IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9415 of 2010 1. SHIVNATH SAH @ VISHWANATH SAH S/O LATE BHAGWAN SAH, R/O VILLAGE KHAJURI (TIWARI TOLA), P.S. KUCHAIKOTE,DISTRICT - GOPALGANJ. Versus 1. THE STATE OF BIHAR THROUGH THE DISTRICT MAGISTRATE, GOPALGANJ. 2. THE DISTRICT MAGISTRATE, GOPALGANJ. 3. THE DISTRICT SUPERINTENDENT OF EDUCATION, GOPALGANJ, 4. THE DEPUTY COLLECTOR, LAND REFORMS,GOPALGANJ. 5. THE CIRCLE OFFICER, KUCHAIKOTE,DISTRICT- GOPALGANJ. 6. THE BLOCK EDUCATION EXTENSION OFFICER,KUCHAIKOTE,DISTRICT-GOPALGANJ. 7. SRI RAM NARESH PRASAD, THE HEAD MASTER, NAV SRIJIT PRIMARY SCHOOL , MUSHAR TOLI, KHAJURI, P.S.- KUCHAIKOTE,DISTRICT- GOPALGANJ. 8. THE MUKHIYA ,GRAM PANCHAYAT RAJ, KHAJURI, P.S. KUCHAIKOTE, DISTRICT- GOPALGANJ. 9. THE PANCHAYAT SECRETARY, GRAM PANCHAYAT RAJ, KHAJURI, P.S. KUCHAIKOTE, DISTRICT- GOPALGANJ. 10. SRI RAVINDRA NATH SINGH, S/O LATE MANAGER SINGH, R/O VILLAGE KHAJURI (TIWARI TOLA), P.S. KUCHAIKOTE, DISTRICT - GOPALGANJ. ----------- For the Petitioner :- Mr. Ranjeet Kumar Pandey, Adv. For the State:- Mr. Sanjay Kumar No.1, SC.12 ------------ 4. 09.05.2011 An application has been filed on behalf of respondent no. 2, the District Magistrate, Gopalganj to exempt him from personal appearance today. Having considered the submission made therein, the application is allowed. It is however observed that not even a whisper of on explanation has been furnished for the delay in filing of the counter affidavit. Separate counter affidavits have been filed by the District Superintendent of Education, 2 Gopalganj and the Circle Officer, Kuchaikote. The controversy in this application relates to 40 decimal of land in Khesra No. 3041, Khata No. 326, located in the village Khajuri Thana No. 780, Kuchaikote, District-Gopalganj. From the pleadings of the parties it is beyond the pale of any controversy that the aforesaid lands were settled with the petitioner by the Bhoodan Yagya Committee on 8.2.1977. The only question is that has any part of the school building in question been constructed over this 40 decimal of lands. The petitioner has relied upon an enquiry report dated 15.5.2010 of the Anchal Amin, Kuchaikote that a part of the lands upon which foundation for the school has been laid is claimed as belonging to the petitioner and in respect of which the Anchal Amin had given a site plan report. The Court is not concerned with any area of the lands contiguous to that of the petitioner on which any construction may have been raised and the nature of those lands. The counter affidavit of the District Superintendent of Education asserts that the Zila Parishad has approved the location of the school. That is of no avail to the respondents if they do not 3 have any authority over this 40 decimal of lands. In any event, there is no material on record to indicate or satisfy the Court that the Zila Parishad was duly made aware of the nature of the 40 decimals of the lands and if it could have passed any resolution for construction of a school on private lands. The counter affidavit of the Circle Officer denies that any construction has been raised upon this area of 40 decimal but simultaneously states that no boundaries of the lands had been mentioned in Form-10 settled by the Bhoodan Yagya Committee furnished by the petitioner. Counsel for the State in the entirety finds it difficult to persuade the Court of any authority in the respondents to interfere in so far as this 40 decimal area of lands is concerned. The petitioner shall appear before the District Education Officer with a copy of the present order when the District Education Officer shall fix a date for measurement of the lands limited to this area of 40 decimals. The measurement shall then be carried out in presence of the petitioner, the District Education Officer and such others as may be considered necessary. It shall be open for the petitioner to place any further documentary evidence 4 he may have in possession in support of his claim. It at measurement it is found that any part of the construction of the school impinges on this 40 decimals of land, quite naturally as per the stand of the respondents themselves it has to be demolished. After the measurement is done, and subject to any encroachment on this area of 40 decimals having been found the respondents shall be obliged to demolish the same within a maximum period of two weeks failing which the petitioner shall be at liberty to demolish and recover the costs from the District Magistrate. Needless to state that if no encroachment is found quite obviously no action is called for on the part of the respondents. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)