Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL REVIEW NO.111 OF 2012 IN CIVIL WRIT JURISDICTION CASE NO. 14972 OF 2001 =================================================== 1.PATNA MUNICIPAL CORPORATION PATNA THROUGH ITS ADMINISTRATOR. 2.THE ADMINISTRATOR, PATNA MUNICIPAL CORPORATION. .... .... PETITIONER/S VERSUS 1.BHAGWAT PD. SINGH S/O LATE AWDHESH KUMAR SINGH R/O AWADHESH NIWAS CHOUDHARY TOLA, P.S. SULTANGANJ, DISTRICT - PATNA UDAY KUMAR SINGH, SON OF SHRI NAGESHWAR SINGH, RESIDENT OF BAHADURPUR, P.S. SULTANGANJ, DISTRICT - PATNA. 2.THE STATE OF BIHAR. 3.THE SUB DIVISIONAL OFFICER, PATNA. 4.THE CIRCLE OFFICER, PATNA CITY, PATNA . 5.THE PATNA REGIONAL DEVELOPMENT AUTHORITY, PATNA THROUGH ITS VICE PRESIDENT. .... .... RESPONDENT/S ================================================== Appearance : For the Petitioner/s:Mr. Bishwa Bibhuti Kumar Singh. For the Respondent/s:Mr. Rohit Mishra ================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 8/ 05-03-2013 Heard Mr. Lalit Kishore, learned AAG-I for petitioner-Patna Municipal Corporation and Mr. Rohit Mishra for Opposite Party No. 1. Mr. Lalit Kishore, learned AAG-I appearing on behalf of the petitioner-Patna Municipal Corporation has submitted that this review application is confined only to the last but one paragraph of the order dated 13.04.2009 passed in C.W.J.C No. 14972 of 2001, wherein, this Court had directed for making Devta Prasad
Legal Reasoning
Patna High Court C. REV. No.111 of 2012 (8) dt.05-03-2013 2 Singh Choudhary lane at least 10 feet wide for
Legal Reasoning
general people. Mr. Lalit Kishore, would explain that the said order was passed in C.W.J.C No. 14972 of 2001 for seeking a direction to restore the construction made over Plot No. 328, Holding No. 168/130, Circle No. 59, Ward No. 22/16 situated in Mohalla Choudhary Tola, P.S. Sultanganj, District Patna and there was a further prayer for not disturbing the construction existing over Plot No. 328. According to learned AAG-I in this writ petition when the demolition had already been made in terms of the order passed by the Division Bench dated 18.09.2001 (Annexure-3/4), the writ application virtually had been filed for relief of restoration of the construction already demolished by the Patna Municipal Corporation. He would also submit that when this Court had, therefore, given liberty to the petitioner to file Civil suit for establishing that the said encroachment was unauthorized or illegal, the remaining directions given for ensuring the width of Devta Prasad Singh Choudhary lane to 10 feet was based on no material on record and in fact it appears to be based on the submission of learned counsel for the petitioner. In this Patna High Court C. REV. No.111 of 2012 (8) dt.05-03-2013 3 regard, he has also invited attention of this Court to the specific stand of the Patna Municipal Corporation that when the encroachment of the petitioner was sought to be removed and measurements were taken of others also to whom notices were issued for encroachment and it was found that after removal of the encroachment of the petitioner of Devta Prasad Singh Choudhary lane became encroachment free. On this basis Mr. Lalit Kishore has submitted that as the direction given by this Court in the case of Opposite Party No. 1 is contrary to the materials on record, the order of this Court to that extent would be modified. Learned counsel for the Opposite Party
Decision
No.1, the writ petitioner on the other hand has submitted that the Patna Municipal Corporation is not coming out with clear picture and though it may be true that the existence of 10 feet lane was not supported by any material on record in the writ application but then it is a matter of general presumption that no lane can be less than 10 feet width. He has also submitted that there are insufficient materials to show that the persons to whom notices were issued alike the Opposite Party No. 1, the writ petitioner Patna High Court C. REV. No.111 of 2012 (8) dt.05-03-2013 4 for removal of encroachment were ultimately not found to have made any encroachment. In the considered opinion of this Court, the following portion of the order reading as follows:- only abandoned "The grievance of the petitioner that the very purpose and object of carrying out the demolition was not been achieved in as much after removal of encroachment of the petitioner nothing has been done by the authorities to secure the 10 feet width of Gali needs to be looked into by the authorities of Patna Municipal Corporation. This Court would find that if the house of the petitioner was demolished to secure a gali width minimum of 10 feet known as Devta Prasad Singh Choudhary gali for enjoyment of right of passage by the people in general, the same could not have been after demolishing the part of the house of the petitioner. This aspect of the matter therefore needs to be examined by the authorities, Municipal namely, Corporation and the district Administration afresh and this Court would accordingly direct that such examination must be made within a period of four months of receipt/production of a copy of this order so that Devta Prasad Singh Choudhary lane becomes as least width 10 feet wide for general people. It goes without saying that in case house and/or constructed portion of any person has to be demolished for such purpose, the authorities of Patna Municipal Corporation and the district administration will take immediate action, of course, in accordance with law." Patna from date the the Patna High Court C. REV. No.111 of 2012 (8) dt.05-03-2013 5 would go to show that the entire underlined portion of direction was passed on the oral submission of learned counsel for the petitioner that the encroachment of the writ petitioner was made in order to secure 10 feet width of the lane known as Devta Prasad Singh Choudhary lane. There is, however, no material on record of the writ petition from which it could appear that such submission of learned counsel for the petitioner was bad without any documentary evidence. In that view of the matter, this Court would find that whatever was said as with regard to securing the width of the lane to 10 feet was based on no authentic material. Considering this aspect of the matter, this Court will have no difficulty in holding that such direction was contrary to the materials on record and is fit to be reviewed. In doing so, this Court has also looked into the order of the Division Bench on the basis of which removal of encroachment of the petitioner was made. It has to be kept in mind that on 18.09.2001, a Division Bench of this Court in C.W.J.C No. 2290 of 1990 had passed the Patna High Court C. REV. No.111 of 2012 (8) dt.05-03-2013 6 following order relating to Devta Prasad Singh Choudhary lane which reads as follows:- "Regarding Prasad Singh Chaudhary Lane. construction of Dewta It was submitted by Mr. Gupta that the fund has already been made available for making construction of the aforesaid lane but that lane is not being constructed on the ground that there is encroachment over portion of the said lane. The Vice-Chairman, P.R.D.A , states that construction of the aforesaid lane has to be made by the District However, Administration. encroachment has to be removed by the Patna Regional Development Authority with the help of the District Administration. In that view of the matter, the District Magistrate, Patna is directed to provide all help to the Patna Regional Development Authority so that encroachment on the aforesaid lane is removed within a period of two weeks from today and after the encroachment is removed the District Magistrate will take all steps so that the lane is constructed within three months thereafter." As a matter of fact, the notices dated 25.09.2001 was issued to the petitioner only as a fall out of the aforementioned direction of the Division Bench dated 18.09.2001 and the order of the Vice-Chairman addressed to the Collector of the district dated 26.12.2001 was also based on such direction given by the Division Bench. Resultant notices issued to four persons including the writ petitioner dated Patna High Court C. REV. No.111 of 2012 (8) dt.05-03-2013 7 03.10.2001 was also based on the direction given by the Division Bench and therefore, it becomes clear that nowhere there was a concept of 10 feet width lane. In that view of the matter, this Court would find that whatever was recorded by this Court while disposing of the writ application needs to be reviewed. The last paragraph of the order dated 13.04.2009 passed in C.W.J.C No. 14972 of 2001 as quoted above is, accordingly, hereby recalled and the order of this Court dated 13.04.2009 in C.W.J.C. No. 14972/2001 shall accordingly stand modified. With the aforementioned observations, this Civil Review application is allowed. Ranjan (Mihir Kumar Jha, J)