Patna High Court - Orders
Abhay Chandra Mishra & Ors vs The State Of Bihar & Ors on 3 April, 2014
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No 21003 of 2012
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1. Abhay Chandra Mishra Son Of Anand Mishra Resident Of Mo.- Patan
Gali Po.- Sasaram, Ps.- Sasaram (Town) District Rohtas At Present
Readymade Shop, Meena Bazar Company Sarai, Sasaram, Rohtas
2. Kapil Singh @ Kapil Deo Singh Son Of Banshropan Singh Resident Of
Village- Dhanpurwa, Po And Ps- Sasaram District- Rohtas At Present
Readymade Shop, Meena Bazar Company Sarai, Sasaram, Rohtas
3. Krishna Singh Son Of Laxman Singh Resident Of Village- Dhuwan, Ps-
Sasaram, District- Rohtas, At Present Meena Bazar Company Sarai,
Sasaram, Rohtas
4. Surendra Sah S/O Late Neema Sah Resident Of Mo.- Company Sarai,
Sasaram, (Rohtas) At Present Cloth Shop, Meena Bazar Company Sarai,
Sasaram, Rohtas
5. Sunil Prasad @ Sunil Kumar S/O Chhote Lal Prasad Resident Of Mo.-
Madarasa Road, Sasaram At Present Hardware Shop, Meena Bazar
Company Sarai, Sasaram, Rohtas
6. Mahendra Sah Son Of Mohan Sah Resident Of Mo.- Company Sarai,
Sasaram District- Rohtas At Present Readymade Shop, Meena Bazar
Company Company Sarai, Sasaram, Rohtas
7. Mohan Prasad Son Of Late Neema Sah Resident Of Mo.- Company
Sarai, Sasaram District- Rohtas At Present Cloth Shop, Meena Bazar
Company Sarai, Sasaram, Rohtas
8. Banarsi Prasad Son Of Late Vishwanath Prasad Resident Of Mo.- Kabir
Ganj, Sasaram District- Rohtas At Present Cloth Shop, Meena Bazar
Company Sarai, Sasaram, Rohtas
9. Radheshyam Sah @ Radhe Shyam Pd. Son Of Neema Sah Resident Of
Mo.- Company Sarai, Sasaram District- Rohtas At Present Cloth Shop,
Meena Bazar Company Sarai, Sasaram, Rohtas
10. Shankar Prasad Sahu Alias Shiv Shankar Sah Son Of Ram Prasad Sahu
Resident Of Village- Karpurwa, Ps- Sasaram District Rohtas At Present
Cloth Shop, Meena Bazar Company Sarai, Sasaram, Rohtas
11. Suresh Singh Son Of Dukhi Mahto Resident Of Mo.- Company Sarai,
Sasaram District- Rohtas At Present Churi Shop, Meena Bazar Company
Sarai, Sasaram, Rohtas
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary, Land Reforms Department, Govt. Of Bihar,
Patna
3. The Director, Land Reforms, Government of Bihar, Patna
4. The Divisional Commissioner, Patna Division, Patna
5. The Collector cum District Magistrate, Rohtas at Sasaram
6. The Additional Collector, Rohtas at Sasaram
7. The Deputy Collector Land Reforms (DCLR), Rohtas at Sasaram
8. Circle Officer, Sasaram Block, Rohtas at Sasaram
9. Jaganarayan Singh Son Of Late Ram Janam Singh Resident Of Mo.-
Khilanganj, Po And Ps- Sasaram, District- Rohtas
10. Smt. Savitri Devi Wife Of Sri Jaganarayan Singh Resident Of Mo.-
Khilanganj, Po And Ps- Sasaram, District- Rohtas
Patna High Court CWJC No.21003 of 2012 (11) dt.03-04-2014
2
11. Manoj Kumar Singh Son Of Sri Jaganarayan Singh Resident Of Mo.-
Khilanganj, Po And Ps- Sasaram, District- Rohtas
12. Pramod Kumar Singh Son Of Sri Jaganarayan Singh Resident Of Mo.-
Khilanganj, Po And Ps- Sasaram, District- Rohtas
13. Sujeet Kumar Singh Son Of Sri Jaganarayan Singh Resident Of Mo.-
Khilanganj, Po And Ps- Sasaram, District- Rohtas
14. Arun Kumar Singh Son Of Sri Jaganarayan Singh Resident Of Mo.-
Khilanganj, Po And Ps- Sasaram, District- Rohtas
.... .... Respondent/s
WITH
Miscellaneous Jurisdiction Case No 10 of 2013
IN
Civil Writ Jurisdiction Case No 21003 of 2012
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1. Abhay Chandra Mishra Son Of Anand Mishra Resident Of Mo.- Patan
Gali Po.- Sasaram, Ps.- Sasaram (Town) District Rohtas At Present
Readymade Shop, Meena Bazar Company Sarai, Sasaram, Rohtas
2. Kapil Singh Son Of Banshropan Singh Resident Of Village- Dhanpurwa,
Po And Ps- Sasaram District- Rohtas At Present Readymade Shop, Meena
Bazar Company Sarai, Sasaram, Rohtas
3. Krishna Singh Son Of Laxman Singh Resident Of Village- Dhuwan, Ps-
Sasaram, District- Rohtas, At Present Meena Bazar Company Sarai,
Sasaram, Rohtas
4. Surendra Sah S/O Late Neema Sah Resident Of Mo.- Company Sarai,
Sasaram, (Rohtas) At Present Cloth Shop, Meena Bazar Company Sarai,
Sasaram, Rohtas
5. Sunil Prasad S/O Chhote Lal Prasad Resident Of Mo.- Madarasa Road,
Sasaram At Present Hardware Shop, Meena Bazar Company Sarai,
Sasaram, Rohtas
6. Mahendra Sah Son Of Mohan Sah Resident Of Mo.- Company Sarai,
Sasaram District- Rohtas At Present Readymade Shop, Meena Bazar
Company Company Sarai, Sasaram, Rohtas
7. Mohan Prasad Son Of Late Neema Sah Resident Of Mo.- Company
Sarai, Sasaram District- Rohtas At Present Cloth Shop, Meena Bazar
Company Sarai, Sasaram, Rohtas
8. Banarsi Prasad Son Of Late Vishwanath Prasad Resident Of Mo.- Kabir
Ganj, Sasaram District- Rohtas At Present Cloth Shop, Meena Bazar
Company Sarai, Sasaram, Rohtas
9. Radheshyam Sah Son Of Neema Sah Resident Of Mo.- Company Sarai,
Sasaram District- Rohtas At Present Cloth Shop, Meena Bazar Company
Sarai, Sasaram, Rohtas
10. Shankar Prasad Sahu Alias Shiv Shankar Sah Son Of Ram Prasad Sahu
Resident Of Village- Karpurwa, Ps- Sasaram District Rohtas At Present
Cloth Shop, Meena Bazar Company Sarai, Sasaram, Rohtas
11. Suresh Singh Son Of Dukhi Mahto Resident Of Mo.- Company Sarai,
Sasaram District- Rohtas At Present Churi Shop, Meena Bazar Company
Sarai, Sasaram, Rohtas
.... .... Petitioner/s
Versus
1. The State Of Bihar
Patna High Court CWJC No.21003 of 2012 (11) dt.03-04-2014
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2. Dr C Ashokvardhan, Principal Secretary, Land Reforms Department,
Govt. Of Bihar, Patna
3. Mr Hukum Singh 'Mina', Director, Land Reforms, Government of Bihar,
Patna
4. Mr ELSN Bala Prasad, Divisional Commissioner, Patna Division, Patna
5. Mr Anupam Kumar, Collector cum District Magistrate, Rohtas at
Sasaram
6. Mr Maharshi Ram, Additional Collector, Rohtas at Sasaram
7. Mr Om Prakash, Deputy Collector Land Reforms (DCLR), Rohtas at
Sasaram
8. Mr Shashi Bhushan Kumar, Circle Officer, Sasaram Block, Rohtas at
Sasaram
.... .... Respondent/s
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For the Petitioner/s : Mr K N Choubey, Sr Advocate with
Mr Bajarangi Lal, Advocate
For the S t a t e : Mr Jay Prakash Sharma, AC to GP XI
For Pvt Respondent/s : Mr S S Dwivedi, Sr Advocate with
M/s Purushottam Kr Jha &
Sanjay Kr Ojha, Advocates
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CORAM: HON'BLE MR JUSTICE NAVANITI PRASAD SINGH
ORAL ORDER
11 03-04-2014The eleven petitioners, by this writ petition, have challenged the jurisdiction of DCLR, Sasaram to entertain the proceedings as initiated before him by private respondents No 9 to
14. Respondents No 11 to 14 are sons of respondents No 9 and 10 who are husband and wife. Therefore, the private respondents are one family of father, mother and four sons.
Shri Kamal Nayan Choubey, learned Senior Counsel appearing for the writ petitioners submits that the nature of dispute that has been placed before the DCLR purporting to be under the Patna High Court CWJC No.21003 of 2012 (11) dt.03-04-2014 4 provisions of the Bihar Land Dispute Resolution Act, 2009 cannot be and ought not to be permitted to be entertained. When the writ petition was filed, an interim order restraining DCLR was passed. Later on, it is alleged that after the order was passed, DCLR passed a backdated order allowing the application of the private respondents and directing the eviction of the petitioners.
Pursuant to notice, the private respondents appeared. Shri Shashi Shekhar Dwivedi, learned Senior Counsel appearing for the private respondents has tried to raise an issue that the dispute relates to certain plots of land and petitioners do not claim any right over certain plots. Writ petition ought not to be entertained. He further submitted that the DCLR, having now passed the final order, the petitioners must go in appeal and for that reason also, the writ petition must not be entertained.
Counter affidavits and rejoinders have been filed. With consent of parties, the writ petition was heard for its final disposal at this stage itself.
Having considered the matter I find this is one of the cases which is exemplary of abuse of power and position. This shows how conferment of such far reaching powers on executive, untrained in law, leads to total miscarriage of justice. Undisputed facts would show the same.
Patna High Court CWJC No.21003 of 2012 (11) dt.03-04-20145
The proceedings were initiated by an application made by the private respondents before the DCLR and registered as Land Dispute Case No 91 of 2012. The application is Annexure 8 to the writ petition. The applicants are the six private respondents and there are twelve opposite parties. It is stated that one Jabbar, son of late Bashir Khan, who was opposite party No 3 having died, he has not joined this writ petition. The rest eleven opposite parties are the writ petitioners. A mere reference to the entire pleadings, as contained in Annexure 8, the application before the DCLR, gives out the following facts.
The applicants (private respondents herein) state that they have, by registered sale deed, purchased from the father, namely, Inderchand Kejriwal of the vendor certain plots of land on which the opposite parties were tenants in shops built thereon. The address of the opposite parties, each one of them, would show that they are readymade garments shop owners or other shop owners of the Complex known as Meena Bazar in Sasaram Town. It is averred therein that these opposite parties (petitioners herein) were not paying rent from before and were defaulters. They were evading payment of rent. The temporary structure was required to be demolished so that pucca shops could be made. Accordingly, it was prayed that as they were defaulter tenants, they should be Patna High Court CWJC No.21003 of 2012 (11) dt.03-04-2014 6 evicted and possession restored to the applicants (private respondents herein). A plain reading of this application is that evict the defaulter tenants and restore possession to the landlord. There is no dispute otherwise.
Shri Kamal Nayan Choubey, learned Senior Counsel submits that this application was mala fide filed and mala fide entertained by the DCLR for obvious reason. Having purchased the property with tenants, the private respondents now wanted to evict the tenants to develop the property. The property is in the heart of town of Sasaram and is a very valuable property. The only way to get quick and summary eviction was through DCLR. In sum and substance, the application being for evicting defaulting tenants, it was squarely covered by a special Act dealing with landlord and tenant relationship that is Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the BBC Act) which provides for mode and manner in which a tenant in default can be evicted. The application (Annexure 8) itself shows that it is not alleged that petitioners were encroachers. It admits existence of petitioners as shop owners from the time when purchase was made. Thus, there was no reason whatsoever for the DCLR to entertain the petition. The private respondents are trying to achieve indirectly what they could not achieve Patna High Court CWJC No.21003 of 2012 (11) dt.03-04-2014 7 directly through BBC Act.
Shri Choubey, learned Senior Counsel then points out that from the ordersheet of the Court of DCLR, it would be seen that the petitioners objected to the jurisdiction. Ultimately, the DCLR, not ready to stop being mala fide inclined to proceed in the matter, this writ petition was filed on 06.11.2012. Inspite of being informed that the writ petition challenging his jurisdiction has been filed, he insisted to complete the arguments and on 27.11.2012 reserved the matter for final orders without fixing any date. On 05.12.2012, this Court restrained the DCLR from proceeding further in the matter. The DCLR allegedly backdated the order to 03.12.2012 allowing the application and directing eviction of the petitioners who were opposite parties before him. By interlocutory application, the final order has also been challenged.
Having considered the matter, on the facts as found by this Court, it cannot be but said that the whole exercise from the very beginning to the end was mala fide and wholly without jurisdiction. The application before the DCLR, even if it is accepted in entirety, made out a case of eviction of defaulting tenant. It is a matter exclusively covered by special Act being BBC Act, as noted above. There was no dispute of possession. Patna High Court CWJC No.21003 of 2012 (11) dt.03-04-2014 8 There was no question of any encroacher. There was no dispute of any unauthorized occupation yet the DCLR, inspite of objection and inspite of being told that this Court was in seisin of the matter, proceeded to entertain the application and allow the same. This clearly establishes that the reasons were far from bona fide. The commercial interest was higher than the legal interest.
Thus, I find that, on the facts as alleged in the application before the DCLR, the DCLR had no jurisdiction to entertain the dispute. The jurisdiction lays with the Civil Court in terms of the BBC Act. That being so, the entire proceedings before the DCLR were wholly without jurisdiction and, thus, the final order of the DCLR dated 03.12.2012 is wholly without jurisdiction and has to be set aside.
Before parting, I must note two contentions, one made by either of the two Senior Counsels. Mr Dwivedi referred the application and stated that in the application, certain plots of lands are mentioned whereas in the writ petition, petitioners do not claim those plots. Unfortunately, this is only a diversionary tactics adopted. There is no dispute with regard to possession or otherwise of any plot. The dispute is with regard to shops. The application clearly states the municipal holding number of the premises from which eviction is sought for holding number is not Patna High Court CWJC No.21003 of 2012 (11) dt.03-04-2014 9 of a plot but a premises which is nothing but a shop. The submission of Shri Dwivedi is misconceived. It is only a camouflage to invest jurisdiction which the DCLR lacked. It is rightly contended by Shri Choubey that efforts were made to snatch an order of eviction from the DCLR when the jurisdiction exclusively lays with Civil Court under BBC Act.
The other contention is by Shri Kamal Nayan Choubey who submits that the order of the DCLR is antedated. The facts noted above would show that long before hearing was concluded before him, the writ petition was filed. The writ petition, having been filed, had been brought to the notice of the DCLR. He had reserved the order on 27.11.2012 without fixing the date when the order would be delivered. On 05.12.2012, this Court stayed the proceedings before DCLR. It is alleged that having come to know, only to defeat the writ petition, an antedated order, showing date of order as 03.12.2012, was passed. The consequence of facts noted above and the anxiety of the DCLR to proceed quickly in the matter is apparent. Quickly for reasons other than bona fide. But yet it cannot conclusively be held that the order was antedated. There is a strong suspicion in that regard. However, this Court does not pursue this matter because if the DCLR lacked the original jurisdiction then the order passed would itself be Patna High Court CWJC No.21003 of 2012 (11) dt.03-04-2014 10 without jurisdiction.
Shri Shashi Shekhar Dwivedi next urged that final order having been passed, petitioner had alternative remedy to appeal to the Divisional Commissioner and, as such, the writ petition should not be entertained. My answer to this is simple. The doctrine of alternative remedy has well known exception. The well exceptions are (1) where an authority acts under a statute which is ultra vires (2) where an authority acts contrary to the principles of natural justice and (3) where the authority acts wholly without jurisdiction. In these three cases, a party need not wait for the proceedings to conclude and then move from Court to Court but can approach directly to this Court under Article 226 of the Constitution. A party is not required to submit to the jurisdiction and then raise the plea that the authority has no jurisdiction and suffer the order and prefer appeal/revision thereafter. Reference, in this connection, may be made in the case of Rajendra Prasad Kesri and another Versus State of Bihar and others since reported in 1969 PLJR 275 and in the case of M/s Baburam Prakash Chandra Maheshwari Versus Antarim Zila Parishad, now Zila Parishad, Muzaffarnagar since reported in AIR 1969 Supreme Court 556.
Thus, in my view, the writ petition must succeed. The Patna High Court CWJC No.21003 of 2012 (11) dt.03-04-2014 11 proceedings, as before the DCLR, are held to be without jurisdiction. Consequently, the final order passed by the DCLR being order dated 03.12.2012 in Land Dispute Case No 91 of 2012 by the DCLR, Sasaram is set aside and will not be acted upon by any Court or authority. This application is allowed.
Respondents to pay cost of Rs 10,000/- to the petitioners.
Let a copy of this order be sent to the Principal Secretary, General Administration Department, Government of Bihar for necessary action as he may deem fit against the DCLR concerned for his actions which clearly are not in bona fide.
In view of the order that has been passed, no order need be passed in the connected contempt application.
M.E.H./-AFR (Navaniti Prasad Singh, J)