IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11553 of 2003 1. SATYA NARAYAN CHOUDHARY 2. Radhe Shyam Choudhary 3. Shatrugan Choudhary 4. Durga Prasad Choudhary All sons of late Prithvi Choudhary 5. Anil Choudhary son of late Sitaram Choudhary, all resident of Kumarganj P.S. Kishanpur District Supaul....Petitioners. Versus 1. THE STATE OF BIHAR 2. The Collector Supaul Dist-Supaul. 3. The Subdivisional Officer, namely Shri Ashok Kumar Verma, P.S. Kishanpur Dist.-Supaul 4. The Circle Officer, Kishanpur namely Shri Suresh Pd. Sah, P.S. Kishanpur Dist. Supaul. 5. Kamal Prasad Choudhary son of late Sauki Lal Choudhary R/o village Kumarganj P.S. Kishanpur District- Supaul....Respondents. ----------- For the petitioner: Mr. Narendra Kumar Jha, Advocate For the State : Mr. A. Amanullah Government Advocate-4. 12 22.02.2011 The petitioners have filed the present writ petition with a prayer for setting aside notice dated 18.6.2002 (Annexure-1) issued by respondent Sub-divisional Officer, Supaul, in Miscellaneous (encroachment) Case no. 2 of 2002-03 directing the petitioners to show cause as to why the encroachment from plot no. 4315 be not removed in exercise of Powers under the provisions of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the Act only). 2. It appears that during the pendency of the present writ petition final order in the aforesaid encroachment Case No. 2 of 2002- 03 has been passed on 12.9.2003 (Annexure-10), whereby the direction was issued for removal of encroachment from the public lands in question. It further appears that against the aforesaid final order the petitioners filed Encroachment Appeal No.3 of 2003 before 2 the respondent District Collector under section 11 of the said Act, which has also been rejected by an order dated 29.7.2006 (Annexure- I/6 to the I.A. No. 3086/2008). It also appears that Review Case No. 15 of 2006 was filed before the Divisional Commissioner, Koshi Division, Saharsa in terms of section 13 of the said Act, which has also been rejected by an order dated 31.10.2006 (Annexure-I/7 of the aforesaid I.A. No. 3086/2008 3. Learned counsel for the petitioners submits that the plot no. 4315 is a big plot having an area of about 2 Bigha 19 Katha. From the aforesaid plot 1 katha land was settled in favour of one Prithavi Chaudhary, father of the petitioner nos. 1 to 4. In his submission the land in question, not being a public land, the authorities could not have started any proceeding for removal of encroachment from the lands in question belonging to the petitioners. 4. Mr. A. Amanullah, learned Government Advocate No. 4, appearing on behalf of respondent Nos. 1 to 4 submits that as a matter of fact by a speaking order, passed by the competent authority, land in question was held to be a public land, not belonging to the petitioners. thereafter, the petitioners had raised the issue before different authorities, but the claim of the petitioners regarding lands in question was not accepted, and accordingly final order has been passed by the respondent Sub divisional Officer on 12.09.2003 (Annexure 10) and encroachment has been removed from the lands in question and as such, the petitioners are not justified in raising the issue once again merely on certain technical grounds. 5. After having heard the parties at length and on consideration 3 of materials available on record, this court finds that final order was passed by the respondent Sub divisional Officer on 12.9.2003 (part of annexure-10) directing for removal of the encroachment from the lands in question, where after in fact alleged encroachment has already been removed. The petitioners, being aggrieved by the impugned action of the respondents authorities, preferred Encroachment Appeal no.3 of 2003 before the respondent District Collector, but by a cryptic order dated 29.7.2006 he has dismissed the appeal filed on behalf of the petitioners. The respondent no.2 District Collector, being the appellate authority, was required to discuss the case of the parties and was further required to disclose the reasons for dismissing the appeal preferred on behalf of the petitioners. For the reasons recorded above, the impugned appellate order dated 29.7. 2006 passed in Encroach Appeal No. 3 of 2003 (Annexure-I/6) is hereby set aside and the matter is remitted to the respondent District Collector for passing a fresh order, after giving opportunity of hearing to all concerned. Accordingly the writ petition stands allowed to the extent indicated above. No order as to costs. M.Rahman ( Birendra Prasad Verma, J )