PRASAD RANJAN DAS Vs. THE STATE OF BIHAR AND OTHERS

JUDGEMENT

(1.) The petitioners in this writ application has prayed for quashing of the entire proceedings of case No. 1092/65 -66 started against the petitioner under the Bihar Public Land Encroachment Act, hereinafter to be referred to as the Act. By annexure -2, the petitioner was asked to remove the encroachment without giving the particulars. Only the area of the land was given in the aforesaid notice. In pursuance of the Notice show cause was filed by the petitioner on 7.10.74 stating that he had not made any encroachment and the land in question was purchased by him on which he constructed a house. A copy of the show cause has been filed and marked as annexure -3. The petitioner appeared on same dates but the case was not taken up and later he learnt that an ex -parte order had been passed against him on 16.9.75. The petitioner filed an appeal before the District Judge. A copy of the Memo of the appeal has been filed and marked annexure -4. The learned District Judge by order dated 11.3.83., as no one was present on behalf of the petitioner, dismissed the appeal summarily. Thereafter, a notice dated 26.4.83. has been issued to the petitioner to remove the encroachment, a copy of which has been annexed as Annexure -5. It may also be mentioned here that details of the area, plot no. , etc., were also not mentioned. Being aggrieved by the aforesaid notice, the petitioner has moved this court. No counter affidavit has been filed on behalf of the state. Mr. Surjendu Mukherjee, learned counsel appearing on behalf of the petitioner has contended that the proceeding was started in the year 1965 under Sec. 6 of the Act, which has been declared to be ultra vires in the case of Ramzan Mian and others v/s. The Executive Engineer : (1969 B.L.J.R. 1010). Therefore, he has submitted that, in view of the fact that the provisions of the Act have been held to be ultra vires the notice has become non -est and is fit to be quashed. In my opinion, the contention raised on behalf of the petitioner is well founded and must be accepted. Sec. 6 of the Act was declared to be ultra tires, as it empowered the Collector to pass orders for removal of encroachments on public land as mentioned in Sec. 2(3) of the Act and the provisions were held to be violative of the Articles 14 of the Constitution of India (sic) was held that the Collector had been given unfettered and unlimited powers without any guideline and there was also no provision for appeal and, thus, it was violative of Article 16 of the Constitution of India. The same view has been expressed in the case of Jogindra Manna v/s. State of Bihar and others : (A.I.R. 1972 Patna 195) and in the case of Kamla Kant Sah v/s. State of Bihar and others reported in the same volume at page 137. It may also be relevant to mention that ordinance No. 110 of 1981 was issued by which different forums have been prescribed for hearing appeals and the order of the Collector has become appealable and has to be disposed of by the Commissioner. Thus, it is clear that, during the pendancy of the proceeding at one stage or the other the provision of Sec. 6 of the Act had been declared ultra tires. Therefore, all the procedures and the final order must be held to be wholly without jurisdiction. The notice to vacate the premises as contained in annexure -5 which is on the basis of those orders also must be held to be bad.

(2.) In the result, the application is allowed and the case No. 1092/65 -66 initiated against the petitioner is hereby quashed including the notice dated 16.4.83 as contained in annexure -5. But, on the fact of the case, there shall be no order as to costs. It will, however, be open to the authority to start a proceeding in accordance with law if the situation so demands.