IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4861 of 2010 1. RAM PYARI DEVI W/O LATE RAM DEO MAHTO R/O MOHALLA- BEGAMPUR BAHRI, P.S. CHOWK, AT PRESENT P.S. BYPASS, DISTT.- PATNA 2. SANJAY KUMAR S/O LATE RAM DEO MAHTO R/O MOHALLA- BEGAMPUR BAHRI, P.S. CHOWK, AT PRESENT P.S. BYPASS, DISTT.- PATNA Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPTT., GOVT. OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE, PATNA 4. THE SUB DIVISIONAL MAGISTRATE, PATNA CITY, DISTT.- PATNA 5. THE CIRCLE OFFICER, PATNA ANCHAL/SADAR PATNA, DISTT.- PATNA 6. THE PATNA MUNICIPAL CORPORATION THROUGH MUNICIPAL COMMISSIONER, PATNA 7. THE MUNICIPAL COMMISSIONER CUM EXECUTIVE OFFICER PATNA MUNICIPAL CORPORATION, PATNA 8. THE EXECUTIVE OFFICER, PATNA CITY CIRCLE PATNA MUNICIPAL CORPORATION PATNA, DISTT.- PATNA ----------- 2 26.04.2010 The petitioners claim to be settlee from the ex-landlord. They received notice in 1990 from the municipal authority for removing encroachment as constructed by them on the ground that they were occupying the public drain. They challenged that notice and filed a suit for declaration of their title admitting that originally it was recorded a gair mazarua aam land and claimed right by adverse possession as against the State. The suit was dismissed with a finding that the land was public land. Petitioners filed an appeal which is pending before the appellate Court and the appellate Court has stayed the judgment of trial Court which held it to be State land. It appears that there was a public interest litigation filed before this Court in which this Court ordered that all encroachments on public land appertaining to Plot No 1720 in Ward No 20 may be removed. Petitioners have, accordingly, been noticed to remove their structure as they are, on Municipal Plot No 1720 in Ward No 20, having constructed over the municipal drain and obstructing it. Learned counsel 2 for the petitioners states that without constituting a proceeding under the provisions of the Public Land Encroachment Act, no such order could be passed as petitioners in fact are not over any public drain. In my view, that is correct. Authorities have to initiate a proceeding in terms of the Bihar Public Land Encroachment Act in which petitioners would be granted opportunity to establish that they are not encroachers but before doing that, State must got their place measured and a plan drawn up to show the extent of encroachment as petitioners dispute covering any public drain. I, therefore, set aside Annexure-4, the notice by the Circle Officer, Patna Sadar in what is designated as Encroachment Case No 3 of 2009-2010 dated 23.02.2010 and direct the Anchal Adhikari first to survey the area, draw proper plan showing extent of encroachments and then issue notices to the parties initiating a land encroachment proceedings, giving parties opportunity to file their show cause and after considering the same, pass final order in accordance with law. That is the scheme of the Bihar Public Land Encroachment Act. Let it be clear that this Court never directed in the PIL judgment for removal of such encroachment disregarding a law in this regard. The petitioners would be expected to give full cooperation in the matter. The Circle Officer would initiate proceedings, hear the matter and conclude the matter expeditiously not later than three months from today especially keeping in view the approaching Monsoon. The learned counsel for the State would show proper compliance and communication of order of this Court. 3 With these observations, the writ petition stands disposed of. M.E.H./ (Navaniti Prasad Singh)