Chandan Kumar Singh vs The State of Bihar and Others

National Highway 31 runs through the town of Begusarai. At the location where the National Highway 31 is intersected by a Municipal Road there has been encroachment by an Organisation known as Rotary International. In the pleadings of this case the organisation is referred to as the Rotary Club. Much extra statutory influence has been utilised in the making of this encroachment on the National Highway 31. The licence to encroach the public highway was granted by the District Magistrate. The area of the road was allocated to Rotary Club. The purpose of allotment was declared as social and community service. When the licence was first granted for occupying a public road and its flanks, the modality adopted was to install the statue of Dr. Rajendra Prasad, the first President of the Republic, and call the area around it a park, and have it placed in the charge of the Rotary Club. Thereafter on this Government land, the conforming use of which was a road and highway, was inaugurated a Blood Bank of the Rotary Club. The foundation stone was laid by the District Magistrate. Thereafter, a Rotary Hall was inaugurated by the Governor of Bihar on 25th March, 1994. From these premises are run activities like vocational classes for stitching, tailoring, Pulse Polio, family planning programmes and in addition a blood bank. It has been contended before the Court that on 15th August and 26th January every year the District Magistrate and the Superintendent of Police come and garland the statue. The District Magistrate, Begusarai, respondent no. 3 is present in Court. She is instructing learned Addl. Advocate General III. She has stated and accepted that the offending constructions are on the public Highway and within the width of the area, which has been marked conforming use of the road. The learned Addl. Advocate General III, places the Survey Maps made out by the State respondent and certified by the District Magistrate, Begusarai and affirmed that the location is not in doubt and further made a statement on behalf of the State of Bihar, upon instructions from the District Magistrate present in the Court, that the constructions are on the public road and highway''s side path, and on the space and area, the conforming use of which is reserved for the road. He further stated that it is a matter of record that "permissive possession" was given without any proprietary right to "Rotary, Club".

The learned Addl. Advocate General III also submitted that not withstanding the counter affidavits which have been filed by State respondents is respondent no. 2, Controller of Drugs Department of Health, through the Drug Inspector, Begusarai and the first counter affidavit of the District Magistrate. Begusarai through District Land Acquisition Officer, Begusarai, he has discussed the matter with the Advocate General Bihar, and he has no hesitation in market a statement on behalf of the State of Bihar that he could not defend the respondents nor make out a case in defence of the encroachment of a public highway and the violation of the conforming use of the area as a road. In these circumstances, learned Addl. Advocate General III stated, that the correct position is being placed before the Court by a supplementary counter affidavit affirmed by the District Magistrate, Begusarai with further instructions from the present District Magistrate, Begusarai in making the statement that the offending encroachments are within the width area of the highway and plots referred in paragraph 3 of the petition mentioning the Khata/Khesra, and are within the periphery of the area of the conforming use of the road. The Original Survey Map was placed before the Court. A copy of the Survey Map has been appended to the supplementary affidavit.

Amongst the three sets of respondents, their versions in reply to the petition need to be placed on record. The first counter affidavit on record is of the respondent no. 2, answering the petition on behalf of Controller of Drugs, Department of Health, Government of Bihar. The counter affidavit has been sworn by a drug inspector. He is attempting to justify the situation that a licence to operate a blood bank was granted to Rotary Blood Bank, Begusarai, "at National Highway 31". The current licence is dated 13 July, 1999. It has been granted for the period 22 August, 1999 to 31 December, 2000. A photocopy of it is appended as Annexure 1. This counter affidavit, thus, affirms that a licence to operate a blood bank was granted to the Rotary Club on National Highway 31, Begusarai. This department of the Government is only concerned with the obligation of granting licences to those who operate a blood bank. Justification of the site of the blood bank, in the context of the present case, is not the authority of this department, that is, the Department of Health. But, the fact that a blood bank operates on the National Highway 31 is a matter of record, supported by this affidavit.

The next counter affidavit is the one filed on behalf of respondent no. 3, on 25 August, 1999. The respondent no. 3 is the District Magistrate, Begusarai. He deputed the District Land Acquisition Officer to file an affidavit on his behalf. He avoided filing his affidavit. This counter affidavit mentioned that a licence to operate a blood bank in the Rajender Memorial Complex had been granted by the Government of India, Ministry of Family Health and Welfare, and also by the Controller of Drugs, Government of Bihar, Department of Health and Family Welfare. In paragraph 7 of the counter affidavit, it is accepted that a Rajendra Smarak in between National Highway 31 and Municipal Road, was established with a statue of late Rajendra Prasad, the first President of India. In this counter affidavit it is also stated that in the area in context had been established a children''s park, a community hall with a blood bank with modern facilities, and that the blood bank and community hall are being managed by the Rotary Club, Begusarai. In the counter affidavit it is accepted that all these constructions are on National Highway 31, and the Municipal Road. But, it is explained that "these constructions, in no way effect the normal free-flow of traffic on NH 31 nor on the municipal road. Neither these will effect (sic-affect ?) the future widening of NH 31 and municipal road." This affirmation has been made on the record. Then, in paragraph 9 it is stated "since this construction does not effect (sic-affect ?) the free-flow of traffic and future widening of roads and a Blood Bank with modern facilities has also been started, there is no need to remove the construction." This paragraph has also been affirmed from the record. In paragraph 10 of this counter affidavit it is contended that "the blood bank with modern facilities was the need of the area, since NH 31 and NH 28 cross through the jurisdiction of Begusarai district, there are always cases of accident. Many people die due to non-availability of genuine human blood. Here the voluntary blood donation is encouraged and scientifically collected blood are made available to the needy at concessional rate." This paragraph has also been affirmed from the record. In this counter affidavit no responsibility has been taken to file the affidavit by the District Magistrate. Further, all that has been stated is from the record. That the constructions are on the highway is accepted. The blood bank is being justified, because, in case accidents happen, blood will be needed. Why accidents happen, in which encroachment may be a factor, has not been commented upon.

On 28 April, 2000, the Court indicated to the learned Additional Advocate General III, appearing for the State, that the District Magistrate, Begusarai must file his affidavit and with responsibly indicate, after a survey, the exact location of the alleged illegal constructions. Thus a supplementary counter affidavit was filed on behalf of respondent no. 3, the District Magistrate. This time the counter affidavit was affirmed by the District Magistrate. Along with this counter affidavit was filed a survey map, which was duly verified by the Estate Officer, Begusarai, District Land Acquisition Officer, Begusarai, the Collector and District Magistrate, Begusarai and two other officials of the District. This was a survey of the area in context, it showed the National Highway 31 as dedicated in its conforming use as a highway. The width of the National Highway is marked by parallel dotted lines. The offending constructions are within the parallel dotted lines. The area of the plots as is referred to by the petitioner in paragraph 3 is shown to be within the width of National Highway 31. The original survey maps were shown to the Court, and copies of these (two) are appended to the supplementary counter affidavit of the District Magistrate.

The last counter affidavit is on behalf of the Rotary Club. Begusarai, respondent no. 4. It has been sworn by its Secretary, one Dinesh Tekriwal. The construction of the buildings as have been referred to is accepted. It is mentioned in paragraph 5 of this counter affidavit that the total area of 0,40 decimals where the activities of the Rotary Club are carried on is located "at the junction of National Highway and Main Road going east to west near Har Har Mahadeo Chowk, has been developed by the Club long back." In paragraph 6 it is stated that the answering respondent, that is the Rotary Club, is not concerned with the land of National Highway. The land, if any acquired by the State Government is still Government property. It is explained that this land was developed after a licence had been granted by the Collector and a statue of Dr. Rajendra Prasad had been installed when the then Member of Parliament of the Constituency in augurated the same". It is also contended that the plot is virtually a monument to Dr. Rajendra Prasad comprising of a statue. Rotary Hall and the Blood Bank. It is explained in paragraph 7 that the foundation stone of the building was laid by the District Magistrate, Sri Rajeshwar Singh, IAS, and the Governor of Bihar, His Excellency Dr. A.R. Kidwai inaugurated the Rotary hall and since then free vocational classes for stitching and tailoring, Pulse Polio programme, family planning camps etc are some of the activities carried on in the public interest, and there has been no objection whatsoever from any section of society. In paragraph 8 it is contended that the club received Rs. 6 Laks from Mr. S.S. Ahluwalia, a Member of Parliament, for the welfare of the public and patients of Begusarai, and thus the statue was installed and a blood bank established on a no-profit, no-loss basis. It is further contended that the continuation of the activities by the Rotary Club is beneficial to the public at large, and there is no question of any encroachment on public land as the Collector, Begusarai, has permitted the Club to occupy the area, under a licence deed which is in accordance with law. It is denied that the building is on the National Highway. A copy of the licence granted to occupy the road is appended to the counter affidavit.

The licence is granting permission to occupy the road on a "permissive possession" with "no proprietary right". The purpose for the licence is to construct a park in the public interest and the interest of the Club, with a stipulation that the land is not to be utilised for any other purpose than the park. The details of the land records as mentioned in the licence are exactly the same as those mentioned by the petitioner in paragraph 3 of the petition. These are the same plots which are mentioned in the survey map of the Collector showing that the area of occupation on which the licence was granted, is within the land which has been set apart for use as National Highway 31.

After these facts had been noticed, and submissions made by learned counsel appearing for the respective parties, and regard also being had to the Supreme Court decisions, there was no issue left, as the existence of the offending constructions was clearly on the public road (in this case, the national highway). Learned Additional Advocate General III made a clear statement that he cannot justify the circumstances on behalf of the State of Bihar. He further stated that the District Magistrate present in Court accepts that the constructions are on the public highway, and thus the survey map clearly records the constructions on the four plots of the survey map as within the width of National Highway 31.

The District Magistrate Begusarai, Respondent no. 2, was present in Court. She made a statement that the constructions are on National Highway 31, and had them pointed out through Additional Advocate General III to indicate their locations as on the survey map. She accepted that the four plots which contain the constructions are on National Highway 31 and within the dotted portions which indicate the National Highway.

Learned counsel appearing on behalf of the Rotary Club, respondent no. 4, Mr. Ram Balak Mahto, Senior Advocate, very fairly submitted before the Court that after having examined the overall circumstances, the facts on record, the survey which shows the area of the plots on which the constructions are, which in turn are within the periphery of the National Highway 31, he joins the learned Advocate General III in the opinion that the occupation of the Rotary Club of the plots with constructions upon them all within National Highway 31 cannot be justified. Learned Senior Advocate and counsel for the Rotary Club, Mr. Ram Balak Mahato, Senior Advocate, accepted that the National Highway had been encroached upon. However, he made a plea that the local administration may consider relocating the blood bank of the Rotary Club and the statue of Dr. Rajendra Prasad to another site. It was his suggestion that he would advise the Rotary Club to apply for an allotment of a site for the blood bank at the Government hospital in Begusarai and also request that ''ho statue of Dr. Rajendra Prasad be possessed by the local administration and placed within the precincts of the Government Hospital, or any other public place. He offered an undertaking that the Rotary Club will unwind its occupation from the four plots within a month. On this submission of learned counsel appearing on behalf of Rotary Club. Mr. Ganga Prasad Rai, Additional Advocate General 111 stated that he has advised the District Magistrate, present in Court, that upon the Rotary Club''s applying for re-locating the blood bank a suitable accommodation may be given, if possible, within the precincts of the local Government hospital. Insofar as the statue of Dr. Rajendra Prasad is concerned, learned AAG III had stated that the District Magistrate present in Court has already indicated to him that it will be taken possession of and carefully re-erected within the precincts of the Government hospital or at a suitable site, befitting a memorial to Dr. Rajendra Prasad.

In the totality of circumstances, at the end of the proceedings there was no issue left. On behalf of the State of Bihar it was contended by the Additional Advocate General III that the encroachment could not be justified. On behalf of the Rotary Club, it was accepted by its counsel, Mr. Ram Balak Mahato, Senior Advocate, without taking issues, that a defence could not be offered and an alternate site should be considered.

In so far as the question of whether a Member of Parliament or a Member of Legislative Assembly can donate his constituency''s funds for activities like installation of statues on public roads or in parks, or installation of statues in general, the learned Addl. Advocate General III stated, and did not deny, that there are instructions to that effect by the Government, that such funds are not to be utilised for the installation of statues.

Though in this matter there is no issue at the bar and it is accepted that a National Highway has been encroached upon, yet, for posterity it would only be appropriate that the High Court reiterates the settled law on the concept of a roads or a highway. The Court specially mentions this because already there is a matter pending at the Patna High Court on the state of the public roads all over the State of Bihar. There need not be any shyness in expressing that the road (sic) has virtually collapsed. The media writes on it. In Court cases, the petitioners and State Counsel have accepted it. In the districts, the District Judges are reporting to the High Court of similar encroachments in the face of the district courts, by persons in politics, positions with clout. One of the factors is that there is no respect to protect a road; and to give it a continuing protection for the conforming use, the purpose for which it is planned. Merely because a width of the road may be broad or wide is no reason that it should suffer encroachment. Once a road has been dedicated for passage nothing may come on it.

The Supreme Court even went to the extent of denying a plea to establish statue of Mahatma Gandhi on a public road. When the poor people as hawkers asserted a fundamental right to trade on a public road this plea was also negatived by the Supreme Court by declaring that no one can have a fundamental right to do business or trade on a public road The simple message of the judgments of the Supreme Court over the last 35 year has been that the road is to be protected no encroachment is to be suffered on the road. Once a public road has been dedicated, its conforming use is only for the purpose of passage and no other.

The first of the cases in which the Supreme Court declared that a road is meant for passage only and nothing may come on it even if it be a statue of Mahatma Gandhi, a Piyo (Public drinking water facility) or a library is the case of Municipal Board, Manglaur Vs. Sri Mahadeoji Maharaj, . This was the case where the Supreme Court held that there existed no right in the local administration to put up structures on vacant areas as that would negate the very purpose for which a road is laid. The Supreme Court held "if that is the legal position, two results flow from it, namely, (1) the municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or use of it as a pathway, (2) it cannot be said that the putting up of the structures for installing the statue of Mahatma Gandhi or for piyo or library are necessary for the maintenance or the use of the road as a public highway. The Supreme Court held that an injunction for restraining the municipality from acting in excess of its right was maintainable. In the case of State of Uttar Pradesh Vs. Ata Mohd., the Supreme Court plugged any controversy that what abuts a road or highway may not be the road apart from the fact that once a dedication has been made as a highway the law recognises that as a public road. To remove all doubts, in this case the Supreme Court held that the Patri i.e. the side lands, are included in the public way and thus no encroachment could be suffered on these areas. In 1985, the Supreme Court was hearing two matters from Bombay, these are the cases of Bombay Hawkers'' Union and Others Vs. Bombay Municipal Corporation and Others, and Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, . The Supreme Court was considering whether a fundamental right may exist for a citizen to occupy the road whatever be the reason whether as street hawking in poverty or otherwise for trade or business or any other activity. In these two cases the Supreme Court negative the argument and declared that no fundamental right exists to occupy a road, nor carry on trade, business or hawking on a public road which has been dedicated as a road or highway and is meant for passage only. The Supreme Court said that no one has any right to any particular spot on a public road or a highway. Later in the matter of Sodan Singh vs. New Delhi Municipal Committee ( AIR 1989 SC 1988) the Supreme Court reiterated the proposition that a hawker might have a fundamental right to carry on a business of his choice but he cannot do so on a particular place on a public road. In the case of Municipal Corporation of Delhi Vs. Gurnam Kaur, the Supreme Court again emphasised that the rule and the law of the road is express, that if there be an encroachment on the road a Municipal Corporation is obliged to direct removal of encroachment from any public place like a public street or road and keep it free from encroachment.

In the net result there can be no doubt that public roads and highways are meant for passage only and no other purpose. In interpretation, the situation cannot be interpreted in favour of those who may have influence and authority to extract a licence for the occupation of a public road. If a poor man cannot have any right to squat on any particular spot or site of a public road or highway to earn his livelihood, no other person may have a licence for the occupation of the road whatever be its purpose.

At this juncture, the Court needs to remind every local administration in the State of Bihar that in urban planning spaces are reserved for their conforming uses. Open spaces are obliged to be reserved in the excellence of urban planning for roads and parks, and thus, such is their use. If space is reserved in a lay out plan or a park, a school cannot be established in it and it cannot be justified that it is for the benefit of the public or that its dislocation would cause inconvenience to some people of the locality. The same concept applies to the area which has been dedicated in its conforming use as a road. Portions of a highway or a public road are to be left entirely free and cannot be used for any other purpose except passage. The Supreme Court has already declared that a statue of Mahatma Gandhi, a library or a piao cannot come on the road. No one has any right to any particular spot or site on the road. The Supreme Court has also held that a school cannot be put inside a park and that this sort of social and community service cannot be made a subterfuge to occupy public places like parks and roads. Thus, community services, and social services cannot be had from spaces reserved for roads and parks, whether it be vocational training, classes for stitching and tailoring, Pulse Polio and family planning programmes, or a blood bank. Parks occupying spaces of roads cannot be established. Schools, libraries, vocational training centers and social service cannot be inside parks. Statues of national leaders cannot be made or any such excuses resorted to as a camouflage to occupy side lands of public roads and highways against their conforming uses. Otherwise this would become the hegemony of bad politics, misplaced power of persons with means both inside and outside politics, resulting in a negation of urban planning. This is not social service, nor community service.

In the case of Dr. G.N. Khajuria and others Vs. Delhi Development Authority and others, , the laid out plan of a residential colony where an area was reserved for a public park but a school was constructed within it, was being examined by the Supreme Court. An unauthorised allotment of the park was made for a school and this act of making an allotment to the management of a school, notwithstanding that the purpose of a school was for the community good, and the convenience of the locality, the Supreme Court held to be illegal and liable to be cancelled. The plea to justify an allotment that dislocation from the site would cause difficulty to the community and tiny tots, was not permitted. The delinquent officer who made the allotment was held to have misused his powers while making such allotments The Supreme Court directed that the should be punished. Accordingly, the Supreme Court directed the authorities to make an inquiry in the matter and submit a report. The relevant passages of the Supreme Court judgment need to be noticed:-

We, therefore, hold that the land which was allotted to respondent No. 2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of respondent no. 2 was misuse of power, for reasons which need not be adverted. I is, therefore, a fit case, according to us, where the allotment in favour of respondent No. 2 should be cancelled and we order accordingly The fact that respondent No. 2 has put up some structure stated to be permanent by his counsel is not relevant, as the same has been done on a plot of land allotted to it in contravention of law. As to the submission that dislocation from the present site would cause difficulty to the tiny tots, we would observe that the same has been advanced only to get sympathy from the Court inasmuch as children, for whom the nursery school is meant, would travel to any other nearby place where such a school would be set up either by respondent No. 2 or by any other body.

Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of Courts, the illegality is not taken care of fully inasmuch as the Officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot-free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the Officer which lies at the root of the unlawful act of the concerned citizen, because of which the Officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent Officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the Officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite.

We, therefore, call upon respondent No. 1 to make an enquiry and inform the Court within three months as to who are the Officers who had made the unauthorised allotment and permitted unauthorised construction. On knowing about this, such further orders would be passed as deemed fit and proper.

In the net result, this Court records that in the present case, the respondents, whether the State or the private party which has received the licence on a public road, have acted with irresponsibility and have shown disrespect to the law and the judgments of the Supreme Court. The licence granted to Respondent No. 4, the Rotary Club, dated 7 April 1986, by the Collector, Begusarai, Annexure A, to this respondent''s counter affidavit, to occupy public land, measuring 0.40 decimals, is quashed and set aside.

Counsel for the State Mr. Ganga Pd. Roy, Addl. Advocate General III and Mr. Ram Balak Mahto, Senior Advocate appearing for the Private respondent no. 4, however, have both stated that the situation cannot be justified. As the Senior Advocate appearing on behalf of the respondent No. 4, Rotary Club has given an undertaking and simultaneously learned Addl. Advocate General III, Mr. Ganga Pd. Roy has mentioned that should application be made, the blood bank may be shifted to the premises of the Government Hospital and the statue of Dr. Rajendra Prasad will be placed within the premises of the hospital or any other suitable place within the precincts of a public institution, no direction need to be issued. Suffice it to say that if within a month occupation and possession from the plots under the licence granted to Respondent No. 4 is not removed voluntarily, then the State respondents shall move in and remove the encroachments. Petition allowed; no order as to costs.