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2005 DIGILAW 488 (PAT)

Umesh Chandra Choudhary v. State Of Bihar

2005-05-04

CHANDRAMAULI KR.PRASAD

body2005
Judgment 1. This application has been filed for issuance of a writ in the nature of mandamus commanding the respondents not to demolish any part of the house of the petitioner. 2. According to the petitioner two and half decimals of land appertaining to old plot no. 1735 Khata No. 254, Thana No. 144 situated in Mauza Khagra in the district of Kishanganj was settled with the predeces-sor-in-interest of the petitioner by the ex-landlord on a salami of Rs. 32 and 8 annas. According to the petitioner the land was homestead and the settlement was made for construction of house and in terms of the settlement, petitioners predecessor-in-interest constructed a pucca house. Petitioner has further averred that the settlees i.e. Anup Lal Choudhary name was mutated in the Serishta of Kishanganj Municipality and rent receipts were issued to him on payment of house tax. Petitioners further assertion is that during the recent survey, half of the house and land was recorded in the names of Ram Charitar and Lakhi Prasad. Plot Nos. 662(ka) and (kha) appertaining to Khata No. 182 of Ward No. 6 of Kishanganj Municipality and plot no. 663(ka) and (kha) appertaining to Khata No. 184 Ward No. 6 of the said Municipality were recorded in the name of Ram Charter and Lakhi Prasad respectively. According to the petitioner the jamabandi in the Serishta of the State of Bihar was also bifurcated and jamabandi of Ram Charitar is 235 whereas that of Lakhi Prasad is 17. According to the petitioner, in the similar manner, the names of Lakhi Prasad and Ram Charitar were mutated in the Municipal records and after the death of Lakhi Prasad name of the petitioner was mutated and the present Holding Number of Ram Charitar is 99 and that of the petitioner is 100. According to the petitioner, he has filed this writ application as a Karta and holder of power of attorney of the family. 3. In the counter affidavit filed on behalf of respondent nos. 2 to 5. it has been stated that Khata No. 182, Plot Nos. 662 (ka) and (kha) and Plot No. 663 (ka) and (kha) have not been carved out from the cadastral Survey Plot No. 1735 of Old Khata No. 254, and according to the answering respondents, the building in question stands over M.S. Plot Nos. 2 to 5. it has been stated that Khata No. 182, Plot Nos. 662 (ka) and (kha) and Plot No. 663 (ka) and (kha) have not been carved out from the cadastral Survey Plot No. 1735 of Old Khata No. 254, and according to the answering respondents, the building in question stands over M.S. Plot Nos. 662 and 663 which are the land of National Highway No. 31. The answering respondents, in the counter affidavit, has further averred that the alleged settlement of two and half decimals of land to the prodecessor-in-interest of the petitioner by the ex-Zamindar of Khagra Nawab Estate is a myth and there is no document to prove that pred-ecessor-in-interest of the petitioner was a Raiyat under the ex-Zamindar. They have also averred that the petitioner has not placed on record any rent receipt, Patta or Hukumnama nor the copy of the return filed by the ex-landlord after vesting of zamindari in the State of Bihar, to show that predecessor-in-interest of the petitioner was a Raiyat. The answering respondents have clearly averred that M.S. Plot Nos. 662 and 663 have not been carved out from old Plot No. 1735 rather, it has been carved out of Plot No. 144 a municipal road which is at present in the name of the National Highway 31. 4. An application has been filed by the National Highway Authority of India for being added as respondent in the writ application inter alia contending that the land in question is in fact part of National Highway No. 31 and it has been entrusted with the work of widening the said highway into a four lane highway under the Golden Quadriateral Project of the Government of India and its interest is involved in this litigation. National Highway Authority of India, hereinafter referred to as the Authority, has interest in the lis and as such its application (LA. No. 5882 of 2002) is allowed and added as respondent no. 6 in the writ application. 5. Mr. Najmul Hoda, appearing on behalf of the petitioner, submits that nobody can be deprived of his property except in accordance with the procedure established by law. He contends that the respondents intend to deprive the petitioner from the property belonging to him without following any procedure known to law. 6 in the writ application. 5. Mr. Najmul Hoda, appearing on behalf of the petitioner, submits that nobody can be deprived of his property except in accordance with the procedure established by law. He contends that the respondents intend to deprive the petitioner from the property belonging to him without following any procedure known to law. In support of his submission, he has placed reliance on a Division Bench decision of this Court in the case of Bhuvaneshwar Prasad vs. State of Bihar and others AIR 1995-Patna-1 and my attention has been drawn to paragraph-25 of the judgment which reads as follows: We hold that the executive authority acting under the Constitution is an authority under the law. Its authority to exercise power is circumscribed by provision of law. It cannot act without legal sanction especially when its action has the effect of seriously jeopardising the property or liberty of a citizen. The said limitation on the power of the executive authority while dealing with the property of the citizen is made clear under Art. 300A of the Constitution to the effect that no person shall be deprived of his property save by the authority of law." 6. Junior Counsel to Govt. Pleader No. IX as also Mr. Mukul Sinha, appearing on behalf of Authority, however, contend that the very assumption of the petitioner that the disputed land belongs to him, is erroneous on fact and as such, writ application is not an appropriate remedy for the relief claimed in the present application. 7. Having appreciated the rival submission, there is no difficulty in accepting the broad submission of Mr. Hoda that no citizen can be deprived of his property except in accordance with the procedure established by law, but in the present case, there is serious dispute as to whether land over which the structure stands belongs to the petitioner. I am of the opinion that such a serious disputed question of fact cannot be decided in the writ proceeding. Petitioner, if so advised, may take recourse to the remedy of suit or for that matter, any other remedy available to him in law. 8. To put the record straight, Mr. I am of the opinion that such a serious disputed question of fact cannot be decided in the writ proceeding. Petitioner, if so advised, may take recourse to the remedy of suit or for that matter, any other remedy available to him in law. 8. To put the record straight, Mr. Hoda suggested for measurement of the property and submits that such a course is open to this Court and in this connection, he has referred to a decision of this Court in the case Sanjeev Prasad vs. The State of Bihar & Ors. 1997(1) PLJR 24 . 9. JC to GP IX as also Mr. Mukul Sinha submit that the very claim made by the petitioner is unfounded on fact and hence the direction sought for is absolutely misconceived. They point out that the question of measurement shall arise when the right of the party is established over a property. 10. Having considered the rival submission, I am not inclined to accede to the prayer of the petitioner for the measurement of the land. The question of measurement shall arise when the right of the party is established in respect of the property. In the absence thereof, there cannot be any direction for measurement. 11. Any observation made in this writ application is for the purpose of its disposal and shall have no bearing at all in case, the party resort to any other remedy, if any, available to them in law. 12. In the result, I do not find any merit in the application, which is accordingly dismissed with the observation aforesaid, but without any order as to cost.