PRABHUNATH PANDEY v. THE STATE OF BIHAR

For the petitioner:Mr. Sanjeev Kumar No.1,Advocate Mr. Uday Pratap Singh,Advocate For the State: Mr. S.B.N. Singh,A.C. to G.A. IX. ----------- ---

30.4.2009 Heard learned counsel for the petitioners and learned counsel for the State. The petitioners are aggrieved by the action of the respondent authorities in attempting to demolish the portion of the house of the petitioner appertaining to Khata Nos.408 and 165, Plot Nos.3096 and 3097 in village Aurayia, District- West Champaran and further seek a direction upon them not to construct any school building on the flank of the public road situated over said plots admeasuring 1 bigha 6 katha 11 dhurs. The case of the petitioners is that Khata No.165, Plot No.3097 admeasuring 1 ½ katha is the khatiyani land of the petitioners. In R.S. Khatiyan the said land is entered in the names of Prayag Pandey 2 and his brothers and the said Prayag Pandey was the grand father of the petitioners. The further case of the petitioners is that apart from constructing their houses over their khatiyani land they had also occupied the flank of the road since the time of their ancestor for the last about 70-80 years. When the authorities threatened to demolish the portion of the land of the petitioners which falls between the public road and the Khatiyani land of the petitioners, the petitioners have come to this Court. Learned counsel for the petitioners, in support of the proposition that no encroachment can be removed except after following the procedure prescribed under the Bihar Public Land Encroachment Act, relies on a Division Bench decision of this Court in the case of Jagannath Jha vs. State of Bihar : 1984 BBCJ 820, in paragraph No.5 of which it was held as follows: “5. On behalf of the petitioner it was stated that no proceeding under the Act or any other law has been initiated. This was not controverted by the counsel appearing for the Samiti. It is well known that any encroachment on public land can be removed only in accordance with the procedure prescribed under the Act.” It is submitted by learned counsel that the authorities cannot staraightaway remove the encroachment without complying with the statutory procedures, as possession even over such Gazirmazarua Aam land can be acquired by efflux of time, if the same is perfected by being in adverse possession for the statutory period. In support of the same, learned counsel relies upon a decision of this Court in the case of Nagendra Mistry vs. State of Bihar and others: 2000 (1) PLJR 209. It is further contended by learned counsel for the 3 petitioners that a road cannot be used for any other public purpose for the construction of the school building in the flank of the road. In support of the same, learned counsel relies upon a Division Bench decision of this Court in the case of Chandan Kumar Singh vs. The State of Bihar and others: 2000 (4) PLJR 362. Paragraph Nos. 16 and 17 of which are quoted below: “16. In the net result there can be no doubt that public roads and highways are meant for passage only and no other purpose. In interpretation, the situation cannot be interpreted in favour of those who may have influence and authority to extract a licence for the occupation of a public road. If a poor man cannot have any right to squat on any particular spot or site of a public road or highway to earn his livelihood, no other person may have a licence for the occupation of the road whatever be its purpose. the public or

17. At this juncture, the Court needs to remind every local administration in the State of Bihar that in urban planning spaces are reserved for their conforming uses. Open spaces are obliged to be reserved in the excellence of urban planning for roads and parks, and thus, such is their use. If space is reserved in a lay out plan or a park, a school cannot be established in it and it cannot be justified that it is for the benefit of its dislocation would cause inconvenience to some people of the locality. The same concept applies to the area which has been dedicated in its conforming use as a road. Portions of a highway or a public road are to be left entirely free and cannot be used for any other purpose except passage. The Supreme Court has already declared that a statue of Mahatma Gandhi, a library or a piao cannot come on the road. No one has any right to any particular spot or site on the road. The Supreme Court has also held that a school cannot be put inside a park and that this sort of social and community service cannot be made a subterfuge to occupy public places like parks and roads. Thus, community services, and social services cannot be had from spaces reserved for roads and parks, whether it be vocational training, classes for stitching and tailoring, Pulse Polio and family planning programmes, or a blood bank. Parks occupying spaces of roads cannot be established. Schools, libraries, vocational training centres and social service cannot be inside parks. Statues of national leaders cannot be made or any such excuses resorted to as a camouflage to occupy side lands of public roads and highways against their conforming uses. Otherwise this would become the hegemony of bad politics, misplaced power of persons with means both side and outside politics, resulting in a negation of urban planning. This is not social service, nor community service.” Learned counsel for the State refers to the various 4 averments made in the counter affidavit. It is submitted by him that the land being Gairmazarua Aam, the petitioners have no right to remain in occupation over the same and the authorities have rightly ordered to remove the encroachment by the order dated 21.7.2008. So far as the construction of the school building is concerned, it is submitted that since the land is Gairmazarua Aam, hence construction can be made over the said area. On a consideration of the submissions of the parties, this Court is inclined to accept the submission of learned counsel for the petitioners. It is evident from the decisions of this Court in cases of Chandan Kumar Singh and Nagendra Mistry (supra) that even for removal of encroachment from a public land, the authorities are obliged to resort to the statutory procedure and only after issuing the notice and hearing the alleged encroacher as laid down in the provisions of the statute, the order of removal could have been passed by the competent authority. The same not having been done, it is not open to the authorities to proceed to demolish the house of the petitioners. So far as the construction of the school building is concerned, it is the stand of the respondents that the flank of the road has been sanctioned after obtaining no objection certificate given by the Mukhiya of the Gram Panchayat. The said stand of the authorities also does not appear to be in keeping with the decision of the Division Bench of this Court in the case of Chandan Kumar Singh ( supra), in which it has clearly been held that once a road has been dedicated for passage then merely because the width of the road may be broad or wide is no 5 reason that it should suffer encroachment and further that a public road is made for passage only and no other purposes and it is not open to the Sate authorities to encroach upon the same on the ground that public purposes are being served by the opening of the schools, libraries, vocational training centres, social service, etc. In view of the law laid down categorically by the Division Bench of this Court, the action of the authorities and in constructing the school building over the flank of the public land is wholly unjustified and they are restrained from proceeding with the same. The writ application is, accordingly, allowed and the authorities are directed not to interfere with the houses of the petitioners over the land in question except in accordance with the statutory procedure and they are further directed to remove all the encroachments made on the flank of the public road by any construction of the school building or its boundary over the same. Let a copy of this order be handed over to learned Government Advocate No.9 VPS ( Ramesh Kumar Datta,J.)