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Ashok Kumar Sah Vs. The State of Bihar and Ors. - (High Court of Patna) (08 Jun 2020)

A proceeding under the Public Land Encroachment Act can be initiated only if land in question is a public land

MANU/BH/0263/2020

Property

In instant case, the Circle Officer, exercising his jurisdiction as Collector, within the meaning of the provisions of the Bihar Public Land Encroachment Act, 1956 had initiated a proceeding for removal of encroachment from public land with issuance of a notice in Encroachment Case treating the land to be a public land within the meaning of the Act, against the Petitioner and several other persons. The Petitioner appeared before the Circle Officer in response to the said notice but did not file his response despite opportunity having been given to him. The Circle Officer passed his final order in the encroachment case on 23.06.2019, asking the Petitioner to vacate the land.

The appeal of the Petitioner, registered as Encroachment Appeal has been dismissed by the Additional Collector, Khagaria, the appellate authority, by an order which is under challenge in the present writ application filed under Article 226 of the Constitution of India.

It is true that, a proceeding under the Public Land Encroachment Act can be initiated only if the land in question is a public land. Once, Collector, under the Act, is satisfied, on the basis of materials on record, that the land in question is a public land and proceeds for removal of encroachment invoking the provisions of the Act, it is for the person, against whom the proceeding has been initiated, to establish conclusively, his title over such land as his private property.

In the present case, as a matter of fact, the Petitioner did not raise any defence before the Circle Officer at all in the encroachment proceeding, who is the Collector within the meaning of the Act. Whatever plea, did he raise in respect of his title over the land in question, was at the appellate stage. In the absence of any such plea taken before the Circle Officer, the order of the Circle Officer, directing removal of encroachment, cannot be said to be suffering from any jurisdictional error.

In the present case, the facts, claimed by the Petitioner in support of the plea of his title over the disputed property, has been seriously disputed. It has been argued on behalf of the State of Bihar that the hukumnama, on which the Petitioner was placing reliance, did not bear the requisite seal. He has further argued that the Petitioner has not been able to make out bonafide case of his title, as according to his own case, though the land was settled by the Jamindar in 1937, for the circumstances best known to the Petitioner, jamabandi, according to his own case, was created nearly 37 years thereafter without any valid reason. In such view of the matter, the plea of the petitioner, that the Circle Officer ought not to have proceeded for removal of encroachment under the Act, is not tenable and is accordingly rejected. The impugned order does not require interference by this Court.

The petitioner shall be at liberty to file a suit before the competent court of civil jurisdiction for adjudication on the point as to whether the land in question is a public land or not. So far as second part of the impugned order passed by the appellate authority in exercise of power under Section 9 of the Bihar Land Mutation Act, 2011, is concerned, present Court find force in the submission made on behalf of the Petitioner. Exercising powers under the provisions of the Act, the Additional Collector could not have passed order under Section 9 of Act, 2011, without complying with the requirements and without following the procedure as stipulated under Section 9 of Act, 2011. The impugned order, is set aside to the limited extent, i.e., to the extent it relates to cancellation of jamabandi, in exercise of powers under Section 9 of Act, 2011. The Additional Collector shall, however, be at liberty to pass appropriate order under Section 9 of the Bihar Land Mutation Act, 2011, after following the procedure in accordance with law. This application is allowed to the limited extent.

Tags : REMOVAL   ENCROACHMENT   LEGALITY  

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