Shambhu Kumar And Ors vs State Of Bihar Through The Principal Secretary And Ors

Heard learned counsel for the petitioners and learned GA 5 for the State.

The petitioners have moved the Court for the following reliefs:

"1. That this is a writ petition on behalf of the petitioners for issuance of a writ of prohibition or writs in the nature thereof or any other appropriate writs/orders/directions for prohibiting the respondents from encroaching upon land situated in Mauza-Mahna Gani, Thana No. 203, Circle-Majhaulia, District- West Champaran, comprised in Khata No. 3, Plot No. 2978, area 3 bigha 3 katha with boundaries in North-Pitch Road, South-Nagendra Mahto and others; East-part of Plot No. 2978; West- Mansi Mahto and others.

That the petitioners are devout and members of Mahabiri Akhara Jhanda Mela-cum- Shanti Samittee, Mahna Gani, P.O. Mahna Gani, P.S. Muffasil Bettiah, District-West Champaran who is represented through its Chairman-Petitioner No. 49-Dhurendra Prasad Chaurasiya. They are citizens of India and as such are invoking the extra- ordinary original writ jurisdiction of the Hon'ble High Court for the reliefs prayed in this writ petition."

At the outset, learned counsel for the State submitted that the petitioners are stranger to the cause. It was submitted that even as per pleadings in the writ petition, the land was settled by the Bettiah Raj to the family of Raj Guru, who came in possession. It was submitted that no heirs of the said Raj Guru family is petitioner before the Court. Learned counsel submitted that even otherwise the area which has been used by the authorities to construct a Government Polytechnic is on Government land and not private land. It was submitted that in any view of the matter, upon any objection to be raised by the landholder, who is not before the Court, the authorities would have justified their stand and in the present case also at the time when the project was being implemented, there was no objection from any recorded landholder.

Learned counsel for the petitioners submitted that the petitioners are the locals who are interested in the Mahabiri Akhara retaining its character and the Government is encroaching on the land by construction of the Polytechnic. However, on a query of the Court as to why the person in whose favour the land may have been settled or the recorded tenant has not come to the Court, learned counsel submitted that the public are utilizing the space, including their being a temple and, thus, they have the locus to maintain the present writ application. It was submitted that the original landholder had compromised the matter and the petitioners have a right to contest the case. It was submitted that the State authorities cannot disposses the petitioners from the land without following the due process of law.

Having considered the matter, the Court finds substance in the contention of learned counsel for the State. Further, in essence, the present case is for a direction to the State not to encroach upon raiyati land, as claimed by the petitioners. For this, in the considered opinion of the Court, the dispute has to be ascertained on the basis of ground reality after proper demarcation and adjudication of the respective rights of the parties. From the entire pleadings, the Court does not find any document which would establish the right of any of the petitioners on any particular area. There may be documents to indicate some order in their favour, but the nature of the present writ petition is only with regard to whether their private land on which they have right title and of which they are in possession is being encroached by the authorities for construction of a Government Polytechnic. This being the position, the remedy available to the petitioners would be the Civil Court of competent jurisdiction where matters can be thrashed out on facts after recording evidence. The Lower Court would also be the competent forum which could send a Pleader Commissioner to report with regard to the actual ground position. Thus, in any view of the matter, the issue is based more with regard to adjudication of facts rather than any law involved. Once the correct factual position on the ground with regard to the right and title of a party is established before the Civil Court, then only the question would come as to whether on any portion on which private rights have been declared by the Court, the Government has made construction without following the due procedure of law, of either acquiring the land or otherwise. However, in the particular facts and circumstances of the present case, such exercise, in the considered opinion of the Court is not appropriate in the present proceeding.

Accordingly, the application stands disposed off with liberty to the petitioners to approach the Civil Court with regard to their grievance. It shall always be open to them to pray for any interim injunction, if they feel that their genuine right under the law is being threatened.