ASHOK KUMAR JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) BY this appeal under Clause 10 of the Letters Patent, the appellant seeks to impugne the correctness, validity and propriety of the judgment dated 20.9.2001 passed in CWJC No. 2944 of 2001 (Ashok Kumar Jha V/s. State of Bihar and others) [reported in 2001 (4) PLJR 516] whereunder the writ application filed by the petitioner -appellant has been dismissed with cost.

(2.) THE facts which have been elucidely detailed in the judgment of the learned Single Judge are not required to be detailed in this judgment, but the facts necessary for disposal of this appeal are as under : The dispute in this case relates to portion of land which has been acquired by the respondent -State for construction of a sub -canal. According to the appellant, a tank exists in the said plot, therefore, the said land could not be acquired. It was also contended by the appellant that the original alignment of the canal was different but without any authority of law and contrary to Rules 126 and 127 of the Bihar Publc Works Department Code (for short, PWD Code), the Executive Engineer without taking the Chief Engineer into confidence has changed the alignment to favour certain persons and cause unnecessary loss to the appellant and his property. It is to be seen from the record that vide letter no. 208 dated 20.2.1986, the respondent No. 4 (Executive Engineer, West Kosi Canal Division, Jhanjharpur) sent requisitions for acquisition of certain lands to respondent No. 7 (the Special Land Acquisition Officer). The Respondent No. 7 after being satisfied that there was public purpose behind the pro - posed acquisition issued necessary notification and also issued notice on 7.1.1987 to one Chandra Mohan Jha (father of the appellant) in whose name, the land in question was recorded in the survey khatian. The primary notification under Section 4 - of the Act was published on 24.2.1987 in the District Gazette of Madhubani and was also published in two Hindi dailies on 20.3.1987. Thereafter a declaration under Section 6 of the Land Acquisition Act was issued in the District Gazette dated 1.6.1987 and was also published in two daily newspapers on 9.6.1987.

(3.) IT is contended before us that on 23.9.1988, the appellant through his father had sent a letter to the respondent No. 4 requesting that the appellant 'sland should not be acquired as the said acquisition would lead to destruction of the tank on bank of which a temple situates. The appellant - petitioner relies upon the letter dated 4.10.1988 issued by respondent No. 2 to the respondent No. 3 wherein it was said that the allegations made by the appellant were of serious nature, therefore, the respondent No. 3 should conduct a local inspection and chalk out the future course of action. The appellant says and submits that subsequent to the first letter, series of letters were exchanged, but all of a sudden the file became untraceable, though the respondent No. 7 was asked by the higher authority not to disburse the compensation amount. From the records it appears that after completion of the acquisition proceedings and delivery of the award on 23.7.1988, the appellant 'sfather submitted an application on 27.8.1988 submitting inter alia that the tank in question should not be acquired. The respondent No. 7 made the remark on the said letter saying "the land has already been acquired, therefore, at this level no action is possible". It appears that the appellant after 1990 did not do anything, but all of a sudden started raising his objections before the authorities that he cannot be divested of his property nor the sub - canal can be constructed over or through the tank. On 6.10.1999 vide letter No. 2820 (Annexure - 8), the respondent No. 2 wrote to the respondent No. 3 that land acquisition proceedings stood concluded, some of the land oustees have received payment, the land in dispute bearing plot no. 1676 and plot no. 1677 were recorded in survey khatian as 'Dhanhar land ', the tank and the temple had been constructed after the land acquisition proceedings, the same amounts to encroachment and no action was possible in favour of the appellant. On 27.11.1999, vide Annexure -1, the authority directed for removal of the encroachment, this was followed by letter dated 3.2.2000 (Annexure -2) from the respondent No. 4 to the appellant to remove the encroachment. The said letters were impugned before the learned Single Judge.