IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2490 of 2010 1. ASAISER SAH S/O LATE JANGI SAH R/O VILL BHERIHARWA, P.S KANGLI , DISTT- WEST CHAMPARAN 2. BABEI SAH S/O LATE GAINA SAH R/O VILL BHERIHARWA, P.S MANGLI DISTT- WEST CHAMPARAN Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, RURAL DEVELOPMENT, GOVT. OF BIHAR, PATNA 3. THE EXECUTIVE ENGINEER, RURAL ENGINEERING ORGANISATION, BETTIAH DIVISION, DISTT- WEST CHAMPARAN 4. THE BLOCK DEVELOPMENT OFFICER, SIKTA BLOCK, DISTT- WEST CHAMPARN with CWJC No.3987 of 2011 HARENDRA PRASAD SINHA . Versus THE STATE OF BIHAR & ORS . with CWJC No.1338 of 2011 BADRI NATH DUBEY & ORS . Versus THE STATE OF BIHAR & ORS . with CWJC No.4494 of 2011 SARVESHWAR PANDEY & ORS . Versus THE STATE OF BIHAR & ORS . with CWJC No.3542 of 2011 RAJESH SINGH . Versus THE STATE OF BIHAR & ORS . with CWJC No.2904 of 2010 1. NIRANJAN KUMAR SINGH @ CHHOTE LAL SINGH S/O LATE DUKHDAMAN SINGH R/O VILL.- ADHPA, P.S. JANIPUR, DISTT.- PATNA Versus 1. THE STATE OF BIHAR 2. DISTRICT MAGISTRATE, PATNA 3. SUB DIVISIONAL MAGISTRATE, PATNA SADAR, PATNA 4. CIRCLE OFFICER, PHULWARI SHARIF, PATNA 5. OFFICER IN CHARGE, JANIPUR POLICE STATION, PATNA 6. SRI ASHOK SINGH, ENGINEER-IN-CHIEF, RURAL WORKS DEPTT., PATNA 7. SUPERINTENDENT ENGINEER, RURAL WORKS DEPTT., CIRCLE, PATNA 8. SRI ASHOK SINGH, EXECUTIVE ENGINEER, RURAL WORKS DEPTT., WORKS DIVISION, PATNA 9. SRI JAWAHAR PD. SINGH, ASSISTANT ENGINEER, RURAL WORKS DEPTT., PATNA SADAR, PATNA 10. SRI KAMTA PRASAD, JUNIOR ENGINEER, RURAL WORKS DEPTT., PHULWARI SECTION, PATNA 11. UDAY SINGH S/O LATE RANA SINGH CONTRACTOR, R/O RAJAPUL, P.S. S.K.PURI, DISTT.- PATNA with CWJC No.1105 of 2010 1. RAMESHWAR SHARMA S/O LATE NATHUNI SINGH R/O VILL SIHTI,P.S.KAKO,DISTT- JEHANABAD Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE JEHANABAD 3. THE SUPERINTENDENT ENGINEER , CIRCLE NO.1 R.W.D.(W) VISAR TALAB , GAYA 4. THE EXECUTIVE ENGINEER, R.W.D.(W) JEHANABAD 5. THE ASSISTANT ENGINEER (S.D.O.),R.W.D.(W) JEHANABAD 2 6. THE JUNIOR ENGINEER,R.W.D.(W),DIVISION JEHANABAD 7. MITHILESH KUMAR ,PROPRIETOR MITHILESH CONSTRUCTION AT null JANAKPUR MUFFASIL AT & P.S.GAYA , DISTT-GAYA 8. SIDHESHWAR SHARMA S/O LATE HARBANSH SINGH R/O VILL SIHITI, P.O.DHARAMPUR, P.S.KAKO, DISTT-JEHANABAD 9. DUDHESHWAR SHARMA S/O LATE HARBANSH SINGH R/O VILL SIHITI, P.O.DHARAMPUR, P.S.KAKO, DISTT-JEHANABAD 10. ABDESH KISHORE SHARMA @JUGAL KISHORE SHARMA S/O LATE HARBANSH SINGH R/O VILL SIHITI, P.O.DHARAMPUR, P.S.KAKO, DISTT-JEHANABAD 11. TARNI SHARMA @ NALINI BILOCHAN SHARMA S/O LATE HARBANSH SINGH R/O VILL SIHITI, P.O.DHARAMPUR, P.S.KAKO, DISTT-JEHANABAD 12. ARBIND KUMAR S/O LATE HARBANSH SINGH R/O VILL SIHITI, P.O.DHARAMPUR, P.S.KAKO, DISTT-JEHANABAD 13. UDAY SHARMA S/O RAMDEO SINGH R/O VILL SIHITI, P.O.DHARAMPUR, P.S.KAKO, DISTT-JEHANABAD with CWJC No.3798 of 2011 DEEP NARAYAN SAH . Versus THE STATE OF BIHAR & ORS . with CWJC No.18231 of 2009 1. SRI RAJDEO SINGH S/O LATE RAM CHANDRA SINGH R/O VILL- CHATTUCHAK, P.S. GAURICHAK, DISTT. PATNA 2. SMT. SHASHI SINGH W/O SRI PREM KUMAR SINGH R/O VILL- TELMER, P.S. HARNAUT, DISTT. NALANDA 3. SMT. NEELAM SINHA W/O RAMESH KUMAR SINGH R/O VILL- TELMER, P.S. HARNAUT, DISTT. NALANDA 4. SMT. SUSHILA KUMARI W/O NAND KUMAR SINHA R/O VILL- TELMER, P.S. HARNAUT, DISTT. NALANDA 5. SMT. SANJUKATTA DEVI W/O BIJENDRA SINGH R/O VILL- TELMER, P.S. HARNAUT, DISTT. NALANDA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY PUBLIC WORKS DEPTT., GOVT. OF BIHAR, PATNA 3. THE S.D.O. PUBLIC WORKS DEPTT.'S OFFICE AT GULZARBAGH, DISTT. PATNA 4. THE DISTRICT MAGISTRATE PATNA 5. THE SUB DIVISIONAL OFFICER PATNA CITY 6. THE DISTRICT LAW ACQUISITION OFFICER AT COLLECTORIATE PATNA 7. THE EXECUTIVE ENGINEER R.C.D., ROAD DIVISION, PATNA CITY, DISTT. PATNA with CWJC No.6192 of 2011 RAJ BALI SINGH . Versus THE STATE OF BIHAR & ORS . with CWJC No.5067 of 2011 BIJAY KUMAR SRIVASTAVA . Versus THE STATE OF BIHAR & ORS . with CWJC No.1651 of 2011 BAIDEHI DEVI . Versus THE STATE OF BIHAR & ORS . with CWJC No.6461 of 2011 YOGENDRA PRASAD BHAKTA . Versus THE STATE OF BIHAR & ORS . with CWJC No.20508 of 2010 3 NIRMLA DEVI . Versus THE STATE OF BIHAR & ORS . with CWJC No.1524 of 2010 1. SMT.HALSI DEVI W/O LATE ANHACHH PANDIT, R/O VILL-BANDHAURA, PO AND P.S GIDHAUR, DIST- JAMUI Versus 1. THE STATE OF BIHAR THROUGH THE COLLECTOR, JAMUI AT PO AND P.S- JAMUI, DISTT- JAMUI 2. THE ADDL. COLLECTOR JAMUI, PO AND P.S- JAMUI, DISTT- JAMUI 3. THE CIRCLE OFFICER, GIDHAUR, PO AND P,S GIDHAUR, DISTT- JAMUI 4. THE BLOCK DEVELOPMENT OFFICER, GIDHAUR, PO AND P,S- GIDHAUR, DISTT- JAMUI 5. MANOHAR SINGH PANCHAYT SEVAK, GIDHAUR, THROUGH THE BLOCK DEVELOPMENT OFFICER, GIDHAUR, PO AND P,S- GIDHAUR, DISTT- GIDHAUR 6. SMT. MEENA DEVI MEMBER, PANCHAYT SAMITEE, WIFE OF RAJENDRA PRASAD YADAV, R/O VILL- MAURA, AND P.S- GIDHAUR, DISTT- JAMUI ----------- 5/ 02/05/2011 Heard learned counsel for the petitioners and learned Additional Advocate General No.1 for the State. Development vis-à-vis the individual property rights of the citizen is the theme of the controversy involved in this batch of applications. A conventional approach to the litigation may prove counter productive both for development and the petitioners. The State Government under different schemes, the Pradhan Mantri Gramin Sadak Yojna (hereinafter referred to as the P.M. Scheme) the National Rural Employment Guarantee Scheme (NAREGA) and such other schemes has embarked upon an ambitious programme for construction of roads, irrigation canals, ponds and culverts in rural areas. The developments shall undoubtedly enure to the benefit of the petitioners also along with the society at large bringing about social, economic and political transformation. But, can individual interest be completely 4 sacrificed at the altar of society riding rough shod over the constitutional mandate. Notwithstanding the deletion of Article-19 (1) (f) of the Constitution, Article-300(A) of the Constitution provides that no person shall be deprived of his property save by authority of law. This has been interpreted to mean and include that the right to hold property still remains a constitutional right and also a human right. If it is a human right to possess property for safety and security and fulfillment of human aspirations Article-21 of the Constitution of India automatically gets attracted. It is therefore still the Constitutional right of a citizen to possess property as an inherent human right for fulfillment and enjoyment of the right to life. It can nonetheless be interfered with but only with the sanction of the law. If the State were to require or utilize the lands in question by acquisition, compensation, negotiation or such other methods sanctified by the law with regard to those affected by the constructions, different considerations may arise for adjudication. But, when allegations are made that private property is forcefully being intruded upon in a manner contrary to law, the Court shall step in to protect the citizen. A balance shall therefore have to be struck as noticed in Chairman, Indore Vikas Pradhikaran v. Pure 5 Industrial Coke & Chemicals Ltd.,(2007) 8 SCC 705, at page 729 : “43. There are two competing interests viz. one, the interest of the State vis-à-vis the general public and, two, to have better living conditions and the right of property of an individual which although is not a fundamental right but is a constitutional and human right.” “46……The courts must make an endeavour to strike a balance between public interest on the one hand and protection of a constitutional right to hold property, on the other.” The common allegations in these applications relate to construction of public roads on private lands by intrusion upon the same. Deep removal of earth by excavation for such works, digging of ponds to create water bodies, construction of irrigation canals, covering of irrigation canals for construction of roads and building culverts. The work is alleged to be continuing by sheer use of force despite protests and in some cases even after the allegations have been confirmed by measurement. Yet, in other cases after measurement findings have been arrived at of encroachments made by the person on the other side of the road. Because the encroacher is influential with clout he is not disturbed. To compensate for the same, the private lands of the petitioner on the other side are being forcibly intruded to achieve the width of the road. In other cases, despite availability of contiguous government lands 6 or which may have been encroached, without taking any steps for utilization of such lands the private lands of the petitioners are being forcefully utilized. Any representation made and enquiry ordered is turning out to be a fruitless exercise. All this while, the work continues unabated. Deep digging of earth and removal of soil for use elsewhere has been done so severely that retribution may not be possible. Agricultural lands have been damaged and/or intruded upon in a manner that what was left was useless and not reasonably possible to be used for agricultural purposes and which was the only source of livelihood. The petitioners seek complete stoppage of further works till such time that proper enquiries are not made and decisions taken, within a specified time frame. Learned Additional Advocate General No.1 submits that the P.M. Scheme is a hundred percent centrally funded scheme. The funds are to be utilized exclusively for construction and no other purpose such as compensation, retribution etc. The State Government does not propose to forcibly acquire or intrude into any private property contrary to law. But, it does expect the citizens to come forward voluntarily in the larger public interest. If private lands have been damaged, as alleged, in a manner contrary to law, action has been taken and shall be taken to ensure that the damage done to the property of the citizen is 7 remedied in an appropriate manner. Some over enthusiastic contractors for their own financial benefits may have acted over zealously. It was further urged that it has been the experience of the Government that when large scale development work is commenced, speculatory claims are raised in the fond hope of extracting monetary or other benefits by persons who may have no legal right and may have chosen not to assert the same at any earlier time. Serious disputed claims by rival competing parties to the same lands have also surfaced. The State Government was therefore actively considering a comprehensive policy in the matter. The right to hold property and the protection ensured by Article-300(A) of the Constitution has been explained by the Supreme Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel,(2008) 4 SCC 649, the following terms at paragraph-42: “42. The right to property is no longer a fundamental right. But still it is a constitutional right. Apart from constitutional right it is also a human right. The procedures laid down for deprivation thereof must be scrupulously complied with.” Any act which interferes with the right to earn a livelihood from the lands in question shall necessarily raise issues for violation of Article-21 of the Constitution of India. Even otherwise, interpreting it as a human right to hold property the Supreme Court has held in Indore Vikas 8 Pradhikaran (supra) at paragraph Nos.53 to 56 as follows :- “53. The right to property is now considered to be not only a constitutional right but also a human right.” “54. The Declaration of Human and Civic Rights of 26-8-1789† enunciates under Article 17: “17. Since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid”. Further under Article 17 of the Universal Declaration of Human Rights, 1948 dated 10-12-1948, adopted in the United Nations General Assembly Resolution it is stated that: (i) Everyone has the right to own property alone as well as in association with others. (ii) No one shall be arbitrarily deprived of his property. 55. Earlier human rights were existed to the claim of individuals right to health, right to livelihood, right to shelter and employment, etc. but now human rights have started gaining a multifaceted approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has to be read in consonance with human rights. As President John Adams (1797-1801) put it: “Property is surely a right of mankind as real as liberty.” “The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.” 56. Property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law. There can be no doubt that if development takes place by construction of roads, creation of water bodies etc. even the petitioners would stand to benefit. These developments shall undoubtedly lead to social and economic benefits to the petitioners. But, when property 9 rights are interfered without the sanctity of law, it creates a feeling of insecurity. Human being has always considered his property as a bastion to fall back upon in times of crisis. If this bastion is rudely interfered, the fear of insecurity disturbs the equilibrium of the human mind bringing in its wake its own problems driven by passion of perceived injustice. In the nature of the controversy, it is considered proper to give the following directions:- (a) Any petitioner aggrieved by the alleged forcible intrusion into his lands for any of the aforesaid purposes may represent before the District Magistrate within a period of four weeks of the present order. The time period shall necessarily vary where a person has approached this Court in any other writ application to be computed from the date of the direction therein. In any other case, this period has to be computed from the date of such intrusion. (b) If the application is not filed within the time prescribed, the District Magistrate shall be under no obligation to hold such enquiry, but without prejudice to the other legal rights. (c) The representation must be supported by documentary evidence. The District Magistrate 10 shall be under no obligation to consider simple representations without supporting documents in the form of a roving enquiry. (d) The District Magistrate shall either enquire into the matter himself or designate a senior government functionary to hold the enquiry. The applicant shall be informed of the date and time of enquiry. Any measurements shall be taken in his presence only. If there have been any earlier enquiries and reports, it shall necessarily have to be taken into consideration. (e) Any construction work done during the pendency of such enquiry shall be entirely at the risk and responsibility of the respondents to abide by the final orders that may be passed in such enquiry. (f) If the allegations of any forcible intrusion are found to be correct, the District Magistrate shall take appropriate action to forthwith desist and to restore the lands in an appropriate manner. (g) Nothing in the present order shall preclude the State Government, if it so desires, to proceed under the laws of the land for acquisition, direct negotiation or any other mode or method to justify lawful activity on the lands. (h) In cases where rival competing claims are made 11 with regard to ownership of the lands involving complicated questions of title, quite obviously, the executive enquiry shall not be competent to decide the same. In that event the contesting parties shall have to approach the competent civil court for appropriate orders. (i) In cases where there have been negligible intrusions, not more than two feet, it shall not merit any consideration or enquiry. The writ application stands disposed with the aforesaid observations and directions. Nitesh/KC ( Navin Sinha, J.)