IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.111 of 2008 ------ 1. Mahanth Mukundanand Sarswati son of Late Chandrika Singh, Mahanth of Gopaldham resident of village Sithaura P.O. Sithaura P.S. Rajgir District Nalanda. 2. Ram Swaroop Singh son of late Bhola Singh at and P.O. Sithaura P.S. Rajgir District-Nalanda. ….. Petitioners/ Appellants. Versus 1. The State of Bihar. 2. The District Magistrate Nalanda. 3. The S.D.O. Rajgir District Nalanda. 4. The Circle Officer Rajgir District Nalanda. 5. The Union of India through Mahaprabhank Ordnance Factory Nalanda. ….. Respondents/Respondents. ----------- For the appellants : Mr.Syed Arshad Alam, Advocate Mr. Gautam Kumar Yadav, Advocate Mr. Arif, Advocate For the respondents : Mr. Lalit Kishore, No.1 to 4 Additional Advocate General-III Mr. Satyabir Bharti, Junior counsel to Additional Advocate General-III For the respondent no.5: Mr. Sudhir Singh Assistant Solicitor General ------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----- Dated, the 10th November, 2008. The appellants are unsuccessful writ petitioners. They filed the writ petition for issuance of a writ of mandamus to the respondents - 2 - directing them not to disturb the approach road and demolish the existing arch gate on the approach road to the Gopaldham temple. 2. According to the petitioners, Gopaldham temple is situated at a distance of approximately six kilo meters from Rajgir on Giriyak Pawatipur Road. The temple is said to be connected from the said road by a twenty feet pucca approach road of about a kilometer long. The approach road is known as „Giriyak Gopaldham Path‟. The temple is said to be quite old and thronged by large number of devotees. It is averred that the Mahanth and Manager of the temple received the information that the approach road was likely to be disturbed and the gate demolished by the local authority, necessitating the filing of the writ petition. 3. The State government and its functionaries, who were impleaded as respondents, contested the writ petition by filing the counter affidavit setting up the plea that the entire area of land in Mouza Sithaura Thana no.448, District- Nalanda, excluding the temple premises but including the subject approach road has been acquired for a public purpose, namely construction of the Ordnance Factory. The details of the notification published under Section 6 of the Land Acquisition Act, 1894 have been given in the counter affidavit indicating that the said notification was published on 28th April, 2000. In the counter affidavit, it has been stated that the subject access road is a private road and is a part of the acquired area. The Union of India through the Ordnance Factory applied for their - 3 - impleadment as they were directly concerned with the subject matter. Their application was granted by the Single Judge and they had been impleaded as the respondent no.5. They reiterated before the Single Judge that the subject approach road was not a public road, but was a private land and that the said private road is a part of the acquired area. 4. The Single Judge dismissed the writ petition as it was found that the petitioner suppressed the material facts. 5. After having heard the counsel for the appellants and the Additional Advocate General –III, we are satisfied that the Letters Patent Appeal does not deserve to be admitted. From the pleadings of the writ petition and the documents placed on record for consideration in the writ petition as well as diverse counter affidavits, it cannot be held definitely that the subject approach road is a public road. As a matter of fact, no revenue record has been placed on record by the appellants which may prima facie indicate that that the subject road was a public road. Moreover, in paragraph-4 of the Letters Patent Appeal, the subject road has been stated to be private road by the appellants themselves. In this connection, paragraph 4 of the Letters Patent Appeal may be reproduced by us as it is: “ That it is humbly submitted that said writ application was filed with the prayer to issue appropriate writ/writs, commanding the respondent not to demolish the existing gate on the approach Road to the Gopaldham temple and later on one I.A. was filed on 19.11.03 in which Gazette notification published under section 6 of the Land Acquisition Act on 28.4.2000 along with a map whereunder the plot number of village sithaura have been indicated and private Road of Gopaldham temple is - 4 - within the acquired area which is evidents from the perusal of map and Gazettee.” 6. As noticed above, in paragraph 4 of the Letters Patent Appeal, the appellants have themselves admitted that the subject approach road is a private road of Gopaldham temple and that it falls within the acquired area. The acquisition took place in the year 2000 and it has attained finality as there is no challenge to the acquisition at all. Paragraph-4 of the Letters Patent Appeal corroborates the stand set up by the respondent nos.2 to 4 in the counter affidavit in opposition to the writ petition, particularly, paragraph 3 thereof. 7. Once the land comprising subject road has been acquired in accordance with law and there is no challenge to the acquisition, the prayer made in the writ petition that the respondents be directed not to disturb the approach road is misconceived and cannot be granted. 8. Incidentally, we may observe that since there has been no acquisition of the temple and allegedly there is no access road to the temple, we wanted the parties to explore some amicable solution. Since the land has been acquired for Ordnance Factory and the area could not be exposed to the public movement for their safety as well as for security reasons, an offer was made by the Additional Advocate General-III as well as counsel for the Central Government that the respondents are ready and willing to re-locate the temple at their cost outside the area of the Ordnance Factory. However, this was not acceptable to the counsel for the appellants. It, thus, appears that - 5 - there is no possibility of amicable solution. 9. Be that as it may, Letters Patent Appeal has no merit and it deserves to be dismissed and is dismissed in limine. R. M. Lodha, CJ. Kishore K. Mandal, J. Sunil