IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6932 of 2008 JAI BABU SAO, JAI BABU SAO SON OF LATE GAURI SHANKAR SAO RESIDENT OF MOHALLA MANIK CHAND KA TALAB, P.S. GARDANIBAGH, DISTRICT PATNA. Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, SADAR, PATNA. 3. DEPUTY COLLECTOR LAND REFORMS, SADAR, PATNA. 4. EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, NEW CAPITAL DIVISION (ROAD), PATNA. 5. ADDITIONAL DIVISIONAL OFFICER, NATIONAL HIGHWAY ROAD, DIVISION, ANISHABAD, PATNA. 6. ANCHAL ADHIKARI, SADAR, PATNA. 7. CHIEF ENGINEER, NATIONAL HIGHWAY ROAD DIVISION, ANISABAD. ----------- 04. 15.12.2010 Heard learned counsel for the petitioner and the respondents. 2. Petitioner is aggrieved by the notice dated 24.4.2008, Annexure-1 issued by the authorities of the National High Way Division, Anisabad, Patna, whereunder he has been asked to remove the construction from the lands in question as according to the authorities of the Highway Division, the construction is encroachment over the Highway to the extent of 25 feet X 20 feet of land bearing plot nos.657 and 659. According to the petitioner even earlier proceedings were initiated for removal of encroachment from the Highway and the house of the petitioner was also marked for demolition, whereafter C.W.J.C. No. 8112 of 1993 was filed. The authorities filed their counter affidavit in the said writ case stating that plot nos.657 and 659 is not within the purview of the proceedings taken for removal of the encroachment from the Highway. In appreciation of the stand taken by the authorities, the writ petition was - 2 - disposed of under orders dated 1.9.1993, which is contained in Annexure-8 to this application. 3. It is submitted by the counsel for the petitioner that plot nos. 657 and 659 was purchased by his ancestor from Mostt. Bisun Dei, whose name is mentioned in the khatian published in the year 1908-09, as the person in illegal possession of 0.2 decimals of land in both the plots. After purchase of the land/house in question by the ancestor of the petitioner his ancestor and after his demise petitioner has continued in possession of the house, which is situate over 0.4 decimals of lands of plot nos. 657 and 659. It is also submitted that in course of time petitioner perfected his right over the lands in question and without acquisition of the same the land cannot become the part of the National Highway. In support of the aforesaid contention learned counsel for the petitioner has relied on the two judgment(s). One in the case of Brij Bhukan Kalwar and others Vs. S.D.O., Siwan and others, reported in AIR 1955 Patna 1, Special Bench and the other in the case of Ambika Prasad Thakur and others Vs. Ram Ekbal Rai(dead) by his legal representatives and others, reported in AIR 1966 Supreme Court 605. 4. Counsel for the State has opposed the submission. He states that from the khatian of the lands in question, it would appear that the same is recorded as Gairmajarua Kaishrehind Majkoor, which is public land within the meaning of Public Land Encroachment Act. It is also submitted that as the lands in question is public land, the National Highway can always be raised over the same, - 3 - notwithstanding the illegal possession of Mostt. Bisun Dei, ancestor of the petitioner and petitioner. 5. I regret not to accept the submission of the State counsel. Illegal possession over the Gairmajarua Kaishrehind land can also be removed only by resorting to a proceeding taken against the occupants of the lands in question. Unless such proceeding is drawn and taken to its logical conclusion, the authorities cannot forcibly remove the occupants from the illegal possession. Accordingly, I quash the impugned notice dated 24.4.2008, Annexure-1 and direct the petitioner to appear before the Collector, Patna, who should initiate proceeding under the Public Land Encroachment Act for removal of encroachment from plot nos.657 and 659 appertaining to khata No.235 of Mauja Paharpur(Anisabad) and proceed in accordance with law. It goes without saying that while considering the matter in the light of this order, the learned Collector shall consider the entries made in the khatian as also the sale deed. Rajesh/ (V.N. Sinha, J.)