IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.860 of 2009 1. YOGENDRA THAKUR 2. Kamleshwari Thakur 3. Ghoghan Thakur, All sons of Late Nepali Thakur 4. Wakil Thakur Son of Late Mahabir Thakur 5. Binod Thakur Son of Late Sahdeo Thakur, All Residents of village Nawtolia P.S. Gogari in the district of Khagaria ... Petitioners Versus 1. The STATE OF BIHAR 2. The Sub-Divisional Magistrate, Gogari, Khagaria 3. The Anchal Adhikari, Gogari, Khagaria 4. Rajeshwar Yadav SON OF Late Jagat NARAYAN Das, RESIDENT OF VILLAGE-KHATHA, NAVTOLIA, P.S.- GOGRI, DISTRICT-KHAGARIA ... Opp. Parties ----------- 4 24.09.2010 Heard counsel for petitioner and the State as well as private respondent no.4. The petitioner is aggrieved by order dated 8th October 2009, passed by Addl. Sessions Judge, FTC. I, Khagaria in Cr. Rev. No. 23 of 2005, as contained in annexure no.5, whereby prayer made to set aside the order dated 19th September 2002, passed by the Sub-Divisional Magistrate, Gogari 2 (respondent no.3) in case no. 269(M) of 1994, as contained in Annexure-4, has been rejected. The Sub-Divisional Magistrate, Gogari, vide his order dated 19th September 2002, directed the petitioner to remove the construction over the Raiyati land being plot No. 1902, appertaining to khata no. 992, measuring an area of 20’x 125’ in Mauza Jamalpur. The petitioner also prays for quashing the notice dated 22nd August 2009, passed by the Sub-Divisional Magistrate, Gogari, Respondent No.3, as contained in Annexure-6, by which he has been directed to remove the construction. The petitioner submits that the local Mukhiya, Rajeshwar Yadav, (respondent No.4) filed an application for removal of encroachment, being Encroachment Case No.5 of 1993-94 in 3 respect of the same land. The Sub- Divisional Officer, Gogari dropped the encroachment proceeding vide order dated 19th September 2002, as the petitioner had not made construction on public land but on his own Raiyati land. A photocopy of ordersheet of Encroachment Case No.5 of 1993-94 from 30.10.1993 to 04.05.1995 is annexed as annexure No.2. Then the respondent no.4 filed a petition under Section 133 Cr. P.C being case No.1 (M) of 1994 in respect of petitioners’ land. The learned Magistrate vide order dated 21.04.1994 held that no proceeding under section 133 Cr.P.C. would be maintainable. After having not succeeded in his earlier attempts to niche out a rasta through petitioners’ land, the respondent no.4, this time filed a petition under Section 147 Cr. P. C. 4 claiming right of easement. Learned Sub-Divisional Magistrate in his order dated 19th September 2002 noticed that a passage already exists from before. He noticed that prayer is for expanding the passage in order to accommodate passage of Bullock Cart and vehicles to connect National Highway No.31 with the Panchyat Bhawan. The petitioner submits that right of easement cannot be granted as per the convenience of other side. A passage already exists and respondent cannot claim expansion of the same to suit his ends. Heard counsel for the parties. The party can have a right of easement and aggrieved side can make a prayer for grant of such rights even through raiyati land of a private individual, if no other option exists. Nevertheless, this right of easement 5 cannot be granted as per the choice of the other side. The grant of passage by way of easement does delve into private rights of an individual or body and the same can in no manner be expanded to accommodate the passage of bullock- cart, vehicle, and private vehicles to suit the convenience of other side. Such right of easement can only be minimal and cannot be permitted to suit convenience of others. Permitting further passage for movement of vehicle, where passage or rasta for pedestrians already exists, would amount to intruding in the raiyati rights of an individual and is not permissible in law. Respondent no.4 submits that there is no passage even for movement of pedestrians which fact has been controverted by the petitioner. In the facts of the case, it 6 would be necessary that the learned Sub-Divisional Magistrate would either enquire himself or depute a Magistrate to submit a report whether a common passage exists connecting National Highway with Panchayat Bhawan. In case, if there is no passage for going across a minimum passage would be earmarked for such movement by way of easement right. This passage cannot be expanded so as to accommodate movement of bullock-cart, jeep or vehicle. However, If the Magistrate finds that the land of the petitioner obstructs movement of pedestrians such space for passage would be provided. The petitioner submits that he has no objection to that extent. In the result this application is allowed. The impugned order dated 08th April 2009, passed by Addl. Sessions Judge, FTC. I, Khagaria in Cr. 7 Rev. No. 23 of 2005 affirming the order dated 19.09.2002 passed by Sub- Divisional Magistrate, Gogari in Case No. 269(M) of 1994 is set aside and the matter is remitted back to the learned Sub-Divisional Magistrate for the limited purpose as indicated in the order above. Ashwini/- (Samarendra Pratap Singh, J.)