Arun Kumar Mukherjee vs The State of Bihar and Others

I.A. No. 13948 of 1998

In this application the applicant prays that clear irections/guidelines may be given, so that the authorities concerned, who are engaged in the removal of encroachment from public land etc. act in conformity with the law and not in an arbitrary fashion. Having regard to the number of objections being filed before this Court, we feel that though we have clarified, the matter in the past, we may once again state the guidelines at one place.

The first question is whether if the width of the road at a particular spot tallies with the width of the road shown in the revisional survey map, it is still necessary to measure and correct the boundary of the adjoining plots of landholders. Since we are concerned in this case with public land which include not only the metal portion of the road but even the kuccha road on the flanks of the metalled portion, the authorities are strictly con-cerned with the encroachments made on the road which includes the flanks. We may clarify that the flanks may include not only the land, which is immediately adjacent to the metalled position, but also the land which may have been reserved for future widening of the road and in that sense forms a part of the isad. If on measurement it is found that the width of the road in its comprehensive sense tallies with the width of the road, as shown in the concerned official map including R.S. map, there is no need to ask the landholders of the adjoining lands to correct their boundaries.

The next question is whether in the event of measurement of width of the road falling short of the width shown on the map, flanks on both sides have to be marked for removal, or whether the road has first to be correctly located and thereafter the encroachment has to be demarcated. We may clarify that the direction we are issuing is not with regard to the areas following within the P.R.D.A., and other Regional Development Authorities which are governed by bye-laws framed by the Authority. In the absence of such bye-laws or rules that may have been framed by the Government the rational approach is first to locate the road by reference to official document and thereafter to demarcate the encroachment portion of the road and ask the person concerned to remove the encroachment. It would be unfair to equally divide the blame of encroachment on two land holders, one of whom may not have encroached at all while the entire encroachment may be the handiwork of the other land holder.

After the authorities take measurement and mark the offending structures which they find to be in the nature of encroachment, the authorities may give written notice to the land holder indicating therein the width of the road, and the nature and extent of encroachment and requiring the landholder/ encroacher to remove the encroachment within 72 hours. If the landholder fails to remove the encroachment within 72 hours at his own cost, the same may be removed by the authorities at the cost of the landholder.

Where a notice has been served upon a land holder informing him of the nature and extent of encroachment made by him on public road/land, if the measurement has not been done in presence of the said land holder, and he makes a request within 72 hours of receiving such notice for remeasurement of the alleged encroached portion of the road, the authorities should normally accede to this request. However, where a measurement is done in presence of the landholder, the landholder will not be justified in making such request for remeasurement. If for any reason the notice cannot be served upon the landholder by reason of his refusal to accept or by reason of his absence or by reason of any one else ac--cepting such notice, the notice will be deemed to have been validly served, if the same is affixed at some prominent part of the offending structure. We may only impress the authorities the fact that it would be advisable, if possible to associate the landholder with the measurement of the road encroachment etc. so as to avoid future objections, it is sometimes found that the residents of the area are not aware of the specification/width of the road, and it may be that sometimes unwittingly they encroach upon the road. We would request the authorities to find ways and means of marking the extent of the road including the metalled portion of the road, flanks and the land meant for future broadening of the road. We are told by counsel for the P.R.D.A. that stone pillars have been erected at many places to demarcate the roads. We direct that whenever such demarcation is absent, the authorities may take appropriate steps, as indicated above. We may further clarify that the above direction is in relation to areas and matters which are not governed by any rules, bye-laws etc. framed by the Regional Development Authorities or by the Government. In those cases the bye-laws, rules etc. framed by the Regional Development Authority shall prevail.

We further wish to impress upon the authorities concerned that the encroachments which are merely technical encroachments, meaning thereby an encroachment of a few inches, say 6" to 9" (six to nine inches) should not be taken serious note of, and no structure should be domolished only for removal of an encroachment which is not more than 1'' (one feet), but this direction will not apply where the minimum width of the road has been specified or there is any rule or bye-law passed in accordance with iaw, governing the case.

Let a copy of this order be given to A.A.G. 3 who shall get it sent to all the district authorities for their guidance as well as for publication in the Press, if necessary. I.A. No. 13953/98 along with M.J.C. 1108/98

Put up on the next date. In the meantime, A.A.G. 3 will file his reply to the I.A. No. 13953/98.