Allowed

Shyam Bihari Pandey and Ors. v. The State Of Bihar and Ors.

Patna HC6 Feb 2015CWJC/14783/2014

Case brief

AI extract

What is this about?

Four petitioners challenged the forcible construction of a road on their lands by district authorities. The court noted the existence of pending revisional proceedings but held that the status quo order did not permit State intrusion without consent or legal process. The writ petition was allowed with directions to remove the earth work.

What did the court decide?

Directed the District Magistrate to remove earth filling from the land within three months and restore it to original position pending final orders by the Revisional Authority or acquisition of land.

Shyam Bihari Pandey and Ors. Vs The State Of Bihar and Ors. — Land Acquisition | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14783 of 2014

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====================================================== 1. Shyam Bihari Pandey S/o Late Sheodhwaja Pandey 2. Ram Awatar Singh S/o Late Jamir Singh. 3. Rang Nath Pandey S/o Ramdhwaja Pandey. 4. Govind Pandey @ Govind S/o Late Jagdish Pandey All are resident of Village - Dinya, P.O. - Ramgarh, P.S. - Mohania, District - Kaimur (Bhabua). .... .... Petitioner/s Versus 1. The State of Bihar. 2. The Collector-cum-District Magistrate, Kaimur, District - Kaimur (Bhabua). 3. The District Development Commissioner, Kaimur, District - Kaimur (Bhabua). 4. The Deputy Collector, Land Reforms Mohania, District - Kaimur (Bhabua). 5. The Sub-Divisional Officer, Mohania, District - Kaimur (Bhabua). 6. The Anchal Adhikari, Mohania, District - Kaimur (Bhabua). 7. The Programme Officer, Mohania, District - Kaimur (Bhabua). 8. The Superintendent of Police, Kaimur, District - Kaimur (Bhabua). 9. The Officer-in-charge , Mohania, District - Kaimur (Bhabua). 10. Praman Pasi S/o Late Rajeshwar Pasi Resident of Village - Khurd Gaura, P.O. - Jamurana, P.S. - Mohaniya, District - Kaimur (Bhabua). Mukhiya Gram Panchayat Raj, Bhokhari, P.S. - Mohaniya, District - Kaimur (Bhabua). .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Kamala Kant Tiwary, Adv. For the Respondent/s : Mr. Ajay Bihari Sinha, S.C. 19 Mr. Neeraj Raj, A.C. to S.C. 19 ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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5 06-02-2015 Heard Mr. Kamla Kant Tiwary, learned counsel for the petitioner and Mr. Niraj Raj A.C. to S.C. 19 for the State.

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The petitioners four in number have filed this writ petition

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being aggrieved by the action of the authorities in the District of Kaimur regarding forcible construction of road which passes through the raiyati plots of the petitioners allotted to them under

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the chakbandi operations carried out in the District under the provisions of the Bihar Consolidation of Holding and Prevention of Fragmentation Act (hereinafter referred to as ‘the Act’). The

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land held by the petitioners are as follows:

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	Chak Khata No.	Plot	Area
Petitioner No.1	68	256	4.99
Petitioner No.2	9	261	1.98
Petitioner No.3	45	255	2.36
Petitioner No.4	39	260	1.84

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It is the contention of the petitioners that they had approached the Collector who directed the matter to be considered by the respondent Circle Officer, Mohania in the District of Kaimur but since the Circle Officer according to the petitioners, was acting adverse to the raiyati rights of the petitioners that the writ petition was filed.

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A counter affidavit was filed by the Circle Officer and this Court not being satisfied by the stand taken by the Circle Officer directed the District Magistrate, Kaimur to file his counter affidavit and which has since been filed by him.

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It is stated by the District Magistrate that R.S. Plot No. 388 of Khata No. 83 in Mauza Dian is in the nature of Sarva Sadharan

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land being used as rasta admeasuring 0.60 acres and was recorded as such in the Revisional Survey Khatiyan. It is stated that some portion of this land was being occupied by the Mahadalits who had no other approach road to the plot and thus the Southern portion of R.S. Plot No. 388 was being used as approach road. It is next contended that under the consolidation operation a new chak Plot No. 259 was constructed under Khata No. 83 having an area of 0.65 acres which is occupied by this Mahadalits. It is stated that this Chak Plot No. 259 was prepared after taking 0.48 acres from Plot No. 388 which was the public land being used as Rasta and had smaller portions from other plots which are detailed in paragraph 5 of his counter affidavit and which according to the District Magistrate were raiyati lands of Bihar Sarkar. It is stated that this Chak Plot No. 259 was reserved for landless persons. It is further stated that Chak Plot No. 256 was prepared after taking 0.01 acres of Southern Portion of R.S. Plot No. 388 along with other raiyati land standing in the name of Sheodhwaja Pandey, the father of the petitioner No.1 (Shyam Bihari Pandey). It is stated that the Chak Plot No. 255 having an area of 2.37 acres was prepared after taking 0.05 acres of Southern portion of R.S. Plot No. 388 with other raiyati lands in the name of Rang Nath Pandey, the father of petitioner No.3. It is next stated

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that during the consolidation operations, the exclusive approach road for going over the plot reserved for the Mahadalits was not earmarked and for which they raised their objections and since the mauza was yet not denotified under Section 26A of ‘the Act’ that a revision has been filed under Section 35 of ‘the Act’ which is pending consideration in the Court of the Director, Consolidation bearing No. 204 of 2014. It is stated that by order passed on 16.10.2014 in the revisional proceedings, the Director Consolidation has ordered for maintenance of status quo until disposal of the case.

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The stand thus taken by the District Magistrate is that since due to mistake committed by the consolidation authority that the approach road connecting Plot No. 259 which is occupied by the Mahadalit was not provided that an approach road was being constructed to reach the said plot and which matter is now pending consideration before the Director, Consolidation.

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Mr. Kamla Kant Tiwary learned counsel for the petitioners has submitted that the consolidation proceedings was initiated in the year 1973, the chaks were confirmed on 31.3.1983, the Chak Khatiyan was published in 1984 and even the delivery of possession took place prior to the said date. He submits that the issue of approach road to the Mahadalit Tola came up for

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consideration before the District authorities as back as in 2001 when the Additional Collector vide letter dated 9.2.2001 directed the Circle Officer, Mohania to forward a proposal for acquisition of land for providing a 20 feet approach road to reach the Mahadalit Tola. He submits that a map was prepared in that direction and copies of which are placed at Annexure-8 and 8/1 to the rejoinder filed by the petitioners to the counter affidavit of the Circle Officer. The map shows that a 10 ft. road runs in between Chak plot No. 260 and 261 connecting the Mahadalit Tola and which exits on the Nahar through which an approach road exists to the Tola. He submits that the road is thus available through the Nahar for the Mahadalits in approaching their Tola after passing through Chak Plot Nos. 260 and 261. He submits that in such circumstances the action of the district authorities in forcible construction of the road on the raiyati plot of the petitioners is without jurisdiction.

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Mr. Raj learned counsel for the State has submitted that since the matter is now open before the Director, Consolidation as to the provision of the approach road which existed prior to the preparation of the chak, any grievance which is sought to be canvassed by the petitioners before this Court can well be raised before the Revisional Authority.

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I have heard learned counsel for the parties and I have perused the materials on record.

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The admitted fact is that the consolidation operation concluded on 31.3.1983 and the possession of the lands were handed over to the petitioners in the year 1984 and even the Chak Khatiyan has been published on the said date. The Government appreciating this problem as back as in 2001 through the Additional Collector, required appropriate steps to be taken for acquisition of land for providing an approach road to the Mahadalit Tola. Apparently neither in the counter affidavit of the Circle Officer nor in the counter affidavit of the District Magistrate filed in the present proceedings there is any address on this exercise which was undertaken in 2001. On the contrary, the affidavits confirm that the District Authorities have forcibly tried to construct the road on the raiyati plots of the petitioners. Whether the chak were prepared in accordance with law or whether any revision would lie at this stage is a matter on which this Court will not express any opinion in view of the pendency of the matter before the Director, Consolidation and in any view an order of maintenance status quo in no manner protects the State Government to intrude on the raiyati plots of the petitioners without their consent and without following the process of law. In

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fact all that it means is that the chak will not be disturbed and which order rather goes against the State from making constructions.

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In the circumstances the District Magistrate, Kaimur is directed to take steps for removal of the earth filling work from the land of the petitioners and restore it to its original position within three months from the date of receipt production of a copy of this order until such time that final orders are passed by the Revisional Authority in Case No. 204 of 2014 or appropriate steps are taken by the respondents for acquisition of land under the Land Acquisition Act or consent of the petitioners is obtained by the authorities to allow an approach road in the manner thought about by the District authorities.

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The writ petition is allowed with the observations/directions aforementioned.

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(Jyoti Saran, J)

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Bibhash/-

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Shyam Bihari Pandey and Ors. v. The State Of Bihar and Ors.

Case brief

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Shyam Bihari Pandey and Ors. v. The State Of Bihar and Ors.

Case brief

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