Shailesh Kumar vs State Of Bihar And Ors

Heard learned counsel for the petitioner, learned counsel appearing on behalf of the State and the private respondent.

Founding father never thought that the authorities of the State will render the Constitutional rights of equality to a mere farce. The Circle Officer in

the instant case has acted in the manner as if he is imperium in imperio and the mandate of law hardly binds him. The kind of order the Court proposes

to pass, does not require detailed narration of facts. Undisputed premises of fact in the instant case is that in an encroachment proceeding notice was

issued on 9.4.2015 to the petitioner. Thereafter the petitioner filed an application for grant of some time on 15.4.2015 but the Circle Officer has

demolished the structure of the petitioner on 17.4.2015.

Mr. Dronacharya, learned counsel for the petitioner has referred to the provisions of Section 3 of the Bihar Public Land Encroachment Act

(hereinafter referred to as ‘the Act’). For ready reference relevant part of Section 3 of the Act is quoted below:-

“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-….â€​

The legislature in its wisdom prescribed a procedure to be followed for removal of encroachment. The provision mandates the Collector to serve

notice in the prescribed form requiring the encroachers to appear on the date which shall not be less than two weeks from the date of service of

notice. The emphasis is ‘not less than two weeks’ which is mandatory requirement. The Collector under the Act is obliged to strictly adhere to

the procedure prescribed and, in no case, he could have exercised jurisdiction to fix date before two weeks from the date of service of notice. In the

instant case, as stated above, notice was issued on 9.4.2014 and as per the counsel for the petitioner, the notice was served to the petitioner on

9.4.2015 and in teeth of the statutory provision of fixing date not before less than two weeks from the date of service of notice, the Circle Officer has

passed order and demolished the structure on 17.4.2015.

The Circle Officer has discussed many things in his order to which the Court refrain from passing any comment. The nicety of rule of law is that

everyone is under the command of law. The Supreme Court time and again held out that rule of law is the basic feature of the Constitution but it

appears that it is practiced only by Commissioner and privileged people and officers still practice that they are above law and the mandate of law is

only a subject of convenience.

Mr. Ajay, learned counsel for the State submits that though Section 3 of the Act requires not less than two weeks notice period, the same should be

read as ‘opportunity of hearing to the petitioner’ and since the petitioner had appeared on 15.4.2015, before expiry of two weeks of mandatory

requirement, the notice period of not less than two weeks shall be deemed to have been waived. The Court is unable to accept the submission

advanced by Mr. Ajay.

On similar line Mr. Surendra Kishore Thakur, learned counsel for the private respondent argued that the petitioner has appeared and as such he

cannot be allowed to raise grievance that provisions of the Act was not followed in the instant case.

Mr. Ajay, learned counsel for the State and Mr. Surendra Kishore Thakur, learned counsel for the private respondent submitted that writ petition is

not the proper forum to entertain the present lis. The alternative remedy by way of statutory appeal is available and therefore, the present writ petition

is not maintainable.

The Constitution Bench of the Supreme Court had occasion to decide the issue of exhausting alternative remedy in the case ofT he State Of Uttar

Pradesh vs Mohammad Nooh: AIR 1956 SC 86, wherein the Apex Court has carved out three exceptions, firstly, that when the order was passed

without jurisdiction, secondly, when there is violation of principles of natural justice and thirdly, infringement/violation of fundamental right. The

judgment of the Apex Court is still holding the field and reiterated time and again. Similarly, Justice Suba Rao has the occasion to underline the scope

of Article 226 of the Constitution in the case of Dwarika Nath Vs. Dwarka Nath vs Income-Tax Officer: AIR 1966 SC 8 1where his Lordship had

held out that Article 226 of the Constitution is couched in most comprehensive phraseology and it is designed to reach wherever injustice is found.

In view of the aforesaid discussions, the Court is of the view that the instant case is a glaring case of injustice and exercise of jurisdiction under

Article 226 is a must to do away injustice. The alternative remedy does not disentitle the Court in the way of exercising jurisdiction. It is only self

imposed restriction in exercising jurisdiction. The alternative remedy, in no way, exclude the jurisdiction of Article 226 which is held to be basic feature

in view of the 7 Judges Bench decision in L. Chandra Kumar vs Union Of India And Others: (1997) 3 SCC 261.

For the reasons stated above, the Court is of the view that all the objections as to the maintainability of the writ petition is totally misconceived. It is

accordingly rejected.

On reading mandatory provisions of Section 3, where emphasis is ‘not less than two weeks’ the Court is of the considered view that the law

requires that not less than two weeks from the date of service of notice and as such the entire action of the Circle Officer in teeth of the mandatory

requirement of the provisions of the Act, is nullity. Such action has led the litigation in the present case remained pending since 2015 i.e. for a period of

four years. This case is the offshoot of arbitrary action of the State instrumentality.

In the aforesaid circumstances, the Court holds and declare that the action of the respondent-Circle Officer is totally without jurisdiction and in

teeth of the mandate of Section 3 of the Act and as such it is per se illegal and arbitrary. Accordingly, the order passed by the Circle Officer is hereby

quashed.

In the facts and circumstances, when the Court noticed violation of the mandatory requirement of Section 3 of the Act and declared that the action

of the Circle Officer is totally without jurisdiction then the citizen like the petitioner is entitled to be compensated for the arbitrary acts of the State

instrumentality like Circle Officer. Accordingly, the Court while allowing the writ petition, directs the District Magistrate, Khagaria to pay a

compensation of Rs. 5,00,000/- (five lacs only) to the petitioner within a period of thirty days from the date of receipt/production of a copy of this

order. At the same time the respondents have to reconstruct the demolished structure within a period of four months.

With the aforesaid direction and observations, the writ petition stands allowed and disposed of.