IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7173 of 2010 Kanhaiya Pandey, S/O Late Ram Narayan Pandey, R/O Village- Dilawarpur, P.S.-Kesariya, District-East Champaran. Versus 1. The State Of Bihar. 2. The District Magistrate, East Champaran At Motihari, 3. The Sub Divisional Officer, Chakiya, District-East Champaran 4. The Circle Officer, Kalyanpur, District-East Champaran. ----------------------- 02. 13.10.2011 Heard Mr. Mahendra Thakur, learned counsel appearing on behalf of the petitioner and Mr. Piyush Lal, Assisting counsel to A.A.G. 1 for the State. The petitioner is aggrieved by the notice dated 4.3.2010 issued by the respondent no. 4, the Circle Officer, Kalyanpur, whereby the Circle Officer in purported exercise of power vested under the provisions of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the ‘Act’), has directed the petitioner to remove the encroachment from the piece of land situated over Khata No. 705, Khesra No. 4859 admeasuring two decimals situated in village- Dilawarpur (Pandit Tola), P.S. & Anchal-Kalyanpur in the district of East Champaran. It is the contention of the petitioner that the notice has been passed without holding any proceeding as required under the Act. Brief fact of the matter is that on an application made by the local villagers of village Dilawarpur, a proceeding under the Act was initiated against the petitioner and a notice pursuant thereto was 2 issued under Section 3 of the Act requiring the petitioner to file his show cause in response to the encroachment set out in the notice. Copy of the notice dated 17.10.2009 is placed at Annexure-3 to the writ petition. The petitioner filed his response to the notice which was received on 9.11.2009 and in which it was stated that the piece of land admeasuring two decimal was within his possession since time immemorial and dates back to the year 1935. It was contended on behalf of the petitioner that the encroachment existing since 1935 over the piece of land in question, the petitioner had derived title by way of adverse possession and was protected in terms of the proviso to Section 6 of the Act. The Circle Officer, Kalyanpur by an order dated 15.2.2010 passed in the proceedings held the petitioner guilty of encroachment and by the impugned notice dated 4.3.2010 has directed the petitioner to remove the same failing which the same would be removed by the administration at the cost of the petitioner. It is the contention of the petitioner that the respondent no. 4, the Circle Officer without deliberating over the matter in the light of the contention set out in the reply filed under Section 4 of the Act and without holding any proceeding as required under Section 5 of the Act has passed an order culminating in the impugned notice dated 4.3.2010 placed at Annexure-1 to the writ petition. It is the contention of the petitioner that the order passed in the proceeding together with the impugned notice purported to have been issued under Section 6 of the Act is without sanction of law and has been passed in complete violation of the principle of nature 3 justice inasmuch as the petitioner has not been given an adequate opportunity of presenting his defense by the Collector under the Act i.e. the Circle Officer, Kalyanpur, the respondent no. 4. A counter affidavit has been filed on behalf of the respondents denying the contention of the petitioner. It is the contention of the respondents that following initiation of the encroachment proceeding giving rise to Encroachment Case No. 2 of 2009/10, it was found that the petitioner was encroaching over a public land which was in the nature of gairmajarua aam land and in which a Brahamashthan was situated. The records of the proceedings manifests that the deponent even while accepting the filing of a show cause by the petitioner on 9.11.2009 in response to the notice issued under Section 3 of the Act has thereafter ignored the statutory procedure provided under Section 5 and has instead succumbed to the view of the Sarpanch of the Gram Kutchary who reported encroachment by the petitioner over the plot in question. Though it is contended that the final order was passed on 15.2.2010 under Section 6 of the Act after hearing the petitioner and a statement to this effect has been made in paragraph 6 of the counter affidavit but the same does not find any support from the order sheet which is placed at Annexure- A to the counter affidavit and which also contains the order dated 15.2.2010. A perusal of the said order dated 15.2.2010 manifests that the Circle Officer, Kalyanpur has based his opinion simply upon the report of the local Sarpanch of Gram Panchayat Raj 4 Dilawarpur. There is no mention as to whether the petitioner was heard before the order of removal of encroachment was passed by the Circle Officer, Kalyanpur on 15.2.2010. A mere perusal of the order dated 15.2.2010 reveals that the statement made by the deponent Circle Officer, Kalyanpur in paragraph-6 of the counter affidavit does not reflect the correct state of affairs. In the aforesaid circumstances where the mandatory procedure as provided under Sections 5 and 6 of the Act for disposal of land encroachment case has not been followed, the order dated 15.2.2010 having been passed on the basis of the report of the local Sarpanch and without providing an opportunity of hearing to the petitioner is not sustainable and is accordingly set aside. Consequently the notice issued pursuant thereto dated 4.3.2010 placed at Annexure-1 is also quashed and set aside. The matter is remitted back to the Circle Officer, Kalyanpur to pass a fresh order after giving due opportunity of hearing to the petitioner. It goes without saying until any final order is passed in the proceeding the petitioner shall not be disturbed from his possession over the portion of land which is subject matter of the encroachment proceeding. S.Sb/- (Jyoti Saran, J.)