IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7595 of 2010 1. PRITHVINATH CHAUDHARY, S/O LATE RAM SAGAR CHAUDHARY, R/O VILLAGE SHAHPUR UNDI (PURANI BAZAR SADAK), P.O.-SHAHPUR UNDI,P.S.-PATORI, DISTRICT- SAMASTIPUR. 2. SHRI PRABHU SHAH, S/O LATE HARILAL SHAH, R/O VILLAGE SHAHPUR UNDI (PURANI BAZAR SADAK), P.O.-SHAHPUR UNDI,P.S.-PATORI, DISTRICT-SAMASTIPUR. 3. SHRI GOPAL CHAUDHARY, S/O RAM RATAN CHAUDHARY, R/O VILLAGE SHAHPUR UNDI (PURANI BAZAR SADAK), P.O.-SHAHPUR UNDI,P.S.-PATORI, DISTRICT-SAMASTIPUR. 4. SHRI RAGHUNATH SHAH, S/O LATE LAXMAN SHAH, R/O VILLAGE SHAHPUR UNDI (PURANI BAZAR SADAK), P.O.-SHAHPUR UNDI,P.S.-PATORI, DISTRICT-SAMASTIPUR. 5. SHRI BRAHAMDEV CHAUDHARY, S/O LATE YAMUNA CHAUDHARY, R/O VILLAGE SHAHPUR UNDI (PURANI BAZAR SADAK), P.O.-SHAHPUR UNDI,P.S.-PATORI, DISTRICT- SAMASTIPUR. Versus 1. THE STATE OF BIHAR, THROUGH THE CHIEF SECRETARY. 2. THE COMMISSIONER,LAND REFORMS,PATNA. 3. THE COMMISSIONER, DARBHANGA. 4. THE DISTRICT MAGISTRATE, SAMASTIPUR. 5. THE SUB DIVISIONAL OFFICER, PATORI, SAMASTIPUR. 6. THE CIRCLE OFFICER, PATORI,SAMASTIPUR. ----------- For the Petitioners:- Mrs. Namrata Mishra, Adv. For the State:- Mr. A. Amanullah, Adv. Mr. Anuj Kumar, Adv. Mr. Arun Kr. Prasad, Adv. --------------- 4. 04.04.2011 Heard learned counsel for the petitioners and the State. The application seeks quashing of the proceedings in Land Encroachment Case No. 2 of 2009-10, directing him to vacate the lands in question failing which the encroachment shall be removed by force and the costs recovered from him. Learned counsel for the petitioner 2 submits that they have residential houses on the lands in question and have been in uninterrupted possession for over 30 to 50 years on the basis of registered sale deeds. Even in the year 1999, for purposes of widening of the Patori road, the petitioners were alleged to have encroached. Measurements were done and the matter finally dropped in Land Encroachment Case No. 14 of 2001-02. If the encroachment proceedings were dropped by the authorities earlier on their satisfaction they are not entitled to reopen the proceedings and keep harassing the petitioners time and again. There has been no adjudicatory proceeding under the Public Land Encroachment Act before issuance of the impugned notice which is the final order taking a unilateral decision declaring the petitioners as encroachers. Notwithstanding the writ petition was filed as far back as 29.4.2010 and adjournment granted for filing of counter affidavit on 30.4.2010, a rather casual and perfunctory counter affidavit has been filed today on behalf of the respondents. Paragraph-6 of the same acknowledges the existence of Encroachment Case No. 14 of 2001-02 which was dropped but goes on to suggest due to increased 3 traffic load, the need for measurement to check out encroachment has arisen. A report was thus called for and in pursuance of which the notice has been issued. The perfunctory affidavit leaves the Court with the impression that the respondent did not deny that land encroachment proceedings earlier were dropped but that the need for road widening has arisen. If that be so, quite obviously, the proceeding to be followed shall be different. But if the respondents are of the opinion that the petitioners have encroached on a public road, considering their claim for long standing occupation and the dropping of Land Encroachment Case No. 14 of 2001-02, the respondents are obliged to deal with all aspects of the matter on facts and in law. If a Land Encroachment Proceedings had been started earlier and had been dropped, the authorities under the land encroachment act shall have to adequately deal with the same also and the justification in law for a fresh proceeding notwithstanding the same. If the petitioners contend that they are in occupation of the lands for long standing years under registered title deeds, serious questions of title 4 may arise which perhaps cannot be decided in a summary proceeding held under the Land Encroachment Act. Be that as it may, let the petitioners appear before the Circle Officer along with the present order within a maximum period of six weeks. The Circle Officer shall then be required to furnish them full materials on basis of which he alleges encroachment by the petitioners with full opportunity to show cause and after considering their defence in detail in response to the case as may be made by the State authority decide the land encroachment proceeding by an adjudicatory order preferably within a maximum period of four months from the date of commencement of such adjudicatory proceeding. It goes without saying that in view of the statement made in Paragraph-9 of the counter affidavit if on re-measurement the authorities are satisfied that there is no encroachment, quite obviously nothing further is required to be done. The Court is informed that the date mentioned in Paragraph-10 i.e. 20.4.2011 for measurement is also the date fixed for Panchayat Elections in Samastipur. Quite obviously there shall be difficulty 5 in carrying out the measurement simultaneously on that date. The Additional Collector shall be at liberty to fix a fresh date for re-measurement but after due communication to the petitioners so that they are adequately represented at the time of such measurement which has to be done in their presence. In view of the counter affidavit on behalf of the respondents themselves quite naturally the question of any coercive action under the impugned unilateral notice against the petitioner without an adjudicatory order simply does not arise till final adjudication or dropping of the proceeding as the case may be. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)