Devendra Prasad vs The State Of Bihar
2024 Latest Caselaw 393 Patna

Patna High Court

Devendra Prasad vs The State Of Bihar on 15 January, 2024

Author: Purnendu Singh

Bench: Purnendu Singh

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.16674 of 2023
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1.    Devendra Prasad Son of Dwarika Mahto, Resident of Village- Khoja
      Gachhi, P.S.- Silao, District- Nalanda.
2.   Anandi Prasad, Son of Late Dwarika Mahto,
     Both Resident of Village- Khoja Gachhi, P.S.- Silao, District- Nalanda.
                                                                 ... ... Petitioner/s
                                      Versus
1.   The State of Bihar through the Principal Secretary Revenue and Land
     Reforms department, Govt. of Bihar, Patna.
2.   The Divisional Commissioner, Patna.
3.   The District Collector, Nalanda.
4.   The Sub Divisional Officer, Rajgir, Nalanda.
5.   The Circle Officer, Silao, Nalanda.
6.   The Executive Officer, Nagar Panchayat, Sialo, Nalanda.
7.   The Chairman, Nagar Panchayat, Sialo, Nalanda.
                                               ... ... Respondent/s
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     Appearance :
     For the Petitioner/s   :       Mr.Sanjay Prasad, Advocate
     For the Respondent/s   :       Mr.Md. Khurshid Alam ( Aag 12 )
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
     ORAL JUDGMENT

Date : 15-01-2024 Heard Mr. Sanjay Prasad, learned counsel appearing

on behalf of the petitioner and Mr. Md. Khurshid Alam learned

AAG 12 for the State.

2. Petitioners have filed the writ petition inter alia for

following relief(s):-

(I) That this is an application for issuance of a writ in the nature of certiorari or any appropriate writ's, order's, direction's commanding the respondents for quashing of the notice vide Letter No 973 dated 03-10-2023 and notice vide letter No 974 dated 03-10-2023 issued by the Executive Officer, Nagar Panchayat, Silao whereby and whereunder direction has been given to the petitioners to appear before the office of Executive Officer, Nagar Parishad, Silao within three days of receiving of notice to explain as why not shop of the petitioners which has been constructed over the gairmazarua land near NH 82 Bypass comes under territorial jurisdiction of Patna High Court CWJC No.16674 of 2023 dt.15-01-2024

Nagar Panchayat, Silao in spite of that the petitioners have purchased the land in question by registered sale deed and they are paying property tax regularly to Silao Nagar Panchayat.

II. For direction the respondents to restrain from taking forcible possession to the petitioners land pertaining to Mauza Silao, Thana No 420, Khata No253, Khesra No1863 rakba 0.467 decimal and to demolish the shop of the petitioners because the petitioners have right, title and possession over land on the basis of registered sale deed since 2007.

iii For passing any such order and direction in the interest of justice and ends of justice in favour of the petitioners in the facts and circumstances of the case."

3. Learned counsel appearing on behalf of the

petitioners submits that once the right has been created and the

petitioners have been satisfactorily making payment of the

holding tax as per the assessment made by the municipal

authorities, applicable in the area from year 2009 when the

petitioners had come into possession over the land appertaining

to khata No.253, Khesra No.1863, total area 0.467 decimals, the

authorities at the same time cannot proceed to issue notice and

demolish the shop constructed over the said piece of land for

which the holding tax has been fixed. Petitioners have

occupancy right.

4. Learned counsel appearing on behalf of the State

submits that the petitioners have filed objection before the

municipal authorities, however, the same is pending.

5. No counter affidavit has been filed in spite of the fact

that the matter is pending and was taken up on 08.01.2024.

6. Having considered the rival submissions made on Patna High Court CWJC No.16674 of 2023 dt.15-01-2024

behalf of the parties, as well as, the averment made in the writ

petition, the grievance of the petitioners is that they are in

possession over the land, as described in above paragraph since

the year 2009 and after constructing the shop, the municipal

authority, after measuring the said shop, has assessed the

required amount of municipal tax to be paid and the petitioners

without default have been making payment of municipal tax in

accordant with law, now the authorities by issuing notice, cannot

proceed to demolish the shop in the manner without following

the prescribed procedure in accordance with law. Whether the

land is a Gairmazaura land or owned by the petitioners makes

no difference, since the right, title and interest and the right to

occupy is the species of property. The Apex Court in the case

of DLF Qutab Enclave Complex Educational Charitable

Trust v. State of Haryana, reported in (2003) 5 SCC 622 has

held that the right of ownership can be entertained or taken

away only by reason of a statute. The parties have remedy

before competent civil court. If advice, they may avail

appropriate remedy.

7. In the meantime, the notices dated 03.10.2023, as

contained in Annexure P / 5, are held to be without jurisdiction

and contrary to the own act of the Municipal authority are Patna High Court CWJC No.16674 of 2023 dt.15-01-2024

hereby set aside and quashed.

8. With aforesaid observations and directions, the

present writ petition stands disposed of.

(Purnendu Singh, J) Sanjay/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          16.01.2024
Transmission Date       NA