IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4862 of 2010 1. KRISHNA PRASAD ALIAS KRISHNA PRASAD SINHA S/O SRI NATH SINHA R/O AJIMGANJ (WEST), P.O. & P.S. HAVELI KHARAGPUR, DISTT.- MUNGER 2. DILIP KUMAR KESHRI S/O YUGAL KESRI R/O AJIMGANJ (WEST), P.O. & P.S. HAVELI KHARAGPUR, DISTT.- MUNGER 3. ANUP PRASAD SINHA @ ANUP KUMAR SINHA S/O LATE GIRJANANDAN SINHA R/O AJIMGANJ (WEST), P.O. & P.S. HAVELI KHARAGPUR, DISTT.- MUNGER Versus 1. THE STATE OF BIHAR. 2. THE CIRCLE OFFICER, KHARAGPUR, MUNGER. 3. THE DISTRICT MAGISTRATE, MUNGER. 4. THE DIVISIONAL COMMISSIONER, MUNGER. 5. THE SUB-DIVISIONAL OFFICER, KHARAGPUR, MUNGER. 6. THE OFFICER-IN-CHARGE, HAVELI KHARAGPUR POLICE STATION, DISTT.- MUNGER. 7. SMT. PRIYAMDA BAHAN W/O SATISH NARAYAN SECRETARY, MAHILA VIKAS SAMITTI, R/O AJIMGANJ (WEST) (PURANI) NEAR HAVELI KHARAGPUR, P.O. & P.S. HAVELI KHARAGPUR, DISTT.- MUNGER. ----------- For the petitioner: Mr. K.N. Singh, Sr. Advocate & Mr. Jitendra Kishore Verma For the State: Mr. A.C. to G.A. 5 ---------- 2 20.04.2010 This case depicts a really sorry state of affairs at the state level. Every Officer at all times is only trying to shirk his responsibility and statutory duty and always looks to the orders passed by this Court (High Court) as a scapegoat. It appears one Priyamda Bahan filed a writ application before this Court being C.W.J.C. No. 554/2010 stating that at Haveli Kharagpur in the district of Munger she has purchased some land. Some persons had 2 constructed upon the public road / path, thus, blocking her way to the main road. She pleaded that on her application before the Circle Officer – Anchal Adhikari, Kharagpur Public Land Encroachment Proceeding No. 2 of 2009-10 was initiated against several persons including the petitioners of this writ application, but, in spite of report of Anchal Amin after surveying the area, the Circle Officer was not passing final orders or taking any further action in spite of being reminded by several other authorities. This Court did not adjudicate upon the dispute, but, directed the District Magistrate –cum- Collector, Munger to ensure that proceedings were taken to its logical end at an early date. It was also observed that if the Circle Officer at Haveli Khargpur was having some difficulties in the matter the matter could be entrusted to the Sub-divisional Officer who was also a Collector for the purpose of encroachment proceedings. No sooner this order was passed without adjudication of the matter in dispute, orders were passed against some persons for removal of encroachment in purported implementation of orders of this 3 Court, as if, this Court had directed the authorities to pass the order without following procedure prescribed by law and adjudicating the matter. This action was challenged before this Court. The said writ petition was numbered as C.W.J.C. 4720 of 2010 filed by one Md. Shahjahan & Anr. The writ petition was disposed of on 18.3.2010 reminding the authorities that this Court at no point of time directed that ignoring the statutory provision which mandates hearing and deciding the matter in accordance with the provision of Bihar Public Land Encroachment Act no person could be bulldozed from property belonging to him. This Court emphasized that removal orders could be passed only, if upon adjudication, it is found that there were encroachment of public road. In my view, adjudication means hearing and considering objections, and then, deciding the same by a reasoned order. Now, what transpires is interesting, for it shows total non-application of mind by the authorities and abdication of their function and faculty. The order sheet of the Encroachment Case No. 2 of 2009-10 would show that the Circle 4 Officer before whom the proceedings were pending had asked for a survey report from the Anchal Amin, Kharagpur in relation to the matter in dispute. The report was submitted. The report pointed out the extent of encroachment made by various persons including the present petitioners. This report was made a part of these proceedings. Order dated 26.12.09 would show that its correctness was objected to by various persons. Apparently being prima facie satisfied the Circle officer by the said order directed that the place should be surveyed by a District Level Amin whose services should be immediately requisitioned. The case was then posted to be taken up on 27.1.2010. Unfortunately, it was not so taken up. What happened to the request of a District level Surveyor to be brought down one does not know. The records are then put up on 25.2.2010 with the order of this court passed in C.W.J.C. No. 554 of 2009 which was disposed of on 15.2.2010. It is brought on record by communication from the Collector. The case is then ordered to be put up on 6.3.2010. The learned Anchal Adhikari abdicates his power, duty and faculty and 5 straight away refers to the earlier report of the Anchal Amin and orders removal of encroachment forgetting his own earlier order dated 26.12.09 by which he had sought the help of District Level Surveyor. Apart from this, there is no adjudication, whatsoever, and mechanically, as if, executing order of this court, order of removal of encroachment has been passed. That is the grievance of the petitioner. Having heard the learned counsel for the state and learned counsel for the petitioner, in my view, the learned counsel for the petitioner is correct in pointing out that the authorities are functioning in the most mechanical manner without application of mind. He is correct in submitting that the report of the Anchal Amin is not the final word in the matter. The measurements have to be taken the public path identified in presence of all parties and after due notice to them. The report is open to objections. The objections have to be considered, adjudicated upon but the facts noted above would show that all was done contrary to the said procedures. It indicates that, as if, this Court has adjudicated and issued direction 6 for removal of encroachment. Once again, I would like to emphasize that no such direction was issued from this Court. The direction was that, upon proper adjudication pass order necessary and not without adjudication. Thus, I have no option but to set aside the order dated 6.3.2010 as passed by the Anchal Adhikari, Kharagpur. Having considered the matter in detail, in my view, as the Anchal Adhikari himself had passed order of requisitioning services of a District Level Surveyor, I direct the District Magistrate-cum-Collector to ensure that a Surveyor from the District Headquarters be sent immediately to Kharagpur, who would measure and submit a report in regard to claim of encroachment or otherwise. The proceeding would stand transferred to the Sub-divisional Officer, Kharagpur by order of the District Magistrate- cum-Collector, Munger as the Sub-divisional Officer, Kharagpur would also be a Collector for the purposes of Public Land Encroachment Act. The Sub-divisional Officer would issue notice to all parties fixing a date for measurement by the District Level Surveyor – Amin. He would also be present himself there. The measurement would be 7 done in presence of all the parties and the Sub- divisional Officer by the District Level Surveyor – Amin. The report would be then given to each of the parties who would be entitled to file their objections. The Sub-divisional Officer would then fix a date, hear objections, decide the matter finally after hearing the parties and dispose of the matter by a speaking order. The Collector-cum-District Magistrate, Munger would ensure that the order of this Court is followed in letter and spirit and the proceeding must be concluded within three months from today. Let a copy of this order be sent to the District Magistrate-cum-Collector, Munger by fax at the cost of the petitioners. The writ petition with the aforesaid directions and observations stand disposed of. Praful/ (Navaniti Prasad Singh , J.)