Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18259 of 2010 ====================================================== 1. Thakur Manoj Kumar @ Er.Thakur Manoj Kumar 'Pappu' S/O Sri Thakur Jagdish Chandra R/O Moh Shastrinagar, P.S.Siwan Town, Distt- Siwan .... .... Petitioner/s Versus 1. The State Of Bihar through the Principal Secretary, Department Of Urban Development Secretariat, Patna 2. The Collector, Siwan 3. The Nagar Parishad, Siwan through Its Executive Officer 4. The Executive Officer, Nagar Parishad Siwan 5. The Sub Divisional Officer Siwan 6. The Circle Officer Sadar, Siwan 7. Sri Anant Prasad son of late Dr. Diwakar Sharan, resident of Mohalla, Shastrinagar, P.S. Siwan Town, District Siwan .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr Kamal Nayan Chaubey, Sr. Advocate Mr. Akhileshwar Kumar, Advocate For the State : Mr. Himanshu Kumar Akela, AC to GA 3 For the Municipality Siwan : Mr Ravi Bhushan Verma, Advocate For Respondent 7 : Mr R. K. Srivastava, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI ORAL ORDER 6 24-06-2013 Annexure- 1 is the order passed by the Executive Officer, Nagar Parishad, Siwan. By virtue of this order, a direction has been issued to remove illegal construction or occupation purportedly carried out by the present petitioner beyond the area of khata and khesra number, which has been indicated in the order impugned. Petitioner has been directed to either remove the encroachment himself or it shall be done by the Nagar Parishad at his cost. Contention of the counsel for the petitioner is that the
Legal Reasoning
Patna High Court CWJC No.18259 of 2010 (6) dt.24-06-2013 2/5 whole thing has been stage- managed by private respondent no.7 because he has some influence to yield over the office of Collector as well as office of the Nagar Parishad where his son is supposed to be an employee. It is his stand that the Nagar Parishad has absolutely no power vested whatsoever to remove the so-called encroachment relating to the land in question, which is self acquired land of the petitioner duly purchased by him. There has been a title suit going on between private respondent no.7 and the petitioner, which was registered as Title Suit No.175 of 2003 in which a prayer for injunction on behalf of the private respondent has been rejected and thereafter the system has been manipulated to get an order passed in terms of Annexure- 1. Some serious resistance was sought to be put up by learned senior counsel for the petitioner when the Court observed that it is willing to get the measurement of his property and land done on the basis of so- called sale deed, which has created right and title in his favour. As per the impugned order contained in Annexure- 1, it is evident that the encroachment is with regard to certain public land, which leads to a Chaath Ghat, which is the reason for the authorities to take cognizance of the allegation made against the petitioner and the consequential order is an outcome of the same. Patna High Court CWJC No.18259 of 2010 (6) dt.24-06-2013 3/5 The Court does not want to get bogged down by technicality of any kind which is sought to be taken against the action contemplated by the Nagar Parishad. However, to test the bona fide of the petitioner, the Court is willing to get the measurement of his land done based on the sale deed and the area which he has acquired on the basis of such a deed in presence of the petitioner, the private respondent, the Municipal authorities as well as the Circle Officer and the local Amin in this regard. After all the petitioner cannot get a better right or interest beyond what he has acquired by way of a sale deed and since the land cannot expand on its own. If there is spillover, obviously a case for encroachment is made out. As a tactical stand, leaned senior counsel thereafter pleads that if the land is not a public land and a private land for which a suit is going on, the Municipal authorities cannot act. There could be some force in that argument but that argument is required to be tested on the ground by making actual physical verification after due measurement as well as identification of encroachment in the first place and the question whether it is an encroachment on public land or private land will come into play later. The parties are directed to appear before the Chief Patna High Court CWJC No.18259 of 2010 (6) dt.24-06-2013 4/5 Executive Officer, Siwan with a copy of this order at 10.30 a.m. on 16th of July, 2013. The Chief Executive Officer thereafter will fix a date and time for measurement of the land of the petitioner and identification of the area to which he is entitled to according to the sale deed based on which he has bought the land in question. If any of the area or construction is beyond the purchased area which emerges from the sale deed then identification of that area would also be required to be made with the help of the Circle Officer as well as the local Amin. If the land belongs to the private respondent and is a private land, the title suit will decide the status and no demolition is required to be made thereto. However, if the encroachment is on a public land which allegedly is obstructing the usage by people as stated in Annexure- 1 then obviously petitioner will have to confine himself to the area which he has purchased and that purchased area cannot be allowed to expand every couple of months or year in any direction. The Court of Munsif I, Siwan is directed that he will take up Title Suit No.175 of 2003 with due priority. If the petitioner has not filed a written statement, he must do so forthwith. The issues, if not framed, would be framed and the suit will be decided within a period of six months from the date of communication of a copy of this order to the concerned Court and Patna High Court CWJC No.18259 of 2010 (6) dt.24-06-2013 5/5 office will communicate this order forthwith. The Munsif is directed to ensure that frivolous adjournment is not granted either to the plaintiff or the defendant to ensure that the time frame fixed by the Court is adhered to. Writ application is disposed of with the above directions. (Ajay Kumar Tripathi, J) sk