Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2017 Supreme(Pat) 57

IN THE HIGH COURT OF JUDICATURE AT PATNA
AJAY KUMAR TRIPATHI, NILU AGRAWAL, JJ.
Lallu Singh son of Sri Shiv Bachan Singh - Appellant
Versus
The State of Bihar through the Principle Secretary, Revenue and Land Reforms Department & Ors. - Respondents
Letters Patent Appeal No. 1967 of 2015 In Civil Writ Jurisdiction Case No. 7935 of 2012
Decided On : 28-01-2017

Advocates Appeared:
For the Appellant : Mr. Manoj Kumar Singh
For the Respondent: Mr. Upendra Pratap Singh

The key legal principle established is that the mere availability of a passage used by people does not create a right in their favor, and the passage does not become public land or public passage for them to utilize.

Headnote:
Condonation petition - Land Encroachment - The Commissioner held that the disputed plot was a private property and not a public passage, and therefore, the encroachment did not violate the Land Encroachment Act. The court dismissed the appeal, upholding the Commissioner's decision.
Fact of the Case:

The appellant alleged that private respondents encroached upon public land and obstructed public passage. The Commissioner found that the disputed plot was private property and not a public passage, setting aside the previous orders in favor of the appellant.
Finding of the Court:

The court found that the Commissioner's decision was correct, as the disputed plot was not public property, and therefore, the encroachment did not violate the Land Encroachment Act. The appeal was dismissed.
Issues: Dispute over encroachment on public land, determination of whether the disputed plot was a public passage or private property.
Ratio Decidendi: The key legal principle established is that the mere availability of a passage used by people does not create a right in their favor, and the passage does not become public land or public passage for them to utilize.
Final Decision: The appeal was dismissed as it had no merit, upholding the Commissioner's decision that the disputed plot was private property and not a public passage.

JUDGMENT :

Ajay Kumar Tripathi, J.

Condonation petition, i.e. I.A. No. 8754 of 2015, is allowed. Delay of 12 days is condoned. The matter is thereafter heard on merits.

2. A proceeding was initiated by the appellant against private respondents No. 8 and 9 making a grievance that they have encroached upon the public land and are obstructing the public passage before the Circle Officer, who held in favour of the appellant. The matter travelled to D.C.L.R. and thereafter before the Commissioner.

3. The Commissioner after going through the material and the evidence came to a considered opinion that there is a public road which is situated in plot No.393, but plot No.386, where the encroachment is being made an issue, is a private piece of property and no public passage as such exists through that plot, people have made residential houses and that plot has been developed as a residential colony. Merely because certain passage was available at a point of time, which people were using according to their convenience, it does not create a right in their favour and that passage does not become a public land or public passage for them to utilize.

4. On the findings including the evidence, which emerged from Annexure-3 to the writ application, the Commissioner set aside the order of the Circle Officer as well as D.C.L.R. and allowed the revision. It is this order which is challenged.

5. It is a desperate effort made on behalf of the appellant to get a right of way by even overriding the right of somebody’s private property since the land in question is not public property, which is sine qua non for a proceeding under the Land Encroachment Act. The Commissioner has done no wrong by allowing application of private respondents and setting aside the wrong finding of the Circle Officer and the D.C.L.R.

6. Appeal has no merit. It is dismissed.

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