KAUSHAL KISHORE PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ petition the petitioner seeks a writ of mandamus commanding the Begusarai Municipality to have the construction made by the respondent No. 4 removed insofar as the same has been made without or contrary to the sanction granted by the Municipality. The petitioner contends that the land adjacent to the west of the petitioner's house belongs to the respondent No. 4 containing an area of about 8 dhurs. It is the contention in the writ petition that the respondent No. 4 has made construction on the plot of land belonging to him without leaving any space in between the land belonging to the petitioner and the land belonging to the respondent No. 4. It has been stated that the respondent No. 4 has opened big windows towards the house of the petitioner and those windows are opening on the land belonging to the petitioner. It has been stated that the respondent No. 4 has left no space in between his construction and the land belonging to the petitioner while making the construction and that is in violation of section 188 of the Bihar and Orissa Municipal Act, 1922 (in short, 'the Act') and the bye laws framed thereunder. In the premises, the petitioner approached the respondent Municipality and requested it by a letter dated 10th June, 2004 to take appropriate action in accordance with law. The Municipality, it is claimed, treated the said letter of the petitioner as a complaint and initiated Municipality Case No. 631/2004. The petitioner then applied for certified copy of the site map passed in favour of the respondent No. 4 but the same was not furnished to the petitioner and at the same time no hearing was fixed of the said case. With this complaint the petitioner approached this Court by filing the present writ petition on 11th Aug., 2004.

(2.) On 26th April. 2005 the respondent No. 4 filed a counter-affidavit in the writ petition. In that he stated that he purchased the subject land and the same comprises of 7 dhurs and 17 dhurkis. It has been accepted that the petitioner is a boundary raiyat. and the petitioner has filed Title Suit No. 65/92 which is pending in the Court of Sub-Judge III, Begusarai. It has been stated that the land has been mutated in the name o the respondent No. 4 and he applied for approval of the map for the purpose of construction of a house. He has also stated that the Municipality approved the map by Memo No. 1799 dated 27th Dec., 2003. A copy of the said approved map has been annexed to the said counter-affidavit. From that it appears that thereby action was accorded to the respondent No. 4 to make construction of ground + 2 floors. In the approved map it was shown that in the ground floor, the petitioner would leave 10 feet in the front. 4 feet on the back and some land in both of the other sides. The map permitted construction of an open terrace on the back side of the first floor and that open terrace could be extended beyond the ground floor but upto two feet. The total area of the open terrace on the first floor, as was permitted, was 15'3" x 7'. Therefore, the map directed that although the floor of the first floor may be extended by two feet beyond the first floor but by directing that the open terrace would be of 153" x 7'; it directed that the open space should start at least 5 feet behind the construction of the ground floor. For the second floor the area of the open space was reduced to 15'3" x 3'6", but the map directed to commence the open space from the same place where the open terrace commences in the first floor. There is no dispute that in the back of this building constructed by the respondent No. 4, the land of the petitioner and his house constructed thereon are situate.

(3.) In the said counter-affidavit, the respondent No. 4 has contended that the petitioner filed a proceeding under section 144 of the Code of Criminal Procedure, which was dropped on 21st July, 2004. From the order dated 21st July, 2004, it appears that although the contention of the petitioner in the said proceeding was, amongst others, that the respondent No. 4 was making an unauthorized construction but the real issue was encroachment by the respondent No. 4 of one dhur of land belonging to the petitioner. The Sub-Divisional Magistrate, Begusarai by the order dated 21st July, 2004 held that the petitioner has failed to produce necessary documents to demonstrate that the respondent No. 4 has encroached upon any land belonging to the petitioner and accordingly dropped the proceedings. It does not appear that the Sub-Divisional Magistrate applied his mind in relation to the construction that was being made by the respondent No. 4.