IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1962 of 2004 Prof. Dr.Bidyanath Singh, son of Late Ram Sevak Singh, resident of village Garuda, P.O. Sanjhauli, P.S. Sanjhauli, District Rohtas, at present resding at Mohalla Shahapur, P.O., P.S. & District Aurangabad........................Petitioner Versus 1. The State Of Bihar 2. The District Magistrate, Aurangabad, District Aurangabad (Bihar) 3. The Sub-Divisional Officer, Aurangabad, District Aurangabad (Bihar) 4. The Circle Officer, Aurangabad 5. The Chairman, Aurangabad Municipality Aurangabad, District Aurangabad (Bihar)......................Respondents ------ For Petitioner: Mr. Rajendra Pd. Singh, Sr. Advocate with M/s Rajeev Kumar Singh & Mukesh Kumar Singh, Advocates For Respondent-Municipality: Mr. Surendra Pd. Singh, Advocate *** P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh, J. Heard learned counsel for the petitioner and learned counsel for the respondent- Municipality. 2. As per the case of the petitioner, he purchased 2 and half decimals of land by registered sale deed dated 18.08.1992 from one Mostt. Chandramani Kuwar appertaining to Khata No.96, Plot No.1215, Thana No.560 situated within the jurisdiction of Aurangabad Municipality. After purchase, for the purpose of constructing a house, petitioner submitted a building plan to the Municipality which was sanctioned on 15.09.1993. On 24.02.1997, petitioner informed the Chairman of Aurangabad Municipality with regard to starting of 2 construction. He also filed another application on 01.03.1997 for re-measurement of the land. Pursuant to the said application, Amins were deputed from the Land Acquisition Office, Aurangabad and in the presence of the Chairman of the Municipality, land was measured and the area purchased by the petitioner was marked as Ka, Kha, G, Gha. Amins submitted the report dated 15.03.1997 to the Executive Officer of the Municipality vide Annexure-4. However, when the petitioner was about to start construction of the building, he received a notice of initiation of a proceeding under Section 144 of the Cr.P.C. from the court of the Sub-Divisional Magistrate, Aurangabad vide Annexure-5. However, the said proceeding was subsequently dropped. Thereafter petitioner filed an application before the District Magistrate, Aurangabad for providing police protection to him to enable him to construct his building on the land. Instead of providing police protection, petitioner received notice from the Executive Officer, Municipality Aurangabad to stop his construction work and for his physical appearance. Accordingly, petitioner appeared before the Executive Officer on 04.07.2002 and filed all the relevant documents in the office. Since the Executive Officer was absent, nothing further happened in the matter. This compelled the petitioner to file this writ application for a direction to the respondents to provide him police protection for construction of the building on the said plot of land purchased by 3 him. 3. A counter affidavit has been filed in this case on behalf of the officers of the Aurangabad Municipality. The stand of the Municipality is that in 1990 itself, under a scheme, a brick-soling road was laid on the land and the same was being used by the people of the locality. Therefore, purchase of the public land by the petitioner was illegal and mala fide. Hence, petitioner was stopped from constructing his building. It is also submitted by learned counsel for the Municipality that subsequently, land has been entered as Rasta in the records of the Municipality and in recent khatian, plot has been shown as ‘Aam Rasta’. 4. Learned senior counsel for the petitioner submits that land was a raiyati land of the vendor of the petitioner and, therefore, she had right to transfer the land to him. On purchase, petitioner acquired right, title and possession of the land from his vendor. He submits that there is no record to establish that, before purchase of the land by the petitioner, the Municipality had taken over the land as public land or that the Municipality had permission of the vendor of the petitioner to lay down the brick-soling road on the land. Even if it is assumed that the Municipality had laid down brick- soling road on the land under a scheme, that was an illegal act on the part of the Municipality since the vendor of the petitioner has absolute right, title and interest of the land which the 4 Municipality could not take over without taking recourse to law. 5. Upon being asked by the Court, learned counsel for the respondent-Municipality expressed inability to point out any record from which it could appear that the land in some way vested in the Municipality before its purchase by the petitioner in 1992. In absence of such proof, it is not possible for this Court to accept that by just laying down the brick-soling road on the land under some scheme hardly two years back, right, title and interest of the landholder gets adversely affected. Clearly, the Municipality could act in accordance with law only and if it was in public interest to lay down the road, the Municipality was legally required to acquire the land or get permission from the landholder for the same. There is nothing on record to show that the Municipality ever made any such attempt. 6. It may also be pointed out that, on the application of the petitioner, the land was measured by two Amins of the District Land Acquisition Office in which the Chairman of the Municipality himself was present and upon his specific direction, land of the petitioner was segregated and marked on the spot as ‘Ka, Kha, G and Gha’ and bricks were embedded on all four corners of the land. The Chairman was present during the said measurement and, therefore, the Municipality cannot altogether ignore the report and take stand that land of the petitioner was not correctly marked or a public land was within four 5 corners of the land of the petitioner as got marked by the Chairman. 7. In the circumstances, the Chairman of the Municipality, Aurangabad is directed to examine the records to find out as to whether before brick-soling road was laid on the land, allegedly, under a scheme, the land had somehow come within the control of the Municipality in lawful manner either by acquisition or acquiescence of the landholder. In case such evidence is found on record, the Chairman of the Municipality shall serve a notice on the petitioner mentioning the said fact in the notice to enable the petitioner to contest the claim of the Municipality. 8. However, the action must be taken by the Chairman of the Municipality within two months from the date of receipt/production of a copy of this order failing which it will be presumed that the Municipality has no lawful claim over the land and the petitioner shall be entitled to approach Municipality to enable him to start the work of construction of the building. 9. The writ application is disposed of with the aforesaid observations and directions. (Jayanandan Singh, J.) Patna High Court, Patna The 19th July, 2010 N.A.F.R. (B.T.)