IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12659 of 2006 Md.Modassir, son of Late Md. Shamsul Haque, resident of village Madhuban Gote, P.S. Bajpatti, District Sitamarhi ….. Petitioner Versus 1. The State Of Bihar 2. Sub Divisional Officer, Pupri, District Sitamarhi 3. Anchal Adhikari, Bajpatti, District Siamarhi …. Respondents ----------- For the Petitioner : M/s Yogendra Mishra and Raghunath Kumar, Advocates For the State : Mr. Rabindra Kumar Priyadarsi, AC to AAG I ------ 4 19.07.2011 Heard learned counsel for the petitioner and the State. Petitioner seeks quashing of notice dated 5.7.2006 issued by the respondent nos. 3, whereby he has directed to remove encroachment from the concerned plot, i.e., plot no. 5122 of an area of 0.07 ½ decimal appertaining to khata no. 3625, R.S. Plot no. 15122 of village Madhuban, otherwise he has been threatened that the encroachment will be removed forcibly taking help of police force. It is submitted on behalf of the petitioner that earlier also a notice was issued on 20.3.2006 to show cause as to why the alleged encroachment by the petitioner should not be 2 removed. The petitioner claims to have filed his show cause which has been appended as Annexure 3 to the writ petition. However, it is submitted that without passing any final order considering the show cause of the petitioner, the final notice directing the petitioner to remove the encroachment otherwise that would be forcibly removed by the authority concerned which, is arbitrary illegal and, thus, is liable to be set aside. Counter affidavit has been filed on behalf of the respondent no. 3. A stand has been taken that the show cause submitted by the petitioner has been rejected and final order has been passed in the encroachment proceeding and, thereafter, the notice directing him to remove the encroachment within certain period was issued. In support of the statement made in the counter affidavit the ordersheet of the encroachment case has been brought on record as Annexure D. However, learned counsel appearing for the State failed to show therefrom that either any order considering the show cause of the petitioner and rejecting the same has been passed by the respondent no. 3 or any final decision has been taken. By order 3 dated 20.9.2006, it appears that since the petitioner has filed the present writ petition, therefore, the proceeding in the encroachment case stands stayed. In above view of the matter, it appears that incorrect statement has been made on behalf of the respondent no. 3 that a final decision has been taken. Learned counsel appearing for the State had tried to defend the deponent by saying that it could be inadvertent mistake. Be that as it may, in view of the facts and circumstances of the case, it appears from the ordersheet appended as Annexure D to the counter affidavit that without hearing or considering the show cause of the petitioner and passing any final order, notice as contained in Annexure 4 had been issued to the petitioner to remove the encroachment. As such the same , in the opinion of the Court, is arbitrary and cannot be sustained. As a result, the notice dated 5.7.2006 as contained in Annexure 4 is quashed. However, the petitioner is directed to appear before the respondent no. 3 within six weeks along with a copy of this 4 order. The respondent no. 3 is directed to hear the petitioner and all concerned parties and after considering the show cause of the petitioner and evidence or any other material produced on behalf of parties also and upon hearing all the parties concerned, pass final order within six weeks thereafter. As a result, this writ application stands allowed to the extent indicated above. Spd/- ( Dr. Ravi Ranjan, J.)