IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.9395 of 2010 Ganesh Sharan Prasad @ Ganeshwar Sharan Sinha Versus The State Of Bihar & Ors ---------------------------------- 08. 02.08.2011 Heard Mr. Ajay Kumar Tiwary, learned counsel appearing on behalf of the petitioner and Mr. Satish Narayan Singh, Assisting counsel to G.A. 2 for the State. The writ petition was filed questioning the notice dated 5.6.2010 as contained in Annexure-2, whereunder the Circle Officer, Siwan, Sadar Siwan had issued directions for removal of the alleged encroachment found on plot no. 1632 within a period of 72 hours, failing which the Administration was to take steps for removal of the same and for which the expenses had to be born by the petitioner. The writ petition was filed on 9.6.2010 and was taken up for consideration on 10.6.2010 when a Bench of this Court taking note of the contentions that the respondents had gone ahead and demolished a part of the structure, directed the parties to maintain status quo and the matter was adjourned to 14.6.2010 enabling learned counsel for the State to seek instruction in the matter. A specific direction to this effect was issued to the Siwan Administration including the Sub- Divisional Officer, Siwan and the Circle Officer, Siwan Sadar, Siwan. It is a matter of record and also admitted by the Sub- Divisional Officer in the counter affidavit filed in the present proceedings that the entire boundary wall of the petitioner 2 alleged to be constructed on plot no. 1632 was demolished on 11.6.2010 i.e. subsequent to the interim order passed by this Court on 10.6.2010. When this matter was taken up for consideration on 27.6.2010, the Sub-Divisional Officer, respondent no. 5 and the Circle Officer, Siwan Sadar, Siwan, respondent no. 6 were directed to show cause as to why proceedings be not initiated against them for violation of the interim directions of this Court as contained in the order dated 10.6.2010. Pursuant to the direction of this Court a separate show cause has been filed by the Sub-Divisional Officer, Siwan as well as the Circle Officer, Siwan and each of the said two Officers has taken rescue under delayed communication of the order dated 10.6.2010 passed by this Court. It has been submitted by the respondent nos. 5 and 6 in their respective show cause that the order of this Court was received only on 14.6.2010 whereas the demolition/removal of encroachment had already taken place on 11.6.2010. It is thus submitted that there was no deliberate attempt on the part of the respondent nos. 5 and 6 in causing any disobedience to the direction of this Court rather the alleged demolition had already taken place before the order was received by them. A perusal of the records of the proceedings shows that the order dated 10.6.2010 was received by the learned Government Advocate No. 3 only on 14.6.2010. That 3 being the position the submissions made by the respondent nos. 5 and 6 in their respective show cause is accepted and the notice discharged in this regard. The issue now arises whether the action of the respondents in removal of the encroachment was in consonance with the provisions of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the Act) and the Rules framed thereunder. Any removal of encroachment invoking the provision of the Act begins with initiation of proceedings under Section 3 of the Act, whereby the alleged encroacher is informed by notice in the prescribed form to remove the encroachment. Upon cause shown, a date of hearing is fixed by the Collector under the Act enabling the encroacher to submit his form of defence. The Collector under the Act after considering the written statement filed by the alleged encroacher and after giving him an opportunity of hearing in terms of Section 5 of the Act, then passes a final order in terms of Section 6 of the Act determining whether or not there is any encroachment and orders for removal of the same. A perusal of the counter affidavit shows that indeed the proceeding had been initiated by the respondent authorities giving rise to Encroachment Case No. 1 of 2010/11. The order sheet thereof has been placed on the record of the proceedings vide Annexure-F. After getting the 4 measurement and enquiry done by the Circle Officer, a notice was issued by the Collector under the Act, in the present case being the Circle Officer, Siwan, the respondent no. 6 herein on 5.6.2010. Strangely whereas the order dated 5.6.2010 has been issued in purported exercise of power vested under Section 3 of the Act, the Circle Officer, respondent no. 6 instead of seeking show cause as required under Section 3 of the Act from the petitioner has gone ahead and passed a final order of removal of the encroachment without giving a notice of hearing to the petitioner or hearing him in defence of the said alleged encroachment. A perusal of the order sheet shows that soon after receipt of the report of the Circle Inspector, the Circle Officer has gone ahead to order for removal of the encroachment. Although the order dated 5.6.2010 is purportedly issued under Section 3 of the Act but it is in fact a final adjudication of the matter. It is not in dispute that pursuant to the said order the respondents have proceeded to carry out the demolition of the boundary wall of the petitioner allegedly situated at plot no. 1632. It is manifest that the respondent Circle Officer performing the duties of the Collector under the Act, has bypassed the procedure as mandated under the provisions of the Act for removal of any encroachment and has demolished the boundary wall of the petitioner causing financial loss to 5 him. The action of the respondents is unsustainable and cannot be upheld. As a consequence, the order dated 5.6.2010 is quashed and set aside. The writ petition stands allowed with the aforesaid observations and directions. This order, however, would not preclude the authorities to proceed in accordance with law. Admittedly the respondents have acted bypassing the lawful procedure set out under the Act causing financial loss to the petitioner. This Court is of the opinion that ends of justice would be met by allowing a compensation of Rs. 50,000/- to the petitioner for the loss suffered by him. However, the payment of the amount, so determined shall be governed by the final outcome of the Encroachment proceedings. S.Sb/- (Jyoti Saran, J.)