IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18598 of 2010 1. Satto Mukhia S/O Late Jagdeo Mukhia R/O Vill.- Jorja, P.S. & Anchal- Baheri, Distt.- Darbhanga 2. Baleshwar Mukhia S/O Late Abhilakh Mukhia R/O Vill.- Jorja, P.S. & Anchal- Baheri, Distt.- Darbhanga Versus 1. The State Of Bihar 2. Addl. Collector, Darbhanga 3. Anchaladhikari Baheri, Distt.- Darbhanga ----------- 5 11.07.2011 Heard Mr. B.N.P. Singh, learned counsel for the petitioners, Mr. Arjun Prasad Singh, learned A.C. to S.C.2 for the State. The writ petition has been filed challenging the orders passed by the authorities under the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the “Act”). Learned counsel for the petitioners submits that although a notice in purported exercise of power vested under Section 3 was issued on 17.03.2010 (Annexure-2) by the Circle Officer, Baheri, District- Darbhanga but thereafter without issuing any show cause notice and without hearing the petitioners the said notice was followed by another notice dated 30.04.2010 as contained in Annexure-3 whereby the petitioners were directed to vacate the land in question. It is not disputed that the nature of the land bearing Khata No. 1349, Plot No. 2856 measuring 9 bighas 2 kathas and 3 dhurs situated at village Jorja P.S. Baheri, District- Darbhanga is a Gairmajarua khas land as recorded in the cadastral survey. The petitioners herein, claim title by way of adverse possession. 2 Learned counsel for the petitioners further submits that statutory authority under the Act without affording an opportunity to the petitioners to lead evidence and to respond to the notice issued under the Act have passed the order impugned. He submits that the error despite having been brought to the notice of the appellate authority being the Additional Collector, Darbhanga in Appeal Encroachment Case No. 2 of 2010-11 the same was not noticed. Rather the arbitrary manner in which the quasi judicial proceeding was conducted by the Additional Collector is apparent from the order sheet. On 15.07.2010, the Additional Collector after recording the appearance of the petitioners had posted the matter to 12th August 2010 but he preponed the matter on 24.07.2010 without giving notice to the petitioners and hearing him and proceeded with ex parte hearing by only affording opportunity of hearing to the Mukhia of Jojra Gram Panchayat who is the complainant in the present case. Section 3 of the Act relates to initiation of proceedings and requires a notice to be served upon the alleged encroacher in the prescribed form requiring him to appear on the date mentioned in the notice inter alia to show cause as to why he be not restrained from encroachment and/or why such encroachment be not removed. Section 4 provides the person on whom the notice is served, to give his form of defence. Upon hearing being conducted on the date fixed by notice and after affording an opportunity to the applicant and any other person on whom notice has been served, an order is finally passed under the provisions of Section 6 of the Act. An appeal from such order lies before the appellate authority under Section 11 of the Act. From the 3 records of the proceeding it is apparent that the petitioners never responded to the notice nor there is any show cause reply on the records of the proceeding which appears to be the reason for passing of the order by the Circle Officer in purported exercise under Section 6 of the Act as can be found at Annexure-3 and is dated 30.04.2010. To that extent no fault can be found in the order of the Circle Officer in adjudicating upon the issue inasmuch as the petitioner failed in his duty to respond to the notice. The issue is whether the appellants were afforded sufficient opportunity by the appellate authority. The answer is in the negative for the reason that whereas the appeal was adjourned to 12.08.2010 under the order dated 15.07.2010 but it was heard after preponement of the date on 24.07.2010 itself and without notice to the petitioners. Obviously the petitioners could not be present to defend the case on 24.07.2010. A date of hearing in a quasi judicial proceeding cannot be preponed without due notice to the contesting parties. Such exercise would reduce the proceeding to a farce. For the reasons aforesaid and for the reasons that the preponement has acted prejudicial to the petitioners being clearly in teeth of the principle of natural justice, the order dated 24.07.2010 passed by the Additional Collector, Darbhanga in Appeal Encroachment Case No. 2 of 2010-11 is set aside and the matter is remanded back to the Additional Collector to consider the appeal and pass appropriate orders after affording due opportunity of hearing to the petitioners and the other contesting parties. The order disposing of the case may be passed expeditiously and preferably within a period of three months from the date of receipt/production of a copy of this 4 order. Needless to add that since the matter is now sub-judice before the appellate authority hence the authorities of the State would maintain status quo until the disposal of the appeal. The writ petition is disposed of with the aforesaid directions. Bibhash (Jyoti Saran, J.)