Sujit Narayan Prasad, J.:— This writ petition is under Article 226 of the Constitution of India, whereby and whereunder the order as contained in Form-II, vide Annexure-3, said to have been passed in BPLE Case No. C-1 of 2019-20 under the Bihar Public Land Encroachment Act, 1956 now Jharkhand Public Land Encroachment Act, 2002 is under challenge.
2. Mr. Ashok Kumar Yadav, learned counsel for the petitioner has submitted by referring to certain paragraphs of the pleading made in the writ petition about the perfect title of the petitioners since the names of the petitioners are although in the name of Anabad Bihar Sarkar but the petitioners are in possession since last 65 years and as such they have title over the land in question.
3. Further submission has been made that even if the petitioners are claiming title on account of their possession over the land for the last 65 years, the proceeding as has been enacted to be followed by the legislature by way of Public Land Encroachment Act, 1956 and after bifurcation of the State, the State of Jharkhand has also adopted the said Public Land Encroachment Act, 2002 which contains the procedure for initiating a proceeding for eviction from unauthorized occupation of the land in question, but the authorities have taken decision for removing the said encroachment by coercing the petitioners to be evicted from the land in question by following the procedure resorting under sub section 2 of Section 6 of the Act, 2002, without initiating any proceeding which was to be provided to the petitioners under the said statutory provision.
4. The matter was heard on 25.09.2019 by which the State has been granted time to verify the record in order to ascertain the genuineness of the ground taken by the petitioners.
5. Learned counsel appearing for the State of Jharkhand, by going across the record which is in his custody, has submitted that the procedure as laid down under the Public Land Encroachment Act, 1956 or 2002 has not been followed.
6. This Court, therefore, has proceeded to examine the legality and propriety of the impugned order and before doing so deem it fit and proper to refer certain provisions of applicable Land Encroachment Act.
7. The Bihar Public Land Encroachment Act, 1956 has been enacted by the erstwhile State of Bihar in the year 1956 to deal with the situation, if any public land has been encroached and in order to deal with the same, a procedure had been carved out under the aforesaid provision of the year 1956.
8. Under the Act, 1956, the Collector has been defined under Section 2(1), which says:
(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;
9. “Encroachment” has been defined under Section 2(1A), inserted by way of Act 3 of 1982, which says:
2(1A)“encroachment” means unauthorized 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 establishing domestic animals or for any other purposes; and
(c) excavations or embankments of any sort on the public land;
10. Further provision stipulates about the declaration to be given about public land before reaching to any conclusion how the procedure is to be initiated, the same has been provided under Section 3, which reads as under:—
“3. Initiation of the proceedings. - (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 injunctions; or
(b) Why such encroachment should not be removed.
(2) Under Clause (a) of sub-section (1) 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 unnecessary 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.
11. It is evident from the provision of Section 3 that if it appears to the Collector and it comes to the notice 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 as to why encroachment be not received or be not restrained from making such encroachment by issue of injunctions.
12. Person against whom the notice would be issued is liable to file objection as per the provision laid down under Section 4; and under Section 5 there is provision of hearing and thereafter finding would come under Section 6(1) of the Act, 1956, either to drop the proceeding or to make temporary injunction or to direct the person concerned to remove the encroachment and if such person will fail, penal provision has been provided under sub-section (2) to Section 6 and under sub-section (3), the said penal provision has been made to be cognizable to be tried under Code of Criminal Procedure, 1973.
13. Thereafter, the provision of appeal as also revision has been provided.
14. This Court, in view of the aforesaid legal position, after going across the notice as contained in Form-II, vide Annexure-3, is of the view that that the procedure as laid down under the Public Land Encroachment Act, 2002 has not been followed as because the notice straightway has been issued under sub section 2 of Section 6 of the Act, 2002 but there is no reflection in the impugned order to be decided under the provision of sub section 1 of Section 6 of the Public Land Encroachment Act. The aforesaid aspect of the matter is very much apparent from the original record as has been submitted by the petitioner submitting reliance upon the said record.
15. This Court after going across the legal position as has been settled under the Public Land Encroachment Act, 1956 or 2002 which has not been followed, therefore, Annexure-3 is not sustainable.
16. In view thereof, the notice as contained under Annexure-2 issued in BPLE Case No. C-1 of 2019-20 is quashed.
17. In the result the matter is remitted before the Anchal Adhikari, Gamharia to proceed afresh by passing fresh order after following the procedure laid down in the Public Land Encroachment Act, 1956 or 2002.
18. Needless to say that the proceeding shall be concluded within a period of three weeks from the date of receipt of copy of the order.
19. The petitioner is directed to cooperate with the proceeding.
20. In case of non-cooperation of the proceeding by the petitioner, respondent authority is directed to proceed in the matter in accordance with law.
21. Accordingly the writ petition stands disposed of.