SRIKRISHNAPURI BORING ROAD VYAPARI SANGH Vs. STATE

JUDGEMENT

(1.) The petitioners herein are the Srikrishnapuri Boring Road Vyapari Sangh and its Secretary, who is aggrieved by the action of the respondents alleging that the respondents have without any warrant or justification demolished and is demolishing large number of structures on the Boring Road, Boring Canal Road and Srikrishnapuri, which were occupied by the members of the petitioner-Sangh who are shopkeepers, traders and businessmen occupying those structures as tenants. They have, therefore, prayed that the respondents be restrained from demolishing any structure, either temporary or permanent, even if those structures have been raised without a sanctioned plan or in violation of a sanctioned plan, unless a proceeding is initiated under the provision of the Bihar Regional Development Authority Act, 1981. The writ petition has been filed as a public interest litigation.

(2.) The case of the petitioners is that the Boring Road has a width of 54'(feet), and this is obvious from the fact that a strip of land having breadth of 54'(feet) was acquired in or about the year 1920 for the purpose of construction of the said road. In a writ petition filed in public interest by one Nand Kishore Roy and another, being C.W.J.C. No. 8175 of 1992 this Court had directed the authorities to take necessary steps for removal of illegal occupants, trespassers, encroachers and squatters from public land, particularly those who had erected hutments etc. whether temporary or permanent on the flanks of roads, streets, lanes etc. That order was passed by this Court in the context of large scale encroachments is over the roads, streets and lands in the city of Patna. The order of this Court however authorised the respondents only to remove such encroachments from the road and, therefore, did not justify removal of structures which were not in the nature of encroachment on public land or roads : The petitioners submit that they are not aggrieved by the order passed by this Court, and their grievances arise on account of the fact that the respondents have acted beyond the authority conferred by the order of this Court for removal of encroachments from the public land, particularly, roads, lanes, by-lanes etc., which was primarily aimed to achieve free flow of traffic. The respondents have acted illegally in removing structures on one pretext or the other. According to the petitioners, a distinction must be made between an encroachment on public land and a construction made either without a sanctioned plan or in violation of a sanctioned plan on private land. If a construction is made without a sanctioned plan or in violation of a sanctioned plan, it cannot be said to be an encroachment, though under the provisions of the relevant Act, action may be taken for the demolition of such structures. The petitioners claim that, on protest by the persons affected, they were told by the Magistrate and the authorities accompanying the demolition squad that although the present width of the Boring Road was only 54' (feet), the Master Plan envisaged the Boring Road with a width of 90' (feet) and, therefore, any structure raised within the aforesaid 90' (feet) was illegal and liable to be demolished. The petitioners submit that even if in the Master Plan the width of the road has been shown to be 90'(feet), the said Master Plan has not been finally approved or published and, therefore, unless the lands are acquired under the provisions of the Land Acquisition Act, they cannot be said to be public land. It is further alleged by the petitioners that the demolitions have taken place also on the plea that the constructions were without sanctioned plan or in deviation of the sanctioned plan. It is submitted that such an action could not be taken without initiating proceedings against the owners, occupiers and/or occupants of those premises.

(3.) The respondents have filed counter-affidavits and have submitted that the petitioners have no locus standi to maintain the instant writ petition. The instant petition is not in public interest and, therefore, cannot be treated as a public interest litigation. It is submitted that only the owners or builders of the structures can make a grievance, if at all, against the action of the respondents. No grievance has been made by any of the owners or builders of the structures, as they themselves realise that the structures are illegal. The existence of such illegal structures has an adverse effect on the free movement of traffic on the road, because the road is not suited to bear the burden of such heavy traffic generated the existence of shops located on either side of the road is unauthorised constructions. It was stated that no construction or structure which has been raised after getting a plan sanctioned by the competent authority has been touched. The structures, which have been demolished, are illegal structures and, therefore, this Court should not exercise its extraordinary writ jurisdiction to grant relief to the petitioners, because the same would amount to perpetuating an illegality, and encouraging illegal constructions in the city of patna.