IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 2836 of 2010 1. ARUN KUMAR PANDEY S/O SRI RAMDEO PANDEY R/O VILL- DEONAGAR, P.S- BETTIAH, MUFFASIL, DISTT- WEST CHAMPARAN Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, BETTIAH WEST CHAMPARAN 3. THE BLOCK DEVELOPMENT OFFICER CUM CIRCLE OFFICER, BETTIAH 4. THE SUB DIVISIONAL OFFICER, BETTIAH 5. THE CIRCLE INSPECTOR, BETTIAH ----------- 3 29.04.2010 The petitioner was in possession of certain piece of land allegedly on basis of a purchase having been made by him/his father by a registered sale deed. On 17.11.2009, petitioner is served with a notice issued by the Circle Officer, Bettiah noticing petitioner that he had built a hut on the land which belongs to Lauriya Sugar Mill and petitioner has been given 24 hours’ time to vacate the said land. Before petitioner could do anything, on 05.12.2009 armed with police, the Executive Magistrate came and demolished petitioner’s hut and threw out the petitioner and his family from the land. Petitioner filed this writ petition. Upon notice, a counter affidavit has been filed by the respondents duly sworn by the Circle Officer, Bettiah, as directed. In the counter affidavit, the fact that the petitioner had been on that land for quite sometime (several years) is not in dispute. It is stated that the Government took a decision in the year, 2008 to deliver possession of the properties of Lauriya Sugar Mill to various persons. The decision was communicated to the District Magistrate, West Champaran who then communicated the same to the Anchal Adhikari who got the properties of the sugar mill at Lauriya measured including this property which allegedly was acquired by the sugar mill in the year, 1956. This sugar mill is one of the sugar mills 2 which have been taken over by the State and is in custody by the Bihar State Sugar Mill Corporation Limited. It is in pursuant to these deliberations in the year, 2008 that a notice was issued to the petitioner which is Annexure-1 to the writ petition and impugned. The same notice has been annexed as Annexure-E to the counter affidavit. It is not in dispute that the notice was served on the petitioner on 17.11.2009 as per the averments in the writ petition and as per the service report annexed alongwith Annexure-E. That is not a notice issued asking for a show cause nor is there any reference as to under what authority the notice is issued. In the counter affidavit, it is stated that it was issued under Section 3 of the Bihar Public Land Encroachment Act. The notice having been served on 17.11.2009, in the counter affidavit, it is stated that the father of the petitioner filed a detailed show cause on 19.11.2009 objecting to the notice. It is then argued that considering the show cause and hearing the arguments, order was passed to remove the encroachment. The encroachment not having been removed, by letter dated 18.11.2009, the Subdivisional Officer was informed and was requested to authorise armed force for removal of encroachment. As petitioner did not remove his encroachment, on 05th of December 2009, encroachment was removed by demolition and eviction and a report thereof was submitted to the District Magistrate –cum- Collector, West Champaran at Bettiah. This is admitted by the petitioner in the writ petition. The grievance of the petitioner is that he was in peaceful possession of the land in question for over a decade. All of a sudden, these actions were taken without any authority of law. The petitioner has 3 been evicted without authority of law. On behalf of State, as noted above, it was submitted that a purported proceeding under Section 3 of the Bihar Public Land Encroachment Act was taken up and orders passed and eviction done. Unfortunately, for the State in the counter affidavit, State has annexed complete ordersheet of the case in hand. The ordersheet does not reflect to be an ordersheet of the proceeding under Bihar Public Land Encroachment Act. It clearly shows that it is a correspondence filed with regard to lands of the sugar mill at Lauriya. Reading the ordersheet thereof and the notings therein, it is apparent that on 15.11.2009, the notice to be issued was approved and ordered to be issued which notice is Annexure-1 to the writ petition and Annexure-E to the counter affidavit respectively. Thereafter, there is no further order, what to talk of any order of adjudication. What is more surprising is the fact that in the counter affidavit, it is stated that on 19.11.2009, petitioner’s father appeared and filed show cause but if we refer to Annexure-G of the counter affidavit, it is the communication of the Circle Officer to the Subdivisional Officer dated 18.11.2009 stating that notices having been issued, orders have been passed for eviction. As noted above, there is no such order on record much less any such proceeding on record. Respondents have even failed to give any case number if there was any proceeding. There is no notice of any proceeding given. Thus, it would be seen that there has been no notice under the Public Land Encroachment Act. No opportunity to show cause. No adjudication and no order under the provisions of the Bihar Public Land Encroachment Act directing eviction of the petitioner and/or removal of encroachment, yet the 4 petitioner, who is a citizen of India and who was enjoying peaceful possession of property had his hutment on the said property, is physically thrown out and the hutment demolished at the hands of the State. In my view, there cannot be a greater violation and negation of rule of law than this. Article - 300A of the Constitution has become a dead letter in the facts of the present case. All I can do is to quote from the judgment of the Constitution Bench of the Apex Court in the case of Bishan Das and others –Versus- State of Punjab and others, AIR 1961 Supreme Court 1570 : “(12) … … … Be that so; but that does not give the State or its executive officers the right to take the law into their own hands and remove the trustee by an executive order. We must, therefore, repeal the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order. (14) … … … the reasons given for this extraordinary action are to quote what we said in Sahi’s case (supra), remarkable for their disturbing implications.” For the reasons aforesaid, the writ application is allowed. I direct that the petitioner, within 24 hours of service of a copy of this order on the Anchal Adhikari, Bettiah, would be put back in possession of his entire land as before and his possession would not be interfered with except in accordance with law. M.E.H./ (Navaniti Prasad Singh)