The need to protect public roads and keep them free from encroachment

Heard learned counsel for the petitioners and learned counsel for the State who has also filed the counter affidavit on behalf of respondent nos. 7 and 8, Nagar Parishad, Hajipur.

2. The petitioners seek a direction upon the Municipal authorities to stop the illegal construction of public lavatory on Khesra No. 410, Mohalla Pokhra, town Hajipur, P.S. Hajipur Town, District-Vaishali and further to demolish whatever constructions have been made. The stand of the petitioners is that a public lavatory for the benefit of the scheduled caste is being constructed on the land belonging to PWD, (at present, Road Construction Department) and no permission of the said Department was taken for the same. The construction of the lavatory greatly affected the petitioners who have been coming in peaceful ownership and possession over Khata No. 317, Khesra Nos. 461 (ka), (Kha), 463, 431 and 459 in the same area where they have their residential houses and shops next to the lands where construction of the public toilets were started, thereby also obstructing the egress and ingress to the said shops. It is submitted that the construction of the public toilet will cut out the petitioners from the main road and create a situation which is unhygienic and in conducive for carrying on business as even the face of the shops will be completely blocked from view. It is also the stand of the petitioners that the land in question has been recorded as a road in the revenue records and thus construction of public toilet thereon would be illegal.

4. It is also stated in the writ petition that an MLC, Rajendra Rai has given amount from MLC fund to the District Magistrate, Hajipur, Vaishali and this is how from the DDC fund the public toilets in question are being constructed.

5. A number of counter affidavits have been filed in the case. In one filed by the City Manager, Hajipur Nagar Parishad on behalf of respondent nos. 3 and 7 to 9, the stand taken is that a public toilet was in existence on the same place and new construction was being made after demolishing the old one. The fact of seven shops in existence of the petitioners is also denied referring to the reports of the Amin of the Nagar Parishad and the Anchal Amin, Hajipur dated 3.8.2012 and 30.7.2012 which reports however state that the houses and shops of the petitioners are in the vicinity of the said construction at a distance of about 13 to 20 feet. The stand has further been taken that it is not the Municipal authorities who are making the construction rather the construction is being made through NREP.

6. A counter affidavit has also been filed by the Road Construction Department in which it is stated that the public lavatory is being constructed by the Municipal authorities on the said piece of land and the petitioners’ property is just near the proposed site. On objection by the petitioners the authorities of Municipality did not take the required step and the petitioners filed a complaint by way of letter of request to the Executive Engineer, Vaishali Road Division, Hajipur on 8.2.2010 in which they also attached the letter submitted to the Chairman, Nagar Parishad, Hajipur and information about the said illegal construction by the Municipal authorities on the land belonging to the Department. The complaint was submitted to the Officer in- charge, Sadar P.S. Hajipur with a request to stop the illegal construction by the Junior Engineer, Road Division, Hajipur. It is further stated in the said counter affidavit that the municipal authorities should have taken the required permission from the Government before they could have proceeded. It is also stated that legal actions have been taken as a result of which said construction has been stopped by the authorities concerned, i.e., the Municipal authorities.

7. Learned counsel for the petitioners submits that apart from the fact that the respondent-authorities, whether of the Municipal Corporation or the NREP who are alleged to be making the co