Jharkhand High Court
Dumni Murmu @ D. Murmu (Aged 60 Years) vs The State Of Jharkhand on 24 September, 2019
Equivalent citations: AIRONLINE 2019 JHA 1226
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 3800 of 2019
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Dumni Murmu @ D. Murmu (Aged 60 years), wife of Mangal Manjhi @ Mangal Murmu, resident of Village- Saldih Basti, Adityapur, P.O and P.S. Adityapur, District- Seraikella Kharsawan Petitioner Vs.
1.The State of Jharkhand
2.Deputy Commissioner-cum-Collector, Seraikella Kharsawan, P.O and P.S. Searikella, District-Seraikella Kharsawan.
3.Circle Officer, Gamharia, P.O and P.S Gamharia, District Seraikiella Kharsawan. .... ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Shankar Lal Agarwal, Advocate For the Respondents : Mr. Prashant Pallav, G.A. IV Mr. Parth Jalan, A.C to G.A. IV
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Order No. 03 : Dated 24th September, 2019 This writ petition is under Article 226 of the Constitution of India, whereby and whereunder order dated 27.11.2018 passed in BPLE Case No. 07/2018-19 has been assailed mainly on the ground that while issuing such notice the procedure, as laid down under the Bihar (Now Jharkhand) Public Land Encroachment Act, 1956 (herein after referred to as "Act, 1956"), has not been followed.
2. This Court, after hearing learned counsel for the petitioner, on 17.09.2019 has passed an order directing the personal appearance of Circle Officer, Gamharia to come with the original record in order to scrutinize abut the observance of the procedure, as laid down under the Act, 1956.
3. Mr. Prashant Pallav, learned G.A. IV appearing for the respondents-State of Jharkhand has submitted that the present incumbent, who is holding the post of Circle Officer, 2 Gamharia, namely, Mr. Dhananjaya, is present with the original record. He further submits by going across the original record the stand which has been taken by the petitioner about non-observance of the procedure laid down under the provisions of Act, 1956 has not been followed, is correct, therefore, he is in agreement with the submission and the ground agitated by the petitioner in the writ petition wherein the prayer has been sought for quashing of the notice dated 27.11.2018, which admittedly has been passed without observance of procedure, as laid down under the Act, 1956.
4. Before appreciating even the fact about non-observance of provisions of law under the Act, 1956, as has been agitated, this Court deem it fit and proper to make reference of the applicable law, which is liable to be followed by the collector, invoking under the provisions of the Act, 1956.
5. The Bihar Public Land Encroachment Act, 1956 has been enacted by the erstwhile State of Bihar in the year 1956 to deal with the situation, if any public land has been encroached and in order to deal with the same, a procedure had been carved out under the aforesaid provision of the year 1956.
Under the Act, 1956, the Collector has been defined under Section 2(1), which says:
(1)."Collector" means the Collector of the district and includes any officer empowered by the State Government to discharge all or any of the functions of the Collector under this Act;3
"Encroachment" has been defined under Section 2(1A), inserted by way of Act 3 of 1982, which says: 2(1A)"encroachment" means unauthorized occupation of any public land and includes -
(a)the erection of a building or any other structure, balconies, proches or projections, over or over hanging 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 establishing domestic animals or for any other purposes; and
(c)excavations or embankments of any sort on the public land;
Further provision stipulates about the declaration to be given about public land before reaching to any conclusion how the procedure is to be initiated, the same has been provided under Section 3, which reads as under:-
"3.Initiation of the proceedings. - (1) if it appears to the Collector from an application made by any person or upon information received from any sources that any person has made or is responsible for the continuance of any encroachment upon any public land, the Collector may cause to be served upon such person a notice in the prescribed form requiring him to appear on a date which shall not be less than two weeks from the date of service of notice to show cause: -4
(a)Why he should not be restrained from making such encroachment by issue of injunctions; or
(b)Why such encroachment should not be removed. (2)Under Clause (a) of sub-section (1) the Collector shall have power to issue temporary injunction at any stage to restrain such encroachment till the disposal of the proceeding or till further orders or he may pass such orders as he deems proper for preventing such encroachment:
Provided that where the encroachment on public land is in the nature of exposure of articles for sale, or opening temporary booth for vending, the Collector may without the formality of issuing a notice as required under sub-section (1) order for its immediate removal or cause it to be removed immediately and for the purpose he may use such force as is necessary in the case:
Provided further that where the encroachment on public land is of such a nature as the Collector considers its immediate removal essential for the safety of general public or for the safety of any other structure on the public land and the notice cannot be served without unnecessary delay upon the person responsible for the encroachment or his representative owing to his absence or for any other reason, he may order the removal of encroachment or if necessary cause it to be removed immediately and may use such force for the purpose as is necessary.
(3)If the person who has made or is responsible for the continuance of the encroachment is not known or cannot be 5 found, the Collector may cause notice to be affixed in the neighbourhood of the alleged encroachment requiring any person interested in the same to show cause by the date specified in the notice why the encroachment should not be removed and it shall not be necessary to name any person in such notice.
6. It is evident from the provision of Section 3 that if it appears to the Collector and it comes to the notice to the Collector from an application made by any person or upon information received from any sources that any person has made or is responsible for the continuance of any encroachment upon any public land, the Collector may cause to be served upon such person a notice in the prescribed form requiring him to appear on a date which shall not be less than two weeks from the date of service of notice to show cause as to why encroachment be not received or be not restrained from making such encroachment by issue of injunctions.
7. Person against whom the notice would be issued is liable to file objection as per the provision laid down under Section 4; and under Section 5 there is provision of hearing and thereafter finding would come under Section 6 (1) of the Act, 1956, either to drop the proceeding or to make temporary injunction or to direct the person concerned to remove the encroachment and if such person will fail, penal provision has been provided under sub-section (2) to Section 6 and under sub-section (3), the said penal provision has been made to be cognizable to be tried under Code of Criminal Procedure, 1973. 6
8. Thereafter, the provision of appeal as also revision has been provided.
9. Admittedly herein, as would appear from the impugned notice, a notice under sub-section (2) of Section 6 of the Act, 1956 has been issued making reference of the provision of sub-section (5) of Section 2 of the Act calling upon the petitioner to comply with the order within a period of one week. Further submission has been made therein about the penal action to be taken by taking recourse of the provision of Section 188 of the Indian Penal Code, 1860.
10. As has been referred herein above, by making reference of the statutory provision, as conferred under the Act, 1956 that initiation of proceedings begins in pursuance to provision of Section 3; Section 4 provides provision for filing defence; Section 5 provides for hearing and sub-section (1) of Section 6 provides for final order of the collector and the penal provision in case of non-compliance has been provided under sub- section (2) of Section 6.
11. As would appear from the impugned notice that reference of sub-section (5) of Section 2 has been made stating that the land has been found to be public land as defined in sub-section (5) of Section 2 of the Act, but very surprisingly in the entire Act, there is no sub-section (5) of Section 2. Only provision of Section 5 is there, which provides for opportunity of hearing and as such, according to conscious view of this Court, in the instant case, the person who has drafted the notice under Form II has acted mechanically. 7
12. Further even accepting that there is typographical error in making reference of sub-section (1) of Section 5, instead of sub-section (1) of Section 6, even then there must be a declaration as provided under sub-section (1) of Section 6, after consideration of the defence required to be filed under Section 4 and after hearing the aggrieved party required to be complied under Section 5 and thereafter declaration would come under sub-section (1) of Section 6 and it is only then the requirement of issuance of notice under sub-section (2) of Section 6 of the Act, 1956 is to be resorted to.
13. But the impugned notice does suggest that the order of removing the encroachment has been passed presuming to be a declaration of sub-section (1) of Section 6, as record suggests i.e. the admitted fact that there is no declaration under sub- section (1) of Section 6 of the Act, 1956 and as such the procedure as laid down under the Act, 1956 has not been followed by the Collector.
14. Therefore, the impugned notice is not sustainable in the eye of law.
15. Accordingly, impugned notice dated 27.11.2018 is quashed.
16. It is equally held that nobody shall take advantage of the order of quashing of impugned notice.
17. The competent authority is directed to proceed afresh by following the procedure, as laid down under the applicable provisions of the Act, 1956.
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18. But before parting with the order, this Court is constrained to observe that the Collector, if notified to act as Collector under the Act, he has a statutory duty with the statutory powers conferred upon him and he is supposed to abide by the procedure as laid down under the Statute but herein in the present case, the Circle Officer, Gamharia, as the then incumbent in the office not only in one case which is subject matter of present writ petition but in several other cases which this Court has occasioned to see in other different writ petitions, has acted in a mechanical manner and as such this Court is constrained to observe the authority has acted not properly as per power conferred.
19. As has been submitted by Mr. Prashant Pallav, learned G.A. IV that the Collector, who has passed the impugned notice dated 27.11.2018 is now holding the post of Circle Officer, Mango, as has been informed to him by the present incumbent, who is present in the Court, this Court is of the view that when the Officer holding the statutory post is not knowing the provision of statute, is not entitled to hold the post.
20. In view thereof, let the matter be placed before the Secretary, Personnel, Administrative and Raj Bhasha Department, Government of Jharkhand to deal with such situation by taking decision in accordance with law applicable, so that the same may not be repeated in future.
21. Let a copy of this order be communicated to the Chief Secretary, State of Jharkhand and also to the Secretary, 9 Personnel, Administrative and Raj Bhasha Department, Government of Jharkhand, Ranchi, through the Registry of this Court.
22. The personal appearance of Mr. Dhananjaya, Circle Officer, Gamharia is dispensed with.
23. With the aforesaid observations and directions, the writ petition stands disposed of.
(Sujit Narayan Prasad, J.) Alankar/-