TAPESHWAR PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS writ petition under Article 226 of Constitution of India has been filed by the petitioner for issuance of writ of mandamus directing the respondents not to demolish Gopalpur Complex, Nawadah standing on plots no. 3238 and 3239.

(2.) THE case of the petitioner is that the aforesaid Gopalpur Complex, Nawadah standing on plots no. 3238 and 3239 belongs to Major Ajoy Krishna and his wife Anandita Krishna. The above stated plots no. 3238 and 3239 were purchased by Sabitri Singh wife of Surendra Prasad Singh and mother of Major Ajoy Krishna from one Surendra Kumar Bhadani who transferred the above stated lands by executing registered sale deed on 28.11.1974 and after that the mother and father of Major Ajoy Krishna came in possession of the aforesaid lands. Later on, parents of Major Ajoy Krishna died and Major Ajoy Krishna became owner of the above stated plots. It is further case of the petitioner that plot no. 3238 contains double storeyed houses with nine shops and similarly, plot no. 3239 contains double storeyed building with seven shops and Shauchalaya. The construction on the above stated plots was made according to sanctioned map. It is also case of the petitioner that prior to purchase of the aforesaid lands, a petrol pump was existing on the said lands since the year 1934. Further case of the petitioner is that in the year 1964 -65, an encroachment proceeding bearing Encroachment Case No. 9/64 -65 was initiated against the owner of the aforesaid lands but the aforesaid Land Encroachment Case No. 9/64 -65 was dropped under Section 6 A of BPLE Act and thereafter, again an encroachment proceeding bearing Encroachment Case No. 220/76 -77 was initiated in respect of the same lands on the same grounds and again the aforesaid proceeding was dropped in favour of father of Major Ajoy Krishna. It is further case of the petitioner that the respondents no. 3, 4 and 5 came at the aforesaid Gopalpur Complex, Nawadah and made attempt to demolish the structure standing on the aforesaid plots upon which the wife of Major Ajoy Krishna made protest but no heed was paid by the above stated respondents.

(3.) COUNTER affidavit has been filed on behalf of the respondents and the stand of the respondents is that the plots in question are recorded as Khanta in khatiyan and as a matter of fact, the plots in question are flank of the public road which has been encroached by Major Ajoy Krishna. It has also been averred by the respondents in their counter affidavit that earlier encroachment proceedings were initiated in respect of the same lands but as a matter of fact, the proper materials could not be placed in the aforesaid encroachment proceedings and the findings in the aforesaid encroachment proceedings are erroneous and, therefore, the findings of the aforesaid encroachment proceedings are not binding upon the respondents. It is also stand of the respondents that lands in question are recorded in the name of State and even if the finding given in encroachment proceeding assumed to be correct, then also, the aforesaid lands were taken by Surendra Kumar Bhadani on lease and, therefore, the aforesaid Surendra Kumar Bhadani had no right to transfer the aforesaid lands in favour of the parents of Major Ajoy Krishna by executing registered sale deed and, therefore, Major Ajoy Krishna and his family members have got no right and title over the disputed plots.