In Radha Raman Lal vs. The State of Bihar through the District Magistrate, Madhubani & Ors. (2026), Justice Sourendra Pandey of Patna High Court delivered a 8-page long judgement dated April 29, 2026, wherein, he concluded:"14. The petitioner is only aggrieved by the fact of construction of a pacca (concrete) road constructed on his land by government funds and it is the said issue which needs to be adjudicated....the construction of a Pacca road over the raiyati lands of the petitioner cannot be permitted, if the same has been done without any consent and willingness by the petitioner and the same needs to be demolished. 16. The District Magistrate, Madhubani is directed that he shall ensure that the concrete construction made on the land of the petitioner is demolished within a period of one month from the date of production/communication of this order. The state shall be at liberty to recover the amount used in such construction of road from the erring persons after fixing the liability. 17. The writ application is allowed."
Justice Pandey considered two issues which required adjudication in the writ application. One was as to whether government funds can be used to construct a P.C.C. Road over a Raiyati land? The other, whether a right of easement granted by the petitioner through a Panchnama can be withdrawn subsequently by getting the P.C.C. road demolished?
The nine other respondents were:2. Deputy Development Commissioner (DDC), Madhubani, 3. Circle officer (C.O.) Block Bishfi, Madhubani, 4. Blok Development Officer, Block Bishfi, Madhubani, 5. LOk Shikayat Nivaran Padadhikari, Benipatti, Madhubani, 6. Superintendent of Police (S.P.), Madhubani, 7. Mukihya, Dilip Kumar Safi, Panchayat Singhia Purvi, Block Bisfi, Madhubani, 8. Binay Kumar Jha, 9. Yoganand Jha and 10. Abhilashanand Jha.
The writ application prayed for protecting the interest of the petitioner by directing the respondents to remove the illegal construction of road from the private/khatiyani land of the petitioner; for directing the respondents to remove the illegal construction of the road which was constructed in connivance with the authorities without acquiring the land and also without taking consent from the petitioner;for directing the respondents to take action against the encroachers/respondents as per law and for any other consequential relief or reliefs for which the petitioner is found entitled during the course of hearing of this writ petition.
The facts which gave rise to the writ application was that the petitioner was the owner of the land namely 8732 (old) 15521, 16335 (new) situated at Itharwa, Block Bisfi, Madhubani and is in possession of the same however the private respondent in connivance with Ward Commissioner/Zila Parshad has constructed a P.C.C. road on the Raiyati land of the petitioner without taking any consent/acquisition of land by the Government, which was exclusively for the personal use of the private respondent.
The senior counsel for the petitioner, submitted that the petitioner acquired the land through Bandobasti and is paying rent to the government, which also found mention in Khatiyan. It was submitted that upon several representations filed by the son of the petitioner before officer-in-charge, Bishfi P.S., before Lok Shikayat Nivaran Padadhikari, Benipatti Sub-Division, Madhubani and also before Janta Darbar of the Chief Minister, who, thereafter, directed Circle Officer to send Government appointed Amin to measure the land, who submitted the report which was found in favour of the petitioner. It was also submitted that Deputy Development Commissioner (DDC), Madhubani directed the Circle Officer, Bishfi, Madhubani to provide possession of land to the petitioner, who did not take action for the same and upon inquiry stated that he is seeking legal opinion of ADC, Madhubani. It was further submitted that District Magistrate, Madhubani instructed the Circle Officer, Bishfi, Madhubani to comply with the same whereafter the said Circle Officer, Bishfi, Madhubani fixed specific date for the petitioner to be present at site, so that encroachment be removed and possession be given but the Circle Officer, Bishfi, Madhubani, himself, did not turn up.
Subsequently, Circle Officer, Bishfi, Madhubani failed to provide any information and allegedly the land was encroached by respondents for giving benefit to one person and more so, no objection signature has fraudulently been taken from Binay Kumar Jha (private respondent) and he has also presented false facts before SDM Court.
It was submitted through the rejoinder that the construction took place on February 6-7, 2021 and an application was submitted with wrong Panchnama on October 29, 2021. The Panchnama itself suffered from a number of infirmities which cannot be legally acceptable. It was submitted that the petitioner acquired the land legally and was paying rent to the Government of Bihar. It was also submitted that no subsequent mention about use of land for transport was ever mentioned by respondents. The senior counsel submitted that since the land was not closed, the same was being used by people as a passage but that does not give right to the Mukhiya to use government funds to construct a concrete road over the same. The senior counsel prayed that the illegal construction of P.C.C. road be demolished.
On behalf of Respondent No. 1 to 3, the G.P.-18 submitted that the petition was barred by principle of estoppel, waiver and acquiescence. It was submitted that the land appertaining to Khata No. 801 was recorded as Gairmajarua Khaas under cadastral survey and was not a raiyati land as claimed by the petitioner and the land was being used as passage for time immemorial and thus no consent was required for construction of P.C.C. road. It was submitted that Binay kumar Jha and Yoganand Jha had filed an application before Circle Officer, Bishfi, Madhubani on October 29, .2021, wherein, they had produced a copy of panchnama dated January 8, 1979 stating that petitioner had admitted the passage for ingress and outgress and allowed the land to be used as road. It was submitted that petitioner had never acquired land from an ex-landlord or from the State and rent receipt did not create or extinguish the title. It was also submitted that in C.S, Khatiyan land was entered as Gairmajarua Khaas while in revisional survey Records of Rights, land is mentioned as raiyati land and no NOC was obtained from Circle Officer, Bishfi,
Madhubani hence direction was sought from Additional Collector for vacating the land in question. It was lastly submitted that upon question being posed on Circle Officer as to why the direction of Deputy Development Commissioner (DDC), Madhubani was not complied it was stated that the same could not be done on account of non availability of police force. The State relied on the panchanama dated January 8, 1979, whereby the petitioner was allowed passage and earlier Kharanja road was constructed and later P.C.C. road was constructed over the same.
The State of Bihar through the District Magistrate, Madhubani, Deputy Development Commissioner (DDC), Madhubani and Circle officer (C.O.) Block Bishfi, Madhubani were was respodent no.s 1, 2 and 3 respectively.
The counsel representing Binay Kumar Jha, the respondent No. 8 submitted that the petitioner tried to mislead the High Court by stating that the passage was his personal land however the same was being used for more than 40 years as Rasta, which the petitioner had himself permitted to the father of the answering respondent. It was submitted that with the efflux of time the said land being permitted to be used as Rasta (Passage) created a right of easement and therefore the same cannot be disturbed only because a P.C.C. road was constructed upon the same. He emphatically asserted that once the petitioner allowed the passage to be used for others the right of easement accrued to the respondents and as there was a Khranja road existing on the said land the same was converted into a concrete road and therefore there was no new change to the usage of the land and hence the writ petition is fit to be dismissed.
Justice Pandey noted that the land in question was a Raiyati land of the petitioner, which was not denied though the State has raised a vague question as to how a Gair Majarua Khas entry was converted into a Raiyati land. The ownership and possession of the petitioner was not denied and in fact the same was admitted, if the Panchnama is taken into consideration. The land being Raiyati Land and if there is no ‘No Objection’ from the petitioner granting permission to construct a Concrete road, government funds could not have been used for such construction. Such construction of road using raiyati lands of people are permissible only when the persons agree and willingly give their no objection for such construction. Hence, the construction of a road on such land is not permitted and was rightly directed to be removed.
With regard to the right of easement raised by the private respondent no. 8 on the basis of some Panchnama said to be executed way back in 1979, Justice Pandey observed that it "can be answered simply that the right of easement is enforceable and if the respondent no. 8 is aggrieved by any such action of the petitioner of denying him the right of passage as decided in the year 1979 then he can move a competent court of civil jurisdiction and claim his right. From the prayers made in this writ petition and also the pleadings this writ petition has not been filed to decide the rights of the parties and claim and counter claims with respect to the land in question and the same cannot also be decided in a writ jurisdiction hence the arguments being raised by the learned counsel for the respondent no. 8 cannot be looked into in the present proceedings, which is not even dealing with the said issue."
Notably, under Article 300-A of the Constitution of India, no person can be deprived of their property except by authority of law. The oral consent from a landholder is insufficient to permit road construction over private land. For any permanent road construction, the land must be acquired by the procedure prescribed in law, with compensation paid. In a democratic polity governed by the rule of law, the State cannot deprive a citizen on his property without sanction of law. The right to property as a constitutional and human right. No person can be deprived of his property without due procedure of law. The property can only be acquired for public purpose on payment of reasonable compensation in accordance with law. It has been held in Vidya Devi vs. State of Himachal Pradesh; (2020) 2 SCC 569, D.B. Basnett vs. Collector East District, Gangtok Sikkim and another; (2020), Sukh Dutt Ratra vs. State of H.P.; (2022), Kukreja Construction Co. vs. State of Maharashtra; (2024) and Bernard Francis Joseph Vaz v. State of Karnataka; (2025).
In the case of Vidya Devi case, it has been held as follows: “12.1. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution. Article 31 guaranteed the right to private property, which could not be deprived without due process of law and upon just and fair compensation.
12.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a Constitutional right Under Article 300A of the Constitution. Article 300A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300A, can be inferred in that Article.
12.3. To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right Under Article 300A of the Constitution."
In Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai; (2005) 7 SCC 627, wherein this Court held that: “6. ... Having regard to the provisions contained in Article 300-A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.”
12.4. In N. Padmamma v. S. Ramakrishna Reddy; (2008) 15 SCC 517, this Court held that: “21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300-A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300-A of the Constitution of India, must be strictly construed.”
12.5. In Delhi Airtech Services Pvt. Ltd. and Ors. vs. State of U.P. and Ors.; (2011) 9 SCC 354, this Court recognized the right to property as a basic human right in the following words: (SCC p. 379, para 30)
“30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property. "Property must be secured, else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists.”
12.6. In Jilubhai Nanbhai Khachar vs. State of Gujarat; (1995) Supp. 1 SCC 596 this Court held as follows: “48. ...In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession Under Article 300-A. In other words, if there is no law, there is no deprivation.”
12.7. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.
12.8. The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State.
12.9. In a democratic polity governed by the Rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi and Ors. v. M.I.D.C. and Ors.; (2013) 1 SCC 353 wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the Rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.
12.10. This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension.
12.11. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to "adverse" possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.
12.12. The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if
the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.
12.13. In a case where the demand for justice is so compelling, a constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it.
12.14. In Tukaram Kana Joshi and Ors. v. M.I.D.C. and Ors.; (2013) 1 SCC 353, this Court while dealing with a similar fact situation, held as follows: (SCC p. 359 para 11)
“11.There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, Under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode.”
Supreme Court has underlined that the State being a welfare State cannot be permitted to take a plea of adverse possession. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizen.
No comments:
Post a Comment