IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9867 of 2003 1. Bhuvneshwar Yadav, S/o Late Pitamber Yadav 2. Dharnidhar Yadav, S/o Late Sitamber Yadav] 3. Krishnandan Yadav, S/o Late Radhakant Yadav 4. Birajbati Devi, W/o Jivachh Yadav, all 1 to 4 resident of village- Kusiam, P.O. Bhachhi, P.S. Baheri, District- Darbhanga Versus 1. The State of Bihar 2. The Collector, Darbhanga 3. The Sub-divisional Magistrate, Darbhanga 4. The Anchaladhikari, Baheri, Distt. Darbhanga 5. The Executive Engineer, REO, Darbhanga 6. The S.D.O., REO, Darbhanga 7. Birendra Kumar Yadav, S/o Subhash Narayan Yadav, resident of village- Kusiam, P.O. Baheri, District- Darbhanga. -------- For the petitioner: Mr. Amrendra Narain, Advocate For the State: Mr. S. Rahman, AC to SC 17. -------- 6. 13.5.2010 Heard learned counsel for the petitioners and learned counsel for the State. The petitioners seek a direction upon the respondents restraining them from encroaching and constructing the road on the petitioners’ lands of Survey Plot Nos. 200 and 201 (old) corresponding to Plot nos. 128 and 129 (new) in village Sadhua, P.S. Baheri, District Darbhanga. The short case of the petitioners is that a public road under the Pradhan Mantri Gram Sadak Yojana was 2 to be constructed on Survey Plot No. 159 which is 60 ft. wide but instead of doing so the respondent-authorities are illegally encroaching upon the petitioners’ land for constructing the road upon it in collusion with respondent no. 7 who is Mukhiya of the village. Since notice has not been issued to respondent no. 7, this Court is not taking up any allegation made against the said respondent. In the counter affidavit filed on behalf of the State-respondent nos. 2 to 4 although allegation is made that the petitioners themselves encroached upon a portion of public road by constructing residential house over it, for the removal of which Encroachment Proceeding No. 10/2003-04 is proceeding against the petitioners and others, this Court does not consider the same at all relevant for the purpose of decision in this writ application. If there has been an act of encroachment by the petitioners on a public land, the authorities have already instituted proceedings and they may proceed with the same in accordance with law. The important aspect is that it is admitted in the counter affidavit that the road is being constructed over 3 the land of the petitioners although the stand is taken that the same has been done upon their oral consent. This Court is unable to understand as to how a huge amount of public money can be expended on a project without obtaining consent in writing of the concerned raiyats whose lands are to be used for the said purpose and merely by taking a plea that there was an oral and amicable consent. Such claim of oral consent by public officials is open to grave misuse and stern action should be taken against the public officers who proceeded to make construction over the private lands of the raiyats without obtaining their consent in writing. In view of the admission by the respondents that the road is being constructed over the land of the petitioners, the clear stand of the petitioners that at no time they have given any consent for the construction of the public road over their lands and further the admission by the respondents that there is no consent in writing on behalf of the petitioners, this Court is of the view that the respondents cannot make any construction over the raiyati lands of the petitioners. They are restrained from doing so. 4 The respondent-authorities are further directed to make proper measurement of the land of the petitioners vis-à-vis the public land on which the road is to be constructed and after making proper demarcation, proceed with the construction work of the road only upon the public land unless consent in writing is obtained from the petitioners or any other raiyats with regard to construction of road over their lands. It is directed that the measurement be completed within a period of two months from the date of receipt/production of a copy of this order. The writ application is accordingly allowed with the aforesaid observations and directions. S. Pandey ( Ramesh Kumar Datta, J.)