IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9303 of 2010 1. ARBIND KUMAR THAKUR S/O SRI RAM BILASH THAKUR R/O VILL.- HARPUR SINGHIA, P.S.- SAMASTIPUR- MUFASSIL, DISTT.- SAMASTIPUR Versus 1. THE STATE OF BIHAR THROUGH THE DISTRICT MAGISTRATE SAMASTIPUR 2. THE ADDITIONAL COLLECTOR, SAMASTIPUR 3. THE CIRCLE OFFICER, SAMASTIPUR 4. THE EXECUTIVE ENGINEER, RURAL WORKS DIVISION CHIEF MINISTER ROAD SCHEME, R.E.O., SAMASTIPUR 5. SRI RAM NANDAN PRASAD THAKUR S/O LATE JAI NARAIN THAKUR R/O VILL.- HARPUR SINGHIA, P.S.- SAMASTIPUR- MUFASSIL, DISTT.- SAMASTIPUR 6. PRAHLAD THAKUR S/O LATE MURARI SHARMA R/O BALHA, P.S. CHAK MAISI, DISTT.- SAMASTIPUR 7. PRABHAT THAKUR S/O LATE DR. HARISCHANDRA PRASAD THAKUR VILL.- HARPUR SINGHIA, P.S.- SAMASTIPUR-MUFASSIL, DISTT.- SAMASTIPUR ----------- For the Petitioner : Mr. Sunil Kumar Sharma, Advocate For the state : Mr. Prasoon Sinha, G.A. 3 For Respondent no. 5: Mr. Kripa Nand Jha, Advocate ------ 3. 02.12.2010 Heard learned Counsel for the petitioner, learned Counsel for the State and the learned Counsel for Respondent no. 5. The petitioner is aggrieved by the order dated 15.3.2010 passed by the Additional Collector, Samastipur on an application preferred by Respondent no. 5 holding that there was encroachment of Chak No. 84 as his boundary wall enclosed a portion of the road in that chak as per the report of the Anchal Amin. Respondent no. 5 came to this Court in CWJC No. 4227 of 2009 disposed on 12.1.2010 with the grievance that part of his lands were sought to be utilized for road widening without acquisition in accordance with law. This Court directed matters to be examined in accordance with law. The impugned order came to be passed in pursuance thereof. Counsel for the petitioner submits that he purchased the lands in question on 16.1.1975.The impugned order rightly records contribution of lands on 16.7.1975 voluntarily by the persons concerned including the petitioner and the private 2 respondent to facilitate the construction of a brick soled road. There are houses on both sides with boundary wall. The petitioner has not encroached any portion of Chak No. 84 identified as the lands donated by both sides and on which the road stands. It is next submitted that the boundary wall of the petitioner as existing has been so since long years and no one has objected to the same. There is thus a presumption that there is no encroachment by the petitioner. Counsel for the State and the private respondent have opposed the same to urge that the order impugned records a finding based on spot inspection report submitted by the Anchal Amin of encroachment on Chak 84. The petitioner did not question the report before the Additional Collector, except for calling it collusive. The extent of the area of the lands voluntarily contributed by the parties including the petitioner and the private respondents for purposes of construction of a road is a question of fact. The full details thereof shall naturally be available in the Government records including the documents preparing the chak and numbering it as 84. The physical dimension of the land along with its boundaries shall also form part of such report. The fact that after donation a person may have continued in occupation of part of the land donated may not be sufficient justification for holding on to the land. This Court hastens to add that it is not recording any finding to that effect against the petitioner. The discussion is only for the purpose and limited to the question of the difficulties that arise in writ jurisdiction for adjudication of these issues of fact. The writ Court cannot sit as 3 an appellate authority over the impugned order to re-appreciate evidence and facts unless there is perversity in the finding of fact. Apparently there is no error in the decision making process. The petitioner has had full opportunity. No perversity in the order has been pointed out. That the petitioner may have urged before the court below that the report of the Anchal Amin was collusive may not be sufficient for the writ Court to interfere. It was for the petitioner to demonstrate from the dimension of the donated land as recorded in the government documents with the situation existing today with regard to the road that it was physically the same as it was when the lands were donated on 16.7.1975 and that as per the measurement mentioned in the report of the Anchal Amin read with the document of lands for donation there was no encroachment. These were issues to be raised by the petitioner as question of fact before the Additional Collector himself. This Court therefore finds it difficult to examine the impugned order on these questions of fact which can only be examined by an appropriate authority where evidence can be led, documents may be exhibited etc. The present order and any observation contained therein are for the purposes of disposal of the writ application and shall have no application or bearing on any proposed proceeding initiated by the petitioner before the appropriate forum for purposes as discussed in this order. The writ application is dismissed. Snkumar/- (Navin Sinha,J.) 4