IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10256 of 2002 KRISHNA NIWAS UPADHAYAY Versus THE STATE OF BIHAR & ORS ----------- 7. 23.4.2009 Heard Mr. Nand Kishore Pd. Sinha, learned counsel for the petitioner and learned A.C. to AAGIII. In this writ application the petitioner has made a prayer for the following relief: “This is an application for issuance of an appropriate writ, order or orders directing the respondent to remove the encroachment from the public road having 25 feet width over plot no. 2211, Khata No. 964 situated in the town of Goh in the district of Aurangabad which leads to Goh Bazar by connecting the main road of Gaya- Daudnagar road through which the people and vehicle used go to the Bazar and the aforesaid road has been encroached by the total people causing impediment in the free flow of traffic and general public and some times due to heavy rush of public the road is blocked due to its narrowness account of encroachment and the people are facing much trouble for going to the Bazar and the same is being encroached by the disgruntled 2 persons of the locality without any authority of law creating trouble to the general public and despite several direction by the authority concerned the encroachment is not being removed from the aforesaid public land.” With reference to the aforementioned relief counsel for the petitioner would submit that though a counter affidavit has been filed stating therein that the encroachment in question had been removed, the fact of the matter is that there is still some encroachment left and as such, the impression created by the respondents in their counter affidavit and the supplementary counter affidavit to the effect that the encroachment had already been removed, is not correct. Counsel for the State, on the other hand, would submit that there is no denial to this fact specifically asserted in the counter affidavit of the Respondents even by the petitioner that after the orders of this Court when steps were taken for removal of the encroachment any part of such encroachment had still remained unremoved. 3 He also assures this Court that if there be any more encroachment on public land in question, the same will be also removed without any further loss of time. This Court would find that earlier the counter affidavit was filed by the Circle Officer, Goh and the supplementary counter affidavit was filed by the Sub- divisional Officer, Daudnagar and in the supplementary counter affidavit, Md. Ekhlaque Ahmed, the S.D.O., Daudnagar, has made a categorical statement “that the encroachment from plot no. 2211 and 2664 have been removed on 12.5.2003 ……….” This part of the stand taken by the S.D.O., however, has been sought to be disputed by the petitioner in paragraph 3 of his rejoinder to the supplementary counter affidavit in the following terms: “3. That with regard to the statement made in paragraph no.2 of the counter affidavit under reply it is stated that from plot no. 2211 no total encroachment has been removed and only from a portion of plot no. 2211 encroachment has been removed and the main road which 4 leads to the main market of Goh Bazar in between the road encroachment has been removed, but in the corner of the road the same is as it is which is causing trouble to the people to go to the market and as such it is necessary to remove encroachment from north to south of plot no. 2211 leading to the main market only from middle portion of plot no. 2211 encroachment has been removed. 4. That it is relevant to mention here that from plot no. 2664 which has been encroached by Ramesh Prasad was removed, but the encroachment which has been made by Tapeswar Singh over plot no. 2211 a portion of encroachment has been removed and the plinth portion of construction over the road made by Tapeshwar Singh has not been removed and a room is standing still way and a gate has been perfected and the maingate has not been removed and in that view of the matter it is clear that the encroachment of plot no. 2211 has not been fully removed. 5. That it is stated and submitted that for free flow of traffic to the Goh Bazar fully encroachment from plot no. 2211 is remained to be removed otherwise the situation will be the same.” 5 In view of this conflicting stand the case becomes oath against oath. The authorities have claimed that the entire encroachment had been removed whereas the petitioner is still of the view that such encroachment has not yet been removed as a whole. In that view of the matter, this Court direct the Collector of Aurangabad District to himself look into this issue and find out if any part of the claim of the petitioner with regard to non-removal of any portion of encroachment on the public land either in plot no. 2211 or 2664 still exists and if the Collector of the district would find that the entire encroachment has already been removed he would simply pass an order and communicate it to the petitioner that there is no further encroachment left on the aforesaid two plots. On the other hand, if it is found by the Collector that still there is some encroachment left on the aforesaid two plots, he would get them free from encroachment in order to ensure free flow of traffic which appears to be main 6 concern of the petitioner. In order to expedite the matter this Court would give liberty to the petitioner to file a fresh representation to the Collector alongwith a copy of this order and the Collector will take needful action within a period of three months from the date of receipt/ production of a copy of this order. With the aforementioned observation, this application stands disposed of. (Mihir Kumar Jha,J.) Surendra/