IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2108 of 2009 Dinesh Rai, son of late Shyam Sundar Rai, resident of Punaichak, P.S. Shastri Nagar, Dist. Patna. Versus 1. The State of Bihar through its Secretary, Urban Development Department, Govt. of Bihar, Patna. 2. Patna Municipal Corporation through its Chairman. 3. The Commissioner-cum-Chief Executive Officer, Patna Municipal Corporation. 4. The District Magistrate-cum-Collector, Patna, Dist. Patna. 5. Superintendent of Police, Patna, Dist. Patna. ------------- For the Petitioner:- Mr. Basant Kr. Chaudhary, Sr. Adv. With Mr. Ranjan Kumar Singh, Adv. For the Patna Municipal Mr. Chandrashekhar, Sr. Adv. with Corporation Mr. Bishwa Bibhuti Kumar Singh. For the State of Bihar Mr. C.L.N. Singh, SC-I. 7 16.9.2009 Heard the parties. In this writ application, the petitioner has made prayer to the following effect:- “That this is an application for issuance of an appropriate writ in the certiorari for quashing the part of the order dt. 21.08.08, memo No. 105, issued under the signature of Municipal Commissioner, Patna Nagar Nigam by which claim of the petitioner has been rejected indicating would be proposed action over land in question and also for a direction in the nature of mandamus commanding the respondents to demolish the illegal constructions of wall surrounding three sides of land in question, which was illegally constructed by the Patna Municipal Corporation without any occupancy right and also for a direction to grant all other consequential benefits in the said term for which petitioner is entitled for.” 2 Mr. Basant Kumar Chaudhary, learned counsel for the petitioner had submitted that the sump house constructed by the Patna Municipal Corporation over the land of the petitioner without its being acquired by the State and/or Patna Municipal Corporation, cannot be allowed to stand and therefore, the impugned order passed by the Municipal Commissioner without deciding the issue is fit to be quashed by this Court. It has to be noted that earlier also the petitioner had moved this Court in CWJC No. 12935 of 2006 and this Court by an order dated 22.10.2007 had remitted the matter back to the Municipal Corporation of Patna Municipal Corporation by making following observations and directions:- “This writ petition has been filed for directing the respondents to stop construction on the land claimed by the petitioners to be their khatiani raiyati land and to demolish the illegal construction of wall surrounding three sides of the said land, which is said to have been forcibly constructed by the Patna Municipal Corporation (hereinafter referred to as „the Corporation‟). It appears that an application dated 08.02.2006 (Annexure-3) has been filed by petitioner no.1 before the 3 Commissioner-cum-Chief Executive Officer of the Corporation, whereafter on 24.02.2006 a lawyer‟s notice (Annexure-4) has also been given on behalf of petitioner no.1 to the Commissioner-cum- Chief Executive Officer of the Corporation stating therein the entire matters in detail, but according to learned counsel for the petitioners, the said application and lawyer‟s notice are unheeded and undecided. However, the Commissioner-cum-Chief Executive Officer of the Corporation has already written on 22.03.2006 (Annexure 5) to the District Magistrate, Patna and on receipt thereof and in return the District Magistrate, Patna, has written to the Land Acquisition Officer on 15.4.2006 (Annexure 6) to enquire into the matter and submit a report. In the aforesaid facts and circumstances, this writ petition is disposed of at this stage with a direction to the Commissioner-cum-Chief Executive Officer of the Corporation to decide the same in accordance with law by a speaking order within six weeks from today. However, it will be open for the petitioners to move the said authority to stop any construction on the land in question, which the authority will also decide in accordance with law.” It is in compliance of the said direction that the impugned order as contained in Annexure-1 has been passed by the Municipal 4 Commissioner. Relevant portion therein reads as follows:- ^^iz'uxr tehu tks <duiqM+k] Fkkuk Qwyokjh] [kkrk la0 177] rkSth la0 & 391] [ksljk ua0&187 ds LokfeRo ls lacaf/kr gS ftlij iVuk uxj fuxe }kjk dk;Zjr lEi gkml Hkh vofLFkr gS ,oa lqj{kk gsrq tks pkgkj nhokjh dk fuekZ.k fd;k tk jgk Fkk mls LFkfxr dj fn;k x;k gSA mijksDr of.kZr tehu ds LokfeRo dh tkudkjh ,oa HkwvtZu lacaf/kr tkudkjh miyC/k djkus gsrq ftykf/kdkjh] iVuk dks i=kad 18/Camp-BRJP fnukad 22-03-2006 i= fy[kk x;k Fkk rRi'pkr eq[; vfHk;ark] iVuk uxj fuxe }kjk Hkh vapykf/kdkjh ¼lnj½ iVuk dks i= la0 1016@vfHk0 fn0 26-09-2007 ,oa i= la0 716@vfHk0 fn0 07-07-2007 }kjk HkwvtZu ls lacaf/kr tkudkjh miyC/k djkus ,oa mDr Hkw[k.M ds LokfeRo dh tkudkjh miyC/k djkus dks dgk x;k FkkA vapy dk;kZy; ds i=kad 139 fn0 30-05-2008 }kjk tkWp izfrosnu tks losZ [kfr;ku ds feyku dj miyC/k djk;h x;h gS mldk voyksdu fd;k x;kA losZ [kfr;ku ,oa vapy dk;kZy; ds tkWp izfrosnu ls Li"V ugha gS fd jS;rh orZeku vkosnd Jh fnus'k jk; ,oa f'ko th flag ds gh oa'kt gSa ,oa mDr Hkw[k.M dk LokfeRo dkuwuh :i ls Jh fnus'k jk; o Jh f'ko th flag dk gh gSA pwWfd iz'uxr Hkw[k.M ij iVuk uxj fuxe }kjk lapkfyr lEi gkml vofLFkr gS ,oa ftykf/kdkjh] iVuk ls HkwvtZu lacaf/kr Li"V izfrosnu vizkIr jgus ,oa mDr Hkw[k.M ds orZeku LokfeRo ds vLi"V jgus ls iVuk uxj fuxe }kjk yksdghr esa HkwvtZu dh dk;Zokgh iw.kZ ugha fd;k tk ldk gSA yksdghr esa iVuk uxj fuxe }kjk mDr Hkw[k.M dk HkwvtZu fd;k tkuk vR;ko';d gS ,oa HkwvtZu lacaf/kr tkudkjh feyus ,oa mDr Hkw[k.M ds dkuwuh :i ls lgh LokfeRo dh tkudkjh ds mijkar HkwvtZu dh dk;Zokgh iw.kZ dh tk;sxhA 5 bl izdkj] vkosnd Jh fnus'k jk; ds i= fn0 08-02- 2006] Jh f'ko th flag ds i= fnukad 08-02-2006 ¼vuqyXud&3½ ,oa Jh c:usUnz izlkn flag] vf/koDrk ls izkIr Legal Notice fnukad 24-02-2006 ¼vuqyXud&4½ dk HkwvtZu lacaf/kr Li"V tkudkjh vizkIr jgus ,oa vkosndksa dk Hkw[k.M ds LokfeRo lacaf/kr tkudkjh ugha jgus ds vkyksd esa nksuks vH;kosnu ,oa Legal Notice dks vLohd`r fd;k tkrk gSA** This Court, therefore, would find that the real issue remitted to the Commissioner of Patna Municipal Corporation was to decide as to whether the raiyati land of the petitioner in plot no. 187 having a constructed sump house over it actually belongs to the Patna Municipal Corporation. The Municipal Corporation as noted above in a round about manner has gone to hold that in absence of the records of the land acquisition and/or dispute on account of the ownership of the land, process of land acquisition for the sump house in question has not been completed. There has been, however, no answer to the specific issue raised by the petitioner and directed to be gone into and decided by the Corporation as to whether the land in question temporarily requisitioned by the Government, had been released by a Gazette notification dated 30th 6 April, 1913 (Annexure-14)? It has to be taken into account that the moment the Patna Municipal Corporation cannot claim the its ownership of the land on which a sump house of the Patna Municipal Corporation either through the State Government or acquired by the State Government for Patna Municipal Corporation, the continuance of the Corporation over it cannot be said to be in accordance with law. Mr. Chandrashekhar, learned senior counsel appearing on behalf of the Patna Municipal Corporation, however, would submit that such sump house was constructed way back some time in the year 1950 and the entire drainage system and discharge of water in Boring Road or is being channelised from the aforementioned sump house which was constructed from the funds of the Government the Patna Municipal Corporation some time in 1950 and as such, the Patna Municipal Corporation has perfected its title over the land in question by way of adverse possession. This Court on the earlier occasion having noticed that there was some sort of controversy with regard to the actual area 7 under user of Patna Municipal Corporation by way of its sump house had also appointed an Advocate Commissioner by an order dated 13.2.2009, relevant portion whereof reads as follows:- “----This Court would accordingly with the consent of both the parties, appoint Mr. Gyan Prakash Ojha an Advocate of this Court to visit the spot who after giving notice to both sides and hold inspection as also get the measurement of sump house and its boundary made with the help of Municipal Amin and submit his report within a period of two weeks.” Pursuant thereto, the Advocate Commissioner has submitted a report wherein not only the existence of the sump house has been found by him but he has also found the constructed portion of the sump house to be in an area of 12472 sq. ft. and the boundary encircling such sump house to be in 8804.98 st. ft. i.e. 6 kathas and 47 points approximately. The remaining area has been found to be vacant. The report of the Advocate commissioner has been accepted by both the parties and therefore, this Court will proceed that only 6 kathas and 47 points i.e. 8804.98 sq. ft. is being used for sump house and its 8 adjacent boundary with fittings and layout of the pipes etc. for discharging of the water. It was in this background that this Court by an order dated 4.3.2009 directed the petitioner to file his affidavit as with regard to the stand on the user of land of sump house and the counsel for the petitioner on instruction from the petitioner personally present in the Court on 15.4.2009 had taken a stand that the petitioner will have no objection with regard to the continuance and functioning of the sump house with its present structure and network of pipelines spread over in an area of 6 kahas and 47 points i.e. 8804.98 sq. ft. as shown specifically in the map of Pleader Commissioner. In such a situation, when there is no record to show that the land in question has ever been acquired after the denotification of such land in the year 1913, this Court has to proceed on a presumption that neither the Government nor the Patna Municipal Corporation has any authority to continue over the whole area of land save and except the aforementioned 8804.98 sq. ft. on which the petitioner as noted above has given up his 9 claim in favour of the Patna Municipal Corporation. This Court is not unmindful of either the observations made in the impugned order or the submission of Mr. Chandrashekhar, learned counsel for the Corporation that the petitioner cannot be hold the owner of the land so as to claim its possession under Article 226 of the Constitution of India but then as to whether the land in question is the raiyati land of the petitioner or some other person cannot be gone into and/or decided by the authorities of the Patna Municipal Corporation as well who at best is only in possession of part of the land without any concrete proof its title over the same. In that view of the matter this Court would hold that if and when such a dispute is raised by any person as with regard to right and title in ownership of the petitioner that will have to be adjudicated by the competent Civil Court strictly in accordance with law but till such a dispute emerges, the petitioner has to be restored the possession of the land barring the constructed portion of the sump house and its adjoining are encircled 10 by boundary wall as found in the report of the Advocate Commissioner measuring in all 8804.98 sq. ft. The rest of the area, however, can no longer be allowed to be in occupation of possession of the Patna Municipal Corporation and as its possession has to be restored to the petitioner who as on date is the only owner before this Court of the land in question by claiming to be the descendent of Late Ram Lal Gope, Late Dublal Bhagat and Kurki Devi, the khatiyani owners as specifically mentioned in paragraph no.8 of the writ application which reads as follows:- 8. That the petitioner humbly states and submits that late Ram Lal Gope, Late Dublal Bhagat and Kurki Devi were in joint peaceful possession of the land in question. It is stated that after the death of late Ram Lal Gope and late Dublal Bhagat, Bhagwan Rai and then late Jagdeo Bhagat and thereafter Shyam Sunder Rai and late Ramjee Singh their yiers inherited the property. However, it would be further be relevant to state here that the petitioner Dinesh Rai and Shivjee Singh after the death of their father came into the possession of the land in 11 question. The genealogical table is being mentioned below for kind perusal. 1. Late Dublal Bhagat 2. Nathuni Bhagat (Nawald Swargwas) Late Jagdeo Bhagat Late Ramji Singh Shree Shivjee Singh 2. Late Ramlal Gope Late Bhagwan Rai Late Shyam Sundar Rai Shree Dines Rai............" The aforementioned statement in paragraph no.8 of the writ application has not been controverted by the respondents and as such, for the time being the claim of the petitioner to be the joint owner of the land measuring 1 acre and 12 decimals along with Sri Shivjee Singh as of now has to be accepted. This Court, therefore, would direct that the petitioner along with Shivjee Singh should be restored possession of the land being Plot No. 187, Khata No. 177, Tauzi No. 391, Thana Phulwari (presently Mohalla-Boring Road under Kotwali P.S.) except the area of 8804.98 sq. ft. which has been shown in the report of the 12 Advocate Commissioner to be in use of sump house both by way of constructed portion of sump house and the vacant land used by the Patna Municipal Corporation for functioning of such sump house. It is, however, made clear that this order is passed on the claim of the petitioner and one Shivjee Singh and if in future any person establishes his right, claim or title over the said plot of land, nothing said in this order of this Court would not come in his/their way nor this order by itself would confer the right of title to the petitioner and/or Shivjee Singh. As of now, Patna Municipal Corporation, however, must handover the remaining area out of the total area of 1 acre and 12 decimals of plot no. 187, except 8804.98 sq. ft. covered by sump house. The State of Bihar (Respondent No.1) and the officials, the District Magistrate-cum- Collector, Patna and Superintendent of Police, Patna, Respondent Nos. 4 & 5 respectively having failed to produce any material that the land in question belongs to the State would also be under obligation to restore the possession of the land in question to the 13 petitioners but in case, in future any claim of right, title over the land in question is raised by any other person than the petitioner and Shivjee Singh, the issue of its right, title and ownership will be decided only by the competent Civil Court in accordance with law. This writ application is accordingly allowed and the respondents are not only directed to handover peaceful possession of land in question but are also restrained from causing any sort of interference in the peaceful enjoyment of right of the petitioner and Shivjee Singh over the property being Plot No. 187 area 1 acre and 12 decimals, barring its 8804.98 sq. ft. which would continue to remain in possession of the Patna Municipal Corporation with the sump house standing and functioning thereon. With the aforementioned observation/directions, this application is disposed of. Rsh (Mihir Kumar Jha, J.)