CIVIL WRIT JURISDICTION CASE No.1735 OF 1994 -------- In the matter an application under Articles 226 and 227 of the Constitution of India -------- BINOD KUMAR PODDAR SON OF Shri Girdhari Lal Poddar Resident of Plot no.5, Mohan Nagar, P.S. Rampur, NearPolice Line, Gaya, District Gaya ----------------------------- Petitioner Versus 1. THE STATE OF BIHAR 2. The Collector-cum-District Magistrate, Gaya 3. The Anchal Adhikari (Town), Gaya. 4. The Gaya District Board (Gaya Zila Parishad), Gaya. 5. The Executive Engineer, P.W.D (Roads), Gaya….Respondents. -------- For The Petitioner: Mr. Anil Kumar Sinha, Advocate. Mr. Mirtunjay Kumar, Advocate. For the State : Mr. Kundan Bahadur Singh, S.C. 22 For the Respondent No.4, District Board Gaya: Mr. Rajeev Prakash Advocate . --------- P R E S E N T THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA B.P. Verma, J. Heard learned counsel appearing for the petitioner, learned Standing Counsel No.22, appearing on behalf of Respondent Nos. 1, 2, 3 & 5 and learned counsel appearing on behalf of Gaya District Board (Gaya Zila Parishad), respondent no.4 herein. 2. The petitioner has filed the present writ petition under Articles 226 and 227 of the Constitution of India, questioning the validity and legality of order dated 28.01.1994 (Annexure-9), passed in Miscellaneous ( Encroachment) Appeal Case No. 30 of 1993, by respondent District Collector, Gaya, whereby direction has been issued for removal of encroachment 2 from the public land bearing C.S. Plot No. 90 corresponding to Municipal Plot No. 4928 area 37 decimals.( Hereinafter referred to as the land in question) 3. For disposal of the present writ petition short facts essential would be that originally Encroachment Case No. 73/56 of 1991-92 was initiated by the respondent Anchalaldhikari, in terms of Section 3 of The Bihar Public Land Encroachment Act, 1956 (in short „Act‟) against one Hukum Chand Jain, impleaded as intervenor in the present proceeding by an order dated 28.3.1995. It appears that in that encroachment case before any final order could have been passed in terms of Section 6 of the Act for removal of encroachment from the lands in question, the petitioner was not impleaded as party.. 4. The petitioner, claiming to be a lease holder with respect to land in question, approached this Court by filing C.W.J.C. No.3335 of 1992. Main contention of the petitioner was that he had been granted lease with respect to the land in question by Gaya Zila Parishad, through a deed of lease dated 6th of February 1989 (Annexure-3), upon which he was running a petrol pump, yet, neither he has been impleaed as a party in the aforesaid encroachment proceeding nor any notice was issued to him, and he apprehended that on the basis of final order passed in the aforesaid encroachment case, his petrol pump may be demolished/removed from the aforesaid lease 3 hold property. 5 After hearing the parties, aforesaid writ petition was finally allowed by an order dated 7.5. 1993 (Annexure-6) and a direction was issued to initiate a fresh proceeding under the provisions of the Act and in that proceeding, Gaya Zila Parishad , was directed to be impleaded as a party. The petitioner was granted three weeks time to file his show case in the aforesaid proceeding and thereafter proceeding was directed to be concluded in accordance with law. 6. In the light of the aforesaid order and direction issued by this Court a fresh proceeding appears to have been initiated by the respondent Anchaladhikari under the provisions of the Act and final order has been passed on 12.7.1993 (Annexure-7), wherein after considering the claim of the petitioner and that of Gaya Zila Parishad as also of Road Division, Gaya under the Public Works Department, Govt of Bihar, the respondent Anchaladhikari dropped the proceeding on the basis that the dispute amongst the parties seems to be basically of title, which can be decided only by a Civil Court of competent jurisdiction. Respondent no.5 herein, being aggrieved by the aforesaid order, preferred Misc. (Encroachment) Appeal Case No. 30 of 1993, before respondent District Collector in terms of section 11 of the Act, which has been finally allowed by the impugned order dated 28.01.1994 (Annexure-9). 4 7. Learned counsel appearing on behalf of petitioner submits that the land in question belongs to Gaya Zila Parishad and he is in occupation over the same on the basis of lease deed dated 6th of February 1989 (Annexure-3). According to him, though, aforesaid lease deed was for five years commencing from 6.2.1989 till 5.2.1994, but that was further renewed for ten years. Therefore, according to him, the petitioner cannot be termed to be an encroacher over the land in question under the meaning of the Act. 8. Learned counsel appearing on behalf of respondent no.4, Gaya Zila Parishad, submits that the land in question cannot be treated to be the land of Public Works Department, Government of Bihar , and, therefore, according to him, the order passed by the respondent District Collector for removal of the encroachment by treating the land in question as that of the State Government is not correct. 9. Learned counsel, appearing on behalf of respondent State and its functionaries has supported the impugned order passed by the respondent District Collector and submits that even according to the own pleadings of the petitioner, he was having valid lease only till 2004, and after 2004, he would be encroacher over the land in question under the meaning of the Act. 10. In order to consider the rival submissions, it would be appropriate to notice the definition of “encroachment” 5 and “public land” as defined under Section 2 (1A) and 2(3) of the Act. The aforesaid provisions are reproduced hereinbelow: “2. Definitions.---In this Act unless there is anything repugnant in the subject or context.— xx xx xx “[(1A)“encroachment” means unauthorized occupation of any public land and includes--- (a)the erection of a building or any other structure, balconies, porches or projections, over or overhanging the public land; (b) occupation of the public land for stacking building materials or goods of any other description for exhibiting articles for sale, for erecting poles, tents Pandals, etc, or for parking vehicles or stabling domestic animals or for any other purposes; and ( c ) Excavations or embarkments of any sort on the public land;]” xx xx xx “(3) “Public land” means any land[managed by or ] vested in the Union of India or the State of Bihar,or in any local authority [public undertaking,] educational institution recognized by the Government or by any railway company or Gram Panchayat established under section 3 of the Bihar Panchayat Raj Act, 1947 (Bihar Act VII of 1948), and includes any land over which the public or the community has got a right of user such as right of way, burials, cremation, pasturage or irrigation.” 11. According to scheme of the Act, a proceeding is required to be initiated under section 3 of the Act for removal of any encroachment made by any person upon any public land. On initiation of such proceeding, a show cause notice is required to be issued to the person concerned. The 6 person against whom notice is issued under section 3 of the Act or any other person interested in that encroachment is entitled to appear before the Collector under the Act in terms of section 4 of the Act and may advance their defence in support of their respective case. The matter is required to be heard by the Collector in terms of Section 5 of the Act and only thereafter final order is required to be passed in terms of Section 6 of the Act. An appeal is maintainable against such an order in terms of Section 11 of the Act. 12. On plain perusal of the order dated 12.7.1993 (Annexure-7) passed by respondent Anchaladhikari, the Collector under the Act, it is apparent that the procedure prescribed under the Act has not been complied with by respondent Anchalaldhikari. He has not recorded a finding of fact as to whether the land in question is a public land under the meaning of section 2(3) of the Act. He has also not gone into the issue that even if the land was belonging to the Gaya Zila Parishad, being Local Authority, it would be a public land. In view of the fact that the order dated 12.7.1993 (Annexure-7) passed by Anchaladhikari is contrary to the procedure prescribed under the Act and is also not in consonance with the direction issued by this Court by order dated 7.5.1993 (Annexure-6), it cannot be sustained in the eye of law and has to be set aside. 13. Then the question arises, whether the impugned order passed by the respondent District Collector in 7 exercise of his power of an appeal is sustainable in the eye of law. From plain perusal of the impugned appellate order, it is apparent that the respondent District Collector has also not recorded a finding of fact as to whether the land in question is a public land under the meaning of the Act. He has merely noticed a fact that some draft notification had been issued on 8.6.1950, whereby Gaya-Dobhi Road was transferred to Public Works Department. Respondent- Gaya Zila Parishad is still claiming its title over the land in question and, therefore, that issue was required to be conclusively decided by the respondent District Collector, while passing the final order dated 28.1.1994. He has also not recorded a finding of fact that, in fact, land in question has been encroached upon by the petitioner, though, he is claiming his continuous possession over the same on the basis of lease deed. Direction has been issued for removal of encroachment made by one Hukum Chand Jain, the intervenor in the present proceeding. 14. Mr. Roy Shivajee Nath, learned Sr. Counsel appearing on behalf of intervenor, submits that his client has entered into a compromise with the present petitioner and, therefore, he has instruction not to oppose the present proceeding. 15. Be that as it may, even if, the petitioner and aforesaid Hukum Chand Jain have entered into some sort of compromise, and if the land in question is declared to be public 8 land under the meaning of the Act, then direction can be issued for removal of such encroachment. However, before issuing such a direction, a conclusive findings of fact is required to be recorded either by the original authority or by the appellate authority regarding the land in question, which has not been done in the present case. 16. For the reasons recorded above, the original order dated 12.7.1993 (Annexure-7) passed by the respondent Anchaladhikari and appellate order dated 28.1.1994 (Annexure-9) passed by the respondent District Collector are hereby set aside and the matter is remitted back to the respondent Anchaladhikari or the other prescribed Collector under the Act with a direction to start a fresh proceeding in terms of section 3 of the Act. On initiation of such a proceeding, the respondent Anchaladhikari or the prescribed Collector under the Act will be obliged to follow the procedure prescribed under Section 3 to 6 of the Act. He shall be further obliged to record a finding of fact as to whether the land in question is a public land, as defined under section 2(3) of the Act. He shall be also obliged to record a finding of fact whether the petitioner has made any encroachment over the land in question or whether he has valid lease deed for the same. The petitioner shall also be obliged to produce the documents in support of his claim of having valid lease over the land in question. Learned counsel appearing on behalf of petitioner and learned counsel for the 9 Gaya Zila Parishad undertake to appear before the respondent Anchaladhikari, within a period of six weeks from today with a certified copy of the present order. The respondent Anchaladhikari or, the other Collector under the Act, to whom the matter is assigned for its disposal, shall make all endeavours to conclude the proceeding finally within a period of three months from the date of appearance of the petitioner before him, by a speaking order and after giving an opportunity of hearing to all concerned, 17. Till the matter is finally disposed of afresh by the respondent Anachaladhikari, or, the other Collector under the Act, status quo as obtaining today with respect to the land in question, shall be maintained by the parties. 18. However, it is made clear that if the petitioner does not appear before the respondent Anchaladhikari, within the time prescribed by this Court with a certified copy of the present order, then it shall be construed that the writ petition has stood finally rejected by this Court. 19. The writ petition stands finally allowed with the observations and directions made above. No costs. Patna High Court, The 10th of May, 2011 Rahman/(NAFR) ( Birendra Prasad Verma, J.) 10