IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3761 of 2010 1. KAUSHAL KISHOR SHARMA S/O RAM VRIKSH SINGH R/O VILL.- KESHOBIGHA, P.S.- TEKARI, DISTT.- GAYA Versus 1. THE STATE OF BIHAR THROUGH THE COLLECTOR DISTT.- GAYA 2. COLLECTOR DISTT.- GAYA 3. SUB DIVISIONAL OFFICER SUB DIVISION- TEKARI, DISTT.- GAYA 4. SUPERINTENDENT OF POLICE, DISTT.- GAYA 5. OFFICER IN CHARGE P.S. TEKARI, DISTT.- GAYA ----------- 03. 29.03.2011 Heard learned counsel for the petitioner and for the State. The writ petition was filed more than one year ago on 3.3.2010. Learned counsel for the State submits that he had sent intimation for filing of counter affidavit on 26.2.2010 and 6.5.2010 by Letter and Fax to the respondents. No instructions have been received. Prayer is made for further time to file counter affidavit. The writ petition was filed after serving two copies in the office of the Advocate General on 19.2.2010. The second copy was meant for the official respondent to facilitate expeditious filing of counter affidavit to assist the Court in timely dispensation of justice. If a passage of over one year was insufficient for them to file a counter affidavit, the Court finds it difficult to understand how an adjournment granted today for two or four weeks may be sufficient time to file a counter affidavit. Unfortunately, the officers of the State appear to have adopted an attitude 2 that seeking adjournment for filing counter affidavit was a compulsive right on the first listing, irrespective of the time since filing of the case and it running on the cause list, completely oblivious of their duty to assist the Court in timely dispensation of justice. The adage justice delayed is justice denied appears to be no concern of those entrusted with duty. The Court is not inclined to grant further adjournment for their own laches and proceeds to consider the writ petition upon basis of materials on record on principles of non-traverse. Should the state opine that it has had suffered the order to be passed today in absence of a proper counter affidavit and that the State had been let down by those in whom it had placed authority in trust to protect the interests of the State, the State is granted the liberty to file an appropriate application for review, if necessary. But before filing any such application, the State must demonstrate its bona fides by pre-appropriate action in accordance with law against such of its officials who let it down by not filing a counter affidavit and whether their conduct was deliberate or negligent. The petitioner claims to be the lawful owner of 2842 Square Feet of homestead land at Ander Quila, Police Station- Tekari, District- Gaya through a registered sale- deed dated 14.11.2006 executed by his vendors. A Rent 3 Fixation Case No. 04 of 2007-08 was initiated and he has been paying rent for the lands also under receipt granted. When he proceeded with construction of his residential house on the lands, Police personnel came and told him that they were under directions of Superintendent of Police and District Magistrate to restrain the petitioner from construction. No written orders were served on him. When he made enquiry from the Tekari Police Station, he was shown a letter dated 31.12.2009 written by the Deputy Secretary, Bihar Vidhan Parishad, Secretariat, to the Commissioner, Magadh Division, the District Magistrate and the Superintendent of Police, Gaya that in the 55th Assembly Session an Hon’ble Member had raised a starred question with regard to declaration of the Tekari Raj Quila as a protected monument and for removing any persons who may have been in an around within the prohibited area in occupation. It is next submitted that on 18.9.2006, the Sub-Divisional Officer, Tekari wrote to the Officer-in- charge, District Legal Cell, Gaya that the Department of Archeology had not notified the Tekari Raj Quila as an ancient monument. The petitioner specifically asserts in paragraph-12 that the Tekari Raj Quila has not been notified under the Ancient Monument and Arts Treasures Act as a protected monument. The plot belonging to him has no connection with the Fort or it is Ramparts. Learned 4 counsel next submits that there has been no notification issued by the State Government under the Bihar Ancient Monument and Archeological Remains & Art Treasures Act, 1976 (hereinafter called the Act) declaring the Tekari Raj Quila as a protected monument. This Court on 3.5.2010 had noticed a similar order of this Court in C.W.J.C. No. 7930 of 1995 relied upon by the petitioner to hold that unless and until a final notification is not issued under Section 18 (1) of the Bihar Act, the petitioner therein could not be restrained from construction of any building etc. by deeming the area to be protected area. The petitioner has made specific assertions of facts with regard to Fort in question not being a protected monument. He has also relied upon a report of the S.D.O. The letter dated 31.12.2009 noticed above, may at best be an expression of an opinion. It cannot and does not tantamount to a notification under Section 18 (1) of the Bihar Act. The petitioner has a constitutional right to enjoy the property purchased by him in a manner inconsonance with law. Any obstruction by the State authority can only be within the confines of the law not by any verbal orders in exercise of Police powers of the State. In a democracy, the Government functions by written and not verbal orders. There is no material before the Court to hold that 5 the Fort in question is a declared protected monument and the petitioner comes within the prohibited area to obstruct him from construction. Applying the principles of non- traverse, the writ petition has to be allowed, subject to the observations made. The petitioner is allowed to construct on the lands in question in accordance with law. The application stands allowed. P.K ( Navin Sinha, J.)