IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3167 of 2001 PRABHAT KUMAR KANODIA Versus THE STATE OF BIHAR & ORS ----------- 3 20.1.2009 Heard counsel for the parties. The prayer in this writ application by the writ petitioner as mentioned in paragraphs no. 1,2,3 reads as follows : - 1. That this application is being filed for a direction by this Hon’ble Court for issuance of any appropriate writ to the District Board, Bettiah to restrain/cancel the settlement of the Flank of the Road situated at Majhaulia Town/Block, Bettiah, West Champaran. 2. That this Hon’ble Court may also quash the Memo No. 263 dated 1.12.2000 by which the respondents no.4 to 8 have settled land existing on the flank of the Road. 3. That it is further prayed that your Lordships may stay the construction of the shops by Respondent No.4 to 8 which are being constructed without any agreement. Counsel for the petitioner at the outset had submitted that the writ petitioner has no longer any interest in the writ application inasmuch as he had already sold his plot of land. 2 Counsel for the petitioner, however submits that one interlocutory application being I.A. No. 223 of 2007 has been filed by the two purchasers who according to him have come into the shoes of the writ petitioner and therefore, they may be substituted and transposed as writ petitioners. In the opinion of this Court, such a prayer is wholly misconceived because an order dated 13.12.2000 in C.W.J.C. No. 13004/2000 was passed by this Court in the earlier writ petition of the petitioner considering only the case of the petitioner which reads as follows:- “The petitioner has challenged the settlement made by Respondent no. 3 in favour of respondents no. 4 to 8. It has been stated by the learned counsel for the petitioner that settled portion is flank of the road. It is 12 ft. wide out of which 10 ft. wide has been settled for construction of shop. If settlement is allowed to stand and construction is made it will cause difficulty to the petitioner is coming out and going to the house. Such matter can be looked into and grievance can be redressed by the local authority because it relates to factual aspect of the matter. Therefore, this application is disposed of permitting the petitioner to file a petition before 3 the respondent no. 3 within one week. In case such petition is filed, the respondent no. 3 is directed to consider the grievance of the petitioner and also that in no way the petitioner may be put to any trouble in using the residential house. He is also directed to disposed of the petition filed by the petitioner by a reasoned order in accordance with law within a period of three weeks from the date of filing of the petition.” Such personal right which had accrued on the writ petitioner, cannot be acquired by the purchasers. As a matter of fact, the impugned order also came to be passed at the instance of the writ petitioner who was given liberty by this Court to file a representation and it was his representation which got disposed of by the impugned order. That being so, this Court would reject the prayer for impleadment of the interveners for being substituted in place of writ petitioner and being transposed as a writ petitioners. Specially when such sale deeds in their farm was executed by the writ petitioner during the pendency of the writ application on 14.9.2004 and 26.7.2005 and that too without obtaining prior permission of this court. The doctrine of lis pendens would squarely govern the fate of the purchasers who even otherwise cannot be impleaded as 4 petitioners in terms of Chapter XXIC of Patna High Court Rules. Though, the petitioner has already sold his land and therefore has no interest left in this lis involved in this writ application, this Court would find that even otherwise, he had infact no case for invoking the writ jurisdiction. That is because this Court would find that the case of the petitioner was that the flank of the road was being encroached/settled by the Deputy Development Commissioner-cum-Chief Executive Officer by raising construction of shops and settling it with the private respondents 4 to 8. Such case of the petitioner, however on remand was not found to be correct by the Collector of the district who had passed the impugned order after hearing the parties and also perusing the relevant documents. The findings of the Collector of the district in this regard in the impugned order is as follows:- “From inspection and hearing as aforesaid it is clear that at spot plot no. 922 is public road which runs east to west 40’ wide and north to the road there is 27’-6” vacant land likewise in south of the road there is 25’ wide vacant land out of which 9’-6” flank belongs to Zila Parishad. House of petitioner is situated about at a distance of 40’ from the main road as also land of zila parishad settled 5 temporarily to different persons for encreasing the revenue of Zila Parishad. The house of the petitioner has got a very suitable off truck passing wideness from the main road passing through some portion of the land of Zila Parishad towards east of temporarily settled land. Thus it is quite clear that there is no hindrance of disturbance in the ingress and egress of the applicant. From the local inspection it has also come to light that the applicant has got his land towards south of the land of Zila Parishad and he intends that his entire land would remain open. From the discussion made above it would be clear that there is no disturbance or obstruction in the egress and ingress of the petitioner and in no way the Zila Parishad is making any type of inconvenience in use of the house by the applicant.” From the reading of the aforementioned findings of fact recorded by the Collector of the district who had passed the said order while complying the directions given by this Court in earlier writ application filed by the petitioner, it would be apparent that the entire premises on which the petitioner had made out his case of there being an encroachment on the flank of the road was found to be absolutely incorrect and infact baseless. This finding of fact recorded in the Collector’s order has not been assailed before this writ court by suggesting it 6 to be an error of record. Counsel for the petitioner however refers to some topographical map to suggest that the findings recorded by the Collector of the district are not in conformity with the position explained therein. He has also placed reliance on two Division Bench judgments of this Court in the case of District Board of Manbhum Vs. Bengal Nagpur Railway Co. and Anr. reported in AIR 1945 Patna 200 and in the case of Chandan Kumar Singh Vs. The State of Bihar & Ors. reported in 2000 (4) PLJR 362. In the opinion of this court, such reliance of the counsel is wholly misplaced inasmuch as in those two cases, there was no dispute with regard to the alleged encroachment/construction being itself on the flank of the road. However, in the present case, as noted above, the construction made by the Zila Parishad is neither by the side of the flank or on the flank of the road. This Court, infact would find it difficult to accept the aforesaid submission for another reason namely that the findings recorded by the Collector has been fully supported even in the counter affidavit filed by the respondents Zila Parishad wherein in paragraph nos. 4, 5 & 6 the whole issue has been clarified with great details. There being no denial to the facts mentioned in the counter affidavit, they must be deemed to have been 7 admitted. The aforementioned assertions made in the counter affidavit made by the respondent Zila Parishad in the counter affidavit, copy whereof was served on the counsel for the petitioner way back on 28.6.2001, having been not controverted by the petitioner till date they have to be treated as admitted fact. The resultant outcome of the aforementioned pleadings on record would be that the petitioner has ultimately accepted his house is situated at a distance of forty feet from the road and the flank and therefore, there was no question of curtailment of any easmentary rights of the petitioner. However, if the petitioner was so sanguine to his cause with regard to the curtailment and/or denial of his easmentary right, he had a remedy of moving the civil court because in a writ petition, there would not be a scope for adducing evidence which would be essentially required to be gone into for deciding such a disputed question of fact in a properly constituted suit between the petitioner and/or his successor on interest as also the State of Bihar and Zila Parishad. That being so, this Court must hold that this writ application is wholly misconceived and is accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)