IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9092 of 2005 PRITHVI RAJ YADAV @ PRITHVI YADAV & ORS. Versus THE STATE OF BIHAR & ORS ----------- 3 21/1/2009 Heard counsel for the petitioners and counsel for the State. In a land encroachment proceeding the Circle Officer, Collector under the Bihar Public Land Encroachment Act, had found necessity for making measurement and as such an order was passed on 6.4.2004 for taking such measurement in presence of the petitioners. It appears that the concerned authority (Anchal Amin and others) had fixed a date on 17.7.2004 but on that date measurement could not be taken due to illness of the concerned authority. An order was accordingly passed by the Circle Officer on 17.7.2004 fixing the date of measurement as 21.7.2004 and it appears that such measurement was also taken in presence of the petitioners on 21.7.2004 as is established from annexure- D to the counter affidavit. It would, however, transpire from the entire order sheet being Annexure-4 to 2 the writ application that neither such inspection-Cum-measurement report of Anchal Amin and Anchal Inspector was made available to the petitioners nor an opportunity of hearing was afforded to the petitioners by the Circle Officer who in fact proceeded to pass an order for removal of encroachment on 19.10.2004 which was not even the date fixed in the proceeding. Obviously, the petitioners could not have knowledge of the order dated 19.10.2004 and thus also could not file an appeal within the period of 30 days as prescribed under the Act and such an appeal was filed by them only on 12.2.2005 along with an application for condonation in the delay of filing the appeal. The appellate authority, Collector of the District, had however refused to condone the delay in filing of the appeal though in the limitation petition accompanying the memo of appeal aforementioned facts were categorically stated. The appellate authority has not 3 even examined the relevant aspects of the matter and has summarily rejected appeal of the petitioners on the ground of limitation alone. In such a situation this Court must hold that the entire procedure adopted either by the original authority, namely, the Circle Officer or the appellate authority is vitiated in law. The moment there was an order for taking measurement copy of such measurement report even if conducted in presence of the petitioners was to be supplied to the petitioners and they should have been given an opportunity of hearing by the Circle Officer. That having been not done, the order dated 19.10.2004 passed by the Circle Officer itself cannot be sustained only on the ground of violation of principles of natural justice. Consequently, the appellate order which also to say the least is perfunctory in nature, in absence of considering the real ground for condonation of delay in filing the appeal, must also be held to be 4 equally had. In the result, this application is allowed, Annexure-4 sofar it relates to the final order dated 19.10.2004 and Annexure-6, the appellate order dated 7.4.2005 are hereby quashed and the matter is remitted to the Circle Officer to proceed from the stage of hearing on the measurement report. In view of the fact that such measurement report is part of Annexure-D to the counter affidavit, its supply to the petitioner is no longer required, and therefore the petitioners must appear before the Circle Officer with their comments on such measurement report and consequential proposed action of the removed of encroachment from public land for further hearing on the measurement report and/or any other issue which the petitioners would like to canvass in support of their case. In order to expedite the matter, this Court would fix 2nd February, 2009 for the appearance of petitioners on which date the Circle Officer may either hear 5 the case and proceed to pass his final order or fix any other date for hearing and passing the final order. The proceedings before the Circle Officer however must be completed within a period of one month from the date of receipt/production of a copy of this order. At this stage counsel for the petitioners would submit that treating the land of the petitioners as public land certain construction of roads has been undertaken and as such this Court should pass an interim order restraining the Respondents from raising any construction and the land of the petitioners. In view of the fact that the order holding the land of the petitioners to be public land and directing for removal of encroachment has been set aside by this Court and the matter has been remitted back to the Circle Officer, status-quo as existing today, regarding the proposed construction of roads for the period till the final order as directed above is passed by the 6 Circle Officer, shall be maintained. This application is accordingly allowed to the extent indicated above. Let a copy of this order be handed over to Mr. Kumar Alok, Standing Counsel no. 17 for its immediate communication to the concerned authorities. (Mihir Kumar Jha, J) Abhay Kumar