer, Giridih. The impugned order, during this period of two weeks shall not be made operational, in default thereof the interim relief granted to the petitioners shall cease to operate.

Needless to say that the appeal shall be decided by the appellate authority expeditiously, preferably within one month, undoubtedly in accordance with law, without being prejudiced to any observation made by learned Single Judge while dismissing the writ petition.

Removal of encroachment-Mere deposit of Salami would not confer right on petitioner. In Corporate Ispat Alloys Limited - Petitioner v. The State of Jharkhand, 2015 (3) JCR 709 : 2015 (2) JLJR 668; 2015 held that Mere deposit of Salami would not confer right on petitioner to occupy government land before proposal for settling land was finally approved.

In this case the petitioner namely, Corporate Ispat Alloys Limited entered into a Memorandum of understanding dated 14.08.2008 with the respondent-State of Jharkhand for establishing an integrated steel plant with enhanced capacity of 2.5 MT per year. It is claimed that the proposed investment for setting up the said integrated steel plant is Rs. 9120/- crores. The government alloted 53.58/- acres of land on 20.02.2010 however, Encroachment Case No. 2 of 2011-2012 was initiated by the Circle Officer, Kharsawan in which final order dated 06.06.2012 was passed directing the petitioner to remove the Encroachment from land in question. The petitioner challenged the same by filing appeal which was dismissed and review petition filed against the order passed in the appeal has also been dismissed.

Referring to Clause 4 and 4.1 of MoU dated 14.08.2008, the learned counsel for the petitioner submitted that the respondent-State of Jharkhand agreed to extend help and cooperation in several areas for construction, commission and for successful operation of the project. It is recorded in MOU dated 14.08.2008 itself that the State of Jharkhand is willing to extend all possible help and cooperation however, after allotting 53.58 acres of land, the respondent-State of Jharkhand did not grant settlement in respect of 5.16 acres of land. The learned counsel for the petitioner submits that though, the petitioner has deposited 80% of the Salami calculated by the Additional Collector, Sariakella-Kharsawan and the proposal was forwarded however, in the meantime, the encroachment case was initiated by the Circle Officer in which a direction has been issued to the petitioner to remove the alleged encroachment. Alleging arbitrariness on the part of the respondent-State of Jharkhand in ignoring the promise made in MoU dated 14.08.2008, the learned counsel for the petitioner submits that the respondent-State of Jharkhand is estopped from resiling from the promise made in MoU dated 14.08.2008. It is stated that the process of transfer is almost complete and it requires only administrative approval of the authority.

After examining the case the High Court said, Having heard the learned counsel for the parties and after perusing the documents on record, I am of the opinion that the writ petition is liable to be dismissed. The Memorandum of understanding does not confers a legal right on the parties though, certain promises may have been made therein. [ Monnet Ispat and Energy Ltd. v. Union of India , reported in (2012) 11 SCC 1. Moreover, it is not the case of the petitioner that the respondent-State of Jharkhand has not extended its help in acquiring land for setting up integrated steel plant. Vide letter dated 03.04.2013 by the Additional Collector, which has been filed as Annexure-6 to the writ petition, a proposal was forwarded for approval. The submission raised on behalf of the petitioner that the petitioner has made payment of 80% of the Salami calculated by the-Additional Collector would not confer a right on the petitioner to occupy the government land before the proposal contained in letter dated 03.04.2013 is finally approved. The petitioner itself has claimed that the proposal for settling land in favour of the petitioner is in process. It is not the case of the petitioner that the petitioner has been put in possession by the respondent-State of Jharkhand legally nor any document has been produced, before this Court or in the land encroachment proceeding, by the petitioner to indicate that the petitioner has been put in possession by the respondent-State of Jharkhand. I find no reason to interfere with the findings recorded by the forums below.

Removal of encroachment. Initiation of eviction proceeding-In Md. Ezaz @ Raja Babu v. The State of Jharkhand through Chief Secretary, 2015 1 JLJR 431 petitioner unable to furnish details regarding possession over land in last 60 years and how vendors of petitioners came in possession over subject land.

In the case under reference the learned counsel for the petitioner submitted that without serving notice upon the petitioner, the respondents have adopted substituted mode of service at the first instance itself. No Form-ll was ever issued and thus, the proceeding in Encroachment Case No. 15/2013-2014 was in contravention of mandatory provisions of the Jharkhand Public Premises (Eviction of Unauthorized Occupant) Act. In terms of Section 6 of the Act, after a final order is passed which, in the present case was allegedly passed on 30.09.2014, a further notice is required to be issued, which admittedly has not been issued in the present case. If a proceeding culminates in deprivation/dispossession of a person from property, the requirement with respect to service of notice etc. must be strictly complied with. Neither the order passed by the Sub-Divisional Officer nor the affidavit of the Headmaster indicates initiation of land encroachment case. Relying on decision in Pune Municipal Corporation v. Harakchand Misirimal Solanki , reported in (2014) 3 SCC 183 and in Magnum Promoters P. Ltd. v. Union of India passed in I.A. No. 3 of 2014 in C.A. No. 4284 of 2011, it is contended that since the actual physical possession of the land was not taken, the acquisition proceeding would lapse and thus, the respondents were not justified in demolishing the building standing on the land belonging to the petitioner.

Per contra, Mr. Atanu Banerjee, learned G.A. raised a preliminary objection as to the maintainability of the writ petition on the ground of availability of alternative remedy. It is submitted that under the Jharkhand Public Premises (Eviction of Unauthorized Occupant) Act, the petitioner has efficacious alternative remedy of appeal. In the present writ petition, the petitioner has raised serious dispute with respect to service of notice etc., which can be effectfully adjudicated by the appellate authority. He further submits that the writ petition has been filed on the basis of forged and fabricated documents. The petitioner has asserted that he purchased the property in question on 14.02.2011 and thereafter, rent receipt was issued in his name however, the document filed as Annexure-2 to the writ petition discloses that the rent receipt was issued on 07.02.2011, that is, prior to registration of the alleged sale deed. The learned G.A. further submits that the petitioner has not acquired any valid right, title or interest over the land in question which has already been acquired for public purpose, way back in the year, 1954-1955. The encroachment has been removed after following due process of law and no fundamental right of the petitioner has been infringed. The petitioner has made false statement in the present proceeding in as much as, he has the knowledge of the Land Encroachment proceeding and the measurement of the encroached land was taken in his presence.

The Court held, in view of the aforesaid, this writ petition is dismissed. However, a liberty is granted to the petitioner to approach the appellate authority within a period of two weeks from the date a copy of the order is made ready. Since, the petitioner has been granted liberty to approach the appellate authority, the plea regarding service of notice can be raised by the petitioner before the appellate authority besides, any other plea which has not been considered in the present order. In the meantime, the parties shall maintain status quo with respect to the property confined in Mouza No. 166, Khata No. 19, Plot No. 1692 admeasuring 4.3 Decimal at Govindpur, Dhanbad till the application moved by the petitioner seeking an interim order is disposed of by the appellate authority. The appellate authority is directed to dispose of the appeal preferred by the petitioner within three months. If no appeal is preferred within time specified above, the order of status-quo shall stand vacated automatically.

Sections 3 and 9 r/w Article 226 of the Constitution of India Section 5 of Limitation Act-Plea of adverse possession. BPLE Act. In Sitaram Prasad Petitioner v. Tata Iron and Steel Company Ltd. 2013 (4) JBCJ 60 : 2013 (3) JLJR 541 Learned counsel for the respondents, on the other hand, submitted that from perusal of the appellate order contained in Annexure-6, it would appear that for removal of the alleged encroachment over the vacant piece of land on lease of the petitioner-company by the State of Bihar in the year 1985, a proceeding under the BPLE Act were initiated in the Court of Sub-Divisional Officer-cum-Collector, Jamshedpur. It is further submitted that despite notices the petitioner made no effort to file his reply till 26.12.1989 where after the record of impugned order was transferred to the Court of learned in charge Deputy Collector, Tata Lease, whereafter again notices were issued to the petitioner but he refused to accept the same and the proceedings remained in limbo. Thereafter, proceedings were again revived after nine years on 01.02.2001, notices were again issued to the petitioner on 14.11.2005 whereafter the petitioner appeared before the original court on three consecutive dates but kept on asking for time without filing his show cause. The Original Authority, thereafter, proceeded to hear the said proceeding to decide ex-parte and passed the order of removal of the encroachment on 30.12.2005. The proceedings, therefore, remained pending for 16 years. The petitioner did not file any appeal within 30 days period prescribed and when he preferred an appeal before the Deputy Commissioner, East Singbhum, Jamshedpur being BPLE No. 22/06-07, no application for condonation of delay was filed although the appeal was itself delayed by more than six months. The Appellate Authority has taken into account all these facts while passing the impugned order on 24.07.2006 for removal of encroachment. It is further submitted that since the revision is not maintainable under BPLE Act, the revision being BPLE Revision No. 22/06 was ultimately dismissed on 12.04.2007. Counsel for the respondents submits that the petitioner has not been able to produce any single chit of paper before Original authority in support of his contention that in the record of rights the name of Chintamani Prasad has been entered in the year 1955, and the said paper has also not been brought on record in the instant writ petition. In the circumstances, it is submitted that only on the basis of bland submission, the plea has been taken that the petitioner is in existence since 1950 over the said plot perfecting his title adverse to the respondents. It is further submitted that the petitioner being the encroacher on public land can only be removed in the proceeding under the BPLE Act, 1956. No complicated question of facts and title are involved with the present case as no semblance of any title and ownership is produced by the petitioner regarding the plot in question the Court held, having heard learned counsel for the parties and after going through the impugned order and relevant materials on record, it appears that the petitioner had appeared before Original Authority but he had not filed any show cause whereafter the Original Authority passed the order impugned at Annexure-4 dated 30.12.2005. The Appellate Authority in his order, contained at Annexure-6 dated 24.07.2006, has also taken into account that even after revival of the proceeding in the year 2001, after notice to the petitioner, he appeared for three consecutive dates, but did not file his show cause whereafter, the Original Authority had proceeded to decide the proceeding ex-parte. It has been further been taken into account that the appeal itself was delayed for more than six months for which no application for condonation of delay had been filed on behalf of the petitioner. In these circumstances, the contention of the petitioner that he has a valid claim of title on land in question, on the basis of the possession continued since 1950 i.e. before execution of lease, has been rejected by the Appellate Authority. The Revision being not maintainable has also been rejected on the sole ground by the learned Commissioner, East Singhbhum Kolhan Division, Chaibasa. Learned counsel for the petitioner vehemently tried to impress that the land in question is in possession of the predecessor of the petitioner since 1950 and construction have already been made thereupon in which he is residing with his family members in a manner adverse and to the knowledge of the respondents. However, it is also apparent that the petitioner has not initiated any proceeding for perfection of his title based upon the aforesaid claim and adverse possession since 1950 to that of the respondents if at all such claim is tenable in law. The land is a public land. The respondents have, therefore, taken up proceeding under the BPLE Act, 1956 for removal of the encroachment. However, if the petitioner has any justifiable claim of ownership, title and possession over the same, it was open for them to move before competent Court of civil jurisdiction for adjudication of his right, title, interest and possession over the land, but no such effort has been made on the part of the petitioner.

Removal of encroachment. In Ranjit Sahni Prasad Barnwal - Petitioners v. State of Jharkhand, 2013 (4) JCR 578 : 2013 (4) JLJR 309; where date of hearing was not fixed and no opportunity of hearing was given to petitioners as required by Section 5 and impugned order was passed holding the land in dispute as public land and encroached upon by petitioners, directing them to remove encroachment or to face forcible eviction at their cost-Such arbitrary order is violative of Arts. 14 and 21 and accordingly set aside.

In the case on hand Learned counsel for the petitioners submitted that notices were issued to the petitioners, under purported provisions of Section 3 of the said Act by order dated 27.4.2013 fixing next date - 8.5.2013. On that date fixed in the notice, the petitioners had appeared and prayed for time to file their defence and documents. The case was thereafter fixed for 14.5.2013. On that date out of 117 persons, against whom notices under Section 3 were issued, large number of persons were absent. The Anchal Adhikari, thus, directed to issue notices on all the persons fixing 22.5.2013. From the order sheet of 22.5.2013 it would appear that the case was adjourned and time was granted for filing - revenue document - fixing 15.6.2013. On 15.6.2013 the Anchal Adhikari again granted time for filing documents, but no further date was fixed for hearing. Suddenly on 26.7.2013 the impugned final order was passed holding that the land of Plot Nos. 221, 220 and 222 under Khata Nos. land 2 is public land and has been encroached upon by the petitioners and others. They were directed to remove the encroachment and vacate the land. They were also warned that in case of non-compliance of the order, encroachment shall be got removed by the respondents and cost of removal shall be realised from them (the petitioners and others).

Learned counsel for the petitioners submitted that the said order is violative of the mandatory provisions of Sections-3, 4, 5 and 6 of the said Act and is perse illegal. Section 3 provides for a clear notice of not less than two weeks for appearance from the date of service of notice to show-cause. But in the instant case, two weeks' time was not given for appearance and filing reply to show cause notice as required by the said provision of law. The petitioners were also not allowed to raise their defence in accordance with Section-4 and date of hearing was not fixed and no opportunity of hearing was given to the petitioner, as required by Section-5 of the said Act. Suddenly impugned final order dated 26.7.2013 has been passed under Section 6 of the Act.

The High Court said, after hearing learned counsel for the parties, I find from the order sheet-Annexure-2-that the proceeding was initiated by order dated 27.4.2013 and final order was passed on 26.7.2013. In between no specific date was fixed for hearing. From order sheet dated 8.5.2013 it is evident that on that date some of the persons out of 117 had appeared and prayed for time for filing documents. On their prayer, next date 14.5.2013 was fixed for that purpose. On 14.5.2013, since some of them were not present, the Anchal Adhikari issued fresh notice to all the 117 persons fixing 22.5.2013. The order sheet dated 22.5.2013 shows that all the persons appeared but proper documents were not produced by them except one Ishwar Singh who filed sale deed and rent receipts in respect of his land. Thereafter, 15.6.2013 was fixed for further proceeding. On 15.6.2013 the aforesaid Ishwar Singh was directed to produce the document in support of his right, title acquired by his vendor and the related revenue document. No specific date was fixed by that order. The date was kept blank by putting dots in that place.

Notice under. In Bhardwaj Steels Private Limited v. State of Jharkhand (Jharkhand) (DB) 2015 (3) JCR 329 : 2015 (20) RCR (Criminal) 452 Mr. Gadodia then submitted that petitioners were even ready and willing to approach the appellate court, impugning the order of Circle Officer in terms of Section 11 of the Encroachment Act, but prayer is for some interim relief enabling them to knock at the door of the appellate court within a reasonable period. He submits that even as per notice issued to petitioners under Section 3 of the Encroachment Act, only three days time was granted to them to remove the encroachment, which order was put to hold by the Writ Court as well during pendency of the main lis, but now automatically stands lifted after dismissal of the writ petition.

Mr. Atanu Banerjee appearing for respondents strongly opposes the prayer made by Mr. Gadodia vis-a-vis interim relief.

The Court said, Keeping in view totality of the facts and circumstances and without expressing any opinion on the merits of the case, lest it may prejudice the case of either side before the appellate authority, we grant two weeks' time to the petitioners-appellants to approach the appellate authority, throwing challenge to the legality and validity of order dated 16.3.2015/17.3.2015 passed by Circle Officer, Giridih. The impugned order, during this period of two weeks shall not be made operational, in default thereof the interim relief granted to the petitioners shall cease to operate.

Needless to say that the appeal shall be decided by the appellate authority expeditiously, preferably within one month, undoubtedly in accordance with law, without being prejudiced to any observation made by learned Single Judge while dismissing the writ petition.

Removal of encroachment - Sustainability of - Petitioner. In Golden Ceramic Works Private Limited v. The State of Jharkhand, (Jharkhand) JBCJ 239; 2016 (3) JLJR 347 Petitioner did not claim any possession over said piece of land nor filed any document to substantiate their title to same. The Court held. Therefore, no necessity of interference in matter at this stage in view of pendency of appeal before Collector.

The appeal was said to be pending before the Collector, Dhanbad. Petitioner therefore had adequate opportunity to bring the aforesaid fact relating to issuance of letter no. 696 dated 24.7.2014 by the Circle Officer, Nirsa to the notice of the Appellate Authority. Respondent authorities are also under obligation to abide by the order passed by the Appellate Authority. Such exercise of eviction in respect of plots over which the petitioner has not been able to show any valid title and documents was to be undertaken after verification of the plots physically through measurement by the Amin in terms of the interim order dated 18.7.2013 passed in B.P.L.E. Appeal No. 4 of 2013. Further it appears therefrom that eviction from plots mentioned in the Title Appeal No.-33/95 over which the appellant's title has been declared is stayed till further orders. Petitioner was also therefore required to cooperate in the exercise of measurement and respondents were required to take steps for eviction in terms of the orders passed by the B.P.L.E. authority including the appellate authority.

Encroachment - Vacation of land - Order challenged - Matter was remanded for a fresh notice. In Md. Naseem Alam v. State of Bihar, (Patna) 2015 (4) PLJR 90 : 2015 (3) BBCJ 26 the High Court held, under the scheme of the Act, a proceeding is required to be initiated under Section 3 of the Act and thereafter notice is required to be issued to a person who is alleged to have encroached upon the public land. Thereafter, the person against whom such notice is issued is entitled to file his defence under Section 4 of the Act. The defence raised on behalf of such person is required to be treated as the defence raised on behalf of the defendant in a properly framed suit for removal of such encroachment. Thereafter, evidence is required to be recorded and enquiry, if any, is required to be conducted and finally the matter is required to be heard under Section 5 of the Act and only thereafter, final order is required to be passed under Section 6 of the Act by the Collector under the Act. The order passed by the Collector under the Act is appealable in terms of Section 11 of the Act.

In the case before the Court Coming to the present case, on going through the records, this Court did not find that the procedures prescribed under the law had been complied with by the respondent Anchal Adhikari before passing the final order dated 21.08.2000. The respondent District Collector while passing the impugned appellate order dated 15.04.2005 has failed to take into consideration the aforesaid aspect about non-compliance of the procedures prescribed under the Act.

Hence, the Court held, as indicated above, except the respondent no. 9, the learned counsel appearing on behalf of the remaining respondents have chosen not to appear and contest this matter when this matter is on the Board for the last several dates and their names are printed in the daily cause list. Even learned counsel appearing on behalf of the respondent no. 9 has not been able to show that the procedure prescribed under the Act was followed before passing the impugned final order.

In above view of the matter, this Court is of the opinion that the entire matter requires re-consideration and a fresh decision from the stage of the respondent Anchal Adhikari, the Collector under the Act.

Encroachment of public land - Order for removal. In Amar Nath Pandey v. State of Bihar, (Patna) 2016 (2) PLJR 879 : 2015 (85) RCR (Civil) 590 the High Court observed, Whereas the petitioner Nos. 2 to 5 claim title and possession over the plot of land since more than three generations, the petitioner No. 1 is a purchaser of a portion thereof. That the land has Alluvion and Diluvion character, is not in contest. The judgment rendered in Title Suit No. 41 of 1996 discusses the nature of land and holds that it was submerged in the Ganges since 1957 only to reappear in 1993 and it is where after that a dispute on title and possession arose, to be resolved through the Title Suit. The petitioner Nos. 2 to 5 have made a sale of 6 Kathas and 9 dhurs which is equal to 8475 sq. ft. to the petitioner No. 1 on 27.4.2012. The name of the father of the petitioner nos. 2 to 5 Dwarika Rai was mutated as back, as on 25.7.1995 in Mutation Case No. 283/1 of 1995-1996 and where after receipts have been issued. The Sub-Judge II, Patna by a judgment and decree passed on 20.2.2001 upheld the title of the father of the petitioner Nos. 2 to 5 who had deceased in the meanwhile and was substituted by legal heirs.

Now whereas the petitioner Nos. 2 to 5 claim possession over the piece of land in question since three generations, there is nothing on record of the proceedings to confirm that plot in question is a public land or that at any stage before the initiation of the proceedings in question, did the State Government or the statutory authorities under the Act raise any issue of title, possession or encroachment as against the petitioner Nos. 2 to 5. It is an admitted position that the land in question is of alluvion and Diluvion nature and according to the petitioners it re-emerged only in 1993. In terms of the provisions underlying the Bengal Alluvion and Diluvion Act, 1847 as finds interpreted in the judgment of the Privy Council relied upon by Mr. Singh, it is not on plain emergence and upon accretion of a submerged land that such land automatically becomes a Government land in absence of any document supporting such position, rather a declaration to such effect has to be there. But until such time that it is established by the respondents that the land in question is a Government land and/or falls within the definition of a public land under the Act , no proceedings can be initiated under the Act by terming the possession of the petitioners thereon, as encroachment .

It is rather strange that even when the legal position stands settled in a catena of judgments that where a dispute goes to the root of the matter and involves complicated issues of title and possession then a summary proceedings under the Act would not be a correct recourse, yet the statutory authorities have kept themselves oblivious to the legal position and unaware of their obligations.

Plot allotted to the unit of the petitioner in ceiling proceeding. In Abdul Wahid v. State of Bihar, (Patna) 2015 (16) RCR (civil) 799. Mr. Rajeeva Roy, learned counsel appearing for the petitioner Abdul Wahid has submitted that the land in question along with some other lands were the subject-matter of ceiling proceedings arising from Ceiling Case No. 34 of 1973-1974 and in which upon issuance of draft publication under section 10(1) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Ceiling Act ) the petitioner filed his objection, a copy of which is placed at Annexure-C to the counter affidavit filed on behalf of respondent nos. 2 to 4 and in which at paragraph 7 it was specifically stated by the petitioner that he had donated the plot in question ad-measuring 2.95 acres for the purpose of Community Hall and Hospital. He submits that the statutory authority upon consideration of the objection rejected the plea of the petitioner vide order passed on 18.11.1976, a copy of which is placed at Annexure-9 to the writ petition and the statutory authority while rejecting this plea, declared the plot in question as surplus land. It is submitted that by virtue of an amendment to the Ceiling Act all pending proceedings abated with effect from 9.4.1981 and where after the ceiling proceedings were initiated de novo and where after the petitioner again filed a fresh objection under section 10(2) of the Ceiling Act which was disposed of on 12.5.1993 and a final publication took place under section 11(1) of the Ceiling Act on 1.12.1993, a copy of which is placed at Annexure-10, whereby this particular piece of land was not declared as surplus rather was added to the unit of the petitioner. It is stated that thereafter a final publication under section 15(1) of the Act has taken place and the plot in question continues to be under the title and possession of the petitioner. It is contended by Mr. Roy that the petitioner questioned the acquisition before the Member, Board of Revenue who by the order dated 5.11.2003 while disposing of the matter has remitted the matter back to the District Magistrate for consideration of the same in the light of the stipulations made in the order, a copy of which is placed at Annexure-12.

The Court said. This matter was heard on several occasions and when the counsel for the State was granted an opportunity to inform as to whether the ceiling proceedings after remand has reached to its logical conclusion and whether the land in question has been declared surplus or continues to remain within the unit allowed to the petitioner. The matter has thereafter been taken up today when Mr. Sanjeev Kumar Singh, learned counsel appearing for the State admits to absence of instruction from the authorities.

Having heard learned counsel for the parties and taking note of the circumstances existing in the present case it is apparent from the records that this particular plot was allotted to the unit of the petitioner in the ceiling proceeding. A mere remand of the matter by the Member, Board of Revenue would not alter the circumstances until such time that any order is passed whereby this plot of land is declared surplus. It is thus manifest that initiation of the proceedings by the Circle Officer, Dandkhora, District - Katihar in the aforementioned circumstances where the plot in question remains the raiyati land of petitioner Abdul Wahid, is wholly without jurisdiction for it cannot be held to be a public land unless declared surplus in the ceiling proceedings under the Ceiling Act and acquired by the State.

Any person on whom notice is served under Section 3 or any person interested in the encroachment may appear before the Collector and raise any defence which he could have raised if he was a defendant in a properly framed suit for the removal of the encroachment.

Status of the Opp. Party. The party against whom a proceeding under section 3 has been initiated has been given same status as is of a defendant in a regular. Hence, he may put his written statements in the same manner as if he would have been Notice issued to remove encroachment a defendant

Encroachment on traffic line. Finding recorded by circle officer confirming such encroachment can be challenged in statutory appeal under Section 11 and not in a writ petition. Surya Narayan Yadav v. State of Bihar, 2002 (1) BLJ 54 : 2002 (1) PLJR 196.

Earlier proceeding failed because material papers could not be produced. In Tapeshwar Prasad Singh - Petitioner/s v. The State of Bihar, 2014 3 PLJR 798 It was case of the petitioner that plot no. 3238 contains double storeyed houses with nine shops and similarly, plot no. 3239 contains double storeyed building with seven shops and Shauchalaya. The construction on the above stated plots was made according to sanctioned map. It is also case of the petitioner that prior to purchase of the aforesaid lands, a petrol pump was existing on the said lands since the year 1934. Further case of the petitioner is that in the year 1964-1965, an encroachment proceeding bearing Encroachment Case No. 9/64-65 was initiated against the owner of the aforesaid lands but the aforesaid Land Encroachment Case No. 9/64-65 was dropped under Section 6 A of BPLE Act and thereafter, again an encroachment proceeding bearing Encroachment Case No. 220/76-77 was initiated in respect of the same lands on the same grounds and again the aforesaid proceeding was dropped in favour of father of Major Ajoy Krishna.

The stand of the respondents was that the plots in question are recorded as Khanta in khatiyan and as a matter of fact, the plots in question are flank of the public road which has been encroached by Major Ajoy Krishna. It has also been averred by the respondents in their counter affidavit that earlier encroachment proceedings were initiated in respect of the same lands but as a matter of fact, the proper materials could not be placed in the aforesaid encroachment proceedings and the findings in the aforesaid encroachment proceedings are erroneous and, therefore, the findings of the aforesaid encroachment proceedings are not binding upon the respondents. It is also stand of the respondents that lands in question are recorded in the name of State and even if the finding given in encroachment proceeding assumed to be correct, then also, the aforesaid lands were taken by Surendra Kumar Bhadani on lease and, therefore, the aforesaid Surendra Kumar Bhadani had no right to transfer the aforesaid lands in favour of the parents of Major Ajoy Krishna by executing registered sale deed and, therefore, Major Ajoy Krishna and his family members have got no right and title over the disputed plots.

When the question of title of the parties as well as nature of possession is in dispute, the same cannot be decided in a summary proceeding rather a competent court can decide the aforesaid issue. The High Court said, admittedly, earlier two encroachment proceedings were initiated in respect of same lands on same grounds. Annexure-8 to the supplementary affidavit reveals that Land Encroachment Case No. 9/64-65 was started at the behest of public works department on the ground that portion of plot no. 3238 at Patna Ranchi Road at Nawadah was encroached by the Petrol Pump Jitan Ram Nirmal Ram. In the aforesaid proceeding, it was found that there was no encroachment on the public road and accordingly, the aforesaid proceeding was dropped vide order dated 30.08.1965. Again an encroachment proceeding no. 220/76-77 was initiated at the behest of official of public works department in respect of plot no. 3238 on the ground that 134 24 kadi of aforesaid plot has been encroached by father of Major Ajoy Krishna. Again the aforesaid proceeding was dropped on the ground that the aforesaid plot was not of public works department. Therefore, it is an admitted position that for the same land twice encroachment proceedings were initiated on the same grounds and both the proceedings were dropped. Admittedly, both the aforesaid orders passed in the encroachment proceedings were never challenged before higher authority, particularly, in the circumstance when there is a specific provision of appeal in Bihar Public Land Encroachment Act, 1956. Therefore, the orders passed in both the above stated encroachment proceedings have already been attained its finality and again no fresh encroachment proceeding can be initiated in respect of the disputed plots in question on the same and similar grounds. In Bihar Public Land Encroachment Act, 1956, the procedure for removal of the encroachment on public land has been prescribed. Section 3 of the aforesaid Act gives power to Collector to give notice to a person who is said to have encroached on public land. Section 4 of the aforesaid Act gives power to the person on whom notice has been served under Section 3 or any person interested in the encroachment to appear before the Collector and raise any defence which he could have raised, if he was a defendant in a properly framed suit for the removal of the encroachment. Section 5 of the aforesaid Act makes a provision of hearing and the Collector is duty bound to take evidence, if any, adduced by the parties in course of proceeding and to hear the parties before passing final order. Section 6 of the aforesaid Act says the way in which the Collector can pass final order in a proceeding initiated under Section 3 of the above stated Act. Therefore, it is apparent from perusal of the aforesaid provisions that a detailed procedure for encroachment proceeding has been given in the said Act.

So far as the present case is concerned, it is said that a general notice for removal of the encroachment was issued. Admittedly, the aforesaid notice neither contains any plot number nor any specific area of so-called encroachment. Moreover, the aforesaid general notice has not been issued in proper format as given in the above stated Act. The stand of the respondents is that a notice was issued to wife of Major Ajoy Krishna which is evident from Annexure-F to the reply of petitioner but from perusal of Annexure-F annexed in the reply of the State, it appears that the aforesaid notice was never served either upon Major Ajoy Krishna or his wife or any other interested person and the process server returned the aforesaid notice mentioning this fact that the wife of Major Ajoy Krishna as well as her husband reside outside and in that circumstance, the notice could not be served. It is pertinent to note here that in almost all the relevant provisions of Bihar Public Land Encroachment Act, the word service of notice has been used and, therefore, mere issuance of notice under the aforesaid Act is not sufficient rather the service of aforesaid notice is essential before passing final order under the aforesaid Act. Admittedly, in the present case, neither any notice was served nor any opportunity of hearing was given to the affected persons before taking the step for removal of the structure standing on the disputed plots in question.

Annexure-9 to the supplementary affidavit reveals that proceedings under Sections 144-145 of the Cr. P.C. were also initiated between the parties and the aforesaid proceedings were decided in favour of father of Major Ajoy Krishna. There is nothing on the record to show that Major Ajoy Krishna as well as his other family members were ever ousted from the plots in question rather it is admitted case of the respondents that they are still in possession of the aforesaid lands. Therefore, when the question of title of the parties as well as nature of possession is in dispute, the same cannot be decided in a summary proceeding rather a competent court can decide the aforesaid issue.

No finding as to encroachment recorded. In Md. Naseem Alam - Petitioner v. The State of Bihar, 2015 (3) BBCJ 26 : 2015 (4) PLJR 90 the High Court of Patna said, under the scheme of the Act, a proceeding is required to be initiated under Section 3 of the Act and thereafter notice is required to be issued to a person who is alleged to have encroached upon the public land. Thereafter, the person against whom such notice is issued is entitled to file his defence under Section 4 of the Act. The defence raised on behalf of such person is required to be treated as the defence raised on behalf of the defendant in a properly framed suit for removal of such encroachment. Thereafter, evidence is required to be recorded and enquiry, if any, is required to be conducted and finally the matter is required to be heard under Section 5 of the Act and only thereafter, final order is required to be passed under Section 6 of the Act by the Collector under the Act. The order passed by the Collector under the Act is appealable in terms of Section 11 of the Act.

Coming to the present case, on going through the records, this Court does not find that the procedures prescribed under the law have been complied with by the respondent Anchal Adhikari before passing the final order dated 21.08.2000. The respondent District Collector while passing the impugned appellate order dated 15.04.2005 has failed to take into consideration the aforesaid aspect about noncompliance of the procedures prescribed under the Act.

As indicated above, except the respondent no. 9, the learned counsel appearing on behalf of the remaining respondents have chosen not to appear and contest this matter when this matter is on the Board for the last several dates and their names are printed in the daily cause list. Even learned counsel appearing on behalf of the respondent no. 9 has not been able to show that the procedure prescribed under the Act was followed before passing the impugned final order.

In above view of the matter, this Court is of the opinion that the entire matter requires re-consideration and a fresh decision from the stage of the respondent Anchal Adhikari, the Collector under the Act.

On the date specified in the notice served under Section 3, the matter shall be heard, unless the hearing is adjourned by the Collector to a future day, and the Collector shall hear the applicant if any, the person on whom the notice has been served and any other person who may be interested either in the encroachment or in the removal thereof and take such other evidence as may be adduced in that behalf:

Provided that, if the person on whom notice has been served under section 3 or any other person interested in the encroachment, fails to appear and show cause on the date specified in the notice, or any other date to which the hearing may be adjourned, the matter shall be heard, ex-parte.

Eviction notice. No order passed under Section 6 declaring that petitioners are encroachers and they are required to be removed. Petitioners were not given any opportunity of hearing in the matter. Notice under Form II held to be invalid but petitioners granted liberty to appear before circle officer for hearing and order in accordance with law. Unless final decision is taken and thereafter, notice is issued in Form II, no step for removal of petitioner can be taken by circle officer. Jawahar Sah v. State of Bihar, 2017 (3) BLJ 90 (PHC).

The Act itself has provided procedures for hearing of the proceeding. The Section provides that the Collector shall hear the parties on the date specified in the notice. But the provision is not mandatory. The word shall is mere directory Option has been given to the Collector to adjourn the hearing. Further, hearing may be deferred at instance of the party also.

Khas Mahal plot settled in favour of petitioner by a lease for a period of three years. In Md. Mehandi Imam @ Mehdi Imam v. State of Bihar, 2001 (3) BBCJ 26 : 2001 (3) BLJR 1818 : 2001 (3) PLJR 762 the High Court of Patna perused the case laws cited in that case and said, from the ratio laid down by the Privy Council and by the apex Court, as noticed above, it is clear that under our Jurisprudence even an unauthorised occupant can be evicted only in the manner authorised by law and this is the essence of the Rule of Law.

From the orders, as contained in Annexures 2 and 3 series of the writ application, it appears that this Court, though had deprecated the earlier action of the State authorities, issued directions to proceed against the petitioner for his eviction in accordance with law it appears that this Court vide order as contained in annexure-2 even had directed the State authorities to get the petitioner evicted from the land in question even by resorting to the provisions of the Bihar Public Land Encroachment Act.

It is not the case of the petitioner that the petitioner by virtue of the notice, as contained in Annexure-6, is being evicted forcefully from the land in question, rather it appears that the petitioner has been sought to be evicted from the land in question in due process of law, inasmuch as that a proceeding under Sec. 3 of the Act was initiated against the petitioner, and, ultimately, final order under Sec. 6 of the Act was passed and notice was caused to be served on the petitioner, which is under challenge.

In the background of the matter, it is, therefore, held that the petitioner is not being evicted forcefully from the unauthorised occupation rather he is being evicted in the manner authorised by law. The action of the State authorities, in that view of the matter, cannot be said to be arbitrary or without authority of law, inasmuch as they have resorted to the procedures of law in getting the petitioner evicted from the land in question.

Lease by Khasmahal Coming in possession on that basis. Mr. Navin Sinha, learned Counsel appearing on behalf of the petitioner, however, in support of his proposition has placed reliance upon a bench decision of this Court in the case of the Giant Public Library an Institute, Gardanibagh, Patna v. State of Bihar 1995 (1) PLJR, 585, and in the case of Ashwani Kumar Gupta v. State of Bihar 2000 (2) PLJR, 221, and has submitted that once the petitioner came in possession of the land in question by virtue of a lease deed granted under the provisions of the Khas-Mahal Manual even after termination of the lease deed, his occupation shall be deemed to be under the provisions of the Khas-Mahal Manual itself, and, therefore, he is only liable to be evicted by virtue of a decree passed by a competent Civil Court, as envisaged under Rule 22 of the Khas-Mahal Manual.

In the case of the Gait Public Library (supra), a Bench of this Court while dealing with a case, where the Collector in exercise of power under Rule 21 of the Khas-Mahal Manual resumed the land, and, in that context, held that the action of the State authorities in purported exercise of power under Rule 21 of the Khas-Mahal Manual was wholly without jurisdiction and the provisions contemplated under Rule 22 of the Khas-Mahal Manual was applicable for eviction of the occupant.

In the case of Ashwani Kumar Gupta (supra), this Court, dealing with a question, where the writ petitioner was, claiming title and possession by virtue of the entries made in the revenue records under Sec. 103 of the Bihar Tenancy Act in favour of the petitioner even though the earlier settlement in favour of the occupant was under the provisions of the Khas-Mahal Manual, held that the petitioner was only liable to be evicted in due process of law in the manner authorised by law.

In this view of the matter, the ratio laid down by this Court in the aforesaid two cases are not applicable in the facts and circumstances of the case at hand.

Having heard Counsel for the parties and appreciating the rival contentions raised at the Bar, it is held that the petitioner after termination of the lease deed in the year 1975 was liable to be evicted by initiating a proceeding under the Act and in the given case, therefore, there was no requirement for resumption of the land in question, as prescribed under Rule 22 of the Khas-Mahal Manual. For the reasons and findings aforesaid, I do not find any merit in this writ application.

Collector directing Circle Officer to enquire and report about encroachment. In the case of Parmanand Singh @ Parma Singh v. The State of Bihar, 2013 (1) PLJR 835 the petitioner sought quashing of the orders dated 10.12.2005 and 10.07.2006, whereby the respondent no. 2, the Collector, Gopalganj has directed the Circle Officer, Uchkagaon, respondent no. 5, to make spot verification and remove the encroachment and thereafter submit a report before him.

Though the order did not disclose that the encroachment has to be removed from which plot, however, in view of the stand of the parties and earlier order passed by this Court, it appears that the same has been directed to be removed from khesra nos. 1444 and 1445 appertaining to khata no. 2009.

In case, the Circle Officer intends to remove any encroachment in pursuance of the order passed by the Collector on 22.12.1998, in respect of the land over which the petitioners claim any right, they shall be given a notice thereof and only thereafter such an encroachment may be removed. In case, such a notice is given to the petitioners, they shall have liberty to assail the same in accordance with law.

The application stands disposed of with the liberty aforesaid.

From perusal of the aforesaid order, it appears that a direction was given to the Circle Officer to give a notice to the petitioner if he intends to remove any encroachment pursuant to the order passed by the Collector on 22.12.1998 and if the same is in respect of the land over which the petitioner claims any right. Only thereafter encroachment could be removed. In case, such notice is given to the petitioner he shall have liberty to assail the same in accordance with law.

The High Court held, However, from the perusal of the impugned order it appears that the Collector (respondent no. 2) had stayed his earlier order on the ground that it would be necessary to hear the opposite party (the petitioner herein) on the point of encroachment. Once having done so, he was obliged to hear the parties and pass a speaking order because it is well settled that if an order is passed by the authority visiting civil consequence upon a person that must reflect some reason for reaching to a conclusion otherwise, in case that order is challenged before the superior authority or the courts, it would be difficult to find out as to what was there in the mind of the authority concerned while taking a particular view of the matter. In the present case, after the order dated 06.11.2003 passed in C.W.J.C. No. 1318 of 1999 passed by this Court, the Anchaladhikari had issued notice to the petitioner and heard the matter and decided that there was no encroachment by anybody. However, it was observed that as per the views of the local people no part of the plot no. 1445 was not being used as public road or passage or pathway. That being the situation, the Collector, respondent no. 2, even if was exercising his power not as an appellate authority but as an original authority, was required to pass the order after considering the aforesaid order passed by the Circle Officer in compliance of the order dated 06.11.2003 passed by this Court in C.W.J.C. No. 1318 of 1999. Once having held that the petitioner was required to be heard on the point of encroachment, he was also obliged to record reasons for coming to the conclusion ??? there is some encroachment at the behest of the petitioner and that is required to be removed. He has not considered this aspect of the matter also as to whether respondent no. 6, under the garb of the encroachment proceeding, was seeking declaration of right of easement upon the concerned plot as it is admitted position that he has also filed Suit no. 348 of 2000 for declaration of his right of easement against the petitioner over the same plot. It is also surprising that the entries made in the record of rights regarding the concerned plots have also not been considered by the concerned authority. If the petitioner's case is correct that the lands have been recorded in the khas possession of the landlord then the question as to how the same could be considered as public land would have to be answered specially in view of the claim of the petitioner that there is entry in the revenue records that the concerned lands are rent free. There has been no consideration at all of any of the aforesaid aspects in the impugned order passed by the respondent no. 2 while directing the Circle Officer to remove the encroachment and as such, the same cannot be sustained in law. Thus, in the opinion of this Court, the impugned order cannot be sustained in law.

As a result, the impugned order dated 10.07.2006 as contained in Annexure 3 is set aside and the matter is remitted back to the respondent no. 2 for fresh consideration on all the points raised on behalf of the parties keeping in view the law laid down by this Court in the cases as cited by the parties and also for taking notice of the factum of filing of a suit by the respondent no. 6 for declaration of right of easement and then for passing a speaking order in accordance with law after giving opportunity of hearing to all the concerned parties. The petitioner would be at liberty to raise all the grounds that have been raised in this writ application including the point of maintainability of the proceeding.

Removal of encroachment Ex parte proceeding. In Nazhal Parween v. The State of Jharkhand, 2013 (3) JBCJ 560 : 2013 (4) JLJR 31 the High Court held, order passed without following the principles of natural justice and due and established procedure of law-notice issued u/s. 6(2) set aside Fresh notice u/s. 3 to be issued.

On perusal of the said notice, it transpires that the petitioner was called upon to appear before the Circle Officer, Chandil on 21.09.2012. But, according to the petitioner he has not received copy of the said notice and, therefore, he could not remain present on the date fixed by the Circle Officer, Chandil. Subsequently, the petitioner received the copy of the notice from the office of Circle Officer, Chandil. According to learned counsel for the petitioner after obtaining copy of the show cause the petitioner has not filed any explanation in response to the said show cause notice. It appears that Circle Officer, Chandil has not given any another date to give response in pursuant to the said show cause notice. It appears that ex-parte proceedings has been taken out by the Circle Officer, Chandil and the petitioner was asked to comply with the order within a period of seven days from the date of notice issued under sub-section (2) of Section 6 of the Bihar Public Land Encroachment Act, 1956.

The High Court said, under the circumstances, it appears that the said order has been passed without following the principles of natural justice and due and established procedure of the law and, therefore, the notice issued under Sub-Section 2 of Section 6 of the Bihar Public Land Encroachment Act, 1956 dated 24.12.2012 is required to be quashed and set aside and the petitioner is required to be given an opportunity of being heard before final decision is taken since the petitioner has not been heard in pursuant to show cause notice.

Accordingly, the Court directed that the said notice issued on 24.12.2012 (Annexure-4/A) under sub-section (2) of Section 6 of the Bihar Public Land Encroachment Act, 1956 is ordered to be quashed and set aside. The Circle Office, Chandil shall issue fresh notice under Section 3 of Bihar Public Land Encroachment Act, 1956 to the petitioner.

8 (1) In all cases not covered by the provisos to sub-section (2) of Section 3, the Collector shall after hearing the persons concerned and taking evidence, if any under section 5 and after making such enquiry as he deems necessary the Collector may, as the circumstances of the case requires

(a) either drop the proceeding, or

(b) make the temporary injunction issued under sub-clause (a) of sub-section (1) of Section 3 absolute against the person making encroachment of the public land, or

9[(c) [Clause (c) Omitted by Amendment Act 17 of 2012]

(d) where the temporary encroachment on public land has been removed by the person making encroachment after some time the Collector shall order payment of damages for the use of the land during the period of encroachment. The amount of damages shall be calculated according to the prescribed procedure, or

(e) in the cases not covered by the foregoing sub-clauses, the Collector shall direct the person making encroachment of the public land to remove the encroachment within specified period which shall not in any case be more than two weeks in case the encroachment is not removed within the specified time the crops standing or all types of structures existing on the encroached land shall be forfeited by the Collector:

Provided if any landless person encroached up to 12 1/2 dec. of public land before the 10th October 1955, no action shall be taken against him under this Act.

Explanation. In this proviso landless person means a person whose source of livelihood is agricultural or agricultural labour and who either does not possess any land or does not possess more than one acre of land.

10[(2) If any person does not comply with the orders passed by the Collector under this section, he shall be punishable with imprisonment for a term which may extend to one year or with fine up to Rs. 2000/- (twenty thousand) or with both.]

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offence under this section shall be cognizable.]

Sub-section (1) has been substituted by Amendment Act 3 of 1982. Explanation no. II to sub-section (1) has been inserted by Amendment Act 17 of 2012.

The Section also directs what orders the Collector has to pass after hearing the parties. It has been enumerated clauses (a) to (e) out of which cl. (c) has been deleted by Amendment Act 17 of 2012. The Contents and effect of said deleted cl. (c) has been stated in sub-section (2) itself.

The provisions of the Act has been subjected judicial review many times.

Eviction notice. No order passed under Section 6 declaring that petitioners are encroachers and they are required to be removed. Petitioners were not given any opportunity of hearing in the matter. Notice under Form II held to be invalid but petitioners granted liberty to appear before circle officer for hearing and order in accordance with law. Unless final decision is taken and thereafter, notice is issued in Form II, no step for removal of petitioner can be taken by circle officer. Jawahar Sah v. State of Bihar, 2017 (3) BLJ 90 (PHC)

In the case of Om Prakas Singh the High Court said, in case of alleged encroachment over Kaiser Hind Land, Second land encroachment proceeding-cannot be initiated in respect of same subject matter of proceeding. Om Prakash Sinha v. State of Bihar, 2010 (2) PLJR 840.

Eviction from demised property after expiry of lease period. Order for eviction passed after starting proceeding under Section 3, pursuant to order passed by court. Such order of eviction is not illegal. Md. Mehandi Imam v. State of Bihar, 2001 (3) PLJR 762.

Measurement must be made only by a competent person. Education and training is essential. Pancham Lal Jaiswal v. State of Bihar, 2006 (1) PLJR 203.

Whether a landless person is exempted. In the case of Mangru Singh the High Court of Patna held that a landless person as defined in BPLE Act, cannot be removed. Collector has no authority to remove a landless person. Mangru Singh v. State of Bihar, 2005 (4) PLJR 654. But in the case of Ramzan Mian v. Executive Engineer, 1969 PLJR 241, it was held that Bihar Public Land Encroachment Act does not contain any guideline regarding class of cases in which Collector will take action under BPLE Act. Ramzan Mian v. Executive Engineer, 1969 PLJR 241.

In the case of Devendra Prasad also the High Court said, proceeding under BPLE Act can be initiated only in repect of public land. No proceeding can be initiated in regard to land which is not a public land. Devendra Prasad Nayak v. State of Bihar, 1995 (2) PLJR 105.

Illegal construction made by settlee over land. The High Court examined the terms trespasser and encroacher and said, Settle becomes trespasser and not encroacher. Proceeding quashed. Dr. Tribhuwan Singh v. State of Bihar, 2004 (T) BLJ 797 : 2004 (1) PLJR 778.

Demolition of house when encroachment is still to be decided. Claim for damages is maintainable. Pankaj Kumar v. State of Bihar, 2001 (4) PLJR 694.

Final order passed under section 6 after duly initiating proceeding under section 3. No illegality attached in impugned action. Md. Mehandi Imam v. State of Bihar, 2001 (3) PLJR 762.

Demolition of property without proper measurement. The High Court has directed that the Anchal Adhikari cannot cause damage to public property in the name of protecting public property. Anchal Adhikari directed to pay compensation of Rs. Lakh to petitioner. Kamal Nath Prasad v. State of Bihar, 2006 (3) BLJ 437 : 2006 (4) PLJR 362.

Encroachment on Public roads. In the can of Arun Kumar the High Court directed, Authorities must identify the road by reference to latest survey maps available and limit demarcated to find the encroacher. Middle of road cannot be taken as basis to determine encroachment. Arun Kumar Mukherjee v. State of Bihar, 1999 (3) PLJR 272.

Encroachment on public road. Where structure has been raised with a sanctioned plan, no part of structure should be demolished, even if width of road in front of such structure is less than 20 feet. In such cases, prior consent of landowner or acquisition of land is necessary for any demolition, the High Court held. Arun Kumar Mukherjee v. State of Bihar, 1999 (3) PLJR 272.

Repeated encroachment after demolition. In the case of Arun Kumar Mukharjee the High Court observed that if encroachment is made repeatedly then the Officer-in-charge of concerned police station will be accountable for contempt proceeding. Arun Kumar Mukherjee v. State of Bihar, 1999 (3) PLJR 272.

Proceedings for removal of encroachment once initiated and then dropped. Subsequently, fresh proceeding can be initiated in respect of same land. Maheshwari Devi v. State of Bihar, 1988 BLJ 1051.

But, direction given by High Court for removal of encroachment from public land cannot be misused by authorities. Anti-encroachment drive has a public purpose. Parmottam Prasad Singh v. State of Bihar, 1999 (1) PLJR 708.

Where a building is constructed by the builder in accordance with sanctioned plan, it cannot be even partly demolished by simply putting a mark on it. Building constructed in accordance with sanctioned plan should not be disturbed. Khurshid Alam v. Md. Zahir, 1997 (2) PLJR 847.

Section 6 declared as ultra vires in a different case will have effect in other cases also where section 6 is involved. Prasad Ranjan Das v. State of Bihar, 1984 PLJR 19.

In every case proper procedure for removal of encroachment must be followed. When there is claim by owner that land is his private land, demolition of buildings standing on such land without following due process of law, is not justified. Petitioner is entitled for restoration of his possession. However, compensation cannot be awarded by court without proper assessment. Parties given liberty to file civil suit. Bhola Sah v. State of Bihar, 1999 (2) PLJR 851.

Proceeding under BPLE Act can be initiated only in repect of public land. No. proceeding can be initiated in regard to land which is not a public land. Devendra Prasad Nayak v. State of Bihar, 1995 (2) PLJR 105.

Another proceeding may not be initiated for the same reason if once it is considered and dicided. The High Court in the case of Mahant Ramgya Giri said, Government officers cannot initiate fresh proceeding for same reason and on same allegations many years after order for dropping earlier proceeding had become final. Mahanth Ramagya Giri v. State of Bihar, 1991 (2) PLJR 249. See also: Kali Prasad Seal v. State of Bihar, 1969 PLJR 23.

Petitioner is rightful owner of property, application filed by petitioner for removal of encroachment is not barred by section 15 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Union of India v. Additional Collector, 1984 PLJR 505.

Construction against law and encroachment are not the same thing. In the case of Sushila Srivastava the Court discussed the difference and said, there is great deal of difference between calling a building unauthorised for being constructed in violation of law and holding possession of a person to be unauthorised over land/building. When a person is in settled possession of property, even if it is assumed that he has no right to continue in occupation of property, he can be dispossessed only by taking recourse to law. Sushila Srivastava v. State of Bihar, 2000 (1) PLJR 301.

Proceeding under BPLE Act is not maintainable in respect of Khas Mahal land. Ashwani Kumar Gupta v. State of Bihar, 2000 (2) PLJR 221.

Encroachments made before 10.10.1955 only comes within ambit of relief envisaged under proviso to Section 6. Manoj Kumar v. State of Bihar, 1999 (3) PLJR 812.

Where no final order is passed in earlier proceeding, such proceeding cannot come in way of subsequent proceeding by applying principle of res judicata. Ramchandra Singh v. Union of India, (1991) 2 BLJ 532 : 1991 (2) PLJR 684.

Jurisdiction of High Court. Writ jurisdiction of High Court cannot be invoked in matter concerning condonation of delay in filing appeal, involving disputed facts. Md. Samsuddin v. State of Bihar, 1987 PLJR 126.

The PLE Act and Art. 14. In the case of Ramzan Mian the High Court discussed the constitutionality of the Public Land Encroachment Act, 1956 and held that Provisions conferring power on Collector to pass order for removal of encroachment are violative of Article 14 of Constitution of India. Ramzan Mian v. Executive Engineer, 1969 PLJR 241.

The proceeding for removal of encroachment should not be hurried. The High Court said, adequate time should be given to remove encroachment. Notice giving only one day's time to remove encroachment is not fair. Dr. Murlidhar Agrawal v. State of Bihar, 1996 (1) BLJ 338 : 1996 (2) PLJR 65.

Trial under Section 6(2) does not prescribe any procedure to be followed for trial of offence. Section 4(2) of Cr. P.C. must be applied to such trials. Bal Chandra Bothara v. State of Bihar, 1980 BLJ 222 : 1980 PLJR 559.

If any question of title is raised the Collector cannot determine question of title on a summary way. Fraud, collusion, concoction etc. which requires strict proof can only be decided by Civil Court. Kaushalya Devi v. State of Bihar, 1999 (2) BLJ 361.

In the case of Babulal Paswan the High Court said, Land once settled cannot be cancelled without complying with principles of natural justice. Encroachment proceeding must be carried out in accordance with principles of natural justice. Babulal Paswan v. State of Bihar, 1993 (2) BLJ 199 : 1993 (2) BLJR 886.

Dwelling of the petitioners over plot no. 4682 demolished by the respondents. In Jai Narayan Bhagat v. The State of Bihar, 2011 (4) BBCJ 599 : 2011 (4) PLJR 504: dwelling of the petitioners over plot no. 4682 demolished by the respondents in the removal of encroachment over plot no. 1367 even when they were restrained from doing so by the H.C. in earlier writ petition.

Admittedly, a civil dispute was pending between the State and the petitioners with regard to title and possession over same plots. Whether or not the dwelling demolished by the respondents was situated over any of the plots which is the subject matter of the title suit, is yet to be determined by a civil court of competent jurisdiction and each party has its own stand. It was another story that the suit filed by the state stoods dismissed for default and although a restoration application is pending but the suit is yet to be restored. Thus, at present, no proceeding was pending in between the parties.

The High Court held, in these circumstances where there exists a dispute as to the very situs of the dwelling of the petitioners and each party has its own version with the respondents holding it to be situated on plot on 1367 and the petitioners countering the same by stating that it was situated on plot no, 4682, the issue certainly could not have been decided in a summary manner by the Collector, as having been done in the present case. The Collector, Vaishali, has proceeded in a most irresponsible and whimsical manner, to say the least and which has resulted in demolition of the dwelling of the petitioners.

Notice issued under sub-section (2) of Section 6, by the Collector, Munger. In Harendra Kumar Singh v. The State of Bihar, 2013 (1) PLJR 531 two petitioners had approached the High Court for quashing of the notice, dated 28.02.2007, issued under sub-section (2) of Section-6 of the Bihar Public Land Encroachment Act, 1956, by the Collector, Munger. By virtue of this notice, the petitioners were asked to vacate the encroachment from Plot No. 42 and 43, located in Tauzi No. 1333, P.S. - Kotwali, District - Munger. As per the notice, the land in question is a public land, which has been illegally encroached upon by the petitioners.

It was the case of the petitioners that originally the property in question was purchased by Late Rai Bahadur Udit Narayan Singh, father of Lalitheshwar Prasad Singh and grandfather of Kameshwar Singh and Bisheshwar Singh, vide registered sale-deed dated, 8th of June, 1928. He died inte estate, leaving behind Laliteshwar Prasad Singh, the only son and other legal heirs, like grand sons etc. Heirs of Late Laliteshwar Prasad Singh executed the sale-deed in the name of the father of the petitioners vide registered sale-deed dated 09.01.1963, which was registered on 18.01.1963. The sale-deed has been annexed as Annexure-1, which has been registered at Calcutta.

Since the date of purchase, the father of the petitioners came in possession of the land and house and resided therein. After the death of father of the petitioners, they came in possession of the house and residing peacefully thereafter. Petitioners applied for mutation, but except for mutation under the name of one Tara Devi, who was a similar purchaser, their cases had remained pending in all these years. In fact, there were 14 persons, who had purchased land from of the same plot and Tauzi, and father of these two petitioners was also one of the purchaser.

The High Court said, the position taken by the petitioners is seriously contested by the State. They placed reliance on the case of Md. Mehandi Imam v. State of Bihar, reported in 2001 (3) PLJR 762. Emphasis is on para 21, which is reproduced herein below:

Having heard counsel for the parties and appreciating the rival contentions raised at the bar, it is held that the petitioner after termination of the lease deed in the year 1975 was liable to be evicted by initiating a proceeding under the Act and in the given case, therefore, there was no requirement for resumption of the land in question, as prescribed under Rule 22 of the Khas-Mahal Manual.

Yet another decision is of a Division Bench in the case of Md. Mehandi Imam v. State of Bihar, which was a decision in appeal against the Learned Single Judge's Order. The Division Bench has expressed its opinion in support of Learned Single Judge and the manner in which resumption of possession after expiry of lease of Khas Mahal Land could be done. It is significant to note the observation of the Division Bench emerging from paragraph 6 to 9.

If these are the factual and legal aspects, which emerge after perusing the records and hearing the counsels, then the Court is not left with any option but to hold that the petitioners have no right, legally accruing to them from any transaction which they entered with the original lessee to the detriment of the interest of the State. The petitioners have also not been truthful and fair in their averments in the Writ Application filed before this Court as certain vital facts were suppressed in the manner in which they have acquired a so called right or title in terms of Annexure-1 to the Writ Application, the equity is not in their favour. Therefore, the Court would be compelled to draw support from the observation of the Division Bench, in case of Mehandi Imam (supra), especially paragraph 13 of the said decision, which can be relied upon in the given facts and circumstances of the case.

Service upon the petitioner under the relevant provisions of section 6(1)(c) of the Act. In Bhola Choudhary v. State of Jharkhand, 2012 (4) JCR 693 (Jhar.) the petitioner was aggrieved by the notice dated 7th of August 2006 issued by the Collector, Dhanbad under the provisions of section 6(2) of the Bihar Public Land Encroachment Act, 1956. The writ petition was preferred alleging that the impugned action has been taken without taking into account the objection filed by the petitioner and no final order was served upon the petitioner under the relevant provisions of section 6(1)(c) of the Act of 1956 for removal of the alleged encroachment.

Jharkhand High Court said, having gone through the order dated 12th July 2006, it appears that the impugned notices were issued pursuant to the order passed under the relevant provisions of B.P.L.E. Act. However, Learned counsel for the petitioner submits that the copy of the said order was never served upon him and respondent State may be directed to serve a copy of the said order upon him so as to enable him to prefer an appeal against the order in question before an appropriate forum. It appears that after initiating proceeding under the provisions of B.P.L.E. Act, orders were passed leading to issuance of impugned notices, which has been challenged by the petitioner in the present case without pursuing the alternative remedy.

In the circumstances, respondent State is directed to serve a copy of the order upon the counsel for the petitioner within two days. Thereafter, it would be open to the petitioner to avail of the alternative remedy before the appellate forum under the Act of 1956. However, it is submitted by the counsel for the petitioner that the appeal may be barred by limitation and he would prefer appeal within a period of four weeks from the date of service of copy of the order upon him. In the circumstances, it is observed that the appellate authority may consider the question of delay sympathetically in view of the pendency of this writ application. It is expected that the respondent would not take any coercive steps for the period of four weeks by which time petitioner undertakes to prefer his appeal against the order dated 12.07.2006.

Removal of encroachment Ex parte proceeding. In Nazhal Parween v. The State of Jharkhand, 2013 (3) JBCJ 560 : 2013 (4) JLJR 314 (Jhar.) order was passed without following the principles of natural justice and due and established procedure of law. The High Court of Jharkhand issued notice u/s. 6(2) and directed to issue fresh notice under section 3 of the Act.

It was stated that on perusal of the said notice, it transpires that the petitioner was called upon to appear before the Circle Officer, Chandil on 21.09.2012. But, according to the petitioner he has not received copy of the said notice and, therefore, he could not remain present on the date fixed by the Circle Officer, Chandil. Subsequently, the petitioner received the copy of the notice from the office of Circle Officer, Chandil. According to learned counsel for the petitioner after obtaining copy of the show cause the petitioner has not filed any explanation in response to the said show cause notice. It appears that Circle Officer, Chandil has not given any another date to give response in pursuant to the said show cause notice. It appears that ex-parte proceedings has been taken out by the Circle Officer, Chandil and the petitioner was asked to comply with the order within a period of seven days from the date of notice issued under Sub-Section (2) of Section 6 of the Bihar Public Land Encroachment Act, 1956.

Under the circumstances, it appears that the said order has been passed without following the principles of natural justice and due and established procedure of the law and, therefore, the notice issued under Sub-Section 2 of Section 6 of the Bihar Public Land Encroachment Act, 1956 dated 24.12.2012 is required to be quashed and set aside and the petitioner is required to be given an opportunity of being heard before final decision is taken since the petitioner has not been heard in pursuant to show cause notice.

Writ petition - Encroachment on public land Notice issued was non-speaking. In Narendra Kumar Singh Neelam v. State of Jharkhand, (Jharkhand) 2017 (2) JBCJ 555 : 2017 (3) AIR Jhar. 722 non speaking notice issued by CO was held liable to quashed.

Counsel for the Respondent submits on the basis of the averments made in the counter affidavit and enclosed annexures that opportunity of hearing was given to the petitioners in terms of provisions of the Act of 1956 and on failure of the petitioners to produce any document in their support, the Circle Officer, Giridih has passed the order for removal of encroachment. There is a remedy of appeal also against the order of removal of encroachment under section 11 of the Act.

Considered the submissions of the parties in the background of the relevant material facts noticed herein-above. The order dated 18.01.2017 reads as under:

On the face of it, it is non-speaking and does not show any reason for directing removal of encroachment of 1.05 decimal of land by the petitioners. It also shows non-application of mind to the defence taken by the petitioners in their reply. The reply of the petitioners was admittedly filed on 01.03.2016 and according to the petitioners, they had also enclosed supporting documents along with it. In any case, in the absence of reasons, on the face of the order passed by the Respondent No. 3 leading to issuance of the impugned notice at Annexure-8 purportedly under section 6(1)(c) of the Act of 1956, it would be indeed an empty formality for the petitioners to go in appeal as they would, in effect, be unable to assail any such grounds before the Appellate Authority. Reliance has rightly been placed upon the judgment rendered by the Apex Court in the case of Oryx Fisheries Private Limited (supra) where ratio rendered in the case of Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496, have been profitably quoted. It would be apposite to quote the opinion of the Hon'ble Supreme Court contained in paragraph-40 of the Report.

40. In Kranti Associates this Court after considering various judgments formulated certain principles in SCC para 47 of the judgment which are set out below: (SCC pp. 510-12);

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decisionmaker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or rubber-stamp reasons is not to be equated with a valid decision-making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Har V.L. Rev. 731-37.)

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain, EHRR at p. 562, para 29 and Anya v. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, adequate and intelligent reasons must be given for judicial decisions .

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of due process .

The Court held, therefore, on consideration of the aforesaid facts and the position in law, this Court is satisfied that interference under Article 226 of Constitution of India is warranted. The impugned notice at Annexure-8 dated 18.01.2017 passed in Case No. 53/15-16 stands quashed. Consequently, the Respondent Circle Officer, Giridih cum Collector under the BPLE Act would pass a fresh order in accordance with law, after due application of mind to the reply submitted by the petitioners, within a period of four weeks from the date of receipt of a copy of this order.

Petitioner asked not to obstruct the construction of Anganbari Kendra. In Md. Meraj Alam v. The State of Bihar, 2015 (4) BBCJ 24 petitioner asked not to obstruct the construction of Anganbari Kendra over Khesra 1404. He claimed to have purchased the said land from the settlee of ex-intermediaries and after getting the mutation in his name, paying rent to State of Bihar-the notice directing him not to obstruct the construction of Aanganbari Kendra directed to be treated as notice, under Section 3 of the Act. Petitioner directed to file his reply to the said notice which is to be considered on its own merit-further construction stayed.

Petitioner is aggrieved by the notice dated 31.01.2015, as contained in Annexure 1, by which he has been directed not to obstruct the construction of Anganbari Kendra No. 09 upon khesra no. 1404 appertaining to khata no. 239 of village, Saidpur and vacate the land.

Petitioner is aggrieved by the notice dated 31.01.2015, as contained in Annexure 1, by which he has been directed not to obstruct the construction of Anganbari Kendra No. 09 upon khesra no. 1404 appertaining to khata no. 239 of village, Saidpur and vacate the land. Observing that the High Court disposed off the petition and directed, with a direction that Annexure 1 should be considered as notice upon the petitioner under Section 3 of the Bihar Public Land Encroachment Act, 1956, (hereinafter referred to be as the Act ). The petitioner would be required to file his reply to Annexure 1 within three weeks. Thereafter, the Circle Officer, who is present today, would consider the case of the petitioner on its own merit and in accordance with law. He would also look into the revenue records and khatian etc. and find out as to whether the jamabandi is running in the name of the petitioner or not with respect to the concerned land. If the jamabandi is running in his name then he would not be thrown out in a proceeding initiated under the Act. Petitioner claims that his father has purchased the land from the settlee of ex-intermediaries by a registered sale deed. Petitioner would also be required to append a copy of the registered sale deed along with his reply before the Circle Officer and after that he would be required to take a final decision in accordance with law within two months after filing of such reply.

Petitioner in possession for 50 years Whether he can plead adverse possession. In Krishna Kumar Sah @ Krishnanand Sah v. State of Bihar, 2013 (1) PLJR 31 the writ petitions had been filed assailing the order dated 19.8.2010 passed by the Circle Officer, Kadwa, Katihar under Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the Act) asking the petitioners to remove their forcible possession from the aforesaid land, which order has also been affirmed in appeal vide order dated 12.2.2011 passed by the Additional Collector, Katihar and Commissioner, Purnia Division, Purnia under order dated 18/31.5.2011 contained in Annexures-3, 2, 1 in the writ petitions. Earlier petitioners were served with notice to show cause as to why directions be not issued under the Act to forcibly remove their possession from the lands in question. In response to the said notice petitioners submitted before the authorities that perusal of the Record of Rights published as far back on 12.4.1958, Annexure-5 (Annexure-6 in C.W.J.C. No. 8223 of 2012) would indicate that petitioners through their ancestors are in possession of the lands in question for more than 50 years and thereby acquired right of adverse possession over the lands in question. In this connection, it is also pointed out that all along i.e. from before the commencement of the proceeding for preparation of Record of Rights the State and its functionaries were/are aware that petitioners are in forcible possession of the lands in question but for reasons of public interest that the petitioners are below poverty line action was not taken to remove their forcible possession and thereby petitioners have acquired right of adverse possession over the lands in question. Aforesaid plea has been negated by the authorities below without disputing the entries made in the Record of Rights or the genuineness of the Record of Rights.

Counsel for the State opposed the submission and submitted that the petitioners have continued in possession over the lands of the Union of India but as the same is now required for public purpose, the authorities have taken action against the petitioners under the Act so as to secure its possession for public purpose. Learned counsel for the State further submitted that reliance placed by the counsel for the petitioners over the judgment of the Full Bench of the High Court and the Hon'ble Supreme Court is also misplaced. He pointed out that in the Full Bench case of Brij Bhukan Kalwar (supra), High Court observed that if a person by efflux of time has acquired title by adverse possession to a property which was at one time a public property that property cannot be taken by the State by resorting to the provisions of the Act, provided the person occupying the public property has obtained declaration that he has acquired right of adverse possession over the said property. From the Record of Rights, itself it is evident that the lands in question is the property of the Union over which petitioners are claiming title by adverse possession but till date no such declaration has been made by any court, as such, according to learned counsel for the State reliance placed over the Full Bench judgment of the High Court is misconceived. With reference to the judgment of the Hon'ble Supreme Court in the case of Government of Andhra Pradesh (supra) learned counsel for the State submitted that the lands in question were acquired by the Government of Hyderabad for Osmania University, the University lost title to the property by operation of law of limitation. The State Government resorted to summary proceeding for eviction of the respondents from the lands in question. The Hon'ble Supreme Court having considered the submissions observed that if there is bonafide dispute regarding the title of the Government to any property the Government cannot take a unilateral decision in its own favour that the property belongs to it. Learned counsel for the State submitted with reference to the aforesaid judgment that in the instant case, there is hardly any dispute about the ownership of the property, as it is admitted position that the lands in question is recorded in the name of the Union of India. The claim of the petitioners is only of having acquired title over the lands of the Union of India through adverse possession, will date, however, no such declaration has been made in their favour, as such, it cannot be said that petitioners have acquired right of adverse possession over the lands in question.

The authorities of the State were aware about the possession of the petitioners over the lands in question right from the date of publication of the Record of Rights, if not prior thereto, in my opinion, therefore, the authorities of the State were required to have taken steps for removal of the encroachment by the petitioners under the Act earlier or in any case within the time provided under Article 112 of the Limitation Act. That authorities having not taken steps for removal of encroachment by the petitioners from the lands in question within the time provided under the Limitation Act, they are stopped from resorting to summary proceeding for removal of encroachment by the petitioners as in the meanwhile, petitioners claim that they have acquired right of adverse possession over the lands in question. Petitioners, in order to vindicate their claim of having acquired right of adverse possession over the lands in question, in my opinion, should approach the civil court of competent jurisdiction for declaration of their right of adverse possession over the lands in question. The impugned orders passed under the Act shall, however, not come in the way of the petitioners in obtaining declaration from the competent civil court that petitioners through their ancestors acquired right of adverse possession over the lands in question. As the petitioners have raised their house over the lands in question in which they are residing for over 50 years, I dispose of the writ petition(s) granting liberty to the petitioners to approach the civil court of competent jurisdiction within two months from today and obtain interim order of protection from the competent civil court.

Removal of encroachment Land in question situated in court compound Order of eviction preceded by notice. N Sunil Kumar v. The State of Jharkhand, 2016 (2) JCR 399 : 2016 (2) JLJR 200 (Jhar.) it was stated that the Deputy Commissioner respondent no. 2 settled a piece of land measuring about 96 sq.ft. in favour of the petitioner vide letter dated 17.12.1988. The petitioner installed a photocopier machine in the shop constructed over there. In the year, 2007, BPLE Case No. 107 of 2007 was instituted in which an order was passed for eviction of the petitioner. The petitioner preferred BPLE Appeal No. 48 of 2007-2008. Vide order dated 15.10.2007 the respondent no. 2 disposed of the appeal directing the Sub-Divisional Officer, Dalbhum to accept application for renewal of the license if the licensee submits application by 15.11.2007. The renewal was to be granted on payment of double the amount of the ground rent as fine. Subsequently, on the application submitted by the petitioner seeking permission to pay rent from 2001-2008, vide order dated 21.04.2008 the petitioner was permitted to deposit Rs. 6720/- in the Sub-Divisional Nazarat. The petitioner asserts that on 14.06.2008, the petitioner deposited the said amount against receipt no. 391642 still, the shop of the petitioner was demolished on 05.12.2015.

The High Court said, a perusal of order contained in letter dated 17.12.1988 discloses that the permission to install photocopier machine was granted for one year only. It further stipulated that no permanent construction would be made. Order dated 21.04.2008 also discloses that renewal was for only one year i.e. for 2007-2008. The said order also prohibited permanent construction over the piece of land allotted to the petitioner. The petitioner has not asserted that the license for photocopier machine was renewed for the subsequent years. The petitioner has though, made a statement that he has been paying electricity charges to JUSCO and the last payment was made on 12.12.2015, the petitioner has also failed to asserts that he paid the rent after 2008. The order contained in letter dated 17.12.1988 is not in the nature of a lease granted under Khas Mahal Manual. The permission to the petitioner was on the license basis and order passed by the Sub-Divisional Officer also discloses that the renewal has been ordered for only one year. The judgment in Deba Jyoti Dutta v. State of Bihar 1988 PLJR 440 and Taper, Sen v. the State of Bihar 1991 (2) PLJR 274, are in the context of lease/renewal of lease. The reliance placed by the learned Senior counsel for the petitioner on those judgements is misplaced. The piece of land allotted to the petitioner was in the court compound at Sakchi. From the newspaper report produced by the petitioner, it is apparent that notice was issued to the petitioner and other encroachers. The contention raised on behalf of the petitioner that the respondents should have instituted proceeding in the civil court for eviction of the petitioner, is liable to be rejected. In view of the nature of the settlement and the order of renewal passed by the Sub-Divisional Officer, the petitioner has rightly been evicted by giving notice for eviction.

Considering the facts disclosed in the writ petition, no order for restoration of possession can be passed in the present proceeding. I find no merit in the writ petition and accordingly, it is dismissed.

Removal of encroachment Prayer for restraint order Vendor cannot transfer a property in which he himself has got no title. In Md. Ezaz @ Raja Babu v. State of Jharkhand, 2015 (1) JLJR 436 (Jhk) in support of his claim, the petitioner has produced copy of a sale deed and a rent receipt dated 07.02.2011 issued in the name of Dhiru Napit. The petitioner has stated that the Dhiru Napit and Sharda Napit had surrendered their interest in favour of Raja Thakur Chandra Mohatri Singh on 21.09.1934. According to the petitioner himself, the land came in possession of one Banglu Charan Dutta and Title Suit No. 192/2001-2002 were instituted by Motilal Parmanik and others. In the writ petition, it has nowhere averred by the petitioner why the rent receipt was issued in the name of Dhiru Napit. The petitioner has annexed only one receipt dated 07.02.2011. Only some of the vendors of the petitioner are parties in the title suit. The title suit was filed in the year, 2001 however, in the writ petition, there is no detail disclosed with respect to possession over the land in question in the last 60 years. It is also not disclosed how the land in question came in possession of the defendants of Title Suit No. 192/2001-2002. The petitioner has nowhere stated that he purchased the land and building constructed thereon. No detail with respect to the building and the year of construction have been disclosed in the writ petition. The petitioner has not disclosed the name of the tenants, the nature of the tenancy, the date of the induction of the tenants and the date on which the tenants were allegedly inducted in different shops besides, who among the predecessor-in-interest of the alleged vendors of the petitioner or the defendants of Title Suit No. 192/2001-2002 constructed the building. The writ petition is lacking in all necessary details. On a mere pretention of acquiring title through registered sale deed dated 14.02.2001, the petitioner has filed the present writ petition. The respondents have specifically pleaded that Plot No. 1692 was acquired vide Land Acquisition Case No. 04/1954-1955 and compensation has been paid to the recorded raiyat. In the writ petition, the petitioner has only stated that in the land acquisition case, name of owner of Plot No. 1692 is wrongly mentioned. A proceeding under the Jharkhand Public Land Encroachment Act was initiated against the petitioner in which, notices were issued to the petitioner however, the petitioner has denied service of notice upon him. The petitioner himself has disclosed that on 06.11.2014, he got knowledge of order passed by the Deputy Commissioner. The writ petition was filed on 12.11.2014 however, it was mentioned for urgent hearing only on 20.11.2014. The sale deed dated 14.02.2011 is only an evidence with respect to execution of a deed between two parties and receipt of consideration by the vendor. Even by a registered sale deed, a vendor cannot transfer a property in which, he himself has got no title. The respondent-State of Jharkhand has specifically denied right of the vendors of the petitioner in the land in question. I further find that the writ petition involves serious disputed questions of fact.

Writ petition Encroachment proceedings Held, summary procedure under encroachment law cannot be resorted to where there are serious disputes of right, title and interest or possession of the property. In Sri 108 Shyamajee v. State of Bihar, (Patna) (DB) 2016 (4) PLJR 122 : 2016 (2) BBCJ 121. A plea was taken that, in view of the judgment, it was too late on the date for the State to claim that the land in occupation of the deity was in encroachment on public land. The authorities below consistently held that as per cadestral survey, the lands were shown as Kaiser-e-Hind , and as such they were not the lands of Maharaja. It could not be settled or no endowment could be made to the deity. This is being said in the year 1989, and the endowment was in the year 1948-1949.

The Court said, various questions arises. As the very initiation of the proceedings admit that the writ petitioner/appellant is in a long standing possession, and has rightly been held by the learned Single Judge that there are some serious disputes with regard to title. In our opinion, if this is correct, then the very initiation of the encroachment proceedings is misconceived. It is a settled position in law that where there are serious disputes in right, title and interest or possession of the property, the summary procedure under encroachment law cannot be taken or resorted to by the State. State must, in such a situation, resort to the regular proceedings of suit and then get a decree for evicting a person from unauthorized occupation.

Non-removal of encroachment from public land despite notices to encroaches - Challenged. In Shiv Kumari Devi v. The State of Bihar, (Patna) 2017 (1) BBCJ 575 the petitioner had earlier approached this Court by filing CWJC No. 11408 of 2009 for removal of encroachment from public land of plot no. 374 appertaining to Khata No. 122, Thana No. 112 of mauza Shaharu, PS. Dhanarua, District-Patna. The writ petition was disposed of granting liberty to the petitioner to file application for initiation of the proceeding under Bihar Public Land Encroachment Act. Accordingly, the petitioner moved before the authority under the Act and Encroachment Case No. 1/2009-2010 was initiated but unfortunately the same has remained pending till date as encroachment has not finally been removed despite notice was given to the encroachers.

The petitioner drew attention of this Court towards the report of the Circle Amin, as contained in Annexure-13 addressed to the Circle Officer, Dhanarua, Patna stating that measurement is not being done in view of the fact that the encroachers are obstructing the same and despite the request for help of the District Administration the same is not materialized till date.

The Court held, in the aforesaid background of the matter, this Court would be inclined to dispose of this writ petition with a direction to the respondent no. 4, i.e., the Circle Officer, Dhanarua, Patna to ensure that the Encroachment Case No. 1/2009-2010 be brought to its logical conclusion within a period of three months from the date of receipt/production of a copy of this order. If there is any hindrance caused by any of the parties he would be at liberty to take help of the District Administration.

It is made clear that no final order or final action of removal of encroachment should be taken before granting adequate opportunity to all the concerned including the petitioner, the encroachers and the private respondent no. 7.

In Jawahar Sah v. State of Bihar, (Patna) 2017 (2) BBCJ 50 the High Court of Patna said, since the order was passed without any final order having been passed, therefore, the entire proceeding against the petitioners is quashed and set aside. In fact, the order passed on 12.01.2016 is not a final order passed by the authority under Section 6 of the Act rather it is stated in the order that since notices under Form II were issued but the encroachers have refused to accept such notices, therefore, coercive steps are to be taken against the encroachers for removal of encroachment. It does not appear from the entire record that any order has been passed under Section 6 of the Act declaring that the petitioners are encroachers and they are required to be removed. Records also do not show that the petitioners were given any opportunity of hearing in the matter in terms of the Section 5 of the Act.

Writ petition. In Shyam Prakash Agarwal v. State of Jharkhand (Jharkhand) 2016 AIR (Jhar.) 15 each of the writ petitioners claimed right, title and interest in the land.

The High Court of Jharkhand said. As it appears from the averments in the writ petition and stand of the counsel for the respondents, each of the writ petitioners claim ownership over the plot which are different to the plot mentioned in the impugned notices i.e. plot no. 169. Petitioners therefore cannot object to removal of any encroachment over the public land comprising plot no. 169.

Learned counsel for the petitioners submits that in the process of removal of encroachment under plot no. 169, certain portion of the petitioners' staircase have been partially demolished and they apprehend more coercive action during course of time, though there are no proceeding for removal of any public encroachment, nor their land is a public land.

From averments on record and submissions of the parties, it is evident that notice under section 6(2) of the Act of 1956 are directed in respect of piece of land under plot no. 169 of village Gomo Thana No. 22 district - Dhanbad to which petitioners do not claim any right, title, ownership and possession. Any removal of encroachment in respect of plot no. 169, in principle, cannot be objected to by the petitioners. However, respondent authorities while carrying out removal of encroachment on plot no. 169 of different area of different description, should not step over other land to which petitioners claim to be the owner, unless a valid proceeding under the BPLE Act, 1956 is initiated against the concerned person including the present petitioners in respect of plot in question, if such plots are claimed to be the public land by the respondents.

With these observations, these writ petition are disposed of.

Encroachment of public land notice - Directing petitioner not to obstruct the construction. In Md. Meraj Alam v. State of Bihar, (Patna) 2015 BBCJ 24 High Court of Patna examined the scope of section 6 of the Act. In the case under reference, petitioner is aggrieved by the notice dated 31.01.2015, as contained in Annexure 1, by which he has been directed not to obstruct the construction of Anganbari Kendra No. 09 upon khesra no. 1404 appertaining to khata no. 239 of village, Saidpur and vacate the land otherwise action would be taken against him. It is contended that despite Annexures 2 and 3 filed before the Circle Officer as well as the District Magistrate-cum-Collector, Anganbari Centre is being constructed over the land which has been purchased by the father of the petitioner, namely, Md. Rajak Alam and upon which jamabandi has already been created in his favour and he was paying rent to the State of Bihar which was issuing rent receipt also in acknowledgment of the same. One of such rent receipt has been brought on record as part of Annexure 3 which is a representation filed before the Circle Officer. It appears from the original records produced by the Circle Officer that on 28.01.2015 report was sought from the concerned and that report of Anchal Amin shows that Anganbari Kendra has been constructed upon the aforesaid land without taking a decision on the representation of the petitioner and without passing a final order in the encroachment case. Its report also appears to have been filed without perusal of the relevant records of rights.

The Court held, in above view of the matter, this writ application is being disposed of with a direction that Annexure 1 should be considered as notice upon the petitioner under Section 3 of the Bihar Public Land Encroachment Act, 1956, (hereinafter referred to be as the Act ). The petitioner would be required to file his reply to Annexure 1 within three weeks. Thereafter, the Circle Officer, who is present today, would consider the case of the petitioner on its own merit and in accordance with law. He would also look into the revenue records and khatian etc. and find out as to whether the jamabandi is running in the name of the petitioner or not with respect to the concerned land. If the jamabandi is running in his name then he would not be thrown out in a proceeding initiated under the Act. Petitioner claims that his father has purchased the land from the settlee of ex-intermediaries by a registered sale deed. Petitioner would also be required to append a copy of the registered sale deed along with his reply before the Circle Officer and after that he would be required to take a final decision in accordance with law within two months after filing of such reply.

However, till then, further construction should not continue on the land in question by the respondents as it is contended on behalf of the State that Anganbari Centre is being constructed by the State authority.

Right, title and interest over the land in dispute - Manner to act. In Smt. Dilrani Devi v. State of Bihar, (Patna) (DB) 2016 (3) PLJR 972 : 2016 (2) BLJ 314 (PHC) The High Court held. It is well established principle of law that when an Act provides a procedure for doing a thing then the Act has to be performed in that manner and all other modes are expressly prohibited. Reliance may be placed on the case of Hukam Chand Shyam Lal v. Union of India, (1976) 2 SCC 128 and in particular, paragraph 18 thereof which is as under:

18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided will be violative of the fundamental principles of natural justice. Now, in the present case, if the telephones of the appellants were to be disconnected on the ground of misuse, then they had to give, in consonance with the principles of natural justice, opportunity to the appellants to explain their conduct before taking action under Rule 427 read with Rules 416 and 421. Resort to the wrong and more drastic course provided in Rule 422, on a ground which was not germane to an action under that rule, vitiates the impugned order, particularly when it is manifest that in making the impugned order, the General Manager was influenced more by this ground and less, if at all, by the existence of public emergency certified by the Delhi Administration.

Next we would refer is that, there is no estoppel against law. A pure question of law can be raised at any stage. When the legislature mandated re-initiation of proceedings by fresh draft publication, fresh objection and fresh adjudication and the authorities proceed per incurium, the order cannot get any validity as the authority has no jurisdiction to continue. The authorities lacked the jurisdiction to continue with that proceeding as was legislatively mandated.

Thus, we have no option but to hold that the final orders passed by the Additional Collector being orders dated 08.11.1982 and, on remand, 19.03.1988, as passed in Agriculture Land Ceiling Case No. 95 of 1975-1976 by the Additional Collector, Munger would have to be set aside as also all the orders from the same including the order of the Board of Revenue and the writ petition will have to be allowed. The authorities would be now required to start afresh, and following the procedure established by law, dispose of the proceedings in accordance with law at the earliest.

Question of prescription-Possession for more than 30 years. In Girish Tiwary v. The State of Jharkhand, (Jharkhand) 2016 (2) AIR Jhar. 598 : 2016 (2) JCR 599. I have considered the submissions of the parties and gone through the relevant materials on record including the impugned order. It is evident from perusal of the relevant records, as referred to herein-above as well, that the petitioner after receipt of notice under section 3 of the Act (Annexure-4) dated 18.08.2013 duly responded by Annexure-5 reply made before the Circle Officer, Ramgarh in connection with the same proceeding, taking all objections available to him including that of devolution of title through settlement made by the erstwhile Jamindar in favour of the settlee Bikram Tiwary. Other grounds as urged in the writ petition also, appear to have been taken. In that sense, requirement of notice and opportunity to respond to the allegation of encroachment have been complied with in the matter. Principles of natural justice cannot be put in a straight jacket manner. Before making any determination in such matter on the grounds of violation of principles of natural justice or denial of opportunity, as provided under any statute like BPLE Act, it is to be seen as to whether any prejudice has been caused to the concerned person because of lack of adequate opportunity.

In the instant case, as is apparent, petitioner got due opportunity and responded to the notice also and order has been passed after at least three hearing. Petitioner was found to be absent in the proceeding, as would appear from the order sheet dated 05.09.2013 and 10.09.2013. Thereafter, notice for removal of encroachment under section 6(2) has been issued as the petitioner's objection did not find favour with the Circle Officer, Ramgarh.

Facts of the instant case also show that the State Government confirmed the order of Deputy Commissioner in the proceeding under section 4(H) of the Act of 1950 in connection with a number of plots including that to which the petitioner claims title by way of settlement. Petitioner has not challenged the said confirmation order of the State Government (Annexure-B) dated 19.07.2012 in the instant proceeding. The claim of the petitioner that his right, title, ownership and possession have become absolute by prescription of law having remained on the said piece of land over a period of 30 years is concerned, this again as per the petitioner's own admission, involves questions of fact. Such questions of fact relating to title, ownership and possession cannot be gone into in writ jurisdiction of this Court where parties are on contest on the question of title as well as possession. Respondent State have asserted that the piece of land including that of the petitioner is a Government land as confirmed under the provisions of section 4(H) of the Act of 1950. Petitioner has not been able to show any order passed in a mutation proceeding relating to opening of jamabandi in his name. Such statement made by respondents in their counter affidavit, have also not been specifically denied by the petitioner by any rejoinder.

In totality of facts and circumstances of the case and the reasons recorded herein-above, the ground urged by the petitioner to challenge the initiation of the proceeding under BPLE Act, 1956, do not merit acceptance. Petitioner has an alternative statutory remedy of appeal before the appropriate forum under the Act of 1956 itself. From perusal of the judgment relied upon by the counsel for the petitioner, in the case of the Kamal Kumar Singhania (supra), it is evident that the learned Single Judge found upon consideration of the rival submissions of the parties, that the said proceeding were related to removal of encroachment alleging that the land were forest land. However, upon consideration of the rival pleas, learned Single Judge found that there was a dispute about the location, situation or distribution of the particular area of the land. There appeared to be confusion in relation to the piece of land whether they belong to the forest area or not in which BPLE proceeding were initiated. In such circumstances, learned Single Judge found that the question relating to right, title over the land was shrouded in serious doubt in respect of which, summary proceeding for removal of encroachment was not proper. In the case of Pashupati Mandal (supra), on consideration of rival pleas and materials on record, learned Single Judge found that there was no document of acquisition produced by the respondent State to justify the proceeding under BPLE Act against the said petitioner and to order removal of encroachment by a summary proceeding.

6-A. Power of the State Government to compound the proceeding under the Act. The State Government or any officer specially authorised by the State Government in this behalf not below the rank of an Additional Collector, may compound the offences arising out of any proceeding under the Act on such terms and conditions as the State Government may determine.

11[ If any person fails to comply with the orders passed by the Collector under Section 6 directing the removal of any encroachment by the date fixed, the Collector shall cause the encroachment to be removed in such manner as he deems fit and the cost of such removal shall be recovered from such person.]

This section has been substituted by Amendment Act 3 of 1982.

In the case of Amrenadra Narayan the High Court said, Chajjas, Platforms and projections on public lands or bye-laws are to be removed after giving notice and hearing. Amrendra Narain Prasad v. State of Bihar, 2001 (3) PLJR 132.

Demolition of property without proper measurement. Anchal Adhikari cannot cause damage to public property in the name of protecting public property. Anchal Adhikari directed to pay compensation of Rs. Lakh to petitioner. Kamal Nath Prasad v. State of Bihar, 2006 (3) BLJ 437 : 2006 (4) PLJR 362.

Removal of encroachment. Matter pending before civil court. Matter is to be decided on the basis of evidence adduced by parties. District Board, Bettiah v. State of Bihar, 2004 (2) PLJR 306.

Encroachment can be ordered to be removed within a very short period. Direction given for removal of encroachment within 72 hours. Amrendra Narain Singh v. State of Bihar, 2001 (3) PLJR 132. But the proceeding must be conducted accrding to the prescribed procedures.

Entire house cannot be demolished in the name of widening of road. Houses which have been built in accordance with sanctioned plan can not be demolished for the purpose of widening of roads. Amrendra Narain Singh v. State of Bihar, 2000 (3) PLJR 19.

Houses cannot be demolished without giving prior notice or without instituting any proceeding, more so on the basis of the survey entries which are one century old. Aggrieved persons can exercise their right of private defence since such action of authorities is nothing but criminal trespassing. Chiranjiv Lohia v. State of Bihar, 1999 (2) PLJR 697.

No property can be demolished when there is title dispute. Question of title cannot be decided by Government authority. Only civil court is competent to do so. Bachcha Prasad v. State of Bihar, 1999 (2) BLJ 349 : 1999 (2) PLJR 329. In such cases provisions of Section 9 of CPC will guide solving of the problem.

No demolition can take place during pendency of proceedings. Any action can be taken only after passing of final order in pending proceeding. Proceedings can be disposed of by taking assistance of Survey Knowing Pleader Commissioner. Kashi Prasad Saha v. State of Bihar, 1998 (1) BLJ 575 : 1997 (2) PLJR 1012.

Demolition is permissible only when there is any encroachment. There must be no discrimination any demolition must be preceded by giving 48 hours' prior notice. Samastipur Zila Footpath Sangh v. State of Bihar, 1997 (1) PLJR 60.

Unauthorised occupation can be removed only by taking recourse to provisions of law. If someone is being tried to be evicted in an illegal manner he can always invoke writ jurisdiction of High Court. Asharfi Prasad Saha v. State of Bihar, 1996 (2) BLJ 713 : 1996 (2) PLJR 219.

Conclusive finding of the fact by the respondent authorities-Court would not interfere with the orders passed by the statutory authorities. In Nirmal Kumar Jain v. Union of India through the Post Master General, Bihar, 2012 (2) BBCJ 120 : 2012 (1) PLJR 318; it was the case of the petitioner that respondent nos. 1 to 3, i.e. the authorities of the Postal Department have encroached upon the land bearing Holding Nos. 26 and 30, Municipal Survey Plot Nos. 99, 112, 113 and 114 measuring about 60 kathas forming a pathway in front of the northern portion of the plot of the petitioner. After series of litigations between the parties, the matter came before this court in C.W.J.C. No. 4519 of 2005 (Nirmal Kumar Jain v. Union of India) raising similar issues.

The High Court said, a Bench of this court, vide order dated 9.8.2005, placed at Annexure-1 to the writ petition, disposed of the same with the following direction:

If by paying market value, a land has been acquired by the Union of India for the purpose of its Postal Department it is entitled to use every inch of such land for the purpose for which it has been acquired. In the event the public pathway is 4-5 feet in width then compelling the Postal Department to sacrifice another 5-6 feet in order to make that public pathway 10 feet in width would tantamount to wastage of public money which has been spent for the purpose of acquiring the land for the Postal Department, and accordingly although it would be proper on the part of the Postal Department not to expand itself beyond where it is now but at the same time it would be appropriate to direct the Sub-Divisional Officer to forthwith but not later than 12 weeks from the date of service of a copy of this order upon him to decide finally what was the original width of the public pathway, and whether any part thereof has been encroached upon by the Y, Postal Department.

The Concluded, in the light of the direction contained Annexure-1, the matter was taken; up by the respondent no. 6 giving rise to Case No. 2 of 2005-2006, who after going through the documents placed by the parties and appreciating the rival contentions, and upon local inspection being made, held that the actual pathway over which the petitioner is claiming right to use, exists merely on 4 feet 8 inch and not 10 feet as being claimed by the petitioner. It has been further found that there was no encroachment by the Postal Department. Rather the petitioner by claiming 10 feet passage was trying to encroach upon the land of the Postal Department. The finding of the respondent no. 6 has been affirmed by the Collector, Bhagalpur in Encroachment Appeal No. 85 of 2007-2008 vide order dated 1.12.2007 as contained in Annexure-3. As there is conclusive finding of the fact by the respondent authorities regarding absence of encroachment by the Postal Department, this court would not interfere with orders passed by the statutory authorities and the writ petition is accordingly disposed of.

The piece and parcel of land, which the petitioner is enjoying is based on lease agreement entered int; between the Zila Parishad and the petitioner. In Madan Sharma v. State of Bihar, 2008 (4) PLJR 70 petitioner was aggrieved by the direction of the respondent no. 4, Anchal Adhikari, Hisua at Nawada, to demolish the construction over the culvert made by the petitioner. Contention of learned counsel is that the piece and parcel of land, which the petitioner is enjoying is based on lease agreement entered into between the Zila Parishad and the petitioner. This lease is for the period of 10 years, entered on 25.11.2000. Contention of the petitioner is that he has been using this property through the approach built on the culvert and that is the only approach to the property for its utilization and use. If that approach or the construction on the culvert is demolished, the property cannot be utilized at all in absence of any egress or ingress.

From perusal of record of this writ application, the construction over the so called culvert had also been a matter of dispute before this Court earlier too. It seems several other persons have also made construction over the culvert and when it was sought to be demolished for the reasons that it was coming in the way of easy flow of water etc. the petitioner approached this Court way back in the year 1998. After due deliberation vide a final order dated 8.2.1999, the writ application was disposed of with a categorical direction that the construction on the culvert, which was made into a double storied shall be demolished.

Another observation of the Court was that similarly situated persons should be treated equally. This aspect was observed by the Court in view of the allegation made by the petitioner that are of the respondents is directed only against him.

In the counter affidavit which have been filed on behalf of the respondents they do not deny the petitioner has a right to enjoy the property under lease, which is 35/10 feet land for which he is paying rent of Rs. 200/- per month, but, it is also a fact that the approach to the shop in question has to be from a public land may be over a culvert.

This writ application is being disposed of with a direction upon the Circle Officer, Hisua, Nawada, as well as Executive Officer, Zila Parishad, Nawada, that they shall re-examine the matter in the light of the decision and adjudication made by this Court in C.W.J.C. No. 9374/1998, contained in the order dated 8.2.1999. Further, if it is a fact that the action has been taken against the petitioner without giving an opportunity or liberty to show cause the authority will have to reconsider.

The Court ordered, let the matter to be heard afresh on a notice to the petitioner, who shall appear before the Circle Officer within four weeks from today and proper re-adjudication of the issue shall be made by them after due verification and inspection of the property in question.

The disputed plot was originally in possession of raiyat Dukhi Ram from before the previous survey of the year 1889. In Bachcha Prasad v. State of Bihar, 1999 (2) PLJR 329 it was the case of the petitioner that the disputed plot being revisional survey plot no. 1652 was originally in possession of raiyat Dukhi Ram from before the previous survey of the year 1889. Dukhi Ram constructed a house over the plot of land and his name was recorded as raiyat in the previous survey khatiyan of the year 1889. In the revisional survey held in 1914 the name of Dukhi Ram was once again recorded in the record of rights. In support of this averment a photo-stat copy of the relevant extracts from the revisional survey record of rights has been enclosed as Annexure-1. The plot of land was then purchased from Dukhi Ram by the petitioner's uncle for a consideration of Rs. 1,000/- through registered sale deed, dated 15.10.1941 and since then the petitioner's family is coming in possession over the land. A copy of the sale deed of 1941 is enclosed as Annexure-2. Also enclosed as Annexure 3 is the order dated 12.7.1996 passed by a bench of this court in C.W.J.C. No. 2290 of 1990. This order clarifies that earlier directions given in that case and makes it plain and clear that the direction to clear obstructions and remove encroachments from public road was not intended to be used by the administration as licence to recklessly demolish houses of citizens without holding a proper enquiry

A counter affidavit has been filed on behalf of the Zila Parishad. In paragraph 3 of the counter affidavit, it is stated:

That the aforesaid land of the then District Board was leased out in favour of the petitioner for a period of one year and after completion of the said period of one year the land automatically became in peaceful possession of the then District Board, now Zila Parishad, Siwan. Since then it was it is in peaceful possession of the Zila Parishad, Siwan.

The High Court ordered, I am of the view that the action of the Zila Parishad in putting marks on portion of the petitioner's house and on that basis asking the petitioner either to demolish those portions of his house on his own or to face forcible demolition was wholly illegal and cannot be sustained for a moment. The respondents are accordingly restrained from carrying out their threat of demolition of portion of the petitioner's house.

If the Zila Parishad has any claim over the disputed plot, it will be open to it to approach a competent court of civil jurisdiction, seeking appropriate reliefs.

Order of removal of encroachment - Challenged. In Kamta Sakhi Math v. State of Bihar thr. Coll Patna, (Patna) 2015 (2) PLJR 672 the High Court said, although extensive arguments have been advanced both by Mr. Dwivedi, learned senior counsel appearing for the petitioners as well as Mr. Anjani Kumar, learned Additional Advocate General No. 6 but in my opinion, this matter does not require any extensive discussion. That plot no. 1127 is a public land is not in contest nor this issue is any more open for contest in view of the earlier round of encroachment proceedings arising from Case No. 84 of 1976-1977 which culminated in the order passed by the Division Bench in CWJC No. 2324 of 1985 a copy of which forms part of Annexure-19 series as well as Annexure-Q to the second supplementary counter affidavit. The Division Bench without interfering with the encroachment proceedings has merely modified the area of encroachment. This single aspect confirms the fact that plot no. 1127 is in the nature of public land.

In fact the very filing of Title Suit No. 28 of 1988 by the petitioners praying for a declaration of title by way of adverse possession over the plots in question by itself confirms the title of State over the land. Even this claim of the petitioner stands rejected under the judgment and decree of the trial court passed on 23.9.1994, a copy of which has been placed at Annexure-G to the supplementary counter affidavit. The worries of the petitioners does not end here and even their prayer for injunction made in Title Appeal No. 145 of 1994 preferred against the judgment and decree of the trial court stands rejected by the appellate court on 28.11.2013.

The cumulative effect of the circumstances discussed herein above is that the land in question is admittedly a public land and the claim advanced by the petitioners for declaration of their title and possession by way of adverse possession not only stands negated by the trial court rather the appellate court has even refused their prayer for injunction.

All proceedings under this Act shall be heard and disposed of in a summary manner.

Complicated dispute can not be adjudicated under writ jurisdiction-direction to move before civil court. In Amar Singh Bedi v. State of Bihar, 2002 (1) JLJR 204 (Jhar.) the High Court said. It appears that the respondents earlier took steps for demolition of portion of their building situated over the land on the ground that the petitioners encroached over them. At that stage, the petitioner (Harmohendra Singh Lamba) moved this Court in CWJC No. 2862/96(R). wherein a counter-affidavit was filed by the respondents that they were not taking any step for such demolition and in view of statement made in paragraphs 11 and 12 to the counter affidavit. CWJC No. 2844/96(R) was withdrawn by petitioner (Harmohendra Singh Lamba) and others on 21st January, 1997.

Again when step was taken for demolition, petitioner (Harmohendra Singh Lamba) preferred another case. CWJC No. 1586/96(R), wherein this Court passed certain order on 1st January, 1998 and directed the respondents to pass order after giving opportunity to the petitioner.

The Jharkhand High Court further said, Admittedly, no land encroachment case has been initiated against one or other petitioner under Bihar Public Land Encroachment Act. There is a disputed question of title in both the cases.

The Patna High Court in the case of Apna Grih Nirman Sahyog Samltt v. B.N. Mithlla University, reported in 1998 (3) BLJR 1737, held that while title and possession of land is disputed, the summary proceeding is not maintainable. Such dispute can be decided by a civil Court of competent Jurisdiction in a civil suit.

The Special Bench of Patna High Court in Brij Bhukan Kalwar v. S.D.O., Siwan, reported in AIR 1995 Pat 1, held that if a person has on account of efflux of time acquired title by adverse possession to a property which was at one time a public property, further held that such property cannot be taken by the State without payment of compensation. Further, it held that a private individual can acquire a perfect title by being in adverse possession for more than the statutory period and such title by adverse possession can be acquired even on so-called public lands, road or path-way.

In the facts and circumstances, as no land encroachment case was initiated against the petitioners and there is a disputed question of title and impugned orders dated 2nd December, 1999 have been Issued without verifying the records relating to land acquisition, the map, etc. both the orders are set aside.

Liberty is given to aggrieved person, including the State, if they so choose, to move before a Civil Court of competent jurisdiction for appropriate relief.

In the aforesaid background, the respondents issued the impugned orders both dated 2nd December, 1999 holding the petitioners-encroachers over their respective lands and ordered to remove encroachment.

Direction for removing encroachment-Serious question of title involved between parties. In Uma Devi Sinha v. State of Bihar, 2001 (1) BBCJ 660 : 2001 (2) PLJR 587 the High Court Patna held, serious question of title cannot be decided in a summary proceeding under the Land Encroachment Act-Admittedly petitioner is in possession of the land-She cannot be evicted by summary proceeding unless the right and title is declared by the competent Civil Court in favour of State of Bihar.

In the case under reference, the Court said, from the material on record and submission made by learned counsel for the parties this much is obvious that the land in question i.e. Revisional survey plot no. 198 area 18 decimals was carved out from Cadestral survey plot no. 55, area 81 decimals. Cadestral survey plot no. 55 along with other land area 2 bigha 6 katha 8 dhoor was settled by the ex-landlord of Banaili estate in the name of Thakur Prasad Sinha much before vesting of the estate. Return was also submitted in the name of Thakur Prasad Sinha evidencing the settlement. Portion of cadestral survey plot no. 55 was acquired by the State Government for construction of P.W.O, Dak-bunglow and compensation was paid to Thakur Prasad Sinha. The husband of the petitioner purchased the disputed land from the heirs of Thakur Prasad Sinha after his death vide registered sale-deed dated 23.1.1961 and since then he was coming in possession. After purchase mutation was made and separate jamabandi was created in his name. The rent was paid under receipt to the Government. During revisional survey land in question was recorded in the name of State Government and as such husband of the petitioner filed a suit under section 106 of Bihar Tenancy Act which was decreed in his favour and it was held that the plaintiff was in lawful possession over the suit land. The land in question was illegally recorded in the name of defendant State of Bihar. The entry is fit to be rectified and recorded in the name of plaintiff as he has perfect and valid right, title, interest and possession over the suit land vide judgment and decree, Annexures-5 & 5/A. The said judgment and decree passed under section 106 of. Bihar Tenancy Act was not challenged by anybody and as such it has become final. The land ceiling proceeding bearing no. 1104/76 was also initiated in the name of Ram Charitra Mandal, the father of the husband of the petitioner, in which final publication under section 11(1) of the Act was published in the district gazette in which the land in question was included as land of Ram Charitra Mandal, father of husband of the petitioner.

Therefore, it is evident from the facts stated above that serious question of title is involved in this case. The question of title was also raised before respondent no. 3 but ignoring the aforesaid aspect of the matter he rejected the claim of the petitioner and held that petitioner had encroached upon the land in dispute. Appeal against the said order was also dismissed without considering the fact that the question of title was involved in the case and such question cannot be resolved in summary proceeding under the Land Encroachment Act. It is well established rule of law that where question of title is involved summary proceeding under the Land Encroachment Act is not maintainable. In the case of Government of Andhra Pradesh v. Thummafa Krishna Rao, A.I.R. 1982 S.C. 1081 the Apex Court has held that where question of title is involved the proceeding under the Land Encroachment Act is not the remedy rather remedy is to get the right declared by the competent Civil Court and until right is declared the person in occupation cannot be evicted by summary proceeding under the Land Encroachment Act. The decision referred above is fully applicable in the facts and circumstances of the instant case.

Thus, on consideration, as discussed above, it is held that in the instant case serious question of title is involved which cannot be decided in a summary proceeding under the Land Encroachment Act. Admittedly the petitioner is in possession of the land and as such she cannot be evicted by summary proceeding unless the right and title is declared by the competent civil court in favour of the respondent-State of Bihar. Accordingly the writ petition is allowed. The notice, Annexure-8 and the orders, Annexures-9 & 10 are hereby set aside but without cost.

The petitioner claimed settlement of the land. In Murahi Devi v. State of Bihar, 2011 (2) PLJR 601 learned counsel for the petitioners submits that as a matter of fact, the land of plot no. 60 appertaining to khata no. 138, area 99 decimals was settled in favour of petitioner no. 1 by the ex-landlord and since then she has been coming in possession over the same. According to him, even ex-landlord submitted his Zamindari return showing the name of petitioner no. 1 with respect to the lands in question. Therefore, in his submission, this land cannot be treated to be gair majarua aam/public land.

Learned counsel for the State has placed reliance on the averments made in the counter-affidavit filed on behalf of respondent no. 2. In his submission, lands in question is a gair majarua aam land and the petitioners could have shown their, show-cause before the respondent-Anchal Adhikari and final order could have been passed by him, determining the claim of the petitioners with respect to the lands in question. He further submits that instead of filing a show-cause or approaching any higher authority, the petitioners have unnecessarily rushed to this Court making grievances with respect to the impugned notice, as contained in Annexure-3.

The Court held, be that as it may, in the facts and circumstances of the case, this Court deems it proper that the claim of the petitioners regarding settlement of the lands in question may be decided by the District Collector, Kaimur. If the lands have been validly settled by the competent authority, then there is no occasion for treating the same to be the gair majarua aam/public land. If the lands have not been validly settled and is a public land, then the petitioners cannot be said to be justified in obstructing the removal of the encroachment over that public land. Entire issues are required to be adjudicated by the District Collector, Kaimur.

Removal of encroachment over forest land. In the case of Sharda Prasad Sinha v. State of Jharkhand, 2013 (1) JCR 322 : 2012 (4) JLJR 332 the High Court held, from the impugned order including the relevant materials on record and from the facts and documents submitted on behalf of the parties and also brought on record, it appears that the area of 18 decimals of land in plot no. 337 itself was the subject matter of dispute between the petitioners and the Forest Department. The Title Suit No. 17 of 1980 was preferred by the Forest Department, which as per the categorical statement made by the petitioner was ultimately dismissed and the order of injunction passed by the learned Munsif in favour of the Forest Department was set aside by the Appellate Court in Miscellaneous Appeal No. 43 of 1980 dated 12.5.1980, which got confirmed in Civil Revision by the High Court vide order contained in Annexure-3B. The said Title Suit No. 17 of 1980 was also dismissed. From the order contained in Annexure-6, it further appears that in survey settlement exercise the objection of the Forest Department was considered and on Revision the name of the petitioner was ordered to be recorded as raiyat in the record of rights in a proceeding under Section 83 and 89 of the C.N.T. Act vide order dated 27.4.2007 passed by the court of Charge Officer, Dhanbad in Remand Case No. 17197 of 1994. It is also apparent that both the petitioner's vendor and petitioner paid rent of the said land and petitioner got her name mutated as per Annexure-2 dated 30.1.1985 wherein also the objections of the Forest Department was taken into account. Moreover, the proceeding initiated under Section 145 of the Cr. P.C. in respect of the said land between the Forest Department and the petitioner leading to the institution of Title Suit No. 17 of 1980 by the Forest Department was finally dismissed as per the categorical statement made by the petitioner in preliminary objection before the Divisional Forest Officer, Dhanbad in B.P.L.E. Case no. 179 of 1990-1991, para 7 thereof. It is, therefore, apparent that these consistent facts and judgments of different courts have not been taken into account while initiating a proceeding in respect of the petitioner's piece of land over an area of 10 decimals out of 18 decimal of land in plot no. 337, which does not appear to be sustainable in law as well as facts. It is all the more clear that in matters involving complicated and significant questions relating to right, title and ownership, a person should not be evicted in summary manner under the provision of the Bihar Public Land Encroachment Act, 1956 adopted by the State of Jharkhand as also in view of the judgments rendered by this court. In this regard learned counsel for the petitioner has relied upon the judgment delivered in 2004 (1) J.C.R. 88 (Jhr.) in the case of Usha Martin Black v. Union of India.

Forceful ejectment of the petitioners. In Sfafe of Bihar v. Dr. Md. Laiquz Zaman: Smt. Maina Devi: Mozaffar Alam Warsi: Suraj Pd. Gupta: Kishore Kr. Agrawal: Md. Jamaluddin: Bata India Ltd.: Yashoda Devi: Pmc Through Administrator: Akhtar Parwez: Atul Kr. Jain: Raghuber Shyam Gupta Administrator, Pmc: Hariji Prasad: Udai Kumar: Smt. Shushila Srivastava: Rishikesh Kr. Sinha: Md. Shamsul Hoda: Jagdish J. Bahroos: Ayesha Khatoon: New Market, PMC Stall: Amit Mukherji: Dr. Birendra Kr. Lal: Shakeeluz Zaman: Binay Kr. Singh: Ram Lakhan Sao: Birju Yadav: Mohtasham Ali Khan: Jagat Narain Rastogi: Rakesh Kumar

Letter Patent Appeal No. 286 of 2000; 305 of 2000; 140 of 2000; 307 of 2000; 312 of 2000; 317 of 2000; 318 of 2000; 397 of 2000; 2010 (3) PLJR 15; Patna High Court held, after hearing the parties and perusing the judgment under appeal, it is clear that rights of the parties have not been decided by the judgment under appeal except holding that the State of Bihar or its agencies, which are appellants in these appeals, cannot exercise their executive power to forcibly evict the writ petitioners and other similarly situated persons, many of whom have entered caveat as interveners in the writ petitions, or to demolish their shops and business premises by force without resorting to due course of law.

After going through the judgment under appeal and the observations, we are of the view that due precaution has been taken by Hon'ble Single Judge in making the required observation that the State Government, if it is so advised, can seek petitioners eviction following the due course of law. Such course of action is open to the State Government not only in respect of the writ petitioners but in respect of all similarly situated persons after application of mind to relevant facts.

Deputy Collector passing order to remove encroachment. In Amir Hassan v. The State of Bihar, 1994 (1) PLJR 684; the High Court referred to the provisions of section 11 and said, the Act does not provide for preference of revision. Section 11 prescribes preference of appeal within 60 days from the order appealed against. Section 13 talks of review jurisdiction of the authorities who has passed orders under the Act.

It cannot be said that the Commissioner, Darbhanga Division (Respondent no. 2) was exercising his appellate powers under section 11(1)(ii) of the Act. In this view of the matter, the revisional order as contained in Annexure-11 passed by Respondent no. 2, is held to be without jurisdiction.

Petition against - Issuance of notice for vacating encroachment over the public land. In Nandan Jee Mahato v. State of Jharkhand, (Jharkhand) 2017 (1) JLJR 507, the Jharkhand High Court said. As would appear from the enclosed annexures, petitioners got notice of Public Encroachment starting from memo no. 2384 dated 07.10.2015 asking them to appear with all relevant documents of property in question before the Respondent No. 6. Petitioners seem to have asked for further time which was granted by memo dated 09.11.2015. Petitioners seem to have again requested for further time on the grounds that it relates to the properties of their father and that, civil suit has already been instituted bearing no. 443/2015 before the Court of Civil Judge (Senior Division), Dhanbad in which the Circle Officer, Dhanbad is also Defendant No. 6. Petitioners were again served with a notice bearing no. 2822 dated 22.12.2015 to appear with all relevant documents, but they again sought indulgence through a request made by Advocates' notice dated 15.01.2016 taking a plea of pendency of the civil suit. The impugned notice has thereafter been issued referring to the order passed in Encroachment Case No. 13/2015-2016 dated 01.02.2016.

Petitioners' argument is that proceedings initiated on that account, were vague and they never got an impression that it was leading to a Public Land Encroachment Proceeding for eviction of the petitioners from the premises in question. Petitioners have based their claim to the property through a Hukumnama. Lands in question were originally recorded as Gair Abad Malik Land under Jharia Raj Estate and one Shri Shiv Prasad Singh was exercising all acts of Zamindari in relation to that. Hukumnama is said to be executed on 24.03.1941 by Attorney of Shiv Prasad Singh for an area of 14 decimals in plot no. 3479. One Sufal Mahato originally got the benefit of said settlement and is said to have acquired raiyati right, title and interest over the property. After his death, father of the petitioner no. 2 inherited the land. Petitioners claim to have constructed a residential house more than 30 years ago in the plot in question.

In the background of the aforesaid claims made to the right, title and ownership of the property, on apprehending threat of eviction, it appears that the father of the petitioner no. 2 filed a title suit no. 443/2015 on 16.10.2015 for declaration of title and confirmation of possession after serving notice under Section 80 CPC on the respondents including Circle Officer, Dhanbad.

Having considered the submissions of the parties in the light of the relevant facts pleaded, this Court is also not satisfied that in questions relating to the right, title, ownership and physical possession of the property, any interference is required to be made when petitioners are themselves before the competent Court of law where such declaration have been sought. Petitioners however seem to have got notice of eviction, of which today is the date fixed. The only observation that can be made by this Court in the circumstances noticed herein-above that the petitioners may approach the competent Court of law or the appropriate forum under the B.P.L.E. Act for redressal. Respondent No. 6 would therefore refrain from taking coercive steps against the petitioners for a period of two weeks from today.

With the aforesaid observations, this writ petition is disposed, of. However, no observation made herein-above would be treated as any comments on the merits of the case of the parties.

Where any public land was acquired under the provisions of the Land Acquisition Act, 1894 (1 of 1894), for the purpose of the Government, any local authority, 12[public undertaking], any educational institution or a railway company, or where the land is recorded in any public or other official book, register or record or surveyed under Bengal Survey Act, 1875 (Ben. Act V of 1875), or other local or special law as belonging to the Governemnt, local authority. 12[public undertaking], educational institution or railway company, or where the land is recorded as public land within the meaning of this Act, the burden of proving that the land is not public land or has ceased to be public land shall lie on the person who raises such a defence.

Application of BPLE Act. In the case of Rekha Singh the High Court held, Summary remedy for eviction under BPLE Act can be resorted to by State Government only against grabbers of Government property. Whenever title dispute is involved, such dispute must be resolved by court. Summary procedure envisaged under BPLE Act can not be invoked in such cases. Rekha Singh v. State of Bihar, 1992 (2) PLJR 854.

Burden of proof On whom lies. In the case of Hafiz Khatoon the High Court said, first responsibility is on State to prima facie show that land alleged to be encroached is public land. Responsibility of party to show that land is not public land comes thereafter. Hafiza Khatoon v. State of Bihar, 1991 (1) PLJR 384.

Burden of Proof. In Vijay Singh @ Vijay Kumar Singh v. The State of Bihar, 2015 (2) PLJR 796 the High Court examuined the question of burden of proof.

In the said case Mr. Amarnath Singh submits that to have a jurisdiction to initiate a proceeding, first State must be able to show that the lands on which proceedings are sought to be initiated are public lands. He further submits that though originally in the Cadastral Survey carried out over more than a back, these lands were shown as Pasu Mela (Bag-Aam), but, thereafter the ex-intermediary made settlements in the name of petitioners. At the time of vesting, upon the Bihar Land Reforms Act being enacted, the ex-intermediary, in the returns filed, showed the petitioners as the settlees. It is on basis of this that in 1956, Jamabandies were created in the name of petitioners and they have continued to be in possession and even paying rent since then. It is further stated that recently these lands, having come within the municipal area, survey was started under the Bihar & Orissa Municipal Survey Act. These lands fall within the Ward No. 32 of Sursand municipality of Gaya. Noticing that in course of time the nature of land having changed and recognizing the settlement of the petitioners, the survey entries were, accordingly, changed. In the survey proceedings, the order was passed as far back as on 09.09.1992 under the aforesaid Act.

The Court noted, From the counter affidavit, all that appears, is that the Circle Officer is proceeding on the basis of the solitary entry in the Cadastral Survey, which, as noted above, was done more than 100 years back. He ignores the municipal survey done recently. These facts, it is submitted by Mr. Amarnath Singh, learned counsel for the petitioners that firstly the land cannot be said to be Government land. Secondly, even if the assertion of the State is to be accepted then it is highly disputable whether it is a Government land. It is not disputed that the petitioners have been on the land for over 60 years. In such a situation, in view of settled decision of the Courts including the Apex Court in the case of Government of Andhra Pradesh v. Thummala Krishna Rao, since reported in AIR 1982 Supreme Court 1081 have clearly held that resort to such a summary proceeding cannot be made where there are serious questions of title involved. The proceedings can only be initiated where there is no dispute with regard to nature of land. The proposition is well settled, but unfortunately it appears that it does not bind the State or so does the State instrumentalities.

Removal of encroachment Demolition of double storeyed house. In Nitya Nand Jha v. The State of Bihar (now Jharkhand), 2013 (2) JBCJ 486 : 2013 (4) JCR 289 : 2013 (4) JLJR 261 Jharkhand High Court said, from perusal of the appellate order dated 5.8.1995, it further appears that all the contentions of the petitioner were taken into account and the appellate authority also considered the issue whether the plot in question was a public land acquired under the provisions of Land Acquisition Act by virtue of the notification dated 29.2.1956. The boundaries of the said land have also been noticed in the appellate order as reflected from the notification of 1956 and thereafter, all the evidences produced by the petitioner have also been considered in order to come to the conclusion. The petitioner has failed to show that the land in question is a private land of the petitioner in respect of which proceedings for removal of public encroachment could not have been issued. However, the appellate authority, after proper application of mind has come to the conclusion that the lands were taken into possession pursuant to the acquisition vide notification dated 29.2.1956 whereupon Ahchal and Block buildings were also constructed and the appellant had miserably failed to prove that it was not a public land.

On perusal of the relevant records and after hearing the counsel for the parties, I do not find any infirmity in the impugned orders and the actions of the respondents as the petitioner has failed to establish that the said land is not a public land, as such, no interference can be made in the instant writ proceedings.

Removal of encroachment. In Md. Ezaz v. The State of Jharkhand through Chief Secretary, 2015 (1) JLJR 431 the High Court of Jharkhand, the learned counsel for the petitioner referred to orders dated 25.01.2014, 27.02.2014 and 15.04.2014 and submitted that there are apparent interpolations made in the date of the alleged encroachment proceeding. The entire order-sheet of the encroachment case was written in one pen and in one day and it is a fabricated document. It is submitted that a mistake can occur once however, on three consecutive dates, mistake in the date of hearing has been corrected, which apparently is interpolation in the order-sheet. The submission of the counsel for the petitioner is liable to be rejected. The proceedings dated 25.01.2014, 27.02.2014 and 15.04.2014 would disclose that the presiding officer was not holding the Court and therefore, next date was given. No significant order has been thus passed either on 27.02.2014 or 15.04.2014 and therefore, there is no reason to assume interpolation in the order-sheet. The orders dated 20.09.2013 and 30.12.2013 indicate that notice was served however, the opposite party did not appear. There is a gap of about 3 and half months between the date of next hearing, when the service report was first submitted before the Court. There is a presumption in favour of the judicial and official act that those have been regularly performed. The contention of the learned counsel for the petitioner that since the possession was not taken by the respondent-State, the acquisition proceeding would be deemed to have lapsed, is liable to be rejected. Merely, because the petitioner alleges that his vendors were in possession of the land in question, the specific stand taken by the State that the land in question was acquired and possession was taken, cannot be disbelieved. Moreover, it does not appear from the record that though the compensation was received by one Banglu Charan Dutta, the vendors of the petitioner or their predecessors ever raised any dispute with respect to their claim for compensation. Once, it is admitted that compensation is received by Banglu Charan Dutta, which has not been disputed by any other person, there would be a presumption in law that the person who has received compensation, about 60 years back, was the original owner of the land. Moreover, the plea that the acquisition proceeding would be deemed to have been lapsed is not available to the petitioner. Such a plea can be raised by the land owner, in whose name, the award was prepared and/or his successor. It is well settled that even an application under Section 18 of the Land Acquisition Act is not maintainable at the instance of a subsequent purchaser. In support of his claim, the petitioner has produced copy of a sale deed and a rent receipt dated 07.02.2011 issued-in the name of Dhiru Napit. The petitioner has stated that the Dhiru Napit and Sharda Napit had surrendered their interest in favour of Raja Thakur Chandra Mohatri Singh on 21.09.1934. According to the petitioner himself, the land came in possession of one Banglu Charan Dutta and Title Suit No. 192/2001-2002 were instituted by Motilal Parmanik and others. In the writ petition, it has nowhere averred by the petitioner why the rent receipt was issued in the name of Dhiru Napit. The petitioner has annexed only one receipt dated 07.02.2011. Only some of the vendors of the petitioner are parties in the title suit. The title suit was filed in the year, 2001 however, in the writ petition, there is no detail disclosed with respect to possession over the land in question in the last 60 years. It is also not disclosed how the land in question came in possession of the defendants of Title Suit No. 192/2001-2002. The petitioner has nowhere stated that he purchased the land and building constructed thereon. No detail with respect to the building and the year of construction have been disclosed in the writ petition. The petitioner has not disclosed the name of the tenants, the nature of the tenancy, the date of the induction of the tenants and the date on which the tenants were allegedly inducted in different shops besides, who among the predecessor-in-interest of the alleged vendors of the petitioner or the defendants of Title Suit No. 192/2001-2002 constructed the building. The writ petition is lacking in all necessary details. The respondents have specifically pleaded that Plot No. 1692 was acquired vide Land Acquisition Case No. 04/1954-1955 and compensation has been paid to the recorded raiyat. In the writ petition, the petitioner has only stated that in the land acquisition case, name of owner of Plot No. 1692 is wrongly mentioned.

Sections 3 and 9 r/w Article 226 of the Constitution of India. In Sitaram Prasad v. Tata Iron and Steel Company Ltd., 2013 (4) JBCJ 60 : 2013 (3) JLJR 541 the Jharkhand High Court said, having heard learned counsel for the parties and after going through the impugned order and relevant materials on record, it appears that the petitioner had appeared before Original Authority but he had not filed any show cause whereafter the Original Authority passed the order impugned at Annexure-4 dated 30.12.2005. The Appellant Authority in his order, contained at Annexure-6 dated 24.07.2006, has also taken into account that even after revival of the proceeding in the year 2001, after notice to the petitioner, he appeared for three consecutive dates, but did not file his show cause where after, the Original Authority had proceeded to decide the proceeding ex-parte. It has been further been taken into account that the appeal itself was delayed for more than six months for which no application for condonation of delay had been filed on behalf of the petitioner. In these circumstances, the contention of the petitioner that he has a valid claim of title on land in question, on the basis of the possession continued since 1950 i.e. before execution of lease, has been rejected by the Appellant Authority. The Revision being not maintainable has also been rejected on the sole ground by the learned Commissioner, East Singhbhum Kolhan Division, Chaibasa. Learned counsel for the petitioner vehemently tried to impress that the land in question is in possession of the predecessor of the petitioner since 1950 and construction have already been made thereupon in which he is residing with his family members in a manner adverse and to the knowledge of the respondents. However, it is also apparent that the petitioner has not initiated any proceeding for perfection of his title based upon the aforesaid claim and adverse possession since 1950 to that of the respondents if at all such claim is tenable in law. The land is a public land. The respondents have, therefore, taken up proceeding under the BPLE Act, 1956 for removal of the encroachment. However, if the petitioner has any justifiable claim of ownership, title and possession over the same, it was open for them to move before competent Court of civil jurisdiction for adjudication of his right, title, interest and possession over the land, but no such effort has been made on the part of the petitioner.

In the said circumstances, I do not find that proceeding under BPLE Act, 1956 suffers from any flaw as the land itself is a public land on which the petitioner has been found as encroacher. The impugned order, therefore, do not suffers from any infirmity and requires no interference under Article 226 of the Constitution of India. However, learned counsel for the petitioner submitted that the petitioner may be permitted liberty to approach the appropriate forum for suitable adjudication of right, title and interest if available in law.

Requirements of local inspection of disputed plot. In Hafiza Khatoon v. State of Bihar, 1991 BBCJ 110 : 1990 (2) BLJ 572 : 1990 (2) BLJR 1090 : 1991 (1) PLJR 384;, Relying on C.W.J.C. 1476/77. Patha High Court said, Bihar Public Land Encroachment Act, 1956, Section 9-burden of proof the position of a person proceeded against in a proceeding under the Act is that of a defendant provisions of section 9 would necessitate that before asking the defendant to discharge the burden of proving that the land was not public land or had ceased to be public land, the State shall have to show, even prima facie, that the subject matter of the proceeding was acquired under the Land Acquisition Act or was recorded in any public or other official record as belonging to the Government etc. or was recorded as public land where the State fails to establish the same even prima facie, the Deputy Commissioner would act illegally in asking the petitioner to discharge the onus.

The Collector shall, for the purposes of enquiries under this Act, have powers to issue commission, to hold local inspection, to summon and enforce the attendance of witnesses and to compel the production of documents as a Civil Court under the Code of Civil Procedure, 1908 (V of 1908).

Who can hold enquiry. In the case of Hafiza Khatoon the High Court said, only Collector is authorised by law to hold local inspection. No land can be declared as public land only on the basis of inspection by Anchal Amin. Hafiza Khatoon v. State of Bihar, 1991 BBCJ 110 : 1990 (2) BLJ 572 : 1990 (2) BLJR 1090 : 1991 (1) PLJR 384.

The Court held, Bihar Public Land Encroachment Act, 1956 - Sections 9 and 10-requirements of local inspection of disputed plot held by Anchal Amin and Collector as envisaged by law no opportunity given to file objection to the report examine him section 10 confers jurisdiction to hold local inspection on the Collector alone-Anchal Amin could at best be a witness for the State-amounts to glaring infirmity in the proceeding.

13[ (1) From, every order passed under Sections 6, 7 or 8 an appeal shall lie

(i) if such an order is passed by any officer other than the Collector of the district, to the Collector of the district or to any officer specially empowered by the State Government, by notification in the official Gazette;

(ii) If such order is passed by the Collector of the district, to the Commissioner of the Division.

(2) An appeal under this section shall be preferred within 30 days of the passing of the order appealed against;

Provided that an appeal may be admitted after the said period when the appellate authority is satisfied that the appellant had sufficient cause for not preferring the appeal within such period.]

[No. 2833-R. dated the 23rd August, 1957. In exercise of the power conferred by clause (i) of sub-section (1) of section 11 of the Bihar Land Encroachment Act, 1955 (Act XV of 1956), the Government of Bihar is pleased to empower all Additional Collectors to hear within their respective jurisdiction appeals against orders passed under Sections 6, 7 or 8 of the said Act by any officer other than the Collector of a district.

S.O. 975, dated the 28th May, 1976. In exercise for the powers conferred by section 11 of the Bihar Public Land Encroachment Act, 1956 as amended by the Bihar Public Land Encroachment (Amendment) Ordinance, 1976 (Bihar Ordinance no. 33 of 1976), the Government of Bihar is pleased to empower Additional Collector, Ranchi as an officer to whom appeal against the order passed by officer other than the Collector of the district under Sections 6, 7 or 8 of the Act, shall lie.]

Removal of encroachment. Notice is required to be issued to a person who is alleged to have encroached upon Public land. Person against whom such notice is issued is entitled to file his defence. Defence raised on behalf of such person is required to be treated as defence raised on behalf of defendant in a properly framed suit for removal of such encroachment. Final order passed by Collector is appealable under Section 11. Matter remitted to Anchal Adhikari for starting proceeding afresh. Md. Naseem Alam v. State of Bihar, 2015 (3) BLJ 55 (PHC).

Encroachment on traffic line. The High Court in the case of Surya Narayan aid that finding recorded by circle officer confirming such encroachment can be challenged in statutory appeal under Section 11 and not in a writ petition. Surya Narayan Yadav v. State of Bihar, 2002 (1) BLJ 54 : 2002 (1) PLJR 196.

Whether revision was maintainable before the Divisional Commissioner against the order passed by the original authority. In Yogendra v. State of Bihar, 1997 (2) BLJ 150 : 1997 (2) BLJR 1373 question arose whether revision was maintainable before the Divisional Commissioner against the order passed by the original authority. The High Court said, Undisputedly, in the present case, the original authority was Ahchaladhikari and it passed a final order in the land encroachment proceeding in favour of the petitioner. The said order was assailed in appeal before the District Collector, who by his order dated 8.11.1993, contained in annexure 9, dismissed the appeal, against the said order passed by the District Collector further appeal was preferred before the Divisional Commissioner, Bhagalpur, in which the petitioner took an objection that the same was not maintainable. The Divisional Commissioner in the impugned order has held that against the said order a revision was maintainable and consequently, he has directed that the appeal should be treated as a revision.

From bare perusal of the provisions of Sec. 11 of the Bihar Public Land Encroachment Act, 1956 (hereinafter to be referred to as Act), it would appear that there is a provision of only one appeal and no second appeal does lie against the appellate order. The Act shows that there is no provision for revision against the appellate order, therefore, I am clearly of the view that the Divisional Commissioner was not justified in treating the appeal as revision and directing the same to be disposed of on merit.

Appellate authority did not utter even a world about the notice. In Adalat Mahto v. State of Bihar, 2008 (1) PLJR 72 before the appellate authority, the writ petitioners-respondents contended that they are raiyats of the land in question and that before the impugned order was passed they were not properly noticed and no hearing was given to them. They purported to represent before the appellate authority that on the basis of the documents, as produced by them before the appellate authority, the writ petitioners-respondents have sufficient title to remain on the land in question. The appellate authority dismissed the appeal, but while doing so did not utter a single word as to service of notice, which was the requirement of law, before passing of the impugned order dated 22nd October, 1992. At the same time the appellate authority did not hold that the documents upon which the writ petitioners-respondents were seeking to rely, they were improperly procured documents. The appellate authority at the same time did not pronounce that even on the basis of those documents the writ petitioners-respondents cannot claim to be entitled to remain on the land in question. In such view of the matter, the writ petitioners-respondents approached this Court challenging the orders of the Circle Officer as well as the appellate authority.

High Court found that no attempt has been made to ascertain the right, if any, of the writ petitioners-respondents to remain in possession of the land in question and there is nothing on record that before the order directing removal of encroachment was passed, any notice was given to the alleged encroachers. In the circumstances, the Writ Court while set aside the orders of the Circle Officer as well as of the appellate authority remanded back the matter to the Circle Officer with a direction upon him to decide the matter de novo upon giving notice to the writ petitioners-respondents as well as the appellants. It is not the case of the appellants that the facts found by the Writ Court are incorrect.

We have thus not found any error in the order impugned in this appeal and accordingly we have no reason to interfere with the order under appeal. The appeal accordingly fails and the same is dismissed.

Single Judge holding long possession of the. In Shyam Deo Paswan v. State of Bihar, 2002 (2) PLJR 702 : 2002 (3) PLJR 108 a Division Bench of Patna High Court said, the learned Judge was of the opinion that since this was an encroachment a clear-cut remedy had been provided and there is no occasion for the petitioner to invoke the writ jurisdiction of the High Court when an alternate forum and remedy were available.

The Court finds nothing incorrect in the order of learned Judge in dismissing the petition and relegating him to the appeal authority if the petitioner intends to file an appeal. But, the petitioner still chases the controversy by this Letters Patent Appeal at the High Court.

Now that the Court has seen the record, the learned Judge was kind to the petitioner to simply relegate him to the appeal forum. The circumstances prima facie do not permit the petitioner to lay a claim on the particular plot of land without showing his title. It is on record that the petitioner misused his position as a Mukhia and this seems to be relevant in possessing this land. Thus, a question will need to be gone into whether the petitioner has misutilised his political position as a Mukhia in usurping this particular land. All these aspects may be looked into in the appeal which the petitioner did not file.

Dispossession and Demolition. In Surya Narayan Yadav v. State of Bihar, 2001 (3) BBCJ 503 : 2002 (1) BLJR 178 : 2002 (1) PLJR 196 the High Court said, From perusal of Annexure-D to the counter-affidavit, it would clearly appear that a show-cause notice was issued to the petitioner requiring him to satisfy the authority that the land in his possession was his personal land or he had some title over it. The Circle Officer ultimately found that though he petitioner was ascertaining that he was the owner of the property but the petitioner had no supporting documents in his favour. From this order, it clearly appears that proper opportunity of hearing was given to the petitioner and on availability of certain facts the authority concerned had recorded a finding against the interest of the petitioner.

So far as the Judgment in the matter of Bechan Mandal is concerned, the same would have no application to the facts in this application. From perusal of the said Judgment it would appear that certain public authority being armed with the order passed in the matter of Arun Kumar Mukherjee started demolition, therefore, the High Court required the authorities to properly appreciate the effect and impact/directions made in the matter of Arun Mukherjee. The High Court observed that it was imperative on the part of the authorities to take some necessary steps before the execution and the authority could not forcibly demolish the structure alleging that it was causing obstruction in the free flow of traffic. In the present matter, the Circle Officer concerned has recorded a finding. Whether the said finding is correct or not and whether the petitioner is the owner of the property or not cannot be decided in these proceedings because the petitioner is free to challenge the said order passed by the said authority either in a duly constituted appeal u/s. 11 of the Bihar Public Land Encroachment Act, 1956 or by filing a review u/s. 13 of the said Act. At this stage, it would not be possible for this Court to hold that the title projected by the petitioner is absolute in his favour or that the order passed by the authorities is incorrect. So long the petitioner has a right to file an appeal u/s. 11 of the said Act, it would not be a proper for this Court to interfere in this matter. The limitation for filing appeal under Sec. 11 is 60 days but as the petitioner has come to this Court, it appears that he did not propose to file appeal u/s. 11.1 propose to dispose of this petition with an opportunity in favour of the petitioner that he may file appeal before the authority concerned within 30 days from today. If an appeal is filed, to the Collector of the District, within 30 days from today in accordance with sec. 11 of the Act, nobody shall be permitted to raise the question of limitation and the appellate authority concerned shall be obliged to dispose of the appeal on merit. The petitioner shall be free to raise all questions before the appellate authority, who shall be obliged to hear and decide the matter in accordance with law.

An order passed under the act shall be reviewed only by the officer who passed the order. In Rajendra Prasad v. State of Bihar, 2002 (1) JLJR 403 (Jhk) the High Court of Jharkhand said. It has not been diputed by the counsel appearing for the State that the expression Collector includes Additional Collector and the Additional Collector has been empowered to exercise the power of a Collector. Admittedly against an original order passed by L.R.D.C. the respondent-State preferred an appeal before the Additional Collector. The only question, therefore, falls of consideration is as to whether a further appeal will lay before the Deputy Commissioner and/or whether the Deputy Commissioner will have the power to review the order passed by the Additional Collector. Section 13 of the Act gives power of review to the officer, who passed the order.

It is well-settled that appeal is the creature of statute. Right of appeal is not a matter of procedure but it is a matter of substantive right of a party. I am, therefore, of the view that when admittedly the Additional Collector exercised the power of appeal under the said Act then a provision for further appeal before the Deputy Commissioner does not at all arise.

As noticed above, Section 13 very clearly provides that the order passed under the said Act shall be reviewed only by an officer, who has passed the order. In that view of the matter the Deputy Commissioner has no power of review of an order passed by the Additional Collector. As a matter of fact either the respondent-State Authority ought to have challenge the order passed by the Deputy Commissioner before this Court or to file an application before the Additional Collector for review of the order, but in no case either the appeal or the review was maintainable before the Deputy Commissioner.

For the reason aforesaid, this writ application is allowed and the impugned order passed by the Deputy Commissioner is set aside. However, this order will not debar the State of Bihar from challenging the order passed by the Additional Collector in accordance with the provisions of the said Act or before the appropriate forum in accordance with law.

Removal of encroachment - B.P.L.E. proceeding initiated against the petitioner. In Golden Ceramic Works Private Limited v. The State of Jharkhand, 2016 (3) JLJR 347 the High Court said, having considered the relevant facts on record as pleaded by the parties, this Court is of the opinion that there is no necessity of interference in the matter at this stage in view of the pendency of the appeal before the Collector, Dhanbad. Let it be made clear that no observations made herein above shall be treated as comment upon the merit of the matter pending before the appellate authority.

Eviction exercise must be done only after physical verification of plot by Amin and eviction should be carried out only over those plots for which appellant has not shown any valid document.

Encroachment upon public land - Challenged. In Lallu Singh v. State of Bihar, (Patna) (DB) 2017 (2) PLJR 128 a Division Bench of the High Court of Patna held, merely because certain passage was available at point of time which people were using according to their convenience, it does not create a right in their favour and that passage cannot become a public land or passage for them to utilize.

The Commissioner after going through the material and the evidence came to a considered opinion that there is a public road which is situated in plot No. 393, but plot No. 386, where the encroachment is being made an issue, is a private piece of property and no public passage as such exists through that plot, people have made residential houses and that plot has been developed as a residential colony. Merely because certain passage was available at a point of time, which people were using according to their convenience, it does not create a right in their favour and that passage does not become a public land or public passage for them to utilize.

On the findings including the evidence, which emerged from Annexure-3 to the writ application, the Commissioner set aside the order of the Circle Officer as well as D.C.L.R. and allowed the revision. It is this order which is challenged.

It is a desperate effort made on behalf of the appellant to get a right of way by even overriding the right of somebody's private property since the land in question is not public property, which is sine qua non for a proceeding under the Land Encroachment Act. The Commissioner has done no wrong by allowing application of private respondents and setting aside the wrong finding of the Circle Officer and the D.C.L.R.

Any order passed under this Act may, after giving the parties reasonable opportunity of being heard, be reviewed by the officer who made the order, or by his successor-in-office, on account of any mistake or error in the course of any proceeding under this Act.

Dispossession from public land. If complicated questions pertaining to title of the land arises, recourse to summary proceeding should not be taken. Physically, it has been found that land in question has been used for public purposes. Appellant directed to file civil suit. It would not be appropriate to hold that summary proceeding in the instant case was uncalled for. Authority directed to take steps only after giving fresh notice to appellant. Rajesh Kumar Agrawal v. Union of India, 2008 (3) BLJ 223 (PHC) : 2008 (3) BBCJ 270 : 2008 (3) PLJR 497.

No revision application against appellate order There is no provision in BPLE Act for filing revision application against order passed in appeal. There is provision for review. Revisional order passed by Divisional Commissioner has no sanctity in law. Amir Hassan v. State of Bihar, 1994 (1) PLJR 684.

An order passed under the Act shall be reviewed only. In Rajendra Prasad v. State of Bihar, 2002 (1) JLJR 403 (Jhk) the High Court of Jharkhand said, it has not been diputed by the counsel appearing for the State that the expression Collector includes Additional Collector and the Additional Collector has been empowered to exercise the power of a Collector. Admittedly against an original order passed by L.R.D.C. the respondent-State preferred an appeal before the Additional Collector. The only question, therefore, falls of consideration is as to whether a further appeal will lay before the Deputy Commissioner and/or whether the Deputy Commissioner will have the power to review the order passed by the Additional Collector. Section 13 of the Act gives power of review to the officer, who passed the order.

It is well-settled that appeal is the creature of statute. Right of appeal is not a matter of procedure but it is a matter of substantive right of a party. I am, therefore, of the view that when admittedly the Additional Collector exercised the power of appeal under the said Act then a provision for further appeal before the Deputy Commissioner does not at all arise.

As noticed above, Section 13 very clearly provides that the order passed under the said Act shall be reviewed only by an officer, who has passed the order. In that view of the matter the Deputy Commissioner has no power of review of an order passed by the Additional Collector. As a matter of fact either the respondent-State Authority ought to have challenge the order passed by the Deputy Commissioner before this Court or to file an application before the Additional Collector for review of the order, but in no case either the appeal or the review was maintainable before the Deputy Commissioner.

For the reason aforesaid, this writ application is allowed and the impugned order passed by the Deputy Commissioner is set aside. However, this order will not debar the State of Bihar from challenging the order passed by the Additional Collector in accordance with the provisions of the said Act or before the appropriate forum in accordance with law.

An order passed under the Act may be reviewed by the officer who passed the same. In Rama Devi v. State of Bihar, 2004 (4) JCR 268 : 2004 (3) JLJR 424 (Jhar.) the High Court said, an order passed under the Act if found erroneous may be reviewed by the officer who passed the same. Ingredients of sections 64 of C.N.T. Act were missing in the instant case. Petitions can not be allowed to take advantage on the basis of khatian which was issued after passing of the order by Asstt. Settlement Officer.

The Court said, the respondent No. 5, on the other hand, has stated that in the year 1987-1988, the Government authorities had initiated a proceeding vide Settlement Case No. 1/87-88 for settlement of 19.98 Acres of land including the land in question of Plot No. 1116 for running the Basia College and in that proceeding, the Sub-Divisional Officer vide order dated 24.11.1987 had made a recommendation for settlement of land with the College. It has further been stated that from the pleadings made in the writ petition, it is evident that only the personal right of the petitioners have been highlighted whereas the land meant for the College is in the interest of the people of the locality. According to the petitioners, there is no power of review and in any event, the order of the Assistant Settlement Officer as contained in Annexure-4 on 31.8.1994 became final and it was never challenged. It has further been stated that after 31.8.1994, entries were made in Register-2 and accordingly khatian was prepared vide Annexure-5 in favour of Bishwanath Prasad Choudhary. The argument of the learned counsel for the petitioner that the impugned order dated 27.10.1999 as contained in Annexure-8 amounts to a review and it is impermissible cannot be accepted. Under Section 13 of the Bihar Public Land Encroachment Act, any order passed under that Act may be reviewed by the officer who made the order or by his successor-in-office on account of any mistake or error in course of any proceeding under that Act. In this context, it is evident to note that the proposal for settlement of the land in favour of Basia College including the land in dispute was pending consideration and at the time when the order of the Assistant Settlement Officer was made on 31.8.1994, the said College was not a party before it. It is also evident, as has been stated by the petitioners themselves, that the land was recorded as gair mazarua land but the same, according to the petitioners was converted into a Korkar land under the oral permission (see paragraph-8 of the petition) of the Deputy Commissioner, Moreover, the report of the karamchari sent to the Circle Officer, Basia vide Annexure-A appended to the counter-affidavit shows that Bishwanath Prasad Choudhary is in possession of 23.48-1/2 Acres of land. Under such circumstances, public need will override private need and that too, when the private person claiming the land does not have adequate materials to support his claim. Moreover, under Section 64 of the C.N.T. Act, a cultivator or a landless labourer has the right to convert a piece of land into Korkar with the prior permission of the Deputy Commissioner. Such permission however is not required if on the date of commencement of the C.N.T. Act, such a person was entitled to the land in question by virtue of entries made in the record of rights. Section 64 does not contemplate on oral permission. Moreover Section 64(2) lays down the procedure to be followed in passing an order under Section 64. These ingredients are apparently missing in the instant case and therefore, the petitioners cannot be allowed to take advantage on the basis of a khatian which appeared to have been issued after the order, dated 31.8.1994 passed by the Assistant Settlement Officer in a proceeding where the College itself was not a party.

Thus, Section 13 of the Bihar Public Land Encroachment Act was correctly invoked and as a consequence thereof the order dated 27.10.1999 (Annexure-8) was passed. This Court does not find any irregularity with the said order. Consequently, this Court holds that there is not merit in this writ petition. It is accordingly dismissed. There shall however be no order as to costs.

Removal of encroachment Mere deposit of Salami. In Corporate Ispat Alloys Limited v. The State of Jharkhand, 2015 (3) JCR 709 : 2015 (2) JLJR 668 (Jhk) High Court of Jharkhand held, mere deposit of Salami would not confer right on petitioner to occupy government land before proposal for settling land was finally approved.

The Court said, having heard the learned counsel for the parties and after perusing the documents on record, I am of the opinion that the writ petition is liable to be dismissed. The Memorandum of understanding does not confers a legal right on the parties though, certain promises may have been made therein. [ Monnet Ispat and Energy Ltd. v. Union of India , reported in (2012) 11 SCC 1]. Moreover, it is not the case of the petitioner that the respondent-State of Jharkhand has not extended its help in acquiring land for setting up integrated steel plant. Vide letter dated 03.04.2013 by the Additional Collector, which has been filed as Annexure-6 to the writ petition, a proposal was forwarded for approval. The submission raised on behalf of the petitioner that the petitioner has made payment of 80% of the Salami calculated by the Additional Collector would not confer a right on the petitioner to occupy the government land before the proposal contained in letter dated 03.04.2013 is finally approved. The petitioner itself has claimed that the proposal for settling land in favour of the petitioner is in process. It is not the case of the petitioner that the petitioner has been put in possession by the respondent-State of Jharkhand legally nor any document has been produced, before this Court or in the land encroachment proceeding, by the petitioner to indicate that the petitioner has been put in possession by the respondent-State of Jharkhand. I find no reason to interfere with the findings recorded by the forums below.

Limitation after Amendment Act 3 of 1982. In Amir Hassan v. The State of Bihar, 1994 (1) PLJR 684 petitioner prayed to quash (i) the order dated 26-8-1983 passed by the Anchal Adhikari, Darbhanga (Respondent No. 5) in case No. 7 of 1982-1983 directing him to remove encroachment from plot No. 6001 of village Loam, Anchal Sadar District Darbhanga (as contained in Annexure-6), (ii) the appellate order dated 3-10-1983 passed by the Additional Collector, Darbhanga in appeal case No. 2 of 1982-1983 dismissing his appeal on the ground of limitation (as contained in Annexure-7), (iii) the notice dated 7-11-1983 issued by the Deputy Collector Land Reforms, Darbhanga, (as contained in Annexure-8), (iv) the notice dated 21-11-1983 issued by the Respondent no. 5 (as contained in Annexure-9) asking him to remove the encroachment in question failing which the same shall be removed forcibly, the cost of which shall be recovered from him and that he may be imposed a fine of Rs. 2000/- or imprisonment for one year and (v) the revisional order dated 27-3-1984 passed by the Commissioner, Darbhanga Division (Respondent no. 2) in Revision Case No. M-115 of 1983 (as contained in Annexure-11). The petitioner also prays for issuance of a writ of prohibition commanding the Respondents not to interfere with his right, title and possession over the land bearing C.S.P. Nos. 4136, 4083 and 4072 of the aforesaid village save and except in accordance with law.

It was contended that the appellate authority has incorrectly dismissed the appeal on account of limitation. By amending section 11 of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the Act), Vide Act 3 of 1982, the period for preference of appeal was 60 days of the passing of the order appealed against and in this view of the matter the petitioner's Encroachment Appeal No. 2 of 1983-1984 which was preferred on 3-10-1983 against the order dated 26-8-1983 of the Anchal Adhikari, Sadar Darbhanga was well within 60 days and accordingly could not be dismissed on account of limitation at all and should have been entertained and disposed of on merit. The petitioner was told bona fide that there was 30 days for preference of the appeal and accordingly he filed bona fide a petition for seeking condonation of delay counting 30 days from 26-8-1983 on which Respondent no. 5 had passed his exparte order but that was also wrongly dismissed without correctly appreciating the true meaning of the words sufficient cause as explained repeatedly by the Apex Court and this Court.

Coming to the second submission, namely, that the appeal of the petitioner was illegally dismissed on account of limitation, I find substance in the argument of Mr. Sinha. On a bare perusal of section 11(2) of the Act, it is clear that the Legislature has provided 60 days period for preferring an appeal against an order passed by the officer other than the Collector of the district to the Collector of the district or to any officer specially empowered by the State Government by notification in the official gazelle. In that view of the matter, the dismissal of the appeal of the petitioner, which was preferred on 3-10-1983 against the order dated 26-8-1983 of the Anchal Adhikari, Darbhanga, by the Additional Collector, his order dated 3-10-1983 before the expiry of the statutory period of 60 days on account of limitation, was wholly misconceived and without jurisdiction.

14[ Pending the disposal of any appeal, the appellate authority may suspend the execution of the orders appealed against.]

The Section provides for temporary relief to the aggrievd party. Discretion has been given to the appellate authority to grant stay of the execution of the order till disposal of the appeal. The power is discretionary, but it is expected that the authority hearing appeal must take a pragmatic view in the matter of granting stay.

15[ In the orders in appeal, the appellate authority may if it thinks fit award costs to the person in whose favour the order is passed.]

This provision has been inserted by the Amendment Act 3 of 1982. Under this provision the appellate court may grant cost to the party in whose favour the appeal is granted. No amount has been directed to be awarded as the cost, but the discretion must be exercised reasonably.

No Suit or other legal proceeding shall lie in any Court in respect of any order passed under this Act.

Proceedings under BPLE Act are civil proceedings. No proceeding can be initiated under Section 188, IPC. Hafiza Khatoon v. State of Bihar, 1990 (2) BLJ 572 : 1991 (1) PLJR 384.

Bar on jurisdiction of civil court. Party could not prove title over land in question. He cannot raise issue regarding ouster of jurisdiction of Civil Court. Baijnath Singh v. Teju Singh, 1986 PLJR 1155.

Meaning of the term any order under this Act. The term any order passed under this Act. Must reefer to an order paased in accordance with the provisions of this Act. To oust the jurisdiction of civil Court the order must be shown to have been passed by the authority within jurisdiction. An arbitrary order or an order passed in violation of the mandate of this Act may not be termed as an order passed under this Act Therefore, if the aggrieved party files suit alleging that the order is without jurisdiction the court may take cognizance of the suit to make a probe whether the order has been pssed in accordance with the prescribed law and whether the authority had jurisdiction to pass the said order.

Jurisdiction of any authority depends upon presence of the jurisdictional facts. Presence of the facts which require passing of an order is the jurisdictional fact.

Even a suit has not been defined by the Code. A civil litigation starts with institution of a suit. The term suit has not been defined in the Code. Order IV of the Code simply says that every suit will be commenced by presenting a plaint. Again, the term plaint has not been defined, but Order VII of the Code has enumerated the essentials of a plaint which includes cause of action and the facts which constitute cause of action. The order also includes the facts showing that the Court has jurisdiction. Therefore, to proceed to institute a suit, it is necessary to examine the various aspects relating to causes of action and the facts constituting it which may be taken cognizance of by the Civil Court. In other words, the plaintiff has first to select the causes of action to be brought before the Civil Court.

Section 9 of the Code of Civil Procedure deals with the suits of general nature which may be taken cognizance of and tried by the Civil Court. It lays down as follows:

For selecting disputes to be brought before the Civil Court, the provisions of section 9 of CPC may be kept in view. It vests jurisdiction in Civil Court to try suits. The section reads as follows:

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits cognizance of which is either expressly or impliedly barred.

Explanation I. A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation II. For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.

Before taking up the various aspects of the problem, it is necessary to mention here that there may be disputes not covered by Section 9, CPC. In other words, there may be disputes which are not of civil nature, but are to be brought before the Civil Court itself by virtue of special enactment to that effect. For example, are the matrimonial disputes and dispute regarding a Will and its probate. These provisions will be examined at proper place later. Presently, we are concerned with selection and elimination of the disputes on the basis of criteria or the tests laid down by section 9, CPC.

So that dispute may be brought before the Civil Court for adjudication, one of the essential requirements is that the dispute must be of civil nature. The terms civil nature have not been defined by the Code, but the High Courts and the Supreme Court have been examining its meaning, application and scope while deciding various cases. By now, it has been settled that disputes of civil nature involves rights and liabilities of the parties. In other words, which involve civil consequences. It is not the same as is status between the parties which is beyond the scope and application of section 9 of the Code. A a plaintiff asserts that he is son of B and institutes a suit for an adjudication and declaration that A is son of B. Such a suit is not of civil nature because the relationship between A and B involves mere status between them. But if in the same suit A further prays for a relief of declaration that A has inherited the estate of B or that A may not be driven away from the house and property of B then the suit assumes a different scope and it becomes one of civil nature.

On several occasions the principles have been examined by the Courts in different cases. It is necessary to examine a few of them to have a clear understanding on the subject along with the concept of the provisions.

In the case of The Bangalore Development Authority v. Sri M.S. Narayana Murthy, 2014 (1) KCCR 668 the High Court of Karnataka examined the bar of jurisdiction under Section 9. In the said case Earlier the suit was for declaration and possession and injunction. Thereafter, the relief of declaration and possession was deleted and the plaintiff confined his prayer only for permanent injunction. The appellant BDA submits that the Court below committed an error in granting injunction and the said order is without jurisdiction since the relief sought for by the plaintiff is barred under Section 9 of CPC, where the subject matter is acquisition, under the Bangalore Development Authority Act which impliedly and expressly bars any civil dispute. The suit property which was the subject matter of preliminary and final notification of 8.1.1964 and 28.1.1971 respectively and order was passed on 8.8.1985 and possession was taken in 1.10.1985. Subsequent to the final notification, the plaintiff says that he has purchased the property on 2.12.1971.

The High Court held, Section 9 of CPC enables the Court to try all civil suits unless they are barred. It further contemplates that Civil Court has jurisdiction to try all suits of civil nature. Hence what is required to be examined is whether the relief sought for by the plaintiff is a civil nature or challenge to validity of acquisition proceedings. If it is a civil dispute, it is clear the Civil Court can proceed with the matter and if the relief sought for is relating to challenge to validity of acquisition proceedings, the Civil Court has no jurisdiction to entertain it.

In the case of Assam State Electricty Board v. Surana Industries, 2015 (5) RCR (Civ) 799 High Court of Gauhati also examined case of jurisdiction and said, by absolving plaintiff from the total liability to make payment of surcharge would not be just and proper. The plaintiff availed a benefit of exemption for the time being due to pendency of Title Suit 65/1990. Ultimately when the suit was dismissed, the legality of the claim of tariff by the Electricity Board is automatically upheld and so the plaintiff became liable to make payment of the bill. Knowingly well about its liability to make payment of the bills, it made payment on 16.09.2000 and so it would amount to an admission as to its liability. But this acknowledgment as to liability would be limited to the extent of Rs. 81,260/- which was the principal amount of the electricity bills. So far as demand of surcharge is concerned, no demand was earlier made and so by making payment on 16.09.2000 such liability to make payment of surcharge cannot be considered to be acknowledged by the plaintiff by operation of Section 18 of the Limitation Act. But once demand was made on 28.08.2000, the said demand would not be barred by limitation at least for preceeding 3 (three) years. That is to say the claim of surcharge w.e.f. 13.08.1990 till 28.08.1997 would be time barred but the claim of surcharge w.e.f. 29.08.1997 till 28.08.2000 shall be well within the period of limitation. The impugned judgment and decree therefore, is liable to be modified to the extent that impugned notice dated 28.08.2000 in so far as it relates to the period upto 28.08.1997 shall be barred by limitation but it shall not be barred by the limitation for the period from 29.08.1997 to 28.08.2000. The appeal is, accordingly, partly allowed with modification as referred to above.

Civil Suits and Civil Disputes - Meaning of and Distinction between Civil disputes are those disputes or controversies between the parties which involve civil rights or civil consequences, whereas civil suits are those disputes which are triable by the Court of civil jurisdiction either under section 9 of CPC or under any special enactments. Therefore, all suits are civil disputes but all disputes are not civil suits.

In Sri Sinha Ramanuja Jeer v. Sri Ranga Ramanuja Jeer, AIR 1961 SC 1720 : 1962 (1) SCJ 17 : (1962) (2) SCR 509, the Supreme Court held that a suit to establish one's right to an office in a temple and to honour and privileges attached to the said office as remunerations and or perquisites is maintainable in Civil Courts. The Court further made it clear that it is essential condition for the existence of an office is that the holder of the alleged office shall be under a legal obligation to discharge the duties attached to the said office and for the non-observance of which he may be visited with penalties.

In another case, the Supreme Court held that where dispute about religious office involves adjudication upon religious matters, Court may refuse to exercise jurisdiction. Most Rev; P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001 : 1997 SCC (Cri) 199 : 1995 AIR SCW 3133.

From the discussion made above, it appears that there may be cases which may or may not involve civil consequences. Yet they are to be filed in the Civil Court by virtue of special enactments laying provisions to that effect. And there are suits of general nature which are filed before the Civil Court by virtue of application of section 9 of CPC. Obviously, filing of such suits will not be permissible if expressly or impliedly barred. Therefore, it may be recalled that for application of section 9, it is necessary that the suits must be of civil nature and its cognizance by Civil Court must not be either expressly or impliedly barred. Therefore, it is necessary to examine the concept of Bar and again express Bar and implied Bar.

Bar to filing of a suit means that its filing is prohibited by law. It may not be prohibited by conduct of the parties if permitted by law. Hence it is a legal incidence and not contractual. Therefore, whenever a subject is taken up for scrutiny for selection of forum, it is necessary first to see the scheme of the law relating to the said subject-matter. If the law does not prescribe any particular forum or does not create a bar to its filing before the Court, then we should proceed to examine the various aspects of section 9 of the Code of Civil Procedure. It Contemplates that the Court may entertain a suit of civil nature unless expressly or impliedly barred by any law.

Determination of Jurisdiction - How to be made. Revaluation and reassessment is not binding upon the occupier, unless notice of revaluation and reassessment was served. Fair rent of the holding determined by the Rent Controller on the basis of such revaluation is illegal and without jurisdiction; 1971 BLJR Pat. (DB) 235.

If no notice was served, even appearance of the assessee before the committee will not cure the defect. The order must be ultra vires.

The assessee after the order was passed filed and objection which was rejected. The case must be distinguished from the case wherein objection is heard and decided and order is passed after due enquiry on the objection; AIR 1937 Pat 586.

Jurisdiction of the Court may be decided on the basis of ultimate findings of the Court; Udham Singh v. Ram Singh, (2007) 15 SCC 529.

Determination of Jurisdiction. In Chaube Jagdish Prasad v. Ganga Prasad Chaturyedi, AIR 1959 SC 492 : 1959 All LJ 626 : 1959 SCJ 495, the Supreme Court examined the question of determination of jurisdiction and held that there are two cases dealing with the power of the Tribunal.

Where the Legislature entrusts the Tribunal to hold the jurisdiction including jurisdiction to determine whether the preliminary state of facts on which the exercise of jurisdiction depends exists and (2) where Legislature confers jurisdiction or such Tribunals to proceed, where certain state of facts exist or is shown to exist. The Court explained the difference between the two and said that in the former case the tribunal has power to determine the facts giving it jurisdiction and in the latter cases, it has only to see that the certain state of facts exist.

Bar to Jurisdiction under Section 9. The Code contemplates that the Court may entertain a suit of civil nature, unless expressly or impliedly barred by any law. If any law says that no suit shall lie before the Civil Court against any order passed hereunder, the jurisdiction of the Court is expressly barred. If no such bar has been created, but it is found that exhaustive remedies has been provided by that law itself against whose order the plaintiff would bring a suit, it will be deemed that the jurisdiction of the Civil Court has been impliedly barred. It is thus clear that in spite of expressed bar, the suit may be entertained by the Civil Court against any order passed under that law if it is found that it was without jurisdiction. It may be illustrated as such. The Public Land Encroachment Act lays down that no suit will lie against any order passed under this Act. It appears to be an express bar to the suit. It may be elaborated how such bar may be ascertained. An order passed in the Act necessarily means an order passed according to the provisions of the said Act. Therefore, when the plaintiff alleges that the impugned order is without jurisdiction, a suit may lie because, the said order will not be deemed to be an order passed under the said Act. Here, it is necessary to discuss the terms beyond jurisdiction and without jurisdiction . These two phrases must be clearly construed, defined and distinguished. The orders and decisions passed are beyond jurisdiction when the Authority passing the order or making the decision was not authorized to do it. If the Deputy Collector while authorized to decide the question under Land Encroachment Act decided a thing for which he was not authorized, the said decision is beyond jurisdiction. Similarly, a judicial Magistrate 1st class while deciding a criminal case, decided a charge which was exclusively triable by the court of session, or a judge of civil jurisdiction decided a revenue matter, these decisions are beyond jurisdiction. But orders passed and decisions made are without jurisdiction when the authorities, though lawfully authorized to pass the same, passed an order or made a decision in absence of the jurisdictional facts. It is necessary to mention here that jurisdictional facts are those facts which cause the authorities to pass a certain order. A municipal authority enhances the tax on the plea of enhancement in the value of the premises. Here, the jurisdictional fact is that value of the premises was enhanced. Therefore, if the value is found to have been enhanced, the order enhancing the tax would be deemed to be within jurisdiction. If it is alleged that it has been excessively enhanced and should be rationalized, a suit for that purpose will not lie and the order will be deemed to have been passed within the ambit of the Municipal Law. Similarly, if some encroachment is found on the public land, the order passed for its removal will be an order within jurisdiction. Where it is found that construction of the plaintiff was on a private land, and not on public land, any order passed for its removal will be deemed to be without jurisdiction and, therefore, the order passed for its removal will not be taken as an order passed under the Public Land Encroachment Act and the plaintiff may bring a civil suit within the purview of section 9 of CPC. The provision of express bar to a suit will not be operative here. It may be made clear that if a suit is brought on the ground that the impugned order is without jurisdiction, and during hearing of the suit, if it is found that there were jurisdictional facts for the authorities to pass the order, the suit will fail and the Court will not examine otherwise desirability, propriety or sufficiency of grounds for the order. The plea will not be entertained that the authority concerned ought to have exercised its power and discretion in some other way, also, how so much ethical and just it might look to be. For example, in a case of removal of encroachment, the plaintiff may not argue in the alternative that the Revenue Officer ought to have ordered to settle the dispute with him instead of forcing him to vacate and making him without a roof above.

The question of implied bar was discussed by the Supreme Court in the case of Raja Ram Kumar Bhargava v. Union of India, AIR 1988 SC 752 : JT 1988 (1) SC 297 (2). The Court held that when a right is created by a statute and that a statute itself provides a machinery for enforcement of right, both the right and remedy having been created uno flatu and finality is intended to be the result of the statutory proceedings, then even in the absence of an exclusionary provision, the jurisdiction of the Civil Court is impliedly barred.

The question where the devotees will reside and where the idols and portraits would be installed do not attract civil jurisdiction; Kanbi Manji Abji v. Kanbi Vaghji Mavji, AIR 1993 SC 1163 : 1992 AIR SCW 3313 : 1993 Supp (4) SCC 351.

Plaintiff claiming title to the disputed land lack of jurisdiction to start a proceeding under section 144. In Arjun Prasad v. State of Bihar, 2011 (2) BLJR 945 the High Court referred to the judgment rendered by the Supreme Court and said. So far AIR 1982 SC 1081 is concerned it was held that summary procedure cannot be resorted to in cases where complicated question of title arises for decision. Therefore, this decision is not on the point of acquisition of title by adverse possession. Therefore, it is also not helpful to the Appellants.

From perusal of the plaint at paragraph 4 it appears that it has been specifically pleaded by the Plaintiffs that the grandfather of the Plaintiff died leaving behind his only son late Munshi Das who came in possession of the house and land as owner thereof. His father was also occupying the land and the house as absolute owner thereof. At paragraph 10 also it is pleaded that father and grandfather were in possession in assertion of absolute title and possession. It may be mentioned here that adverse possession presuppose that the title is on somebody else but here the Plaintiffs are claiming possession as true owner thereof. The Honble Supreme Court in the case of Karnataka Board of Wakf v. Government of India, 2004 (3) PLJR 245 SC has held that a person pleading adverse possession has no equities in his favour and pleas on title and adverse possession are mutually inconsistent and later does not begin to operate until the former is renounced. In another decision reported in AIR 1995 SC 895, Annasaheb Bapusaheb Patil v. Balwant @ Balasaheb Babusaheb Patil, the Honble Supreme Court at paragraph 12 has held that adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial to title of the true owner. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. At paragraph 3 in that very judgment the Honble Supreme Court has held where possession could be referred to a lawful title it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to anothers title. In the present case at our hand as discussed above the only case pleaded by the Plaintiff is that their grandfather and after him their father and then the Plaintiffs are coming as true owner thereof. This is the evidence adduced by the Plaintiffs i.e. P.W. 2 to RW. 4.

In (2007) 6 SCC 59, P.T. Munichikkanna Reddy v. Revamma the Honble Supreme Court considering various decisions earlier pronounced on the question of adverse possession has held that adverse possession is a right which comes into play not just because someone losses his right to reclaim the property out of continuous and willful neglect but also on account of possessors positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor, worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the owner of the property on paper. Intention is a mental element which is proved and disproved through positive acts. The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the owner has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission of the right to defend or care for the integrity of the property on the part of the owner. Intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. In the present case as stated above the factum of possession only indicate intention to possess the land. There is no evidence on behalf of the Appellants regarding the intention to dispossess. It is well settled that for constituting adverse possession corpus possidendi coupled with animus possidendi must be there. In the present case although there is evidence of possession stated by the witnesses but mere long possession will never constitute adverse possession. Moreover according to the defendants when encroachment was made encroachment case has been instituted.

Suit for declaration of title and recovery of possession. In Ramjiban Mahato v. Ganesh Prasad Malavya, 2000 2 BBCJ 246 It was undisputed at the bar that at the relevant point of time, plot no. 802 measuring 28 decimals had been recorded in the name of State of Bihar. In other words, the land was shown to be a public land within the meaning of section 2(3) of the B.P.L.E. Act, 1956. The said Act was enacted for removal and prevention of the encroachment of public land. According to sub-section (3) of section 2 thereof the public land means any land, inter alia, vested in the State of Bihar. Section 3 of the said Act empowers Collector to initiate an ejectment proceeding, if it appears to him from an application made by any person or upon information received from any source, that any person has made or is responsible for continuance of any encroachment upon any public land. If upon hearing the person concerned and taking evidence, he is satisfied of the allegation, the Collector is empowered under section 6 of the said Act to direct the person concerned to remove the encroachment within a specified period. The proceedings are required to be of a summary nature.

Section 11 provides for an appeal against an order of Collector and section 13 provides for a review. Earlier, there was also provision for revision, but that provision was subsequently deleted.

11(a) Section 16 of the Bihar Public Land Encroachment Act lays down that no suit or other legal proceedings shall lie in any court in respect of any order passed under this Act. In other words, if in the proceeding initiated under section 3, the Collector finds after hearing the parties that the land is of the nature of a public land within the meaning of section 2(3) and the concerned person has made an encroachment thereon and on that score, he direced to remove the encroachment, no suit can be brought challenging that order. Even such bar is not absolute. The bar is applicable only if it conclusively found that the land respecting which such order has been made is a public land. A suit can be brought by a person who has lost the proceeding on the ground that the land in question is not a public land as defined in the Act.

In the present case, the suit has not been instituted challenging the order of the Collector confirmed by the courts of appeal and revision. On the other hand, the suit has been filed for declaration of title, of the plaintiffs and recovery of possession as against the defendants, on the ground that the latter are trespassers. No doubt, initially, the land in question was recorded as belonging to the State of Bihar, but at a later stage, in view of the petition under section 90 of the C.N.T. Act having been filed by Gobardhan Lal Malvya claiming that land as belonging to him, his plea was accepted and the land was transferred in the name of the said Gobardhan Lal Malvya, the original defendant. In other words, even the semblance of title of the State in respect of the suit land disappeared by virtue of the order of the settlement officer as evidenced by Exts. E and F/1 therefore, when the suit was instituted, the land in question was no more a public land; Moreover, the proceeding against Raghunath Mahato in L.E. Case No. 27/1963-1964 was respecting 3 decimals of land only of plot no. 802, and not in respect of the entire area of 28 decimals. Therefore, I find that the State already having accepted before the Settlement authorities the title of the defendant respondents in plot no. 802, the land lost the character of public land to invite the provisions of the B.P.L.E. Act. Therefore, I find that both the courts below committed an error in holding that the suit was barred by section 16 of the B.P.L.E. Act.

Settlement Claimed. In Mia Jan Mian v. The State of Bihar, 1997 (1) PLJR 203 the plaintiff claimed seetlement of the disputed land and the defendant that the settlement was not a valid settlement inasmuch as the appellant never came in possession of the suit land. The settlement order was obtained by fraud played by the appellant. According-to the defendants, close south of the suit land there was Brahmsthan and towards west is M.E. School and on the north there is Idgah and the suit land was not fit to be settled with any body. The appellant is not a landless person and as such according to the Government Policy and circular the land could not be settled with the plaintiff. It was alleged that in the night of 25/26th March, 1978 during the Holi festival the appellant all of a sudden put an old but on the suit land which hurt the feelings of two communities and so there was serious apprehension of breach of peace. A magistrate was deputed to maintain peace. Later on illegal encroachment over the suit land was removed in pursuance of the order passed by the Collector cancelling the settlement.

The courts below under misconception recorded that the suit is barred under section 16 of the Bihar Public Land Encroachment Act which has no bearing at all on the question raised by the plaintiff. None of the Courts below touched the question whether the cancellation of the settlement is without prejudice to the rights of the plaintiff which is said to be illegal.

(b) the settlement made under the provisions of the Act can only be annulled by invoking section 4(h) or the Act. The Collector without invoking section 4(h) annulled the settlement arbitrarily without any valid reason.

The High Court held, contentions of the leaned counsel appears to be well founded. The courts below failed to decide the crucial question regarding cancellation of settlement. There is no doubt that the settlement was made by the State authorities after going through the due formalities. Once the settlement is validly made, it cannot be cancelled without following the procedure prescribed under the Act. In the present case not only the procedure was not followed but it was cancelled arbitrarily without notice to the settlee. I am constrained to hold that the courts below missed the legal position in non-suiting the appellant.

Amending Act, 3 of 1976 where by Section 19 of the original Act, has been amended. In (Sri) Surya Narain Choudhary v. Darbhanga District Board, Darbhanga the High Court said, Bench decision of this Court holding Section 6 to be ultra vires on the basis of A.I.R. 1967 S.C. 1591 is no longer a good law in view of A.I.R. 1974 S.C. 2009, Reading the law as it stand today with amended Section 19 the provisions of Section 16 has full play-No suit lies against an order passed in Land encroachment proceeding

Non-compliance a order of Collector u/s. 6-the proceeding. In Hafiza Khatoon v. State of Bihar, 1990 (2) BLJ 572 : 1990 (2) BLJR 1090 : 1991 (1) PLJR 384 the High Curt said, the proceeding under the Act though civil in nature; the jurisdiction of Civil Court is ousted u/s. 16-section 6(2) provides procedure for noncompliance of order passed u/s. 6, a special provision-directions for initiation of proceeding u/s. 188 IPC utterly misconceived.

All sums payable under this Act shall be recoverable as public demands.

No suit, prosecution or other legal proceeding shall lie against any officer of the State Government or any person for anything which is in good faith done or intended to be done in pursuance of this Act.

This section grants immunity to the officers of the State from any action taken by him, provided the action is in goof faith or it is done in pursuance of the Act.

(1) The State Government may, after previous publication, make rules for carrying out the purpose, of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, the State Government may make rules with respect to all or any of the following matters, namely:

(a) the forms and the manner of service of notices under this Act;

(b) the procedure of hearing and disposal of appeals under this Act:

(c) any other matter which is required to be or may be prescribed:

(3) All rules made under this section shall, as soon as may be after they are made, be laid, for not less than fourteen days before both houses of the State Legislature and shall be subject to such modifications as the State Legislature may make during the session in which they are so laid.

The Bihar Land Encroachment Act, 1950 (Bihar Act XXXI of 1950). is hereby repealed.

(2) The repeal by this Act of the Bihar Land Encroachment Act, 1950 shall not affect the previous operation of the said Act and subject thereto anything validly done or any action validly taken in the exercise of any powers conferred by or under that Act shall be deemed to have been done or taken in the exercise of the powers conferred by or under the corresponding provision of this Act as if this Act were in force on the day on which such thing was done or action taken.

(3) Any proceeding initiated under the repealed Act and pending on the date of the commencement of the Act shall be continued in accordance with the provisions of this Act.

(4) Without prejudice to the generality of the provisions of Section 3, the Collector shall have power to examine the records of any proceeding initiated under the repealed Act which may have been quashed by reason of the invalidity of any of the provisions of that Act, and if it appears to the Collector that there is sufficient ground for initiating any proceeding under this Act, the Collector may cause a notice to be served under section 3 on the person, who was alleged in the proceeding under the repealed Act to have made, or to have been responsible for the continuance of, any encroachment, requiring him to reappear and show cause why such encroachment shall not be removed and thereupon all the provisions of this Act shall apply:

Provided that the evidence taken in the proceeding which were quashed shall form part of the proceedings under this Act without prejudice to the right of such person or any person interested either in the encroachment or in the removal thereof, to adduce further evidence under this Act.

No. B/E-1026/55-2586 R. the 1st November, 1956. In exercise of the powers conferred by sub-section (2) of Section 20 of the Bihar Public Land Encroachment Act, 1956 (Bihar Act XV of 1956), the Governor of Bihar is pleased to make the following rules, the same having been previously published as required by sub-section (1) of that section

1. The notice of show cause under Section 3 shall be in Form I annexed hereto.

2. In case the person who has made or is responsible for the continuance of the encroachment cannot be traced, the notice shall be served by affixing a copy thereof at a conspicuous place on the land or in the vicnity of land and the service shall also be proclaimed by beat of drum. The service of notice in the manner prescribed in this sub-rule shall be attested by at least two witnesses.

3. The notice to be served under sub-section (2) of Section 6, shall be in Form II annexed hereto.

4. The appellate authority shall fix a day for hearing the appeal and a notice thereof shall be served on the respondent in the manner stated in rule 2 or rule 3, as the case may be.

If on the day fixed for hearing the appeal or any other day to which the hearing may be adjourned, the appellant does not appear in person or by agent the appeal shall be dismissed for default.

If on such day, the appellant appears and the respondent does not appear in person or by agent the appeal shall be heard ex parte.

To,

Shri/Shrimati ..son/wife/daughter of resident of Village . Thana No. P.S. . District ..

Whereas you have made or are responsible for the continuance of encroachment upon Plot No. . area . of Village Thana No. P.S. District which is public land as defined in sub-section (2) of section 2 of Bihar Public Land Encroachment Act, 1956 (Bihar Act XV of 1956). You are hereby called upon to appear before me on . at . and show cause why such encroachment shall not be removed.

2. Take notice that if you fail to appear at the time and place mentioned above, the matter will be decided in your absence.

Date Collector.

Shri/Shrimati .. son/wife/daughter of ..resident of Village ..Thana No R.S. District

Whereas an order has been passed under clause (c) of sub-section (1) of Section 5 of the Bihar Public Land Encroachment Act, 1956, for removal of encroachment from Plot No. . area of Village .. Thana No. P.S. District which has been found to be a public land as defined in sub-section (5) of section 2 of the Act; you are hereby called upon to comply with the order within a period of

2. Take notice that in case of disobedience you shall be liable to the penalty provided by Section 188 of the Indian Penal Code, 1860, (XLV of 1860).

Date Collector.

(Bihar Act 3 of 1972)

(Assented to by the Governor of Bihar on 27th April, 1972 and published in Bihar Gazette (Ex-ord., dated 29.4.72)

An Act to amend the Bihar Public Land Encroachment Act, 1956

Be it enacted by the legislature of the-State of Bihar in the twenty third year of the Republic of India as follows:

1. Short title. This Act may be called the Bihar Public Land Encroachment (Amendment) Act, 1972.

2. to 8. incorporated in the text of the Act.

9. Repeal and savings. (1) Bihar Public Land Encroachment (Amendment) Ordinance, 1972 (Bihar Ordinance No. 7 of 1972) is hereby repealed.

(2) Subject to the repeal, anything validly done or any action validly taken in the exercise of any powers conferred by or under the said Ordinance, shall be deemed to have been done or taken in exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action taken.

[Bihar Act 3 of 1982]16

An Act to amend the Bihar Public Land Encroachment Act, 1956.

Be it enacted by the Legislature of the State of Bihar in the thirty second year of the Republic of India as follows:

1. Short title. This Act may be called the Bihar Public Land Encroachment (Amendment) Act, 1981.

10. Repeal and saving. The Bihar Public Land Encroachment (Amendment) Ordinance, 1981 (Bihar Ordinance no. 134 of 1981) is hereby repealed.

(2) Notwithstanding such repeal anything done or any action taken in the exercise of any power conferred by or under the said Ordinacne shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing or action was done or taken.

[Bihar Act 17, 2012]17

An Act to amend the Bihar Public Land Encroachment Act, 1956.

Be it enacted by the Legislature of the State of Bihar in the sixty-third year of the Republic of India as the following:

1. Short Title, Extent and Commencement. (1) This Act may be called the Bihar Public Land Encroachment (Amendment) Act, 2012.

(2) It shall extend to the whole of the State of Bihar.

(3) It shall come into force at once.

2. Amendment in Section 6 of the Bihar Public Land Encroachment Act, 1956. (i) Clause (C) of sub-section (1) of Section 6 of the said Act, 1956 shall be deleted.

(ii) Sub-section (2) of Section 6 of the Bihar Public Land Encroachment Act, 1956 shall be substituted by the following:

(2) If any person does not comply with the orders passed by the Collector under this section, he shall be punishable with imprisonment for a term, which may extend to one year or with fine up to Rs. 20,000/- (twenty thousand) or with both.

3. Savings. Notwithstanding the deletion of Section 6(1)(c) of the Bihar Public Land Encroachment Act, 1956 (Bihar Act XV, 1956) anything done or any action taken in exercise of the powers conferred by or under the Section 6(1)(c) shall be deemed to have been done or taken in exercise of powers conferred by or under this Act, as if the said provisions were in force on the day on which such thing or action was done or taken.

1. This Act came into force on 1.11.1956, vide Notifn. No. 1026-56-2586R. published in Bihar Gazette (Ext. Ord.) dated 1st November, 1956.

2. Ins. by Act 3 of 1982.

3. Ins. by Act 10 of 1994.

4. Ins. by Act 10 of 1994.

5. Ins. by Act 19 of 1960.

6. Now, Bihar Panchayat Raj Act, 2006.

7. Subs. by Act 3 of 1982.

8. Subs. by Act 3 of 1982.

9. Prior to omission read as under Clause (c): If any person who together with his homestead does not own more than 5 acres of land, has encroachment up to 10 dec. of public land continuous to his agricultural holding and has used the encroached public land for agricultural purposes. The Collector shall order the settlement of such public land with such person on payment of rent and damages for the use of this land. The amount of damages and rent shall be calculated by considering the rent payable in case of similar land in the neighbourhood. Where no rent is payable the rent and damages for the encroached public land shall be calculated on the basis of such fair rent as the Collector may deem proper, or

10. Subs. by Act 17 of 2012.

11. Subs. by Act 3 of 1982.

12. Ins. by Act 19 of 1960.

13. Subs. by Act 3 of 1982.

14. Subs. by Act 3 of 1982.

15. Subs. by Act 3 of 1982.

16. Published in Bihar Gazette (Ex. ord) dated 21.1.1982.

17. Published in Bihar Gazette (Ex. ord.) No. 444, dated 30th August, 2012.