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.
Comments
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.