IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.9303 of 2010
1. ARBIND KUMAR THAKUR S/O SRI RAM BILASH THAKUR R/O VILL.- HARPUR
SINGHIA, P.S.- SAMASTIPUR- MUFASSIL, DISTT.- SAMASTIPUR
Versus
1. THE STATE OF BIHAR THROUGH THE DISTRICT MAGISTRATE SAMASTIPUR
2. THE ADDITIONAL COLLECTOR, SAMASTIPUR
3. THE CIRCLE OFFICER, SAMASTIPUR
4. THE EXECUTIVE ENGINEER, RURAL WORKS DIVISION CHIEF MINISTER ROAD
SCHEME, R.E.O., SAMASTIPUR
5. SRI RAM NANDAN PRASAD THAKUR S/O LATE JAI NARAIN THAKUR R/O VILL.-
HARPUR SINGHIA, P.S.- SAMASTIPUR- MUFASSIL, DISTT.- SAMASTIPUR
6. PRAHLAD THAKUR S/O LATE MURARI SHARMA R/O BALHA, P.S. CHAK MAISI,
DISTT.- SAMASTIPUR
7. PRABHAT THAKUR S/O LATE DR. HARISCHANDRA PRASAD THAKUR VILL.-
HARPUR SINGHIA, P.S.- SAMASTIPUR-MUFASSIL, DISTT.- SAMASTIPUR
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For the Petitioner : Mr. Sunil Kumar Sharma, Advocate
For the state : Mr. Prasoon Sinha, G.A. 3
For Respondent no. 5: Mr. Kripa Nand Jha, Advocate
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3. 02.12.2010 Heard learned Counsel for the petitioner, learned Counsel
for the State and the learned Counsel for Respondent no. 5.
The petitioner is aggrieved by the order dated 15.3.2010
passed by the Additional Collector, Samastipur on an application
preferred by Respondent no. 5 holding that there was
encroachment of Chak No. 84 as his boundary wall enclosed a
portion of the road in that chak as per the report of the Anchal
Amin.
Respondent no. 5 came to this Court in CWJC No. 4227 of
2009 disposed on 12.1.2010 with the grievance that part of his
lands were sought to be utilized for road widening without
acquisition in accordance with law. This Court directed matters
to be examined in accordance with law. The impugned order
came to be passed in pursuance thereof.
Counsel for the petitioner submits that he purchased the
lands in question on 16.1.1975.The impugned order rightly
records contribution of lands on 16.7.1975 voluntarily by the
persons concerned including the petitioner and the private
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respondent to facilitate the construction of a brick soled road.
There are houses on both sides with boundary wall. The
petitioner has not encroached any portion of Chak No. 84
identified as the lands donated by both sides and on which the
road stands. It is next submitted that the boundary wall of the
petitioner as existing has been so since long years and no one
has objected to the same. There is thus a presumption that there
is no encroachment by the petitioner.
Counsel for the State and the private respondent have
opposed the same to urge that the order impugned records a
finding based on spot inspection report submitted by the Anchal
Amin of encroachment on Chak 84. The petitioner did not
question the report before the Additional Collector, except for
calling it collusive.
The extent of the area of the lands voluntarily contributed
by the parties including the petitioner and the private
respondents for purposes of construction of a road is a question
of fact. The full details thereof shall naturally be available in the
Government records including the documents preparing the
chak and numbering it as 84. The physical dimension of the
land along with its boundaries shall also form part of such
report. The fact that after donation a person may have continued
in occupation of part of the land donated may not be sufficient
justification for holding on to the land. This Court hastens to
add that it is not recording any finding to that effect against the
petitioner. The discussion is only for the purpose and limited to
the question of the difficulties that arise in writ jurisdiction for
adjudication of these issues of fact. The writ Court cannot sit as
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an appellate authority over the impugned order to re-appreciate
evidence and facts unless there is perversity in the finding of
fact. Apparently there is no error in the decision making process.
The petitioner has had full opportunity. No perversity in the
order has been pointed out. That the petitioner may have urged
before the court below that the report of the Anchal Amin was
collusive may not be sufficient for the writ Court to interfere. It
was for the petitioner to demonstrate from the dimension of the
donated land as recorded in the government documents with the
situation existing today with regard to the road that it was
physically the same as it was when the lands were donated on
16.7.1975 and that as per the measurement mentioned in the
report of the Anchal Amin read with the document of lands for
donation there was no encroachment. These were issues to be
raised by the petitioner as question of fact before the Additional
Collector himself.
This Court therefore finds it difficult to examine the
impugned order on these questions of fact which can only be
examined by an appropriate authority where evidence can be led,
documents may be exhibited etc.
The present order and any observation contained therein
are for the purposes of disposal of the writ application and shall
have no application or bearing on any proposed proceeding
initiated by the petitioner before the appropriate forum for
purposes as discussed in this order.
The writ application is dismissed.
Snkumar/- (Navin Sinha,J.)
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