IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11398 of 2010 1. ANSUYA PRASAD W/O LATE CHANDRIKA PRASAD R/O MAHARAJGANJ, P.S.- MAHARAJGANJ, DISTT.- SIWAN, AT PRESENT 57 DAK BANGLOW ROAD BEHIND HIRA PALACE MARKET, P.S.- KOTWALI, DISTT.- PATNA Versus 1. THE UNION OF INDIA THROUGH THE SECRETARY RAILWAY, GOVT. OF INDIA, NEW DELHI 2. THE ZONAL MANAGER, N.E.RAILWAY, GORAKHPUR (U.P.) 3. THE ZONAL MANAGER, N.E.RAILWAY, VARANASI (U.P.) 4. THE REGIONAL MANAGER, N.E.RAILWAY, HAJIPUR, BIHAR 5. THE CHIEF ENGINEER, RAILWAY (REVENUE), GORAKHPUR (U.P.) 6. THE STATE OF BIHAR, THROUGH THE SECRETARY, REVENUE, BIHAR, PATNA 7. THE DISTRICT MAGISTRATE, SIWAN 8. THE SUB-DIVISIONAL MANAGER, MAHARAJGANJ, DISTT.- SIWAN 9. THE CIRCLE OFFICER, MAHARAJGANJ, DISTT.- SIWAN 10. THE DISTRICT LAND ACQUISITION OFFICER, DISTT.- SIWAN 11. THE DEPUTY COLLECTORS, LAND REFOMRS ----------- 5. 14.02.2011 Heard learned Counsel for the petitioner, for the State and for the North Eastern Railways. The petitioner seeks a direction commanding the respondents to remove the encroachment made by the Railway over 45 dec. of Plot No. 780, Khata No. 157 stated to be the personal property of the petitioner. A alternative prayer has been made to command the respondents to pay compensation according to the present market value. The North Eastern Railways appears in the process of constructing a bridge for extension of railway line from Siwan to Mashrakh (Chapra) via Mahrajganj. Learned Counsel for the petitioner submits that she is in lawful possession of the lands on a settlement by the erstwhile Zamindar, the father-in-law of the father of the petitioner and recorded in the Cadastral Survey Khatian of 1919.The lands are not „Gairmazarua Aam‟ but „Gairmazarua Malik‟. The petitioner through his predecessors has been in continuous possession since 1947. Zamabandi was created and the name entered in Register II, rent is also being paid. The notification issued under Section 4 of the Land Acquisition Act on 31.10.2007 does not mention the plot of the petitioner. The possession and ownership issue traveled up to this Court in CWJC No. 1914 of 1996 and in 2 pursuance of which orders were passed by the SDO on 19.12.1998 in favour of the petitioner which only confirmed the claim for a lawful settlement, title and possession in accordance with law. It is therefore submitted that further works of the railway project be directed to be stayed till such time that the issue is not determined and the compensation paid according to law. The counter affidavit on behalf of the North Eastern Railways states that when the petitioner objected and the railway authorities sought clarification from the State officials, the letter confirmed that since the lands vested in the State question of any acquisition does not arise. Without prejudice to the same, Railway is ready to pay compensation to the petitioner if it is ultimately held that the lands are her property. The counter affidavit of the State Respondents 7 to 11 acknowledges the nature of the land as „Gairmazarua Malik‟. But it claims that it vested in the State of Bihar as no return was filed in respect of the same at the time of vesting. Therefore the question of acquisition does not arise. There is no reference to the earlier order of the SDO dated 19.12.1998 and neither does the counter affidavit deny that zamabandi was running in the name of the petitioner and or his ancestors with name recorded in Register II and the Khatian of 1919. The zamabandi entry by itself may not be conclusive evidence of title, but the Court cannot loose sight of the fact that the lands are not „Gairmazarua Aam‟ but „Gairmazarua Malik‟. The petitioner has prima facie raised issues of a settlement supported by report of SDO dated 19.12.1998. The Court finds it difficult to outrightly hold that the petitioner is an encroacher. On the contrary perhaps the State 3 authorities have explanation to do. The petitioner may represent before the District Magistrate, Siwan, who shall have an enquiry made and grant personal hearing to the petitioner. Apart from the document that the petitioner may rely upon, the District Magistrate is required to deal with the SDO‟s report dated 19.12.1998 apart from the reports dated 6.3.2009 and 7.5.2010 also. In the event that the claims of the petitioner do not find favour with the District Magistrate he is required to adequately deal with the aforesaid documents of the state government relied upon by the petitioner in his order adequately and explicitly. Learned Counsel for the State fairly submitted that if it is found that the lands are private land of the petitioner, the notification dated 31.10.2007 shall be modified to incorporate the lands of the petitioner also. Counsel for the Union of India submits that within two months from the date that the state government shall call upon it to deposit the additional compensation amount for the lands of the petitioner, the Railways shall proceed to do so. Through it prima facie appears that the petitioner has made out an arguable case for dispossession from of property contrary to law but keeping in mind that the works relate to a public project, laying a railway line, the harm and damage that shall be done to the national cause if any order of restraint is passed, shall be far in excess and quantum of the pecuniary loss that may be caused to the petitioner. The Court therefore declines the prayer for direction restraining further works. In (1999) 1 SCC 492 (Raunaq International Ltd. Vs. I.V.R. Construction Ltd.), it has been held at paragraph 12 as follows:- “12. When a petition is filed as a public interest litigation challenging the award of a contract by the State or any public body to a particular tenderer, the Court must satisfy itself that the party which has brought the litigation is 4 litigating bona fide for public good. The public interest litigation should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition. The Court can examine the previous record of public service rendered by the organization bringing public interest litigation. Even when a public interest litigation is entertained, the Court must be careful to weigh conflicting public interests before intervening. Intervention by the Court may ultimately result in delay in the execution of the project. The obvious consequence of such delay is price escalation. If any retendering is prescribed, cost of the project can escalate substantially. What is more important is that ultimately the public would have to pay a much higher price in the form of delay in the commissioning of the project and the consequent delay in the contemplated public service becoming available to the public. If it is a Power project which is thus delayed, the public may lose substantially because of shortage in electricity supply and the consequent obstruction in industrial development. If the project is for construction of a road or an irrigation canal, the delay in transportation facility becoming available or the delay in water supply for agriculture being available, can be a substantial set back to the countries economic development. Where the decision has been taken bona fide and a choice has been exercised on legitimate considerations and not arbitrarily, there is no reason why the Court should entertain a petition under Article 226.” Let the District Magistrate consider and dispose of the matter by a reasoned and speaking order in the aforesaid manner within a period of three months from the date of receipt and or presentation of a copy of this order. If the District Magistrate does not do so the Court is constrained to observe that the works shall have to be stopped, the credit for which shall go to the District Magistrate alone. 5 The writ application stands disposed. Snkumar/- (Navin Sinha,J.)