IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8183 of 2007 JAI PRAKASH SINGH Versus UNION OF INDIA & ORS 11 4.11.2009 Heard counsel for the petitioner and the State as well as learned counsel appearing on behalf of respondent no.6 the National Buildings Construction Corporation Limited. In the instant writ petition the petitioner prays for issuance of writ of prohibition or any other appropriate writ prohibiting the respondents from taking forcible possession of raiyati lands of the petitioner for the purpose of construction of village road under Pradhan Mantri Gramin Sarak Yojna. The main issue raised by the petitioner is whether the respondents can take forcible possession of the raiyati land without initiating any proceeding for acquisition of the same. The petitioner states that the pucca road is being constructed from National Highway-80 Balgudar (Brick Kiln) to Damodarpur in the district of Lakhisarai. The petitioner states that part of plot no.1946 of Thana No.134 of Mauza Balgudar and Plot No.283 of Thana No.197 of Mauza Sabikpur on which the road is being constructed belongs to him. In support of his contention, he refers to Annexure-A filed on behalf of respondent nos.2 to 5. Learned counsel for the State submits that Plot no.1946 of Thana No.134 comprises 14 ¾ decimals of land and plot no.283 of Thana No.197 comprises 6 ½ decimals of land. The stand of the respondent State is that an old Kuccha road over the aforesaid land - 2 - was existing for more than 30 years, which was being used by the public as road without any objection by the petitioner. It has been asserted that previously the said road had been constructed twice through Scheme No.30F2/87-88 with sanctioned fund of the then M.L.A. and again from the sanctioned fund of the then M.P. In view of the order dated 12.2.2009 passed by this court, the respondent nos.2 to 5 have brought on record certain documents contained in Annexures-C and D. In paragraph 4 it has been stated that the Executive Engineer, R.W.D. Shekhpura asserted that Rs.4,76,391.02 were spent in March 1988 for construction of the aforesaid road from Balgudar to Damodarpur vide Sabikpur under Agreement no.30 F2/87-88 executed by Kumar Construction Company. Learned counsel for the petitioner in support of his contention relies upon a decision of this court in the case of Shri Nagendra Singh Vs State of Bihar & Ors, reported in 1997(2) P.L.J.R. 1020 wherein it was decided that unless and until an easementary right is found to have come in existence as claimed by a party it cannot be allowed to force their way through the other party’s land. Accordingly the State authorities cannot be allowed to construct a road forcibly over the petitioner’s land as long as the respondents claim of prescriptive easement is not upheld by a court in accordance with law. The main issue revolves around the grant of consent by the petitioner for use of the aforesaid land for construction of the road in question which according to the respondents was constructed way - 3 - KHAN back about 25-30 years ago. In view of divergent contention of the parties, I remit the matter to the District Collector, Lakhisarai for ascertaining whether the petitioner or his father had any time consented for construction of the aforesaid road which passes through the portion of their raiyati land being plot nos.1946 and 283 of Village Balgudar and Sabikpur respectively. He will also make an enquiry whether the old road existed on the aforesaid plots of the land with the consent of the petitioner or not. It is expected that Collector of the district would record his finding preferably within a period of two months from the date of receipt/production of a copy of this order. The petitioner be also afforded an opportunity of being heard. With the aforesaid observations and directions, this writ petition stands disposed of. (S.P.Singh,J)