Kedar Nath Rai vs The State of Bihar and Others

Honourable Justice Smt. Anjana Prakash

The petitioners seek quashing of the orders dated 8.10.1996 and 14.11.1996, by which the Deputy Secretary, Department of Revenue and Land Reforms set aside the order of the Anchal Adhikari, dropping the Encroachment proceedings and the order of the Anchal Adhikari directing the petitioners to vacate the land appertaining to plot no. 1084 khata no. 292 in Encroachment case No. 4/1994-1995. The petitioners claim to be owner and in possession of R.S. plot no. 1078, 1085 and 1086 in village Kathrain, on which they built their residential house since a very long time. In the year 1969-70 the revisional survey authority found the possession of the petitioners and made an entry to that effect in the khatiyan mentioning it as "Awaidh Dakhal". On 15.7.1994 the Anchal Adhikari, Charpokhari initiated an Encroachment case No. 4/1994-1995 over several plots i.e. 1067, 1068 and 1084. The plot no. 1084 concerned the present petitioners. The Halka Karamchari in the said case reported to the Anchal Adhikari that all the plots were under encroachment, on account of which notices were issued to the petitioners along with those persons, who had allegedly encroached plot nos.1067 and 1068. Thereafter the Anchal Adhikari found that the khatiyan in the revisional survey had revealed that R.S. plot no. 1084 was in possession of the petitioners and, therefore, legal advice from the Government Pleader was sought with regard to this plot. The same was sent by the said Advocate. On perusal of the same by the order dated 23.2.1996 the Anchal Adhikari dropped the said proceeding holding that R.S. plot no. 1064 has changed its nature and since it was in possession of the petitioners since long they had acquired right and title over the same. Suddenly on 8.10.1996 the Deputy Secretary, Department of Revenue and Land Reforms directed the Collector, Bhojpur for cancellation of the order passed by the Circle Officer dated 23.2.1996 passed in Encroachment case No. 4/1994- 1995 and directed vacating the plot on the basis of a query having been raised in the Vidhan Sabha. On receipt of such communication the Anchal Adhikhari by order dated 14.11.1996 directed the petitioners to vacate the land within a certain time frame or else, appropriate action would be taken against them.

The Counsel for the petitioners submits that once the Anchal Adhikari had passed final orders in the Encroachment Case, no appeal having been preferred against the same, the authorities were not within the powers to direct the petitioners to vacate the lands without initiating a fresh proceeding and giving them an opportunity to show cause with regard to it. Such an act was against the scheme of the Bihar Land Encroachment Act which provides an appeal u/s.11 of the Act. The Authority while passing the said order has also not recorded his satisfaction as to whether there was any encroachment and it was only on the basis of the question having been raised in the Vidhan Sabha that such an order was passed. It has further been submitted that the authorities could not also have initiated a fresh proceeding when the earlier proceedings had become final and concluded as decided by a Division Bench of this Court in a case reported in 1969 PLJR 23 (Shri Kali Prasad Seal versus The State of Bihar & Others).

The Counsel for the State attempts to defend the order of the authorities on the ground that it may be deemed that the proceedings were initiated afresh when the order of the Deputy Secretary, Department of Revenue and Land Reforms was passed.

Having heard the Counsels of the parties and gone through the records of the case, this Court is of the view that once the Anchal Adhikari had passed orders dropping the proceedings, the Deputy Secretary, Department of Revenue and Land Reforms could not have set aside the order of the Anchal Adhikari without an appeal having been filed. As per the scheme of the Act u/s.11 an appeal would lie before the Collector against orders passed u/ss.6, 7 and 8 within sixty days which time may be extended for cogent reasons. The Collector thereafter, is by sheer implication to decide the case recording his satisfaction by determining the issues involved. An onerous duty has been cast upon him to examine as to whether the land in question is public land and if so, it is under encroachment. Once an appeal is provided by way of a substantive right, it inheres a right to be heard. The Rules of Natural Justice involving jeopardizing a civil right can not be lightly brushed aside by an arbitrary order when no appeal was preferred. this Court is unable to comprehend as to under what authority the order contained in Annexure 5 was passed. The Deputy Secretary could not have suo-moto assumed a power which he had not been conferred with, by the Act, and therefore it was not within his powers to arbitrarily set aside the order of the Anchal Adhikari.

The order has no sanction of law and is non-est.

Moreover from the perusal of Annexure 5, it appears that probably the Deputy Secretary had passed the order pursuant to a query in Vidhan Sabha only in order to appease the political powers in total disregard to the law governing such situations. In view of such, the application is allowed and the order dated 14.11.1996, by which the Anchal Adhikari directed the petitioners to vacate the land appertaining to plot no. 1084 khata no. 292 in Encroachment case No. 4/1994-1995 and the order dated 8.10.1996 of the Collector, Bhojpur for are quashed.