IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14972 of 2001 BHAGWAT PD.SINGH, SON OF LATE AWDHESH KUMAR SINGH, RESIDENT OF AWDHESH NIWAS, CHOUDHARY TOLA, P.S. SULTANGANJ, DISTRICT PATNA ………… PETITIONER. Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, PATNA 3. THE SUB-DIVISIONAL OFFICER, PATNA 4. THE CIRCLE OFFICER, PATNA CITY, PATNA 5. THE PATNA REGIONAL DEVELOPMENT AUTHORITY, PATNA, THROUGH ITS VICE PRESIDENT 6. THE VICE PRESIDENT, PATNA REGIONAL DEVELOPMENT AUTHORITY, PATNA 7. THE PATNA MUNICIPAL CORPORATION, PATNA, THROUGH ITS ADMINISTRATOR 8. THE ADMINISTRATOR, PATNA MUNICIPAL CORPORATION, PATNA ……..RESPONDENTS. ----------- 6. 13.4.2009 Heard Counsel for the petitioner and the Counsel for the State. In this writ application, the petitioner has made prayer to the following effect : “(a)For directing the respondents to restore the construction existing over Plot no.328, Holding No.168/130, Circle No.59, Ward No.22/16 situated in Mohalla Choudhary Tola, P.S. Sultanganj, District Patna, which was in existence much prior to 100 years ago at the cost of the state respondents concerned; (b)For commanding the respondents to not disturb the construction existing over Plot no.328, Holding no.168/130, Circle No.59 and Ward no.22/16; and (c)Also for necessary relief or reliefs for which the petitioner may be found legally entitled under the facts and circumstances of the case.” Counsel for the petitioner with reference to the aforementioned reliefs would submit that it was an act of high 2 handedness on the part of the respondents to have demolished the stair case and certain portion of the house of the petitioner without even making measurement and/or notice in the prescribed manner. He has further submitted that the order of this Court in Arun Kumar Mukherjee’s case (C.W.J.C.No.1190 of 1990) had never meant to be an authority for indulging indiscriminate demolition of portion of house of the petitioner as had been later on explained by this Court in the case of Bhola Sah and ors. versus The State of Bihar & ors. reported in 1999(2) PLJR 851. He would finally submit that even if the demolition of stair case of the petitioner was made and 150 square feet of constructed area was removed, that by itself did not secure the purpose for which such demolition was carried out, inasmuch as the land is still vacant after demolition of portion of house of the petitioner and no road thereon has been constructed. Counsel for the State with reference to the counter affidavit would only submit that the District Administration had no option but to comply the report submitted by the P.R.D.A and the order of this Court in Arun Kumar Mukherjee (Supra) directing demolition of any constructed portion obstructing a road/gali. He further points out that as a matter of fact the notice of such demolition was also given in the name of the son of the petitioner and as such it cannot be said that the petitioner had no opportunity to explain the alleged encroachment. 3 This Court, on perusal of materials on record, would find that it has now become very difficult to either accept the case of the petitioner or reject the defence of the respondents. The reason is that there are two notices at least issued by the authorities and both of them were duly received by the son of the petitioner. The son of the petitioner in his reply however had not placed any fact before the authority with regard to alleged encroachment or even by asking for remeasurement rather he had adopted a technical approach in his show cause reply and had virtually not answered the query made in the show cause notice. In that view of the matter, annexure-1, a representation dated 24.10.2001 written after implementation of order of the demolition, can hardly have any evidentiary value for recording finding as to what had happened on 6.10.2001. It has to be also noted that when the removal of encroachment was being monitored by this Court in Mukherjee’s case (Supra) there was a specific direction for removal of encroachment in 48 hours and that is how a large number of encroachments were removed. The only liberty given in such a case was that if there was any objection, the person concerned was required to produce the documents to show that that the land in question is not covered any road, public land and the authorities were supposed to decide the matter immediately. In this case the son of the petitioner who was found responsible for encroachment did not take plea that the 4 land is not covered the public land which had been spotted for the proposed demolition. Annexure 3 and 3/2, the two notices were nothing but only by way of such query about encroachment of public land but the same was literally evaded by the son of the petitioner which is also apparent from reading of his show cause reply (Annexure 3/3). Therefore if in such a situation demolition was made, this Court now cannot restore the status-quo ante by holding that such action at that point was unwarranted. The issue as to whether the land in question belongs to the petitioner or public land, at this stage, can only be decided with the help of the evidence and therefore the petitioner, if so advised, may file a civil suit questioning all such actions of the authorities wherein he can also claim damages for the demolition in question. The grievance of the petitioner that the very purpose and object of carrying out the demolition was not been achieved in as much after removal of encroachment of the petitioner nothing has been done by the authorities to secure the 10 feet width of Gali needs to be looked into by the authorities of Patna Municipal Corporation. This court would find that if the house of the petitioner was demolished to secure a gali wirth minimum of 10 feet known as Devta Prasad Singh Choudhary gali for enjoyment of right of passage by the people in general, the same could not have been abandoned only after demolishing 5 the part of house of the petitioner. This aspect of the matter therefore needs to be examined by the authorities, namely, the Patna Municipal Corporation and the District Administration afresh and this Court would accordingly direct that such examination must be made within a period of four months from the date of receipt/production of a copy of this order so that Devta Prasad Singh Choudhary lane becomes at least wirth 10 feet wide for general people. It goes without saying that in case house and/or constructed portion of any person has to be demolished for such purpose, the authorities of Patna Municipal Corporation and the district administration will take immediate action, of course, in accordance with law. With the aforementioned observations and directions, this application is finally disposed of. Narendra/ ( Mihir Kumar Jha, J. )