Research › Browse › Judgment

Patna High Court · body

1999 DIGILAW 1149 (PAT)

Srikrishna Nagar Niwasi Sangh v. State Of Bihar

1999-11-01

AFTAB ALAM

body1999
Judgment 1. These four writ petitions have been filed at the instance of the residents of Shri Krishna Nagar, a housing colony in this town, under the Bihar State Housing Board. There is a single petitioner each in CWJC Nos.465 and 567 of 1999; in CWJC No. 62 of 1999 there are four petitioners and CWJC No.652 of 1999 has been filed by an organisation, claiming to represent the allottees of houses and plots of lands in S.K.Nagar. The petitioners have come to this court seeking its protection against threatened demolition of their boundary walls and/or portions of their houses. The threat of demolition has arisen by the action of the Housing Board in putting the red marks on the boundary walls/houses in S.K.Nagar. The red mark is put to indicate the extent to which the boundary walls/portions of the houses were required to be demolished. 2. The practice of putting red marks on houses/structures by statutory authorities, local bodies and the administration (often on the basis of ex parte measurements) for indicating to the house owner the extent to which the house/structure was required to be demolished is currently in vogue in this State and particularly in this town on the plea of carrying out the directions given by a bench of this court in CWJC No. 2290 of 1990 : Arun Kumar Mukherjee V/s. State of Bihar and ors. This is the experience of this court, however, that there is considerable misapprehensions regarding the directions of this court in Arun Kumar Mukherjee. Those directions are sought to be enforced on fact situations where those have no application in terms of the express orders of this court. It has also come to the notice of this court that many excesses have been committed in the name of complying with the directions given in Arun Kumar Mukherjee (see Bhola Sah V/s. State of Bihar and ors : 1999 (2) P.L.J.R. 851 ) 3. It, therefore, bears repetition and itmust be stated at the outset in this order that the directions given in A.K.Mukherjee were only in connection with such encroachments made on roads or road flanks that were causing obstruction in the free flow of traffic. It, therefore, bears repetition and itmust be stated at the outset in this order that the directions given in A.K.Mukherjee were only in connection with such encroachments made on roads or road flanks that were causing obstruction in the free flow of traffic. The Bench hearing Arun Kumar Mukherjee has been at pains to repeatedly clarify that itn directions for removal of encroachments related only to such unauthorised structures which were constructed on roads or road flanks and were the cause of obstruction in the free flow of traffic. It was also made repeatedly clear that public lands not being part of any road or road flanks were outside the purview of those directions and any encroachments on public lands other than roads or road flanks could only be removed under the relevant statutory provisions. 4. Once this aspect of the matter is clearly understood the actions of the Housing Board would plainly appear to be unreasonable, arbitrary and untenable in law. 5. It is an admitted position that the residents of Shri Krishna Nagar whose houses are facing the threat of demolition were not given any notice to show cause; no proceeding under the provisions of the Bihar State Housing Board Act or under any law was initiated in which they might have had an opportunity of hearing before the decision was arrived at for demolishing their boundary walls/portions of their houses. The residents of Shri Krishna Nagar got to know that their boundary walls/portions of their houses were required to be demolished only on seeing the red marks put on their houses by the functionaries of the Housing Board. It is also undeniable that before those red marks were put no measurements were taken in presence of the house onwners. 6. It may be stated here that the practice of putting red marks on houses was started by the Patna Regional Dev. Authority for indicating to the house owners that portions of the houses were proposed to be demolished for widening the lanes on which those houses were situate. Thus, on seeing the red marks put on their houses, the house owners of Shri Krishna Nagar presumed that the Board intended to demolish the houses for widening the lanes on which those houses were situate and they came to this court under that idea. Thus, on seeing the red marks put on their houses, the house owners of Shri Krishna Nagar presumed that the Board intended to demolish the houses for widening the lanes on which those houses were situate and they came to this court under that idea. It was submitted before this court that the lanes on which those houses were situate had fully retained their width that they had from the very begining; there were no encroachments leading to the narrowing down of the roads and lanes of Shri Krishna Nagar. And there was, therefore, no justification for demolishing portions of the houses for widening the lanes of the colony. 7. Mr. Sharwan Kumar, learned counsel appearing for the Board initially took the stand that the original width of the roads and lanes at the time of their lay out was far more than their actual width at present and the reduction in the width of those roads and lanes was the result of encroachments made by the allottees from the two sides of the roads and the lanes. 8. At this stage, it may be noted that Shri Krishna Nagar Colony was established in three phases. The Lower Income Group (L.I.G.) houses were constructed in the year, 1959; then the L.I.G. plots were allotted and sold in the year, 1964 and finally the Middle Income Group (M.I.G.) plots were allotted and sold in 1970. It may further be noted that the Bihar State Housing Board came into existence in 1972 when Shri Krishna Nagar colony had already been established by the Housing Department of the State Government. The Housing Board, first established in 1972 by an Ordinance is thus the successor of the Housing Department of the State Government. 9. In the Board no doument or the original lay out plan of the colony is available on the basis of which it could be said with any amount of certainty that the roads and lanes at the time of being laid out had greater width than the present. On the other hand in some of the writ petitions, the sale deeds are enclosed which also give the dimensions of the lanes on which the transferred plot was situate and from the sale deeds it appears that the original width of the lanes was the same as it exists today. 10. Mr. On the other hand in some of the writ petitions, the sale deeds are enclosed which also give the dimensions of the lanes on which the transferred plot was situate and from the sale deeds it appears that the original width of the lanes was the same as it exists today. 10. Mr. Sharwan Kumar then changed his stand and approached the matter from the other end. Learned counsel submitted that all the allottees were given pieces of land with specified areas as mentioned in their allotment orders and sale deeds etc. but in practice most, if not all, the allottees were occupying areas, far in excess of the areas allotted and sold in their favour and the intention of the Board was only to get the Boards land freed from the unauthorised occupation of the allottees. I am unable to appreciate this submission either. And I fail to see how even without initiating any proceeding and without examining and considering the cases of individual allottees it can be assumed, as a general rule, that each of the allottee or most of them are occupying pieces of land in excess of the areas allotted or sold to them. To my mind the argument made by Mr.Sharwan Kumar betrays the disquiting tendency to disregard the individual and to deal with collectives, being totally oblivious to the possibility of violation of the rights of the individual. 11. From the facts and circumstances of the case it is clear to me that the Housing Board cannot be allowed to proceed with the demolition of boundary walls and/or portions of the houses in the name of following the directions of this court in Arun Kumar Mukherjee. As noted above the directions in Arun Kumar Mukherjee were given by this court for an specified object and any whimsical enforcement of those directions in a different context would lead to much hardships and violations of individual rights. 12. As noted above the directions in Arun Kumar Mukherjee were given by this court for an specified object and any whimsical enforcement of those directions in a different context would lead to much hardships and violations of individual rights. 12. The determination of the width of the roads and lanes in Shri Krishna Nagar at the time of their lay out or the determination whether a particular allottee was occupying a piece of land in excess of the area allotted to him cannot be made in such a capricious manner even without giving the affected person a notice to show cause and without considering his defence and the materials that he may wish to produce in support of his case. The Housing Board is, therefore, restrained from proceeding with the demolition of the boundary walls/structures/portions of the houses in Shri Krishna Nagar on the basis of the red marks put by its functionaries on those houses etc. 13. This is, however, not to say that the Housing Board does not have sufficient statutory means to have its lands freed from unauthorised occupation of any one. Section 59 of the Act gives the Housing Board sufficient powers and this court finds it strange and surprising that instead of taking recourse to statutory powers duly vested in it, the Board should try to take such short cut measures which are clearly illegal, unreasonable and unsustainable in the eyes of law. 14. In the result, these writ petitions are allowed with the aforesaid observations and directions.