IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.2098 of 2013

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1. Vinay Kumar Daruka S/O Dulichand Daruka R/O G.T. Road, P.S.- Town

Aurangabad, District- Aurangabad

.... .... Petitioner/s

Versus

1. The State Of Bihar Through Principal Secretary Road Construction

Department, Govt. Of Bihar, Patna

2. The District Magistrate, Aurangabad

3. The Executive Engineer Road Construction Department, Aurangabad

4. The Assistant Engineer Cum S.D.O. Road Construction Department,

Aurangabad

5. The Junior Engineer Road Construction Department, Aurangabad

6. The Sub-Divisional Officer, Aurangabad

.... .... Respondent/s

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Appearance :

For the Petitioner/s : Mr. Rama Kant Sharma

For the Respondent/s : Mr. S.A. Alam, S.C.3

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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR

MANDAL

ORAL ORDER

5

28-01-2016

This application filed under Articles 226 and 227 of the

Constitution of India seeks a direction to the respondents not to

raise boundary wall over plot no. 1196 (area 6 decimals) and plot

no 1209 (area ¼ decimals) lying in front of the house of the

petitioner and other several residents.

Heard Mr. Rama Kant Sharma, Senior Counsel for the

petitioner and Mr. Syed Arshad Alam, S.C.3 for the State.

Parties have exchanged their pleadings.

It has been submitted by the counsel for the

petitioner that the flank of the G.T.road cannot be used for

pucca construction obstructing the egress and ingress of the

residents abutting the Highway. The government in the

Patna High Court CWJC No.2098 of 2013 (5) dt.28-01-2016

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Department of Road Construction , however, can temporarily use

the land on the flank of the road for the purpose of maintaining the

road. No pucca structure obstructing the view of the adjoining

residents and/or obstructing their egress and ingress to the

Highway can be made. Since the government in the Road

Construction Department was going with the construction of

pucca structure over the land in the flank of the road, in question,

the petitioner approached the Executive Magistrate who initiated a

proceeding under Section 147 Cr.P.C. Parties were given

opportunity. The police also submitted the report. The Court vide

order dated 13.08.1990 (Annexure 1) restrained the respondent-

State from erecting pucca structure and directed for removal of

the wall or structure from plot nos.1196 and 1209 as the petitioner

had been held to have the right of easement which cannot be

obstructed.

Aggrieved by the said order the respondent- State

filed a criminal revision application being Cr.Rev. No. 109 of

1990. The learned Additional Sessions Judge under order dated

7.12.2007 upheld the order of the learned Executive Magistrate

and dismissed the revision application. It has been submitted on

behalf of the petitioner that in spite of the said order passed by the

Executive Magistrate and affirmed by the 1^st Additional Sessions

Judge, the respondents are going with construction. They should

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be restrained from doing so. In order to buttress his submission he

has referred to AIR 1972 Madras 386 (Damodara Naidu and

others –v- Thirupurasundari Ammal and another and AIR 1951

Orissa 124 (Chairman, District Board, Puri & ors –v-

C.H.Achaya). In an identical case like the present one, the Madras

High Court in the case of Damodara Naidu case (supra) held in

para 10, as under:

<I am, therefore, of opinion that the plaintiffs are

entitled to have access to the public road abutting item 1 free of

any obstruction and for a mandatory injunction directing the

defendants to remove the wall put up on item 2 above AB

blocking the entry of item 1. The judgment and decree of the

cour