PANCHAM LAL JAISWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) A part of the property belonging to the petitioner has been demolished, on the ground that the part of the property which has been demolished encroached upon a public land. It is the contention of the petitioner that the petitioner did not encroach upon any part of the public land. It is also the contention of the petitioner that without giving prior notice and without taking appropriate measurement, the respondent authorities purported to show on papers that the petitioner has encroached upon a part of the public land in order to demolish a part of the structure of the petitioner to cause financial loss and humiliation to the petitioner. The Municipality as well as the State are contending that the measurement was taken on notice and in the presence of the petitioner. This assertion is being disputed by the petitioner. The State and the Municipality are also contending that appropriate measurement was taken by the appropriate Officers and upon such measurement having been taken over and over again it transpired that a part of the public land has been encroached by the petitioner and accordingly such encroachment had been lawfully removed.

(2.) IN those circumstances the one and the only question that falls for consideration is whether the measurement was correctly taken or not. In addition to giving prior notice, in order to take appropriate and correct measurement many other matters are required to be looked at. One of them which according to me is of utmost importance, is the competence of the person taking measurement, inasmuch as in order to ascertain encroachment one has to fix the point from which the measurement is to be taken and fixation of the point depends upon the competence of the person taking the measurement, which competence can be acquired by education and training. On the records, these are not available. So it will not be proper on my part to pronounce that the measurement was correct or the same was incorrect. The best course would be to direct remeasurement. In order to avoid the initial hurdle of issuance of notice, I direct that at 11. A.M. on 5th December, 2005, fresh measurement shall be taken. The measurement shall be taken by two of the Amins or any other competent persons to be appointed by the petitioner. The measurement shall also be taken by two of the Amins or other competent persons to be appointed by the Municipality. At the same time measurement Shall also be taken by two of the Amins or competent persons to be appointed by the State or the Collector. The report of the six Amins shall be submitted to the Chief Surveyor of the Municipality, who shall be personally present at the time of measurement and shall decide the measurement on the basis of the said six reports. The measurement so to be decided shall be the final measurement.

(3.) THIS disposes of the writ petition.