IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.365 of 2009 BHUBANESHWAR THAKUR, son of late Ramashish Thakur resident of village Balapur, P.S.Kalyanpur, Dist. Samastipur-----------------------petitioner Versus 1.THE STATE OF BIHAR through its Principal Secretary, Rural Works Department, Bihar,Patna 2.The Executive Engineer, Rural Works Deptt. Works Division, Samastipur 3.The District Magistrate, Samastipur 4.The Sub Divisional Magistrate, Samastipur 5.The Circle Officer, Kalyanpur Circle, Dist. Samastipur 6.Santosh Kumar Thakur 7.Sudhir Kumar Thakur Both sons of Ramji Thakur, resident of village Balapur, P.S. Kalyanpur,Dist.Samastipur-respondents ----------- For the petitioner :Mr.Mithilesh Kr.Sharma For the State :Mr.Zaki Haider,A.C.to G.A.10 ----- 5. 31.3.2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner seeks direction upon the respondents to stay further construction of pucca road on the plot of land measuring 11-1/2 dhurs bearing Khesra No.279 of Khata No.41, Thana No.96, Tauzi No. 8259 under Mauza Balapur in Kasma Pargana in the district of Samastipur and also to remove the encroachment from the said plot. The contention of the petitioner is that the land in question is ancestral property of the petitioner and since the time of his predecessor- in-interest it has been continuing in peaceful 2 possession of the petitioner till November, 2004 when the respondent authorities arbitrarily carried out earth filling work and laid bricks there without any notice to the petitioner for construction of road under the MLA Local Area Development Scheme. The case of the petitioner is that upon the said action of the respondent authorities he filed representations before the respondent officials requesting them to stay the work on the said land and have the land measured by the Government Amin so that the petitioner’s land may be freed from encroachment but no action has been taken by the authorities. Thereafter when no steps were taken by the authorities regarding measurement of the land the petitioner applied for information under the Right to Information Act, 2005 whereupon the measurement of the said land was carried out in presence of the petitioner and other villagers on 11.5.2007 by the Government Amin, who submitted his report to the Circle Officer, Kalyanpur on 25.5.2007(Annexure-6). It was clearly stated in the said report that as much as 11-1/2 dhurs of land of the petitioner have been encroached upon by the respondent authorities and road has been made thereon by filling with earth and laying 3 brick. There was also a finding in the said report that the existing kaccha road on Khesra Nos. 295 and 284 had been encroached upon by respondent nos. 6 and 7 by constructing their house and sahan over a part of the same. Subsequently the authorities ignoring the said report of the Anchal Amin have taken steps for making pucca road over the said road which was started to be constructed after encroaching the petitioner’s land under the Mukhya Mantri Sarak Yogana. When the authorities have not taken any action on the representation of the petitioner ultimately he has come to this Court by filing the writ application. In the counter affidavit filed on behalf of the respondents the stand taken is that the kaccha road in question was existing prior to 2004 in which a portion of land of Khesra no. 279 belonging to the petitioner was also included and the same was constructed with the co-operation of the local people and with the financial support of the Government. Subsequently soling work was also done in the month of November, 2004 under the said scheme and completed later on. It is stated that the petitioner either in course of construction of kaccha road or its completion of 4 soling work has raised no objection but when pitching work over the road in question started under the Chief Minister Village Road Scheme objections have been raised by the petitioner. While not disputing the earlier report of the Anchal Amin dated 25.5.2007, by filing a supplementary counter affidavit another report dated 26.3.2009 has been obtained from the same Amin in which an attempt has been made to show that the road in question was in existence much prior to the earlier report. It is further stated in the further report that the road was constructed a long time back on the basis of mutual understanding among villagers and no new road has been constructed which has been sought to be supported on the basis of the map submitted by him. On a consideration of the aforesaid facts and circumstances it is evident that the respondent authorities have encroached 11-1/2 dhurs khatiani land of the petitioner and have somehow sought to support their action by stating that the kaccha road is in existence for a long period of time and had been constructed on the understanding of the local people. 5 The said stand cannot be of any use to the respondent authorities once the fact that the road in question encroaches upon the khatiani land of the petitioner stands admitted. It is for the authorities to prove the said fact regarding existence of kaccha road being an old one and adverse possession over the same has come into existence contrary to the right of the petitioner and no such right can be claimed on the mere saying of the respondent officials. The said facts have to be proved in a duly constituted suit before the competent civil court and no action can be taken by them for constructing a pacca road or any road on the khatiani land of the petitioner merely by relying upon such statements. In the aforesaid facts and circumstances, the writ application is allowed and the respondent authorities are directed to remove all encroachments over 11-1/2 dhurs of land of the petitioner bearing Khesra No. 279, Khata No.41 within a period of six weeks from today. (Ramesh Kumar Datta,J.) spal/