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Manoj Sharma v. State of Jharkhand through Chief Secretary

Jharkhand HC6 Nov 2019WPC/925/2010

Case brief

AI extract

What is this about?

The High Court of Jharkhand quashed encroachment notices issued under Section 6(2) of the Bihar Public Land Encroachment Act, 1956 because the respondent failed to prove due service of preliminary notices under Section 3(1) and non-compliance with mandatory procedural steps under Sections 4 and 5.

What did the court decide?

The impugned notices dated 25.01.2010 issued under Section 6(2) of the Act, 1956 are quashed and set aside, with liberty to the respondent to issue fresh notices after complying with statutory procedu

Manoj Sharma Vs State of Jharkhand through Chief… — Property and Title | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No.-925 of 2010

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Manoj Sharma

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Raju Sahu

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Aashish Kumar Jha

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Laxmi Jha

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Munna

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Suraj @ Suraj Pandey

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Brij Kishore Tiwary

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Sobha Devi

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Binod Sahu

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Bam Shankar Pandey

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Sharmila Devi

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Jai Ram Dewedi

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Champa Devi

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Karuna Devi

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Madan Pathak

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Mihir Karn 17. Dhanraj Devi 18. Ranjan Kumar 19. Naresh Kumar 20. Dhiraj Mandal 21. Kiran Devi 22. Ranju Devi 23. Sunita Singh 24. Raj Kishore @ Raj Kishore Chourasia 25. Suresh Kumar Rai 26. Arun Pandey @ Arun Kumar Pandey 27. Satish Pandit 28. Ashok @ Ashok Prasad Singh 29. Pankaj Kumar Rajhans 30. Maheshwar Mandal

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Nandlal 32. Kusum Devi 33. Asha Devi 34. Dharmendra Ojha 35. Kalpana Bharati

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…Petitioners -V e r s u s- 1. The State of Jharkhand through Chief Secretary, Government of Jharkhand, Ranchi 2. The Deputy Commissioner, Seraikella-Kharsawan 3. The Circle Officer, Circle Office- Gamharia, District- SeraikellaKharsawan

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…Respondents CORAM: - HON’BLE MR. JUSTICE RAJESH SHANKAR For the Petitioners :- Mr. Mahesh Kumar Sinha, Advocate Mr. Raj Kumar Gutpa, Advocate For the State :- Mr. V.N.Jha, AC to GP-I Order No.-04 Dated: 06.11.2019

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The present writ petition has been filed for quashing the notices dated 25.01.2010 issued under sub-section (2) of Section 6

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of the Bihar (now Jharkhand) Public Land Encroachment Act, 1956 (hereinafter to be referred as “the Act, 1956”) in Case nos. 21 of 2009-10, 22 of 2009-10, 25 of 2009-10, 26 of 2009-10, 27 of 2009-10, 28 of 2009-10, 29 of 2009-10, 30 of 2009-10, 32 of 2009-10, 33 of 2009-10, 34 of 2009-10, 35 of 2009-10, 36 of 2009-10, 37 of 2009-10, 38 of 2009-10, 39 of 2009-10, 40 of 2009-10, 53 of 2009-10, 54 of 2009-10, 55 of 2009-10, 56 of 2009-10, 31 of 2009-10, 48 of 2009-10, 41 of 2009-10, 42 of 2009-10, 43 of 2009-10, 44 of 2009-10, 45 of 2009-10, 46 of 2009-10, 47 of 2009-10, 49 of 2009-10, 50 of 2009-10, 51 of 2009-10, 52 of 2009-10 and 20 of 2009-10, as contained in Annexure-3 series to the writ petition, issued by the respondent no. 3- Circle Officer, Gamharia directing the petitioners to remove encroachment from the land which have been in their/their ancestors’ possession since 1966.

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2. Learned counsel for the petitioners submits that the petitioners/their ancestors have been in possession of plot nos. 1089, 1090, 1091 and 1092, khata no. 17 of Adityapur-2, Ward No.-06. Several houses have been constructed over the said land since long. It is further submitted that the respondent no. 3 though initiated the land encroachment proceedings for the land in question, yet no notice under Section 3 of the Act, 1956 has been served on the petitioners. The petitioners did not get any opportunity to appear in the said land encroachment proceedings and as such the plea regarding their long possession over the land in question could not be stated before the respondent no.-3. The impugned notices dated 25.01.2010 have been issued by the respondent no. 3 without complying the mandatory provisions of Sections 3, 4, and 5 of the Act, 1956. Even no order as required under Section 6 of the Act, 1956 has been passed by the respondent no.-3. In view of the said fact, the impugned notices dated 25.01.2010 issued by the respondent no. 3 are liable to be quashed.

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3. Learned A.C. to G.P.-I while relying on the counter affidavit filed on behalf of the respondent nos. 2 and 3 submits that the notices under Section 3(1) of the Act, 1956 were duly issued to the petitioners and after observing all the required formalities, the

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notices under sub-section 2 of Section 6 of the said Act have been issued to the petitioners for removing encroachment from the land in question. Otherwise also, the petitioners have not exhausted the alternative remedy of appeal as provided under Section 11 of the Act, 1956 before approaching this Court under writ jurisdiction.

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4. Heard learned counsel for the parties and perused the materials available on record. 5. The petitioners have claimed in the present writ petition that they/their ancestors have been in possession of the land in question since 1966. They have also claimed that several houses constructed by them/their ancestors are standing over the land in question since long. Though it has been stated in the counter affidavit filed on behalf of the respondent nos. 2 and 3 that due procedure as required under the Act, 1956 including issuance of notices under Section 3 of the said Act, have been issued to the petitioners, yet no such document has been brought on record to substantiate the said averment. The respondents have also not brought on record any order passed under Section 6 of the Act so as to suggest that the respondent no. 3 even applied his mind before issuing the notices under Section 6(2) of the Act, 1956. On conjoint reading of Sections 3, 4, 5 and 6 of the Act, 1956, it would be evident that the Collector under the Act, 1956 (the respondent no. 3 in the present case) is required to serve notice under Section 3 (1) of the Act, 1956 upon such person who is said to have encroached the public land. After service of the notice, said person is to be allowed to raise his defence under Section 4 of the Act regarding possession of the land from which he is sought to be removed. Thereafter, hearing is to be conducted by the Collector as required under Section 5 of the Act, 1956 and after making necessary inquiry including taking of evidence, if any, the said authority has to pass final order under Section 6 of the Act. It would thus be clear that mere issuance of the notice issued under Section 3 of the Act, 1956 does not conform the requirement as mandated in the Act, 1956, rather there must be proper service of notice upon the person alleged to have encroached the public land.

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6. On perusal of the entire record, it does not appear that the notices issued under Section 3(1) of the Act, 1956 by the respondent no.-3 against the petitioners were duly served upon them to enable them to appear in the land encroachment proceedings. Hence, the impugned notices cannot be sustained in law and therefore the same are hereby quashed and set aside. The respondent no. 3 is however at liberty to issue fresh notices to the petitioners and to get them served properly in accordance with the provisions of the Act, 1956 and thereafter to hold a proper land encroachment proceedings and pass appropriate order(s) after providing due opportunity of hearing to the petitioners.

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7. The writ petition is accordingly disposed of.

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(Rajesh Shankar, J.)

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Ritesh/N.A.F.R.

Manoj Sharma v. State of Jharkhand through Chief Secretary

Case brief

What is this about?

What did the court decide?

Manoj Sharma v. State of Jharkhand through Chief Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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