Dwarika Mandal Vs the State of Jharkhand through the Pr Secretary Revenue

In this writ petition, the petitioner has prayed for quashing the order dated 18.12.2020 (Annexure-10) passed by the respondent No. 2 in Encroachment Appeal No. 1/2020, whereby the appeal of the petitioner has been dismissed and order dated 25.2.2020 and 9.6.2020 passed by the respondent No. 6 in Encroachment Case No. 2/2019 -2020 has been confirmed. It has also been prayed for quashing the order dated 25.2.2020 (Annexure-4) passed in Encroachment Case No. 2/1019-20 by respondent No. 6, whereby the petitioner has been directed to remove the encroachment. 3. The grievance of the petitioner is that respondent authorities initiated a proceeding against the petitioner under the Bihar (now Jharkhand) Public Land Encroachment Act, (hereinafter to be referred as ‘the Act) and thereafter demolished the portion of the residential house of the petitioner by passing an order but without following the provision of the Act.

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Learned counsel for the petitioner submits that since the initial order was passed without following the provision of law, the petitioner has filed this petition and prayed that the order of demolition be stayed. Counsel for the petitioner argues specifically that though the notice was issued to the petitioner under Section 3 of the Act, to which the petitioner has replied, but thereafter, the provisions of Section 5 was not complied with nor any evidence was adduced. He also submits that no final order of the Collector has been passed.

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Considering the submission of the petitioner, on the last occasion i.e. on 11.5.2026, this Court directed the State Government to produce the entire

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record of encroachment case, which was initiated against the petitioner’s house. Today, the entire file of the case has been produced before this Court by the Circle Officer, Deori, District- Giridih.

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Mr. Munna Lal Yadav, the learned SC(L&C) after going through the entire record, very fairly submits that there is no document to suggest that the procedure laid down under the Act was followed. He also submits that there is no order-sheet drawn under the entire case nor any opportunity of hearing was given to the petitioner in terms of Section 5 of the Act. He further submits that there is no material in the entire record to suggest that the evidence was taken in this case for reaching any conclusion. He also admits, after going through the record, no final order has been passed by the Collector in terms of the Act. He makes the aforesaid submissions with the assistance of the Circle Officer, Deori, Giridih and after going through the entire record.

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Thus, from the submission made by the State itself, it is quite clear that the provision of Section 5 of the Act has not been adhered to. Section 3 of the Act relates to initiation of the proceeding. As per the said provision, the Collector either on an application made by any person and upon information received from any source can initiate a proceeding to remove the encroachment from any public land, for which, a notice has to be served.

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Once the proceeding is initiated, in terms of Section 4 of the Act the person on whom the notice is served under Section 3, is given liberty to raise his defence in such a manner, as if he was defending a suit for removal encroachment. Once the defence is filed, in terms of Section 5 of the Act, the date has to be specified and on the said specific date, the Collector shall hear the applicant or the person on whom the notice has been served. Section 5 of the said Act is quoted here-in-below:-

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“ Section.5- Hearing.

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On the date specified in the notice served under section 3, the matter shall be heard, unless the hearing is adjourned by the Collector to a future day, and the Collector shall hear the applicant if any, the person on whom the notice has been served and any other person who may be interested either in the encroachment or in the removal thereof and take such other evidence as may be adduced in that behalf:

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Provided that, if the person on whom notice has been served under section 3 or any other person interested in the encroachment, fails to appear and show cause on the date specified in the notice, or any other date to which the hearing may be adjourned, the matter shall be heard, ex-parte.”

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From perusal of the provision laid down under Section 5 of the Act, it is clear that opportunity of hearing must be given to the person, who has been

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noticed and on notice, the Collector shall hear the parties. This is the mandatory provision which cannot be waived. 10. After hearing the parties, there is provision for taking evidence and making enquiry which is apparent from Section 6 of the Act. Section 6 of the said Act is quoted here-in-below:-

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“Section 6 - Final order of the Collector.

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(1) In all cases not covered by the provisos to sub-section (2) of section 3, the Collector shall after hearing the persons concerned and taking evidence, if any under section 5 and after making such enquiry as he deems necessary the Collector may, as the circumstances of the case requires(a) either drop the proceeding, or

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(b) make the temporary injunction issued under subclause (a) of subsection (1) of section 3 absolute against the person making encroachment of the public land, or

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(c) If any person who together with his homestead does not own more than 5 acres of land, has encroachment up to 10 dec. of public land continuous to his agricultural holding and has used the encroached public land for agricultural purposes. The Collector shall order the settlement of such public land with such person on payment of rent and damages for the use of this land. The amount of damages and rent shall be calculated by considering the rent payable in case of similar land in the neighborhood. Where no rent is payable the rent and damages for the encroached public land shall be calculated on the basis of such fair rent as the Collector may deem proper, or

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(d) where the temporary encroachment on public land has been removed by the person making encroachment after some time the Collector shall order payment of damages for the use of the land during the period of encroachment. The amount of damages shall be calculated according to the prescribed procedure, or

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(e) In the cases not covered by the foregoing sub-clauses, the Collector shall direct the person making encroachment of the public land to remove the encroachment within specified period which shall not in any case be more than two weeks in case the encroachment is not removed within the specified time the crops standing or all types of structures existing on the encroached land shall be forfeited by the Collector;

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Provided if any landless person encroached up to 12 1/2 dec. of public land before the 10th October 1955, no action shall be taken against him under this Act.

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Explanation.-- In this proviso landless person means a person whose source of livelihood is agricultural or agricultural labour and who either does not possess any land or does not possess more than one acre of land.

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(2) If any person does not comply with the orders passed by the Collector under this section, he shall be punishable

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with imprisonment for a term, which may extend to one year or with fine up to Rs. 20,000/- (twenty thousand) or with both."

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(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offence under this section shall be cognizable.

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Considering the arguments of the parties and evidence, it is the duty of the Collector to pass a final order under Section 6 of the Act. All these provisions mentioned herein above are the mandatory provisions and there is no question of waiving any procedure, which has been laid down under the law.

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In this case, admittedly the respondents did not follow the procedure as laid down under Sections 5 and 6 of the Act and without following the same, they demolished the part of the residential house of the petitioner.

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Since the procedure has not been followed, the impugned orders dated 25.2.2020 (Annexure-4) and 18.12.2020 (Annexure-10) are set aside . The respondents are directed to initiate/resume a proceeding as per Section 5 of the Act. The Circle Officer, Deori, District- Giridih will issue a fresh notice indicating the date when the petitioner has to appear. Since the petitioner has already filed his objection in terms of Section 4 of the Act, his objection will be considered and if necessary, he will be given opportunity to produce evidence in his favour.

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After hearing the petitioner or his legal representative, the Circle Officer will pass an appropriate order considering the defence of the petitioner, in terms of the Section 6 of the Act and will communicate the order to the petitioner and proceed thereafter. If the encroachment proceeding is dropped on the ground that there is no encroachment, it will be open to the petitioner to take appropriate steps for claiming compensation.

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With the aforesaid observations and directions, this writ petition stands allowed .

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Pending interlocutory applications, if any, stand disposed of.

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(ANANDA SEN, J.)

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11^th June, 2026 Anu/ SKC-CP2 AFR Uploaded on: 15.06.2026

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Dwarika Mandal v. the State of Jharkhand through the Pr Secretary Revenue

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Dwarika Mandal v. the State of Jharkhand through the Pr Secretary Revenue

Case brief

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What the court decided

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