Patna High Court - Orders
Abdul Hamid Khan vs The State Of Bihar & Ors on 14 August, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4110 of 2014
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Abdul Hamid Khan Son Of Late Maimuddin Khan Resident Of Village -
Bikramganj (Near Thana), Police Station - Bikramganj, District - Rohtas
.... .... Petitioner/s
Versus
1. The State Of Bihar through the District Magistrate, Rohtas at Sasaram
2. The District Magistrate, Rohtas at Sasaram
3. The Sub-Divisional Officer, Bikramganj, Police Station - Bikramganj,
District - Rohtas
4. Md. Nazar Hasan Son Of not known at present working as The Deputy
Collector Land Reforms Bikramganj, Police Station - Bikramganj, District -
Rohtas
5. The Deputy Collector Land Reforms Bikramganj, Police Station -
Bikramganj, District - Rohtas
6. Sri Rana Kulbir Bahadur Singh Son Of not known at present working as
The Circle Officer, Bikramganj, Police Station - Bikramganj, District -
Rohtas
7. The Circle Officer, Bikramganj, Police Station - Bikramganj, District -
Rohtas
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Arun Kumar Singh'
Mr. Dharmendra Kumar Singh, Advocates.
For the Respondent/s : Mr. Rajesh Kumar AC to G.P.10
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
2 14-08-2014Heard learned counsel for the petitioner and learned counsel for the State.
2. In the present writ petition the petitioner has made a prayer for issuance of writ, order and direction commanding the respondents concerned not to disturb/interfere the petitioner's peaceful possession over the land situated at Bikramganj appertaining to Khata No.556, Plot Nos. 95, 96 and 100 area 6 ¾ decimals.
Patna High Court CWJC No.4110 of 2014 (2) dt.14-08-20142
3. As per learned counsel for the petitioner on the basis of his application, an appropriate enquiry was conducted and in pursuance thereof the name of the petitioner has been mutated vide Annexure 2 series and accordingly rent receipt was issued. A complaint was made whereupon a fresh enquiry was conducted and Anchala Adhikari has elaborately dealt with the matter and reported that no such mutation has been done with regard to land and in pursuance thereof DCLR directed to file an appeal against the judgment and decree passed in Title Suit No.36 of 1982, sent the recommendation for cancellation of Jamabandi in terms of Bihar Land Mutation Act, 2011 as well as direction was given to file a case before competent court for cancellation of settlement related documents.
4. Learned counsel for the petitioner submits, the name of petitioner has been mutated by Circle Officer and thereafter rent receipts were also issued, the Circle Officer furnished the subsequent report on that basis, he is interfering with his possession. He has submitted that facts are undisputed and this Court should issue a writ of mandamus in his favour and has relied on the judgment of this Court in the case of Amod Kumar Vs. Patna Municipal Corporation and others, reported in 2011(1) PLJR 750. There the Court has considered the Patna High Court CWJC No.4110 of 2014 (2) dt.14-08-2014 3 issue of alternative remedy and the Court has arrived to a conclusion that the availability of alternative remedy is certainly a bar to maintainability of a writ petition. This is more a rule of discretion to prevent litigants from adopting short-cut remedies and burdening the writ court unnecessarily. But when the facts are glaring, speaking for themselves, and shocking the conscience of the Court, the availability of an alternative remedy is no bar to the maintainability of a writ application.
5. He has also relied on the judgment of the Hon'ble Supreme Court in the case of Ritesh Tiwari and another Vs. State of Uttar Pradesh and others, reported in 2010(4) BBCJ 218 SC, there the Hon'ble Supreme Court has consider the discretion of exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India. In paragraph 20 the Court has held that the power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so. The extraordinary power in writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ can be issued only in case of a grave miscarriage of justice or where there has been a flagrant violation of law. The writ court has not only to protect a Patna High Court CWJC No.4110 of 2014 (2) dt.14-08-2014 4 person from being subjected to a violation of law but also to advance justice and not to thwart it. The constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the court. However, being that the power is discretionary, the court has to balance competing interests, keeping in mind that the interests of justice and public interest are coalesce generally. A court of equity when exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. An order in equity is one which is equitable to all the parties concerned. Petition can be entertained only after being fully satisfied about the factual statements made and not in a casual and cavalier manner.
6. From the record it appears that the land was recorded as Anawad Bihar Sarkar and Title Suit vide T.S. No.36 of 1982 was decided in favour of petitioner and pursuance therefof the name of petitioner has bene mutated and accordingly rent receipt was issued in favour of petitioner but subsequent report of Circle Officer dated 4.9.201`3 shows number of persons are stake holders, such as, Muni Ram Singh, son of Shiv Singh and Raj Kishore Singh, son fo Parmeshari Singh has shown illegal possession holder of land. Title Suit No.36 of 1982 has been decided in favour of Patna High Court CWJC No.4110 of 2014 (2) dt.14-08-2014 5 Siyaram Singh against the State. Rent Fixation Case No. 8 of 2002-03 has been decided in favour of Bhardul Rai, son of Subedar Rai and Balkeshar Rai, son of Prabhansh Singh and in pursuance thereof Jamabandi No.80 of 2010 has been created. Chitranjan Singh, Jamabandi Raiyat executed the power of attorney in favour of Parvej Alam, son of abdul Hamid, who in turn sold the land in favour of Haidar Khan and Abdul Hamid. As it appears from the report of Circle Officer, there is already a temple of Lord Shiv where people of locality offer Puja and there tension is brewing in two community in the matter of taking possession of land, which required enforcement of preventive measures for maintaining peace.
7. This Court is of the view that the present case does not come under the para meter that has been fixed by this Court and the Hon'ble Supreme Court. It is well known principle of law that any entry in revenue registered does not create any right or extinguish any right. On this issue it is relevant to rely on the judgments in the case of Ramjeet Singh V. Janki Devi, reported in 2006(1) PLJR 263 and State of Andhra Pradesh V. Hyderabad Potteries Private Ltd. and another, reported 2010(5) SCC 382.
8. Before this Court there is no record in connection Patna High Court CWJC No.4110 of 2014 (2) dt.14-08-2014 6 with the Title Suit No.36 of 1982. As per counsel for the petitioner in view of the judgment and decree the rent of the land has been fixed. Two orders of the Circle Officer are before this Court. First order shows that the Circle Officer has approved the mutation whereas another letter dated 4.9.2013 which was addressed to the D.C.L.R. shows that some portion there is temple over the land and for some portion of vacant land stake holders are trying to take possession of land. It has also been stated that the petitioner is trying to occupy the land forcefully. In this situation this Court cannot issue writ of mandamus in favour of the petitioner in exercise of extra ordinary power under Article 226 of the Constitution of India. The petitioner, if so advised, he may approach to the Collector, Rohtas at Sasaram who will examine the matter and take decision in accordance with law or he may approach civil court of competent jurisdiction for necessary relief.
9. With the aforesaid observation this writ petition is disposed of.
Vinay/- (Shivaji Pandey, J) U