AI Structured Summary
Not yet generated for this judgment
Judgment
The present case is taken up today through Video conferencing.
The present writ petition has been filed for quashing order dated 04.01.2021 (Annexure-3 to the writ petition) passed by the Circle Officer, Town,
Ranchi (respondent no. 4) in Encroachment Case No. 01 of 2020-21 (Bara Talab, Ranchi) as well as notice of the same date i.e. 04.01.2021
(Annexure-4 to the writ petition) purportedly issued under Section 6(2) of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 (in short,
the Act, 1956"") by the said respondent directing the petitioner to remove the encroachment to the extent of 0.10 acre pertaining to. M.S. Plot no.
1624, Thana No. 205, P.S.- Kotwali, Village- Bara Talab Ranchi, District- Ranchi (hereinafter to be referred as ""the said land"").
Learned counsel for the petitioner submits that the respondent no. 4 has passed the impugned order dated 04.01.2021 and has also issued the notice
on the same date i.e. 04.01.2021 under Section 6(2) of the Act, 1956 exercising his power as Collector under the Act, 1956 without any application of
mind and without ascertaining as to whether the said land is ""public land"" as defined under the Act, 1956. The respondent no. 4 has also not followed
the procedure prescribed under the Act, 1956 and has hurriedly passed the said impugned order and thereafter issued the purported notice under
Section 6(2) of the Act, 1956 directing the petitioner to remove the alleged encroachment to the extent of 10 decimals from the said land. In the light
of order passed in a P.I.L. being W.P. (P.I.L.) No. 1463 of 2020 (pending before the learned Division Bench of this Court), the district administration
appears to have constituted a team for inspection of encroachment over the land of ""Bara Talab"". The said inspection team submitted the inquiry
report, according to which it was found that the encroachments were made by different encroachers including the petitioner near ""Bara Talab,
Ranchi"". Subsequently, a notice in this regard was also issued to the petitioner on 07.11.2020 under Section 3 of the Act, 1956 by the respondent no. 4
directing it to appear before him on 24.11.2020. Thereafter, the petitioner, vide letter no. 316 dated 24.11.2020 (Annexure-2 to the writ petition),
submitted its reply clearly stating inter alia that its building is situated on the other side of the road where ""Bara Talab"" is in existence. Moreover, the
said building is situated there for last 60 years. The petitioner also stated in the reply that it has not at all encroached any part of plot no. 1624, Thana
No. 205 as has been alleged. Irrespective of the said stand of the petitioner, the respondent no. 4, vide impugned order dated 04.01.2021, has held that
different encroachers including the petitioner have encroached the government land, that too, without assigning any reason and in absence of any such
fact on record for making such an observation. Accordingly, the notice purportedly issued under Section 6(2) of the Act, 1956 on the same date i.e.
04.01.2021 directing the petitioner to remove the encroachment within 14 days, is also bad in law.
Mr. Mohan Dubey, learned A.C. to A.G. appearing on behalf of the respondent nos. 1 to 4, submits that the respondents have initiated action
against the encroachers of ""Bara Talab Ranchi"" in compliance of different orders of the learned Division Bench of this Court passed in W.P. (P.I.L.)
No. 1463 of 2020 and therefore the initiation of Land Encroachment Case No. 01 of 2020-21 (Bara Talab Ranchi) by the respondent no. 4 against the
said encroachers including the petitioner is justified. It is further submitted that since the petitioner could not produce any valid document in its defence
to prove that the land in question is not a public land, the impugned order dated 04.01.2021 has been passed by the respondent no. 4 holding inter alia
that the said land is government land.
Heard learned counsel for the parties and perused the content of the writ petition. It appears that a notice was ordered to be issued to different
encroachers including the petitioner by the respondent no. 4 on 07.11.2020 by registering Land Encroachment Case No. 01 of 2020-21 (Bara Talab,
Ranchi) in the light of orders passed in W.P. (P.I.L.) No. 1463 of 2020, which is pending before the learned Division Bench of this Court, and also in
terms with the order as contained in memo no. 2077(ii) dated 28.09.2020 issued by the Deputy Commissioner, Ranchi (the respondent no. 2). It has
also been observed in order dated 07.11.2020 that an inspection team constituted by the respondent no. 2 for inquiry of encroachment made over the
land of ""Bara Talab, Ranchi"", submitted the report prepared on the basis of trace map wherein 19 persons including the petitioner were found to have
encroached the part of M.S. Plot no. 1624. Accordingly, notices were ordered to be issued to the said persons vide order dated 07.11.2020. The
encroachment case was thereafter taken up on 24.11.2020 and on the said date, the representative of the petitioner and few other persons appeared
before the respondent no. 4 and requested for time to file suitable reply. The case was thereafter taken up on 18.12.2020 and on the said date, no one
appeared on behalf of the alleged encroachers. Accordingly, the next date of the case was fixed for 04.01.2021 and on the said date, the respondent
no. 4 passed the following order :
◌
()
. .
Jharkhand Public Land Encroachment Act, Sub- Section(2) of Section (6) 18-01-
2021
As per the aforesaid observation of the respondent no. 4, the concerned encroachers did not submit any document and hence they were found to
have illegally encroached the land of ""Bara Talab, Ranchi"" which is a government land. Accordingly, the respondent no. 4 directed the said
encroachers including the petitioner to remove the alleged encroachment and the notice under Section 6(2) of the Act, 1956 was issued to the
petitioner on the same date i.e. 04.01.2021 for removal of the alleged encroachment to the extent of 10 decimals from M.S. Plot no. 1624.
The order dated 04.01.2021 passed by the respondent no. 4 is unreasoned, obscure and cryptic. Though the petitioner filed its reply vide letter no.
316 dated 24.11.2020 stating inter alia that it has not encroached M.S. Plot no. 1624, Thana No. 205 as its building is situated at the said place for the
last 60 years on the other side of the road where ""Bara Talab"" is existing, however the respondent no. 4 in the impugned order dated 04.01.2021 held
that the petitioner did not submit any document. Even if the said observation is accepted to be true for a while, it was the statutory duty of the
respondent no. 4 to give a factual finding on the issue on the basis of the materials available on record that the part of Plot No. 1624 encroached by
the petitioner is public land (wrongly written as government land) and the manner in which the petitioner had encroached the same.
A detailed procedure for conducting a land encroachment proceeding has been provided in the Act, 1956 itself. Section 3 (1) of the said Act
provides that if it appears to the Collector from an application made by any person or upon information received from any source that any person has
made or is responsible for continuance of any encroachment upon any public land, 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 he should not be restrained from making any encroachment by issuing any injunction or as to why the said encroachment should not be removed.
Section 4 of the Act, 1956 speaks that any person on whom notice is served under Section 3 or any person interested in the encroachment, may
appear before the Collector and raise any defence which he could have raised if he was defendant in a properly framed suit for removal of the
encroachment. Thereafter, Section 5 of the said Act provides for conducting hearing by the Collector and further as per Section 6 of the Act, 1956, a
final order is required to be passed by the Collector after hearing the concerned persons and taking defence, if any, under Section 5 and on making
such inquiry as deems necessary to the Collector considering the facts and circumstances of the case whereafter the encroachment case may either
be dropped or the temporary injunction earlier passed, if any, may be made absolute against the person who has made encroachment over the public
land.
Now coming back to the present case, the respondent no. 4 appears to have completely ignored the requirement of law as mandated in Section 5 as
well as Section 6 of the Act, 1956. The Land Encroachment Case No. 01 of 2020-21 (Bara Talab, Ranchi) was initiated on 07.11.2020 by issuing
notice under Section 3 of the Act, 1956 to the petitioner and other alleged encroachers. The petitioner and few other alleged encroachers appeared
before the respondent no. 4 on 24.11.2020 and sought time to file respective replies. On 18.12.2020, the case could not be heard as no one appeared
on behalf of the said encroachers and thereafter on 04.01.2021, the respondent no. 4 passed the impugned order observing inter alia that the noticees
were found to have encroached the public land. Since the petitioner had contended in its reply that its building had been existing at the said place for
last 60 years and had not encroached the part of M.S. Plot no. 1624, Thana No. 205 as well as that its building is situated on the other side of the road
where ""Bara Talab"" is existing, it was incumbent upon the respondent no. 4 to record its satisfaction on factual foundation that (i) the land is a public
land and (ii) the manner in which the petitioner is said to have encroached the said land. It was also open to the respondent no. 4 to make suitable
inquiry in the said land encroachment proceeding itself so as to conclusively find out that the petitioner has encroached part of Plot No. 1624.
In the case of Maheshwari Devi Vs. State of Bihar reported in (1988) BLJ 1051, the Division Bench of Patna High Court has held as under:-
The Collector under the Bihar Public Land Encroachment Act while deciding a case thereunder must record his satisfaction by determining the
jurisdictional fact that on the date of initiation of a proceeding under the said act, the land was a public land in terms of the provision of the said Act. --
--------
In the case of Jagannath Jha Vs. State of Bihar reported in (1984) BBCJ 820, the Division Bench of Patna High Court has held that
encroachment on public land cannot be removed without following the procedure prescribed under the Act.
In the case of State of U.P. Vs. Singhara Singh reported in (1964) 4 SCR 485, the Hon'ble Supreme Court has held as under:-
The rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has
conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in
any other manner than that which has been prescribed. -----
Since, this Court finds that the impugned order dated 04.01.2021 passed by the respondent no. 4 is completely unreasoned and obscure which is
indicative of non-application of mind by the said authority, it cannot be sustained in law. Accordingly, the same is quashed and set aside. The notice
dated 04.01.2021 purportedly issued by the respondent no. 4 under Section 6(2) of the Act, 1956 being consequential in nature is also set aside. The
matter is remanded to the respondent no. 4 to pass a fresh well informed order under Section 6 (1) of the Act, 1956 after providing due opportunity of
hearing to the petitioner who is also at liberty to put forth its defence by bringing on record all the relevant documents relating to the land in question.
The writ petition is accordingly disposed of.
I.A. No. 1272 of 2021 also stands disposed of accordingly.