IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4146 of 2002 MITHILESH PRASAD SINGH SON OF SHREE SHYAM NANDAN PRASAD SINGH, RESIDENT OF VILLAGE BISHANPUR, P.S. SAHARGHAT, DISTRICT MADHUBANI …………..PETITIONER. Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR OF MADHUBANI 3. THE SUB DIVISIONAL OFFICER, BENIPATTI, DISTRICT MADHUBANI 4. THE CIRCLE OFFICER, CIRCLE OFFICE, MADHWAPUR, DISTRICT MADHUBANI 5. THE B.D.O. BLOCK OFFICE, MADHWAPUR, DISTRICT MADHUBANI 6. THE MUKHIYA, GRAM PANCHAYAT RAJ BISHANPUR, P.S. SAHARGHAT, DISTRICT MADHUBANI 7. DEO NARAYAN YADA 8. RAM RIJHAN YADAV 9. BINDA YADAV, ALL 7 TO 9 SONS OF LATE RAM PRASAD YADAV, RESIDENT OF VILLAGE BISHANPUR, P.S. SAHARGHAT, DISTRICT MADHUBANI ………RESPONDENTS. ----------- 4. 1.5.2009 Heard Counsel for the parties. The prayer of the petitioner in paragraph no.1 of the writ application reads as follows : (i)To remove the encroachment made by the respondent nos. 7 to 9 and/other anti social elements on the survey road used by the public in general of village bishanpur in the District of Madhubani. (ii)To construct the road over the portion shown in the survey map (old as well as new map) as “Aam Rasta” after demarcating the same by deputation of an amin in supervision of any competent authority. (iii)To stay the construction or road presently making over the Khatiyani land of the petitioner at the instance of Respondent no.6, leaving the encroachment untouched. Mr. Murari Narain Chaudhary, learned Counsel for the petitioner submits that there is no dispute that certain encroachments were made by respondent no.9 on a public road existence whereof is not found in the survey map describing the same to be “Aam Rasta”. He also points out that the road in question by the collusive efforts of the respondents has been extended on raiyati land of the petitioner and therefore the petitioner is only aggrieved by certain actions of the 2 State and its officials by which they have sought to change the alignment of the road by encroaching upon the khatiyani land of the petitioner. The allegation of the petitioner is that the same has been done at the behest of respondent no.6. The official respondents represented by learned A.A.G.II have not filed their counter affidavit but from the materials on record it appears to be a dispute between the petitioner and private respondents. The respondent nos. 7 to 9 however also have not filed their counter affidavits, therefore whatever facts have been stated by the petitioner has been accepted by both of them to be correct. Counsel for the respondent nos.7 to 9 would contend that if there be any encroachment made by respondent nos. 7 to 9 on public road that may be removed. He however submits that however may not be the end of the problem for the petitioner because someone has to identify as to which portion of the land is to be used as the public road. In the opinion of this Court such conflicting claims of the parties can be decided for once and ever by directing the district officials to go into the root of the matter and accordingly the Circle Officer of Madhwapur is here directed to enquire into the whole matter to find out the existence of the public land and also its continued requirement for its being used for road. If in course of such enquiry the Circle Officer, Collector under the Bihar Land Encroachment Act would find that either the petitioner or the respondent nos.7 to 9 or some other persons have encroached any portion of the public land he will initiate a proceeding under the Bihar Public Land Encroachment Act. On the other hand if it is found that 3 the khatiyani land of the petitioner is not part and parcel of such public land, he would also pass an order to that effect within a period of four months of receipt/production of a copy of this order. For completing of such exercise, the petitioner as well as the respondents 6 to 9 are directed to appear before the Circle Officer, Madhwapur on 1st of August, 2009 along with a copy of this order whereafter the said authority will fix a date for hearing and pass an appropriate order in accordance with law. It is made clear that this Court has expressed no opinion on the merits of claim of any of the parties and has simply disposed of this matter in absence of any counter affidavit only on the basis of the averments made in the writ application. Till the aforesaid final decision is taken by the Circle Officer, Madhwapur in the manner as indicated above, the interim order by this Court passed on 18.4.2002 shall continue to remain operative. With the aforesaid observation/direction, this writ application is finally disposed of. Narendra/ ( Mihir Kumar Jha, J. )