SHAKUNTALA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners in this writ application have prayed for quashing two notices, one dated the 28th July, 1977 (Annexure 4) and the other dated the 30th July, 1977 (Annexure 8), both issued by the Patna Municipal Corporation (Respondent No. 2-hereinafter to be referred to as "the Corporation"), as also for issuance of writ of mandamus restraining respondent No. 2 and its officers (respondents Nos. 3 and 4) from interfering with the petitioners' personal private property and their rights over the lands described in the two sale deeds, extracts copies of which have been filed as Annexures 1 and 2 to this writ application.

(2.) The petitioners' case, in short, which is also not in dispute, is that they are purchasers of ten kathas of land bearing plots Nos. 31C and 32/2055 appertaining to Khata No. 540, situated in Mauza Dhakanpura Lodipur (now commonly known as the Boring Road area), Police Station Kotwali, from one Shrimati Hemawati Sinha, wife of Shri Shivaji Prasad Sinha, I.P.S., Additional I.G. of Police, Bihar, by means of two sale deeds, both dated the 12th July, 1973, one in favour of petitioner No. 1 in respect of seven kathas (Annexure 1), and the other executed in favour of petitioner No. 2 in respect of three kathas (Annexure 2). Originally, the aforesaid plots of land belonged to one Babulal Gope, who sold the same to one Smt. Satirani Devi, by a registered sale deed dated the 20th Sept. 1937. Smt. Satirani Devi, in her turn, sold those two plots to the aforesaid Smt. Hemawati Devi by a registered sale deed dated the 31st May 1949 and the latter got herself mutated in respect of the lands purchased by her. At about the same time, one Smt. Usha Sinha, sister of Smt. Hemawati Sinha also purchased ten kathas of land appertaining to the same plots, adjacent north, and her land lay to the adjacent south of Boring Road. By a mutual agreement Smt. Usha Sinha gave a small strip of land to Smt. Hemawati Sinha, her sister, to provide her an access to Boring Road, and the latter, in lieu thereof, gave an equivalent area of land lying adjacent to her sister's land to Smt. Usha Sinha, and it is said that after this mutual arrangement, both the sisters got the entire area, including the passage, enclosed by a pucca boundary wall in 1966. The passage is never meant for public use, which fact is supported by an affidavit filed by Shri Shivaji Sinha, husband of Smt. Hemawati Sinha, in a revision petition arising out of a proceeding under Section 144 of the Cr. P. C. relating to the land, which petition was disposed of by the 4th Additional Sessions Judge, Patna. The right of the petitioners over the strip of land, meant for private passage to the Boring Road, as mentioned earlier, was recognised by the Patna Improvement Trust, Patna Water Board and the State of Bihar, and, petitioner No. 1 constructed a drain and laid out water pipe over the land with the approval of the Water Board, the Public Works Department and the Corporation. According to the petitioners, no part of the aforesaid strip of land was a means of access for the public and has never been a public thoroughfare. Since the date of the purchase, it is stated, the petitioners have right, at all times and hours, to prevent all other persons from going over the said land and using it in any way and, as stated above, the land is bounded by a pucca boundary wall with a gate at the entrance facing Boring Road. A petition was, however, filed by one Shri Gyan-deo Sharma (respondent No. 9) along with several other persons before the Corporation, stating that as the land in question is a road, it should be taken over by the Corporation for the benefit of the people of the locality. That petition, signed by sixteen persons gave details of the petitioners' land along with other lands. I may mention here that subsequently, several of the aforesaid signatories of the petition, filed affidavits saying that they had signed the petition in question under a misconception that it was actually a petition to the Corporation for arranging for proper drainage of the area and not for asking for a road through plots Nos. 31C and 32/2055 belonging to the petitioners. In their affidavits they have also averred that a petition to this effect was also filed before the Assistant Administrator of the Corporation on the 15th Nov. 1977 and a copy thereof was also annexed to the affidavits. Having come to know of the filing of the petition by Gyandeo Sharma and others requesting the Corporation to take over the petitioners' aforesaid strip of land as a public road, the petitioner filed a petition before the Administrator of the Corporation on the 28th April, 1977 (Annexure 5) bringing to his notice the fact that the passage in question is not a road but a private link meant to connect the house of the petitioners with Boring Road, and pointing out to him the existence of a public passage running northward, a little away, to the east and west of the plots of the petitioners, and asserting as false and mala fide the claim made by Gyandeo Sharma and others for taking over this passage of the petitioners as a public road. In spite of this objection made by the petitioners, the Administrator of the Corporation (respondent No. 3) issued a notice (Annexure 4) on the 28th July, 1977, purporting to be one under Sub-section (2) of Section 270 of the Patna Municipal Corporation Act 1951 (hereinafter to be referred to as 'the Act') intimating his intention to declare the aforesaid private and personal passage of the petitioners to be a public street, avoiding therein all reference to the plot numbers of the petitioners' land, and, as will appear from the notice itself, even without forwarding a copy thereof to the petitioners. It will not be out of place to mention here that only a day before, by a letter dated the 27th July, 1977 (Annexure 7) the petitioner No, 2 and others had been asked by the Chief Engineer of the Corporation to appear before the Administrator on the 2nd Aug., 1977, in connection with the hearing of the objection petition filed by the petitioners on the 28th April, 1977 (Annexure 5), as mentioned earlier. On getting information about the issue of the notice (Annexure 4) and on receipt of the second notice (Annexure 8) dated the 30th July, 1977, asking petitioner No. 2 to stop construction of the garage on the passage in question, petitioner No. 2 vide his letter dated the 30th July, 1977 (Annexure 9) objected to it, and also asserting that the garage had been built on his own private land, which does not come within the purview of the definition of 'street' as given in Section 4 (vv) of the Act, and that it had been built according to the approved plan. Inspite of the fact that the notice (Annexure 4) speaks of one month's time to file objection to the intended declaration of the petitioners' private land as public street, and petitioner No. 2 had, in fact, filed an objection on the 30th July, 1977 (vide Annexure 9), the Corporation got a proceeding under Section 144 of the Cr P. C. started against petitioner No. 2, restraining him from constructing the garage on the land in question and a notice to that effect was received by petitioner No. 2 from the Subdivisional Magistrate, Sadar, Patna--vide Annexure 10 dated 1/2-8-77 to the writ application Against the order starting a proceeding under Section 144 of the Cr. P. C. the petitioner moved the Sessions Judge of Patna under S, 397 of the Cr. P. C., which application was disposed of in favour of petitioner No. 2 by the 4th Additional Sessions Judge, Patna, by his order" dated the 21st Sept., 1977.

(3.) When this writ application had earlier come up for hearing on the 36th Nov. 1977, it was urged on behalf of the Corporation (respondent No. 2) that as an alternative remedy by way of appeal to the District Judge under Sub-section (3) of Section 270 of the Act was available to the petitioners and the petitioners had filed such an appeal against Annexure 4 before the District Judge of Patna, they should seek their remedy there. Learned counsel for the petitioners, on the other hand, contended that the subject-matter of the writ application was of a much wider amplitude than that of the appeal under Section 270 (3) of the Act The writ application is one under Article 226 (1) (a) of the Constitution for enforcing the petitioner's fundamental right under Article 19 (g) of the Constitution in respect of their property and hence there was no question of exhausting the alternative remedy by way of appeal to the District Judge. Learned counsel for both the parties, however, agreed that the writ application be kept pending and the appeal filed by the petitioners against Annexure 4 before the District Judge, Patna, be directed to be disposed of within one month, and it was ordered accordingly. In the appeal before the District Judge, however, a completely opposite stand was taken on behalf of the Corporation to the effect that no appeal under Sub-section (3) of Section 270 of the Act lay against the first notice of intention to declare a 'street' as a 'public street' but against the second notice declaring a 'street' as a 'public street' and the appeal filed by the petitioners was premature. This stand of the Corporation found favour with the District Judge and he held that the appeal filed by the petitioners was not maintainable. Thereafter, when the writ application was taken up for hearing, Mr. Basudeva Prasad, learned counsel appearing on behalf of the Corporation fairly conceded, at the outset, that the above stand of the Corporation taken before the District Judge was incorrect, and that an appeal lay only against a notice intimating the intention of declaring a street as a public street under Section 270 (2) within thirty days the notice is first exhibited, and no appeal lay from the notice declaring a street as a public street. Mr. Prasad also fairly conceded, and in my opinion, correctly, that two alternative remedies are available to the owner of the land, i.e. (i) to file an objection, as provided under Sub-section (2) of Section 270 of the Act, within thirty days of the first exhibition of the notice intimating the intention to declare a 'street' as a 'public street', or (ii) to file an appeal within the same period before the District Judge, as provided under Section 270 (3) of the Act.