Sudhir Kumar v. 1.The State of Jharkhand 2.The Deputy Commissioner, Ranchi 3.Additional Collector, Ranchi 4.Land Reforms Deputy
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 4634 of 2023 ----- Sudhir Kumar ------ Petitioner(s) Versus 1.The State of Jharkhand 2.The Deputy Commissioner, Ranchi 3.Additional Collector, Ranchi 4.Land Reforms Deputy Collector, Ranchi 5.The Circle Officer, Chanho, Ranchi …… ------ Respondent(s) CORAM :
Legal Reasoning
SRI ANANDA SEN, J. ------ For the Petitioner(s) For the State : Mr. A.K. Sahani, Advocate : Mr. Mukul Kr. Singh, AC to G.P.-III …...... 04 / 03.07.2024: Heard the learned counsel for the petitioner and learned counsel for the State. 2. It is the grievance of the petitioner that through a deed of gift dated 13.09.1954 ancestor of the petitioner gifted 1.23 acres of the land being portion of RS Plot No.282 under Khata No.50 in Village Chanho to the then Government of Bihar for the purpose of construction of lamps and offices. 3. It is the grievance of the petitioner that after the said gift has been executed and accepted by the State, now those lands have been encroached by encroachers. It is the grievance of the petitioner that inspite of bringing the fact of encroachment to the notice of the Deputy Commissioner, who is the Collector under Jharkhand Public Land Encroachment Act, 2000, he has not taken any steps. The petitioner has thus, approached this Court seeking direction upon the respondents to take appropriate steps to ensure removal of the encroachment from the land, which was gifted to the Government, which now is a public land. 4. To remove encroachment from public land, the State has enacted Jharkhand Public Land Encroachment Act, 2000. As per Section 2(3) of the aforesaid act, “public land” means any land manage by or vested by in the Union of India or State of Jharkhand or any local authorities or statutory bodies etc. and includes any land over which the public or community has got a right of user, such as right of way, burials, cremation, pasturage or irrigation. It is necessary to quote Section 2(3) of the Act, which is as under:- Section 2 – Definitions “(1)……., (2)……. (3) "public land" means any land managed by or vested in the Union of India or the State of Bihar, or in any local authority or statutory body, public undertaking educational institution recognised by the Government or by any University established under any law for the time being in force, Railway Company or Gram Panchayat established under, section 3 of the Bihar Panchayat Raj Act, 1947 (Bihar Act VII of 1948), and includes any land over which the public or the community has got a right of user, such as right of way, burials, cremation, pasturage or irrigation. Explanation I.- For the purpose of this clause and section 9 the BIHAR PUBLIC LAND ENCROACHMENT ACT, 1956 (Page 2 of 12) Printed For: 29-11-2021 On: 02:15:PM expression "public undertaking" shall mean-(i) any industrial undertaking owned by a corporation constituted under any law for the time being in force; or (ii) any industrial undertaking in which the Government owns more than fifty per centum of the share capital thereof; or (iii) any other industrial undertaking which is declared to be a public undertaking by the State Government, by notification in the Official Gazette. Explanation II.--All notifications under item (ii) paragraph (1) shall be laid before the Legislature of the State, as soon as may be, after they are issued. 5. Section 3 of the Jharkhand Public Land Encroachment Act, 2000 gives power to the Collector to initiate a proceeding for removal of encroachment. This provision of law clearly indicates that the Collector can initiate a proceeding under the Act against the encroacher upon an application made by any person or upon information received from any source about such encroachment. It is necessary to quote Section 3 of the Act, which is as under:- Section 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:- (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 found, the Collector may cause notice to be affixed in the neighborhood 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 the contention of the petitioner that the grandfather of the petitioner has gifted the land in question to the State and the land now is a public land. Thus, from the provision of law, it is clear that if there is any encroachment of the public land, the same needs to be removed immediately, after following the due process of law. For the same a proceeding as per Section 3 of the Act has to be initiated. 7. The petitioner can approach the Collector in terms of Section 3 of the Act, by filing an appropriate application bringing to the notice of the Collector that there is encroachment of the land which the grandfather of the petitioner has donated. If any application of such nature is filed before the Deputy Commissioner, he will immediately proceed and initiate a proceeding under Section 3 of the Act after being satisfied that the land in question has been donated to the State and as on date the same is public land and there are no other claim over the same and also after being satisfied that there is encroachment over the land in question. 8. With the aforesaid observation, the instant writ petition stands