DAMODAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ application the petitioner has prayed for quashing an order dated the 10th March, 1975 (Annexure '2') of the Deputy Collector, Land Reforms, Hilsa, as also an order dated the 31st July, 1976 (Annexure '4'), of the District Magistrate and Collector of Nalanda (Respondent No. 4), directing him to remove encroachment from Gairmazrua am land.

(2.) Short facts necessary for the disposal of this writ application need be stated A proceeding under section 3 of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the Act) was started against the petitioner by the Deputy Collector, Land Reforms Hilsa (Respondent No. 2), in August, 1974. on the allegation that the petitioner had encroached upon 115 ares of land of Plot No. 1329, Khata No. 269, Touzi No. 6344, situated in village Makrauta, Police Station Hilsa, in the District of Nalanda, which is recorded as Gairmazurua am Pokhar in the survey record of rights On the 10th March, 1975, Respondent No. 2, after rejecting the petitioner's prayer for time, in an ex parte order decided the proceeding against the petitioner. A copy of the said order of Respondent No. 2 has been filed as Annexure '2'. Against that order, the petitioner filed an appeal under section 11 of the Act before the District Judge of Patna, the appellate authority under that section, which was registered as Miscellaneous Appeal No. 64 of 1975, and was admitted on the 20th May, 1975. During the pendency of the appeal before the District Judge, the Government of Bihar promulgated an Ordinance The Bihar Public Land Encroachment (Amendment) Ordinance, 1975 (Bihar Ordinance No. 210 of 1975). Section 6 of the Ordinance repealed section 11 of the Act and substituted a new section for it. The new section 11 provided for filing of appeal before the Collector of the District or before the Divisional Commissioner, and not before the District Judge or the High Court, as provided in the repealed section 11. Thereafter, treating that the new provision of section 11 divested the District Judge of the power to hear the appeal, the District Judge of Patna as it appears from order dated the 22nd May, 1976 (Annexure 3) transferred the appeal pending before him to the Collector of Patna, for disposal, and, the Collector, after hearing the parties, dismissed the appeal on the 31st July, 1976, by order Annexure '4', which is under challenge in this writ application.

(3.) A counter-affidavit has been filed on behalf of the State denying some of the assertions of facts made in the writ application, which it is not necessary for us to mention, in view of the order that we propose to pass in this writ application.