JUDGMENT :

Heard learned counsel for the petitioner, learned counsel appearing on behalf of the State and the private respondent.

2. Founding father never thought that the authorities of the State will render the Constitutional rights of equality to a mere farce. The Circle Officer in the instant case has acted in the manner as if he is imperium in imperio and the mandate of law hardly binds him. The kind of order the Court proposes to pass, does not require detailed narration of facts. Undisputed premises of fact in the instant case is that in an encroachment proceeding notice was issued on 9.4.2015 to the petitioner. Thereafter the petitioner filed an application for grant of some time on 15.4.2015 but the Circle Officer has demolished the structure of the petitioner on 17.4.2015.

3. Mr. Dronacharya, learned counsel for the petitioner has referred to the provisions of Section 3 of the Bihar Public Land Encroachment Act (hereinafter referred to as ‘the Act’). For ready reference relevant part of Section 3 of the Act is quoted below:-

“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-….”

4. The legislature in its wisdom prescribed a procedure to be followed for removal of encroachment. The provision mandates the Collector to serve notice in the prescribed form requiring the encroachers to appear on the date which shall not be less than two weeks from the date of service of notice. The emphasis is ‘not less than two weeks’ which is mandatory requirement. The Collector under the Act is obliged to strictly adhere to the procedure prescribed and, in no case, he could have exercised jurisdiction to fix date before two weeks from the date of service of notice. In the instant case, as stated above, notice was issued on 9.4.2014 and as per the counsel for the petitioner, the notice was served to the petitioner on 9.4.2015 and in teeth of the statutory provision of fixing date not before less than two weeks from the date of service of notice, the Circle Officer has passed order and demolished the structure on 17.4.2015.

5. The Circle Officer has discussed many things in his order to which the Court refrain from passing any comment. The nicety of rule of law is that everyone is under the command of law. The Supreme Court time and again held out that rule of law is the basic feature of the Constitution but it appears that it is practiced only by Commissioner and privileged people and officers still practice that they are above law and the mandate of law is only a subject of convenience.

6. Mr. Ajay, learned counsel for the State submits that though Section 3 of the Act requires not less than two weeks notice period, the same should be read as ‘opportunity of hearing to the petitioner’ and since the petitioner had appeared on 15.4.2015, before expiry of two weeks of mandatory requirement, the notice period of not less than two weeks shall be deemed to have been waived. The Court is unable to accept the submission advanced by Mr. Ajay.

7. On similar line Mr. Surendra Kishore Thakur, learned counsel for the private respondent argued that the petitioner has appeared and as such he cannot be allowed to raise grievance that provisions of the Act was not followed in the instant case.

8. Mr. Ajay, learned counsel for the State and Mr. Surendra Kishore Thakur, learned counsel for the private respondent submitted that writ petition is not the proper forum to entertain the present lis. The alternative remedy by way of statutory appeal is available and therefore, the present writ petition is not maintainable.

9. The Constitution Bench of th