Vinay Kumar Aged About 47 Years Son ... vs The State Of Jharkhand
2021 Latest Caselaw 2528 Jhar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
              W.P. (C) No. 658 of 2021
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1.Vinay Kumar aged about 47 years son of Chandradeo Lal, resident of village-Patratoli, Near Lal Saheb, Balalong P.O. and P.S. - Balalong, District Ranchi (Jharkhand).

2.Shyam Sundar Devi aged about 52 years wife of Rajeshwar Prasad, resident of village- Patra Toli, Dhurwa, Balalong, P.O and P.S.-Dhurwa, District-Ranchi (Jharkhand).

3.Shashi Shekhar Kumar Deepak aged about 38 years son of late Padm Bhushan Kanth resident of village- House No.-171/A, Patra Toli, Dhurwa, Balalong, P.O and P.S.-Dhurwa, District-Ranchi (Jharkhand).

4.Urmila Devi aged about 62 years wife of Saryu Prasad, resident of village - House No. 102, New Market, Dhurwa P.O. and P.S. - Dhurwa, District Ranchi (Jharkhand).

5.Tanuja Devi aged about 42 years wife of Rakesh Kumar, resident of village- Patra Toli, P.O and P.S.-Dhurwa, District-Ranchi (Jharkhand).

6.Narender Singh, aged about 43 years, Son of Nand Keshwar Singh resident of village -171 Patara Toli, Near Hanuman Mandir, Dhurwa, P.O and P.S.-Dhurwa, District-Ranchi (Jharkhand).

7.Smt. Chandrawati Devi aged about 65 years wife of Kashinath Thakur, resident of village - J.P. Market Dhurwa, P.O. and P.S. - Dhurwa, District Ranchi (Jharkhand).

                            ..     ...     ...      Petitioners
                      Versus
1.The State of Jharkhand
2.Deputy    Commissioner,        Ranchi,     P.O.    G.P.O,   P.S.
Kotwali, District Ranchi.

3.Land Reforms Deputy Collector, Ranchi, P.O. G.P.O, P.S. Kotwali, District Ranchi.

4.Circle Officer, Nagri, P.O.- Nagri, P.S. - Nagri, District-

Ranchi.                       ...   ....        Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Writ Petitioners : Ms. Ritu Kumar, Advocate Mr. Kripa Shankar Nanda, Adv For the State : Mr. Sachin Kumar, A.A.G-II Mr. P.C. Roy, S.C (L&C) I

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Oral Judgment Order No. 06 : Dated 26th July, 2021:

With consent of the parties, hearing of the matter

has been done through video conferencing and there is no

complaint whatsoever regarding audio and visual quality.

2. Perused the office note.

The defects, as pointed out by the office, are

ignored.

3. At the outset, it requires to refer herein the reason,

which has been mentioned in order dated 23.07.2021

passed by learned Single Judge, for listing of the case

before this Court.

For ready reference, order dated 23.07.2021 is

reproduced herein-below:

The case is taken up through Video Conferencing. The present writ petition has been filed for quashing letter No. 135(ii) dated 29.01.2021 issued by the Circle Officer, Nagri, Ranchi along with the notice dated 29.01.2021 containing the

list of the persons, who have allegedly encroached the Dhurwa (Hatia) Dam and its catchment area. "

Mr. P. C. Roy, learned S.C (L&C)-I appearing on behalf of the State respondents, submits that since the impugned letter dated 29.01.2021 as well as the notice dated 29.01.2021 have been issued to the petitioners and others in the light of different orders passed by the learned Division Bench of this Court in W.P.(PIL) No. 1463/2020 [Khushboo Kataruka Vs. The State of Jharkhand & Ors.] and other analogous cases, it would be appropriate that the present writ petition be also referred to the learned Division Bench where the said cases are still pending.

Having heard learned counsel for the parties and keeping in view that the impugned letter as well as the notice dated 29.01.2021 are said to have been issued in terms with the orders passed by the learned Division Bench of this Court in W.P.(PIL) No. 1463/2020 and other analogous cases, which are still pending consideration, let this case be also referred to the concerned Division Bench of this Court.

Considering the urgency involved in the matter, learned counsel for the petitioners is given liberty to mention the matter before the learned Division Bench."

In view of the aforesaid order, the matter was

placed before the Chief Justice on the administrative side

and accordingly, the same has been listed before this

Court.

4. The instant writ petition has been filed under

Article 226 of the Constitution of India for issuance of

writ in the nature of certiorari for quashing order dated

29.01.2021 as contained in letter no. 135(ii) dated

29.01.2021, which is a Public Notice affixed in the vicinity

of the locality of village Balalong, whereby and

whereunder the Circle Officer, Nagari Ranchi has passed

order to remove the alleged encroachment on the

allegation that the petitioners have encroached and made

illegal construction over the portion of different part of

Plot No. 1091 of village - Balalong, which is acquired land

of Dhurwa Dam and its catchment area situated at village

-Hotwasi, Harsher, Balalong, Labed and Sambo.

5. The brief facts of the case, as per the pleadings

made in the writ petition, which are required to be

enumerated herein, read under as:

The writ petitioners are claiming to the bona fide

purchasers of the land in question, pertaining to plot no.

1091 Khata No. 114 of village Balalong, by virtue of

different registered sale deeds for valuable consideration

from the rightful owner - Lal Neelkanth Nath Sahdev and

accordingly their names were entered in Register-II by the

Revenue Officer after making due enquiry and they are

paying rent to the State. The said Lal Neelkanth Nath

Sahdev had purchased the land in question from Jagdish

Nayak & Ors. vide registered sale deed no. 1365/1297

dated 02.02.1985 and, thereafter, he was recognized as

raiyat of the State by accepting rent and issuing rent

receipt in his name, who is vender of the present

petitioners. The petitioners after having purchased their

respective lands constructed their residential house over

the same and are residing therein peacefully.

The writ petitioners all of a sudden came to know

from daily newspaper dated 09.12.2020 that name of

these petitioners/ascendants have been published in the

newspaper declaring them to be encroachers and

allegations were made that they have made illegal

construction over the lands in question. Pursuant to the

said public notice, the petitioners approached before the

Circle Officer on 19.12.2020 and requested him to supply

all the records in relation to said public notice but the

same was refused by him. However, after much

persuasion, the Circle Officer, Nagri received the

representation of the petitioners.

But, again a public notice was affixed in the vicinity

of the petitioners on 22.01.2021, whereby and

whereunder the Circle Officer, Nagri passed an order

declaring the petitioners to be encroachers stating that

they have made illegal constructions over the land, which

was acquired for Dhurwa Dam and its catchment area

and reference in this regard was made to one W.P. (PIL)

No. 1463 of 2020. Pursuant thereto, the petitioners again

approached before the Circle Officer, Nagri with a request

to follow the procedure of law before declaring them

encroachers however to no effect.

Subsequently, on 29.01.2021 a notice in the form

of order was issued by the Circle Officer, Nagri directing

the petitioners and others to remove the encroachment by

10.02.2021 by giving reference to W.P. (PIL) No. 1325 of

2011 and W.P. (PIL) No. 1076 of 2011.

According to writ petitioners, the public notice

dated 29.01.2021 is vague having several erroneous

description with respect to plot number and name of the

owners.

It is the case of the writ petitioners that they have

purchased the land from the rightful owners, namely, Lal

Neelkanth Sahdev, by virtue of registered sale deeds and

thereafter the lands in questions have been mutated in

their name and since then they are in peaceful possession

of the land in question but without dealing with the

issues in order dated 29.01.2021, the writ petitioners

have been declared encroachers directing them to remove

the encroachment, failing which the encroachment will be

removed and cost will be recovered from them.

6. Learned counsel for the petitioners has submitted

that no notice, as required to be issued under the

provisions of Jharkhand Public Land Encroachment Act

as per provision of Section 3 thereof, has been issued, as

such there is violation of principles of natural justice as

also order dated 29.01.2021 is without reason and that is

the reason the writ petitioners without resorting to the

provision of alternative remedy of appeal as provided

under the statute as directly approached before this

Court invoking the power of Court as conferred under

Article 226 of the Constitution of India.

7. The matter was heard by this Court on 24.07.2021

and after having heard learned counsel for the parties,

the Court has passed following order:

Heard the parties."

Let the original records of the concerned encroachment case in which final decision for removal of encroachment has been taken and notice under Form-II has been issued or required to be issued, be produced before this Court on the next date of hearing.

Put up this matter on 26.07.2021 as first case in the list.

In the meantime, let no coercive steps be taken for removing the encroachment as per the decision in this case by the authorities so far the writ petitioners are concerned.

This order has been passed in presence of Mr. Prakash Chandra Roy, learned S.C.(L&C)-I appearing for the State.

Let the contents of the matter including the interim relief granted be immediately conveyed to the concerned officer without waiting for uploading of the present order.

In terms of the aforesaid order the original records

of concerned encroachment case, in which final decision

for removal of encroachment has been taken along with

notice under Form-II have been produced before this

Court.

8. Mr. Sachin Kumar, learned A.A.G-II being assisted

by Mr. P.C. Roy, learned S.C (L&C) I has submitted that it

is not a case where notices issued under Section 3 of

Jharkhand Public Land Encroachment Act can be said to

be without following the procedure of law as according to

respondents-State, the said notice has been issued on

10.11.2020 mentioning therein the name of 40 persons,

including the petitioners, who were found to be

encroachers and accordingly, were directed to put forth

their defence by 26.11.2020 as according to Collector

(Circle Officer, Nagri), under the Act, the lands have been

found to be within the catchment area of Dhurwa (Hatia)

Dam.

On 26.11.2020, some of the encroachers appeared,

however, to secure presence of other encroachers notice

was again ordered to be issued by way of paper

publication. In terms thereof, letter was sent to District

Public Relation Officer vide letter dated 04.12.2020 for

publication of such notice in newspaper fixing the date

for appearance on 19.12.2020.

Again on 19.12.2020 some of the encroachers

appeared. However, final notice was ordered to be issued

for rest of the encroachers for their appearance with

relevant papers fixing the date on 25.01.2021. Pursuant

thereto, again some of the encroachers appeared and

orally submitted their case.

The Circle Officer, Nagri considering the documents

submitted by the encroachers and enquiry report

submitted the Circle Inspector, Amin came to the

conclusion that encroachers have encroached upon the

land of Hatia (Dhurwa) Dam and its catchment area.

Accordingly, the Circle Officer requisitioned the police

force for removing encroachment on 05.02.2021.

However, the date for removing encroachment was re-

scheduled as 10.02.2021.

It is, thus, submitted by learned counsel for the

respondents-State that due opportunity was provided to

the alleged encroachers, including petitioners and as

such it cannot be said that there is lack of observance of

principles of natural justice by not resorting to the

provisions of Section 3 of the Jharkhand Public Land

Encroachment Act.

It has further been submitted that land was

acquired in the year 1960-61 for the purpose of

construction of Dhurwa (Hatia) Dam and as such now

title of the land vests upon the State Government hence it

is incorrect on the part of the petitioner to submit that

the land in question has been mutated in favour of the

writ petitioner by virtue of registered sale deed since the

State Government has become absolute owner of the land

in question.

9. In response to the aforesaid submission, learned

counsel for the writ petitioners has submitted that even

accepting that notices were issued to the writ petitioners

but no reasoned order has been passed by the concerned

authority vide order dated 29.01.2021 questioning the

title of the land of the petitioners which was acquired

through registered sale deeds.

She further submits that that even accepting the

version of learned counsel for the respondents-State

regarding acquisition of the land then also the concerned

authority ought to have taken into consideration the

aforesaid aspect of the matter while passing orders in

absence thereof such type of order cannot be said to be

reasoned order and hence order is not sustainable in the

eye of law.

10. So far as directly approaching to this Court under

Article 226 of the Constitution of India by the writ

petitioners is concerned, learned State counsel has no

answer to the query regarding the fact the order

impugned is a non-reasoned order, and as such it

amounts to violation of principles of natural justice.

Thus, under the power conferred under Article 226 of the

Constitution of India can be invoked by the aggrieved and

therefore, the issue of availability of alternative remedy

has not been seriously raised by the State.

State counsel is further unable to counter the

submission of the writ petitioners that order passed by

the authority under the provisions of Section 6 of the

Land Encroachment Act is without considering the issue

raised by the petitioners-aggrieved party and as such

matter should be remitted before the concerned authority

by fixing a specific date of their appearance for hearing so

that the matter may be disposed of by passing fresh

order.

11. In view of the aforesaid, learned State Counsel as

well as Ms. Ritu Kumar, being assisted by Mr. Kripa

Shankar Nanda, learned counsel for the petitioners

submits that the petitioners would appear before the

concerned authority on the date fixed with the relevant

documents so that they could be heard and a reasoned

order be passed.

12. This Court, after hearing learned counsel for the

parties and taking into consideration the fact that the

order dated 29.01.2021 does not disclose any finding

recorded with respect to the contentions raised by the

writ petitioners as merely in one line it has been stated

that the acquired land of Hatia (Dhurwa) Dam have been

encroached upon by the encroachers, in our considered

view the order dated 29.01.2021 and consequential

order(s) are not sustainable in the eyes of law simply for

the reason that if notices have been issued upon the

aggrieved to submit their defence, supported by

documents, if any, it was incumbent on the part of the

concerned authority to deal with the same and pass a

reasoned order otherwise the order would be against the

principles of natural justice and arbitrary in nature.

13. In view thereof, order dated 29.01.2021 as also

consequential order(s) passed in terms of order dated

29.01.2021 are hereby quashed and set aside.

14. As agreed by learned counsel for the parties and

with their concession, the writ petitioners are directed to

appear before the Circle Officer, Nagri on 2nd August,

2021 along with all supporting documents, if any. On the

date fixed, the Circle Officer will hear the matter and pass

fresh order within a period of one week i.e. by 9th August,

2021 and thereafter shall proceed accordingly.

15. With the aforesaid observations and directions, the

writ petition stands allowed.

16. Learned counsel for the parties have undertaken

before this Court to communicate this order to both the

parties forthwith.

17. Office is directed to return the original records of

the concerned encroachment case immediately.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Alankar/ -

A.F.R.