The State Of Bihar And Ors vs Prem Kumar Srivastava
2022 Latest Caselaw 2377 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                           Letters Patent Appeal No.18 of 2011
                                             In
                    Civil Writ Jurisdiction Case No.296 of 2010
     ======================================================

1. Principal, Nalanda Medical College and Hospital.

2. Dr. Chandra Bhushan Choudhary, S/o Late Ram Kripal Choudhary, Principal Nalanda Medical Colleg, having Office At old Bye-Pass Road, Kankarbagh, P.S.-Agamkuan, District-Patna.

... ... Appellant/s Versus 1.1. Sheela Srivastava, wife of Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna-

20. 1.2. Vishal Srivastava, S/o- Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna- 20. 1.3. Vivek Srivastava, S/o- Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna- 20. 1.4. Sachin Srivastava, S/o Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna- 20. 1.5. Ranu Srivastava, D/o- Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna- 20. 1.6. Shalini Srivastava, D/o Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna- 20. 1.7. Shilpi Srivastava, D/o Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna- 20.

... ... Respondent/s (1st Party)

2. The State of Bihar.

3. The Principal Secretary, Department of Revenue and Land Reforms, Bihar, Patna.

4. The Collector, Patna District, Patna.

5. The Senior Superintendent of Police, Patna, District-Patna.

6. The Sub Divisional Officer, Patna City, District-Patna.

7. The Land Acquisition Officer, Patna, District-Patna. Patna High Court L.P.A No.18 of 2011 dt.26-04-2022

8. The Additional District Land Acquisition Officer Cum District Control Room, Patna, District-Patna.

9. The Deputy Superintendent of Police, Patna City, District-Patna

10. The Officer In Charge, Agamkuan P.S.-Patna, District-Patna.

11. The Magistrate, Patna City, District-Patna.

12. The Junior Engineer, P.W.D., Patna, District-Patna.

... ... Respondent/s (2nd Party) ====================================================== with Letters Patent Appeal No. 29 of 2011 In Civil Writ Jurisdiction Case No.296 of 2010 ======================================================

1. The State of Bihar.

2. The Principal Secretary, Department of Revenue and Land Reforms, Bihar, Patna.

3. The Collector, Patna, District-Patna.

4. The Senior Superintendent of Police Patna, District- Patna.

5. The Sub Divisional Officer, Patna City, District- Patna.

6. The Land Acquisition Officer, Patna, District- Patna.

7. The Principal, Nalanda Medical College Hospital, Patna, District- Patna.

8. The Additional District Land Acquisition Officer Cum District Control Room Patna, District- Patna.

9. The Deputy Superintendent of Police Patna City, Patna.

10. The Officer In Charge, Agamkuan, P.S.- Patna, District- Patna.

11. The Magistrate, Patna, City, Patna.

12. The Junior Engineer, P.W.D., Patna, District- Patna.

... ... Appellant/s Versus 1.1. Sheela Srivastava, wife of Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna-

20. 1.2. Vishal Srivastava, S/o Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna- 20. Patna High Court L.P.A No.18 of 2011 dt.26-04-2022

1.3. Vivek Srivastava, S/o Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna- 20. 1.4. Sachin Srivastava, S/o Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna- 20. 1.5. Ranu Srivastava, D/o Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna- 20. 1.6. Shalini Srivastava, D/o Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna- 20. 1.7. Shilpi Srivastava, D/o Prem Kumar Srivastava C/o Sarita Prasad, W/o Late Sudhir Prasad, NC 10 A, Gayatri Mandir, Road, Kankarbagh, Patna- 20.

... ... Respondent/s ====================================================== Appearance :

(In Letters Patent Appeal No. 18 of 2011) For the Appellant/s : Mr. J.S. Arora, Sr. Advocate Mr. Manoj Kumar, Advocate For the Respondent/s :

(In Letters Patent Appeal No. 29 of 2011) For the Appellant/s : Mr. Manish Dhari Singh, A.C. to A.G.

For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR) Date : 26-04-2022

Heard Mr. J.S. Arora, the learned Senior

Advocate, who was requested by this Bench earlier to

render assistance in these two Appeals, notwithstanding

the fact that Mr. Arora had represented the then Principal Patna High Court L.P.A No.18 of 2011 dt.26-04-2022

of Nalanda Medical Colldge and Hospital, Patna, who was

impleaded as respondent No. 7 in the main writ petition.

2. The respondents/land-lords had filed a writ

petition before this Court vide C.W.J.C. No. 296 of 2010

for directing the respondents, viz., the government

officials as also the Principal, N.M.C.H. to remove the

illegal encroachment over Plot No. 265 ad-measuring

1.14 acres and also for a direction restringing the

concerned respondents from interfering with rights of the

petitioner over the land in question or from obstructing

him in his peaceful enjoyment of his property and other

ancillary reliefs.

3. It was the case of the writ-petitioner that

approximately 28 acres of land was acquired by the State

Government, out of which, Plot No. 265 was acquired for

N.M.C.H. Later, 1.14 acres of land from aforesaid Plot

No. 265 was released from acquisition, but the writ-

petitioner contended that the building has been

constructed over some area which was not acquired and

given to the N.M.C.H., but which had been released to Patna High Court L.P.A No.18 of 2011 dt.26-04-2022

the land owners.

4. The learned Single Judge while disposing

of the writ petition took into account the inter se dispute

between the share-holders of the property in question;

the result of the Partition Suit No. 124 of 1967 and

certain other facts to come to the conclusion that the

N.M.C.H. had extended its premises beyond the acquired

area.

5. The writ petition, referred to above, was

allowed with a cost of Rs. 25,000/- to be paid by the

Principal, N.M.C.H. to the writ-petitioner, to be recovered

from his own pocket for compensating the loss which had

accrued to him. The learned Single Judge also made it

clear that such saddling of cost was only symbolical and

only a fraction of the loss which had accrued to the writ-

petitioner for approximately three decades.

6. Mr. Arora, the learned Senior Advocate,

submits that the Principal, N.M.C.H. was never noticed

and, therefore, this order was passed in his absence. Be

that as it may, he has further argued that in the Appeal, Patna High Court L.P.A No.18 of 2011 dt.26-04-2022

preferred by the Principal of the College, the Division

Bench was not persuaded to interfere with the order

passed by the learned Single Judge on the ground that

the matter involves question of Title and disputed facts

and it was held by the Division Bench that the dispute

was not essentially of Title but of the fact whether the

land which was released from acquisition had been

wrongly included in the premises of N.M.C.H, which

pertained to simple measurement and demarcation and

for that the parties ought not to be sent to the Civil

Courts.

7. After having discarded, the plea of the

present appellant of the matter being of civil dispute

which could not have been properly adjudicated under

Article 226 of the Constitution of India, the Division

Bench directed for measurement and demarcation of the

land of Plot No. 265 with a view to ensure that only 1.24

acres of the said plot acquired by the State remains under

the possession of the N.M.C.H. Such demarcation was

directed to be carried out by qualified Amins in presence Patna High Court L.P.A No.18 of 2011 dt.26-04-2022

of two survey knowing pleaders to be appointed by the

Execution Munsif and for such exercise, the cost was to

be borne by the State and the appellant/N.M.C.H. A

report was required to be submitted to the Division Bench

within a period of six weeks. The parties were also given

the leave to file their maps, documents, khatas and

khatiyans, so that the measurement could be done

appropriately and to everybody's satisfaction. The

Execution Munsif was further cautioned that the entire

purpose of demarcation and measurement was only to

ensure that 1.24 acres of land out of the Plot No. 265 be

included in the premises of N.M.C.H. and no further.

8. The matters appears to have remained

pending for several years since 2011.

9. A report was submitted in the year 2013

which has been brought on record by way of second

supplementary affidavit by the appellants.

10. In our estimation, the report is absolutely

rudimentary and does not disclose the starting point of

measurement. No effort has been made to identify the Patna High Court L.P.A No.18 of 2011 dt.26-04-2022

original Plot No. 265 and the remaining 1.24 acres of the

land therein and the other area falling in that plot which

was later returned to the land-lords. 1.24 acres of land,

out of the aforesaid Plot No. 265, was initially acquired

which comprised several plots.

11. Mr. Arora has submitted that Plot No.

265 spans across 11 plots. Since no demarcation was

made with respect to the plots in Plot No. 265, therefore

any report by the Amin would be defective and would not

in any manner resolve the dispute between the parties.

12. An objection has been raised with respect

to such measurement by appellant No. 7/the Land

Acquisition Officer, Patna with respect to such report.

The contention of appellant No. 7 is that the basic

document which ought to have been taken into account

for any further exercise in the matter was the map of the

Land Acquisition, on the basis of which possession was

handed over the N.M.C.H. The aforesaid map was of

28.06.1978. Neither the Execution Munsif nor the survey

knowing Amins considered the said document/map before Patna High Court L.P.A No.18 of 2011 dt.26-04-2022

submitting their report.

13. The map in question has been brought on

record.

14. It has, therefore, been urged on behalf of

appellant No. 7 that the measurement has been carried

out arbitrarily and it is not at all in accord with the

direction of the Division Bench with respect to the manner

in which such report had to be prepared.

15. Because of the demise of the contesting

respondents in these set of Appeals, their heirs were

substituted and on one occasion, one of the gentleman

Advocates of this Court informed us that he has been

telephonically informed that he had to appear in these

matters, but he was waiting for the vakalatnama to

arrive. Today, when the matter was called out, this Court

was again informed that the aforesaid Advocate has not

received any instructions in these matters and, therefore,

he will not appear in these cases.

16. Mr. Arora, the learned Senior Advocate,

has submitted that in the first instance the order passed Patna High Court L.P.A No.18 of 2011 dt.26-04-2022

by the writ-Court was not sustainable in the eyes of law

as it took into account unilateral assertion of the land

owner and the appellant herein did not get any

opportunity to contest the case. However, these Appeals

were filed because the Court had directed the Principal,

N.M.C.H. for payment of fine of Rs. 25,000/- from his

own pocket.

17. No doubt, the predecessor Division Bench

found that the issue was not only of Title but of

demarcation, but as on date, we find that there is no

dispute now or otherwise, the private respondents would

have contested these cases.

18. Be that as it may, since the heirs of the

original writ-petitioner/respondents in these Appeals have

not appeared even today, we are persuaded by Mr. Arora,

the learned Senior Advocate to drop the present

proceedings with the rights of the land owner to be

reserved in case he would like to contest the matter

afresh.

19. For all practical purposes, Mr. Arora Patna High Court L.P.A No.18 of 2011 dt.26-04-2022

submits that the College in question has remained in

existence for long number of years and it appears that

because of the inter se dispute between the shareholders,

there was an assumption on the part of the original writ-

petitioner that some part of the land which was not

acquired (acquired but returned) has also been included

in the campus of the College. The issue could have been

decided by referring these matters to the authorities

concerned but for some inexplicable reason, the issue of

demarcation has travelled this far.

20. In deference to the decision made by the

predecessor Division Bench that this issue could be

decided in the writ petition, we have also entertained

these Appeals but in the absence of any assistance or

rebuttal from the side of the respondents, we deem it

appropriate now to give the entire dispute a quietus,

reserving the right of the respondents to re-agitate the

matter afresh before the appropriate authority/forum. In

that event, the authority/forum would be perfectly within

its rights to hear all the parties concerned and take an Patna High Court L.P.A No.18 of 2011 dt.26-04-2022

informed decision.

21. With the aforesaid observation/direction,

these two Appeals are disposed off.

22. The order passed by the learned Single

Judge asking the Principal, N.M.C.H. to pay a fine of Rs.

25,000/- from his pocket is, hereby, set-aside.

(Ashutosh Kumar, J)

(Anjani Kumar Sharan, J) Praveen-II/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          29.04.2022
Transmission Date       N/A