The existence of an efficacious statutory remedy of appeal influenced the court's decision not to quash the order for removal of the structure on the land.

ORDER :

1. The present writ petition has been filed for quashing the order as contained in memo no. 893 dated 04.10.2021 (Annexure-4 to the writ petition) issued by the respondent no. 3-the Sub-Divisional Officer, Dhanbad, whereby the said authority has deputed Executive Magistrate and police force for removal of the structure standing over the land appertaining to Old Khata No. 142, New Khata No. 471, New Plot Nos. 15, 16 and 10, Old Plot No. 12, Mouza-Kolakusma, Mouza No. 12, Dhanbad Circle, measuring an area of 11½ Kattha (19 decimals) as well as letter no. 1163 dated 16.08.2021 previously written by the respondent no. 4-the Circle Officer, Dhanbad, to the respondent no. 3, whereby the said authority had asked for deputation of magistrate and adequate police security to demolish/remove the alleged encroachment from the aforesaid land. Further prayer has been made for issuance of direction upon the respondents to desist from interfering with the possession of the petitioner over the said land.

2. Learned counsel for the petitioner submits that the petitioner has lawful possession and title over the land in question which was purchased by the petitioner’s husband in her name from earlier raiyats of the said land i.e. Sarfuddin Ansari and others through registered sale deed no. 9034 dated 27.12.2003. It is further submitted that no notice intimating her/her husband was served with respect to initiation of any land encroachment proceeding for the said land. Moreover, letter no. 1163 dated 16.08.2021 on the basis of which the respondent no. 3 has issued the impugned order as contained in memo no. 893 dated 04.10.2021, was also not communicated to the petitioner. It is also submitted that only because the said land is under Gair Abad Khata, the same cannot be said to be the government land so as to initiate any land encroachment proceeding under the provisions of Bihar (now Jharkhand) Public Land Encroachment Act, 1956.

3. A counter affidavit, sworn by the respondent no. 4, has been filed on behalf of the respondents stating inter-alia that the petitioner was illegally erecting boundary walls over the land in question encroaching public land on the basis of fraudulent sale deed and as such, the respondent no. 4 restrained the petitioner from erecting the same and initiated Encroachment Case No. 01/2021-22 against her and after consideration of the documents produced by the petitioner’s son, the said respondent passed order dated 22.07.2021 directing the petitioner to remove the encroachment from the said land. If the petitioner feels aggrieved with the said order, she has an efficacious/statutory remedy of preferring appeal before the Deputy Commissioner, Dhanbad.

4. Having heard learned counsel for the parties and keeping in view the fact stated in the counter affidavit filed on behalf of the respondents particularly that the respondent no. 4 has already passed a final order on 22.07.2021 in Encroachment Case No. 01/2021-22 directing the petitioner to remove the encroachment from the said land, this Court is not inclined to enter into the respective claims of the parties on merit as the petitioner has an efficacious/statutory remedy of preferring appeal under Section 11 of the Act, 1956 before the Deputy Commissioner, Dhanbad against the order dated 22.07.2021 passed by the respondent no. 4.

5. If the petitioner prefers an appeal against the order dated 22.07.2021 passed by the respondent no. 4 before the Deputy Commissioner, Dhanbad/the appellate authority along with limitation application for condonation of delay by 11.04.2022, the same will be considered by the appellate authority liberally and the said appeal will be taken up on merit without being influenced with the stand taken in the counter affidavit. The petitioner is also at liberty to prefer an application before the appellate authority seeking interim relief and if any such application is preferred, the same will be considered by the appellate authority expeditiously.

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