IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6357 of 2010 1. Bijay Paswan S/O Late Raghu Paswan R/O Vill +P.O.Itasang, P.S.Rahui, Distt-Nalanda(Biharsharif) 2. Ramdeo Ram S/O Late Mouji Ram R/O Vill +P.O.Itasang, P.S.Rahui, Distt-Nalanda(Biharsharif) Versus 1. The State Of Bihar Through The Secretary, Department Of Land Reforms Government Of Bihar, Patna 2. The Director, Department Of Land Reforms Government Of Bihar, Patna 3. The Secretary, Land Reforms Department Government Of Bihar, Patna 4. The District Magistrate Biharsharif, Nalanda 5. The Deputy Collector Land Reforms Biharshariff, Nalanda 6. The Circle Officer Block-Rahui, Distt-Nalanda(Biharsharif) 7. Gopal Prasad S/O Faujdari Prasad R/O Vill +P.O.Itasang, P.S.Rahui, Distt-Nalanda(Biharsharif) --------------------- 02. 30.08.2011 Heard Mr. Manager Sah, learned counsel for the petitioners and Mr. Rajiv Shekhar, learned Assisting counsel to G.P. 19 for the State. The writ petition has been filed challenging the order dated 31.7.2007 passed by the Deputy Collector, Land Reforms, Bihar Sharif, Nalanda in Encroachment Case No. 13 of 2004-05 together with the notice bearing Memo No. 322 dated 22.3.2010 issued by the Circle Officer, Rahui, District-Nalanda, whereby the petitioners and some others have been directed to remove the encroachment from the land situated at mauja Itasang, thana no. 115, khata no. 374, Khesra no. 460 having an area of 1.62 acres in purported exercise of powers vested under the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the ‘Act’). Learned counsel for the petitioner makes a very short submission. It is stated that whereas a full-fledged procedure has 2 been provided under the Act in arriving at a conclusion as to whether or not there is any encroachment but the respondent no. 6, the Circle Officer, Rahui, District-Nalanda has proceeded in complete obviation of the prescribed procedure provided under the Act. It is stated that without issuing any notice in Form 1 under Section 3 of the Act and providing an opportunity to the petitioners to respond to the notice as provided under Section 4 of the Act and giving an opportunity of hearing under Section 5 of the Act, the respondents Circle Officer has simply directed the petitioners and some others to remove the encroachment, failing which they would be proceeded under Section 188 of the Indian Penal Code. It is thus contended that the procedure adopted by the respondent Circle Officer is not only contrary to the direction of the Deputy Collector, Land Reforms requiring him to proceed in observance of law but is also in the teeth of the provisions of the Act and in violation of the rights guaranteed under the Constitution. A counter affidavit has been filed on behalf of the respondents in which it has simply been stated that the Circle Officer, Rahui, has proceeded to issue the notice in compliance of the direction of the Deputy Collector, Land Reforms, Bihar Sharif, Nalanda in his order dated 31.7.2007. Having heard learned counsel appearing on behalf of the parties and upon perusal of the materials available on the record, it is more than evident that the procedure provided under the Act has not been followed by the Circle Officer, Rahui. Even while the Deputy Collector, Land Reforms, Bihar Sharif, Nalanda vide his 3 order dated 31.7.2007 passed in Encroachment Case No. 13 of 2004-05 has directed the Circle Officer, Rahui, District-Nalanda to proceed in accordance with law, the Circle Officer, Rahui, has proceeded in complete disobedience of the same and in utter ignorance of the statutory provisions underlying the Act and which are required to be mandatorily followed by the statutory authority. That being the position, the impugned notice bearing Memo No. 322 dated 22.3.2010 present at Annexure-1 cannot be sustained and is accordingly quashed and set aside. However, this would not prohibit the respondent Circle Officer, Rahui, Nalanda to proceed in accordance with law, keeping in view the statutory provisions of the Act as provided under Sections 3, 4, 5 and 6 of the Act. The writ petition is allowed. S.Sb/- (Jyoti Saran, J.)