IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1819 of 2005 Ranjan Kumar Singh son of late Chunni Singh, resident of village Chowgain, Police Station Buxar, District Buxar.. … Petitioner Versus 1. The State Of Bihar, 2. The Secretary, Rural Engineering Organisation, Bihar, Patna, 3. The Chief Engineer, Rural Engineering, Viseshwaraiya Bhawan, Bihar, Patna, 4. The Executive Engineer, Rural Engineering Organisation Works Division, Shahabad, Ara, 5. The Assistant Engineer, R.E.O. Works Sub-division (Piro), Shahabad, Ara, 6. The Junior Engineer, R.E.O. Works Sub-division (Piro), Shahabad, Ara, 7. Sahendra Singh son of Triveni Singh, a Registered Contractor, R.E.O. Work Division, Shahabad, Ara, Resident of of Mohalla- Mahajan Toli, Jail Road, Police Station Nawada, District Bhojpur, … Respondents For the Petitioner: Mr. Awadhesh Kumar, Advocate For the State: Mr. Bibhakar Tiwary, AC to SC 21 … 6 02.09.2011 Heard learned counsel for the petitioner and the State. Petitioner seeks direction to the respondents not to construct a road under Pradhan Mantri Gram Sadak Yojna upon his plot no. 26, appertaining to khata no. 59, mouza Lohain, Thana no. 1, Circle Piro, P.S. Piro, District Bhojpur. It is submitted that a contract work has been assigned by respondent no. 4 to respondent no. 7 for 2 construction of a link road from N.H. 30 to Lohain Road in Piro Block in the District of Bhojpur, which crosses through the aforesaid plot of the petitioner. Learned counsel for the petitioner submits that of course, the road is to be constructed for public purpose, but the land being the raiyati one of the family of the petitioner which stands recorded in the record of right in the name of his father Chunni Singh, the same cannot be utilized for the purposes of such construction without having been duly acquired under the land acquisition proceeding. A counter affidavit as well as supplementary counter affidavit have been filed on behalf of respondent no. 4 taking stand that the petitioner has waived his right by allowing the passersby to use the land as a “thorough fare” for about 25 years, thus, legal right has accrued in favour of the public and against the petitioner by law of adverse possession and right to usages. However, from letter no. 19 dated 19.01.2006(Annexure A) written by the DCLR, Piro, Bhojpur, addressed to the District Magistrate, Bhojpur, Ara, in connection with the present dispute discloses that construction of the road without taking 3 consent of the petitioner was being questioned. When the matter was taken up by this Court on 13.05.2011, adjournment was sought on behalf of the State for seeking fresh instruction for filing a supplementary counter affidavit and indulgence was granted, however, the respondents were restrained from making any further construction upon the land belonging to the petitioner fully detailed in paragraph 3 of the writ petition. A supplementary counter affidavit has been filed today only reiterating the earlier stand that Kachcha road was in existence since 25 years over the raiyati land in question upon which a road is being constructed connecting the village with NH 32 under Pradhan Mantri Gram Sadak Yojna. This matter was taken up twice prior to filing of the supplementary counter affidavit and the State was expected to take a firm stand by making a categorical statement as to whether the land in question is a public land or raiyati land and if the same was used as a Kachcha road, as stated in the counter affidavit, then what was the basis for making such statement. However, the supplementary counter affidavit filed on behalf of the 4 respondent no. 4 is completely devoid of any such material. From paragraph 3 of the supplementary counter affidavit, it appears that the respondent has admitted that the land concerned is a raiyati land and the entry in the survey record of right as brought on record by the petitioner by way of Annexure 1 has not been denied. However, it has been stated in the supplementary counter affidavit that earlier a Kachcha road was existing, however, it is not based on any material. Another letter dated 7th of February, 2006 has been brought on record as Annexure B again written by the DCLR, Piro addressed to the District Magistrate subsequent to the earlier letter as contained in Annexure A, wherein a stand has been taken that certain villagers have disclosed that a Kachcha road passed through the land in dispute and was being used by them. In the absence of any proper inquiry showing materials which are the basis for such conclusion including the names of the persons who were examined during the inquiry conducted, the letter appears to be merely a piece of paper written only with a purpose to some how justify the stand taken by the authority. No inquiry report has been brought 5 on record to show that the same was conducted prior to the decision taken for construction of the road concerned. In view of the entry made in the record of right, which learned counsel for the State admits before this Court, showing the land to be raiyati in nature and in absence of any declaration by any competent court either in favour of State or public nullifying aforesaid entry and declaring the same as public land, it is not possible for this Court to accept the submission made on behalf of the State. That apart, though this case is pending since 2006 the matter is well known to the authorities, and it appears that the letter dated 7th of February, 2006 has been written stating therein that certain inquiries have been made from certain persons, none of the villagers has come before this Court to intervene in this matter. Though the respondent- State admits that the land in question is entered in the records of right as raiyati land of the family of the petitioner but no proposal has come forward on behalf of the State to acquire the land and grant compensation to the petitioner. It is true that such schemes have been brought forward by the State for development of the society. 6 However, by now it is settled that right to property is considered to be not only a constitutional right but also a human right. In Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel((2008) 4 SCC, 649), the Apex Court has held that the right to property is no longer a fundamental right. But still it is a constitutional right. It is also held that the procedures laid down for deprivation thereof must be scrupulously complied with. In above view of the matter, since except the bald statement that the land in question was being used by the villagers as a “Kachcha Sadak”, no cogent material is on record to show any declaration to that extent by any competent court and in view of the admission by learned counsel for the State that the land in question is shown as raiyati land in the relevant records of right, this Court is constrained to hold that without acquiring the land in accordance with law, the same could not have been utilized by the respondents for construction of a road. Accordingly, the interim relief granted vide order dated 13.05.2011 directing the respondents not to make further construction over the land belonging to the petitioner is hereby made absolute. 7 It has been stated in the supplementary counter affidavit that only Grade-I metal was laid down on the road and the road is in the same position with certain deformations. If it is so then the respondents would be obliged to remove the metal from the part of the road crossing through the land of the petitioner within three months from the date of receipt/production of a certified copy of this order. by either of the parties before respondent no. 4. Accordingly, this writ application stands allowed. SC ( Dr. Ravi Ranjan, J.)