IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9417 of 2004 RAVI SHANKER KUMAR GUPTA son of late Chulhan Prasad Sahu, R/o Mohalla Gopalganj Ghooshi, P.S. Ghoshi, District Jahanabad …..Petitioner Versus 1.THE STATE OF BIHAR 2.The District Magistrate-cum-Collector, Jehanabad. 3.The Sub-Divisional Officer, Ghoshi Sub-division, Jehanabad 4.Circle Officer, Ghoshi Block, District – Jehanabad 5.Raju Kumar son of Sri Ram Chandra Prasad, R/o village Gopalganj P.S. Ghoshi, District Jehanabad……Respondents. ----------- For the petitioner : Mr. R.K. Rajan, Advocate Mr.Pratik Kr. Sinha, Advocate For the State : Mr. Md. Shahab Khalil A.C. to S.C-III For the Respondent No.5 : Mr. Chandra Mohan Singh, Advocate. ----------- 4 08.04.2011 Heard the parties. 2. The petitioner has filed the present writ petition under Article 226 of the Constitution of India, raising a grievance that without complying the order and direction dated 27.01.2004 passed in C.W.J.C. No. 5661 of 2003 (Annexure-1) by a Bench of this Court, the impugned notice/order dated 24.03.2004 (Annexure-1A) has been issued by respondent Circle Officer, Ghoshi (respondent no.4) in Encroachment Case No. 51 of 2002-03 directing the petitioner to remove alleged encroachment over 8 kari of a plot of land bearing Khata No. 79, Khesra No. 41 area 70 decimals. 3. It is submitted by learned counsel for the petitioner that as matter of fact on the basis of direction issued by this Court by an order dated 27.01.2004 (Annexure-1), the respondent Circle Officer, being the collector under the meaning of the Bihar Public Land Encroachment Act, 1956 (in short Act) 2 was obliged to initiate a proceeding in terms of Section 3 of the Act for removal of encroachment allegedly made by the petitioner. It is further submitted that after initiation of such proceeding the matter was required to be taken to logical conclusion by following the procedure prescribed under the Act, and before passing the final order in terms of Section 6 of the Act opportunity of hearing was required to be given to the petitioner and all other concerned persons including respondent no.5. In paragraph 10 of the writ petition, it has been specifically stated that no proceeding under the provision of the Act was initiated by the respondent Circle Officer, in compliance of order dated 27.01.2004 (Annexure-1) and therefore, in his submission, impugned notice/order dated 24.03.2004 (Annexure-1A) is not sustainable in the eye of law. 4. Learned counsel appearing on behalf of respondent No.5 as also learned counsel appearing on behalf of official respondents, while opposing the prayer made on behalf of the petitioner in the present proceeding, have placed their reliance on the averments made in the counter affidavits filed separately on behalf of respondent no.4 and respondent no.5. In their common submissions impugned notice/order (Annexure-1A) is perfectly valid and legal, and respondent no.4 has issued the impugned notice/order by resorting to a summary proceeding for removal of such encroachment. 5. After having heard the parties and on consideration 3 of materials available on record, this Court finds that on the basis of direction dated 27.01.2004 (Annexurte-1), no proceeding under Section 3 of the Act was started by the respondent Circle officer. Opportunity of hearing was not given to the parties including the petitioner. No order sheet has been brought on record either by respondent no.4 or respondent no.5 to substantiate their claim that as a matter of fact the encroachment proceeding was initiated in terms of Section 3 of the Act and final order was passed for removal of such encroachment by the petitioner. On the basis of materials available on record, this Court further finds that merely in the name of order of this Court the impugned notice/order (Annexure-1A) was issued by respondent no.4 directing the petitioner to remove the encroachment from the land in question, which is apparently in the teeth of order and direction issued by this Court and cannot be sustained in the eye of law. 6. For the reasons recorded above, the impugned notice/order dated 24.03.2004 (Annexure-1A) is hereby set aside. Respondent Circle Officer is hereby commanded to initiate a proceeding under Section 3 of the Act within a period of one month from the date of receipt/production of a copy of this order. Once the encroachment proceeding is started under the provisions of the Act , then that must be taken to logical conclusion and final order should be passed in terms of Section 6 of the Act, after complying the procedures prescribed under 4 the Act. Before passing the final order, respondent Circle Officer shall be obliged to give opportunity of hearing to the petitioner as also respondent no.5. Entire exercise must be completed by the respondent Circle officer within three months from the date of initiation of the encroachment proceeding. 7. Learned counsel for the petitioner and learned counsel for the respondent no.5 have given their assurance that parties shall appear before respondent Circle officer within a period of four weeks from today with a certified copy of the present order, thereafter, as indicated above, the proceeding has to be initiated under the provisions of the Act within a period of one month and the proceeding is required to be concluded within further period of three months . Till the proceeding is concluded, status quo as existing today on the land in question, shall be maintained. 8. It is further made clear that if the petitioner does not appear before the respondent Circle Officer with a certified copy of the present order within the time stipulated by this Court, then it shall be construed that the present writ petition has finally been rejected by this Court. 9. With the aforesaid observations and directions, the writ petition stands allowed. Rahman/ ( Birendra Prasad Verma, J.)