SIDHESHWAR PRASAD SINGH v. THE STATE OF BIHAR & Ors.

Vindhya Keshri Kumar, learned Senior counsel for respondent no.8. In this writ application the petitioner has made a prayer for a direction to the respondent Housing Board as also to the respondent Collector, Sub-divisional Officer, Superintendent of Police and the Officer In-charge, Agamkuan Police Station, Patna to protect the public road and a piece of public land, and its being encroached so as to retain the identity of the Housing Board land ear-marked for a Primary School situated at Kanti Factory Road, Gandhi 2 Nagar, Kankarbag, Patna. Such a genuine looking prayer on being dissected on the basis of affidavits filed by the parties would reveal that the petitioner actually is worried with regard to taking possession of his commercial plot which was allotted to him by the Housing Board on 7.8.1984 being plot no. IRC-7. The petitioner, however, has expressed some difficulty in getting clear access including the public road on the said piece of land allotted to him and on enquiry he came to prima-facie conclusion that respondent no. 8 was an usurper and has no valid right to make his own construction on a piece of land of plot no. 329 which in the opinion of the petitioner was part and parcel of a public road in the housing colony planned by the Housing Board. The private respondent no. 8 against whom such specific allegation of encroaching a public land and the public road has been made has come out with his counter affidavit that this issue as with regard to status of plot no. 329 in fact was gone into at the instance of the vendor of respondent no. 8 himself who had 3 approached this court in a writ application, C.W.J.C. No. 3641/1996 seeking a direction that the Housing Board should not encroach upon his land and be directed to occupy only that portion of land which was acquired for it by the State Government. The vendor of respondent no. 8, namely, Ganesh Prasad Maooar, in that case had taken a specific plea that plot no. 329 as a whole was never acquired by the State Govt. for the Housing Board and therefore, the Housing Board had no business to take away even that portion of land of plot no. 329 which was the (Mr. Maooar’s) private property. This court on such as plea of the vendor of respondent no. 8 had passed an order on 2.7.1998 wherein the vendor of respondent no. 8 was directed to move before the Managing Director of the Board and file an application and the Managing Director of the Board was also directed to decide the fact with regard to acquisition of land and to satisfy the vendor of respondent no. 8 as with regard to the claim of the Housing Board on acquired piece of land. Pursuant to the aforementioned order of this Court, the vendor of 4 respondent no. 8 had appeared before the Managing Director, Housing Board and an order was passed by the Managing Director holding therein that plot no. 329 measured

2.92 acres out of which the acquisition as per official records of the State was confined to only 1.80275 acres for the Housing Board leaving rest of 1.11725 acres with the vendor of respondent no. 8. In fact the Managing Director had also passed an order for getting the land of the vendor of Respondent no. 8 demarcated beyond what was acquired for the Housing Board for which the vendor of respondent no. 8 should approach the competent authority. It is this order which therefore gives some right to respondent no. 8 the successor in share to also contend before this court that since he has purchased a piece of land out of 1.11725 acres, a fact which is also incorporated from the sale deed, clearly recording therein as with regard to acquisition of land and leaving certain portion thereof with the vendor of respondent no. 8, he has a right to continue over it by excluding the right of any and every portion including the writ petitioner. 5 In such a situation, it would be difficult for this court to decide as to whether the case made by the petitioner that the land being occupied and the construction being raised thereon is land of the Housing Board or private land of the vendor of respondent no. 8 and thus now of Respondent no. 8. It would be still more difficult for this court to decide as to whether the map being relied by the petitioner showing to be a sanctioned plan and the land in question being part of the public road as projected by the Housing Board is a correct assertion of fact or whether the construction being raised by respondent no. 8 is on his land which has never been acquired by the Board. All these complicated and disputed question of fact pertaining to settling of private rights of the petitioner vis-(cid:224)-vis respondent no. 8 cannot be adjudicated in writ jurisdiction of this court. The petitioner, in case, insists with his own case that the construction being made by respondent no. 8 is on a piece of land of the Housing Board or public land or a road, he can definitely agitate the matter before the Housing Board under 6 Section 59 read with 83A of the Bihar State Housing Board Act, 1982. In the event the petitioner approaches for such action under Section 59A and/or Section 83 of the Act before the competent authority of the Board the same may be considered and disposed of expeditiously by the competent authority preferably within a period of six months from the date of filing of such application. If, on the other hand, the Housing Board comes to a conclusion that the land on which the construction is being made was actually never acquired by it and therefore, if any easementary right of the petitioner in any way is claimed to been infringed at the instance of Respondent no. 8, the petitioner will have to ventilate his such grievance only by filing a civil suit before the civil court. With aforementioned observations directions, application is disposed of. (Mihir Kumar Jha, J.) Surendra/