Jharkhand High Court
Geeta Devi vs The State Of Jharkhand & Others on 8 March, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 40 of 2022
1. Geeta Devi
2. Sangeeta Verma ... Petitioners
-Versus-
The State of Jharkhand & Others ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Shashank Shekhar, Advocate
For the State : Mrs. Vandana Singh, Sr. S.C.-III
For the Intervenor : Mr. Ajit Kumar, Sr. Advocate
For the RMC : Mr. L.C.N. Shahdeo, Advocate
Ms. Sonal Jaiswal, Advocate
For Respondent No.7 : Mr. Navin Kumar Singh, Advocate
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06/08.03.2022. This petition was registered on 14.02.2022 and the matter was mentioned before this Court and seeing the exigency in the matter, this writ petition was directed to be listed on 15.02.2022. Paragraph 7 of the order dated 15.02.2022 is quoted herein below:
"7. It has been disclosed in the petition that petitioner no.1 is in peaceful possession over the land bearing R.S. Khata No.78, Plot No.863, area 2 Kathas (3.30 decimals) of Village- Hundru, Thana- Doranda (now-Airport), District- Ranchi since 1954-55. S.A.R. Case No.742/2008-09 was instituted under Section 71-A of Chotanagpur Tenancy Act, 1908 in the court of Special S.A.R. Officer, Ranchi and vide order dated 05.04.2009, the petitioner no.1 was directed to deposit a sum of Rs.95,000/- per Katha in lieu of compensation to the complainant. In compliance of the said order, such amount was deposited by petitioner no.1. The land in question was mutated in the office of the Circle Officer, Argora Circle, Ranchi vide Mutation Case No.5232-R-27/2011-12. The name of the petitioner no.1 is also mutated in the Ranchi Municipal Corporation and she is paying Holding Tax to the Ranchi Municipal Corporation. On 31.01.2022 when petitioner no.2 visited her house along with petitioner no.1 located at New Saket Nagar, Hinoo, Ranchi, they found that the only approach road of the house was encroached by Ajay Kachhap (respondent no.7) and others by erecting a boundary wall and constructing a room upon the same."
2. This is the second incident in the capital city of Jharkhand. Identical position was therein W.P.(Cr.) No.137 of 2021 with W.P.(Cr.) No.416 of 2021, which were mentioned by the learned counsel stating therein that in the 2 broad day light and in presence of the police, by way of erecting boundary wall, the main gate of the building of the petitioner has been blocked. In that case, the private respondent was also noticed. After report of the Ranchi Municipal Corporation, direction was issued to remove the encroachment and recover the cost from the private respondent. The private respondent has herself removed the encroachment and report to that effect has been filed by the officer of the State that the encroachment in question has been removed by the private respondent herself. This is the second incident before this Court, whereby, the access road of the petitioner has been blocked. On that day, respondent no.3 was directed to ensure the passage of entry of the petitioners' house and to apprise this Court as to why status quo ante on the premises be not maintained by tomorrow i.e. 16.02.2022.
3. This writ petition was again taken on 16.02.2022. Pursuant to the order dated 15.02.2022, the Senior Superintendent of Police, Ranchi has appeared in person on that day along with learned State counsel Mrs. Vandana Singh, learned Sr. S.C.-III and they took time and submit that they will find out and provide access road to the petitioners. Paragraph 7 of the said order is quoted herein below:
"7. In view of the above facts and considering the detailed order dated 15.02.2022 and also considering that the access road of the petitioners' house has been stopped by erecting a boundary wall, the Court asked the learned State counsel as well as the Senior Superintendent of Police, Ranchi to find out solution so that access to the house of the petitioners be provided. They fairly submit that they will find out and provide access road to the petitioners and for that they seek some time."
4. On their fair submission, the matter was adjourned till 20.02.2022 and the appearance of the Senior Superintendent of Police, Ranchi was 3 dispensed with.
5. The matter was again taken on 21.02.2022 and on that day, counter affidavit was filed on behalf of respondent no.3 and in one of the report of the Deputy Superintendent of Police, Hatia, Ranchi, it has been stated in many words that there was no road and the land in question was of Sarana Samiti. In view of the pleadings and submissions of the learned counsel for the parties, this Court directed the petitioners to array the Municipal Commissioner, Ranchi Municipal Corporation as one of the respondent and the Municipal Commissioner was directed to depute a competent officer to go on site and file report to him and in his turn the Municipal Commissioner was directed to file an affidavit. By the said order, this Court has also appointed two member Pleader Commissioners and Mr. Kumar Vaibhav and Mr. Sumit Prakash, Advocates of this Court were appointed as Pleader Commissioners and they were directed to submit a report to this Court in a sealed cover.
6. The affidavit of the Municipal Commissioner and the report of the Pleader Commissioners have been submitted and the same have been considered on 07.03.2022. The sealed cover report of the Pleader Commissioners was opened in the open Court, in course of the proceeding and copy of the same was handed over to the learned counsel for the respondent-State, learned counsel for the intervenor and learned counsel for the petitioners. In view of the affidavit of the Municipal Commissioner and report of the Pleader Commissioners, the Deputy Commissioner, Ranchi and the Senior Superintendent of Police, Ranchi were directed to appear in the Court in person at 01:00 p.m. today.
7. In view of that order, both the officers of the State are physically 4 present in the Court. It has been disclosed in the affidavit of the Ranchi Municipal Corporation that as per boundary of plot mentioned in the sale deed, 10 feet wide road about 104 feet long is proposed on west side of plot, which is presently blocked. It has also been disclosed in the said affidavit that there is no means of access to reach the site in question. The said report has also been annexed at Annexure-A to the said affidavit. The said report has been prepared by the Town Planner and Junior Engineer of Ranchi Municipal Corporation as they have been deputed by the Municipal Commissioner. Paragraph 3 of the said affidavit is quoted herein below:
"3. That the respondent respectfully submits that the Town Planner and Junior Engineer of Ranchi Municipal Corporation inspected the spot on 22-02-22 and found that at present, there is no means of access to reach the site in question. As per boundary of plot mentioned in the sale deed, a 10 feet wide road about 104 feet long is proposed on west side of plot, which is presently blocked."
8. It has also been stated in so many paragraphs in the report of the Pleader Commissioners that there is no access to the petitioners' house and it has also been disclosed that by way of erecting boundary wall in front of the petitioners' house, the said gate of the petitioners has been blocked.
9. In view of these two reports, there is no doubt that the road in question was existing there and the petitioners' access road was blocked by way of erecting boundary wall.
10. Learned counsel for the petitioners submits that the petitioners had approached the Airport Police Station. The documents to that effect are annexed at Annexure-5 of the petition and reminder at Annexure-6 of the petition, but the police officer has not taken any steps.
11. Mrs. Vandana Singh, learned Sr. S.C.-III appearing for the State submits that after the dispute came to the knowledge of the police, the 5 same has been sent to the learned court of SDM under Section 144 Cr.P.C. She further submits that there is disputed question of fact and this Court may not entertain this petition under Article 226 of the Constitution of India. To buttress this argument, she relied upon the judgment rendered by the Hon'ble Supreme Court in the case of P.R. Murlidharan & others v. Swami Dharmananda Theertha Padar & others , reported in (2006) 4 SCC 501.
12. Paragraph 18 of the said judgment is quoted herein below:
"18. In the case on hand, various disputed questions arose based on a deed of trust and the facts pleaded by the writ petitioner and controverted by the other side. The High Court should have normally directed the writ petitioner to have his rights adjudicated upon, in an appropriate suit in a civil court. The fact that a writ petitioner may be barred from approaching the civil court, in view of Order 9 Rule 9 of the Code of Civil Procedure, or some other provisions, is no ground for the High Court to take upon itself, under Article 226 of the Constitution, the duty to adjudicate on the civil rights of parties for the purpose of deciding whether a writ of mandamus could be issued to the police authorities for the protection of the alleged rights of the writ petitioner. A writ of mandamus directing the police authorities to give protection to the person of a writ petitioner can be issued, when the court is satisfied that there is a threat to his person and the authorities have failed to perform their duties and it is different from granting relief for the first time to a person either to allegedly protect his right to property or his right to an office, especially when the pleadings themselves disclose that disputed questions are involved. My learned Brother has rightly pointed out that the High Court was in error in proceeding to adjudicate on the rights and obligations arising out of the trust deed merely based on the affidavits and the deed itself. I fully agree with my learned Brother that the High Court should not have undertaken such an exercise on the basis that the right of the writ petitioner under Article 21 of the Constitution is sought to be affected by the actions of the contesting respondents and their supporters and that can be prevented by the issue of the writ of mandamus prayed for."
13. Mr. Ajit Kumar, learned Senior counsel appearing for the intervenor also submits that there is disputed question of fact and this is not the forum to decide the case. He relied upon the judgment rendered by the Hon'ble 6 Supreme Court in the case of Roshina T. v. Abdul Azeez K.T. & others , reported in (2019) 2 SCC 329.
14. Paragraphs 10, 16 and 17 of the said judgment are quoted herein below:
"10. It is not in dispute that the reliefs for which the writ petition was filed by Respondent 1 herein against the appellant pertained to possession of the flat. It is also not in dispute that one Civil Suit No. 807 of 2014 between the appellant and Respondent 1 in relation to the flat in question for grant of injunction was pending in the Court of Munsif at Kozhikode. It is also not in dispute that the appellant and Respondent 1 are private individuals and both are claiming their rights of ownership and possession over the flat in question on various factual grounds.
16. We cannot, therefore, concur with the reasoning and the conclusion arrived at by the High Court when it unnecessarily went into all the questions of fact arising in the case on the basis of factual pleadings in detail (43 pages) and recorded a factual finding that it was Respondent 1 (writ petitioner) who was in possession of the flat and, therefore, he be restored with his possession of the flat by the appellant.
17. In our opinion, the High Court, therefore, while so directing exceeded its extraordinary jurisdiction conferred under Article 226 of the Constitution. Indeed, the High Court in granting such relief, had virtually converted the writ petition into a civil suit and itself to a civil court. In our view, it was not permissible."
15. Mr. L.C.N. Shahdeo, learned counsel appearing for the Ranchi Municipal Corporation submits that two officers of the Corporation were deputed, who have given the report, which has been brought on record at Annexure-A to the affidavit, filed by the Ranchi Municipal Corporation.
16. In reply, learned counsel for the petitioners submits that the petitioners are in possession since 1954 pursuant to the order passed in SAR Case No.742/2008-09. He further submits that it is well settled that easement right of the petitioners cannot be taken. He refers Section 15 of the Indian Easements Act, 1882 and submits that acquisition of prescription is defined as where a right of way or any other easement has been 7 peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption.
17. Mr. Navin Kumar Singh, learned counsel appearing for respondent no.7 submits that respondent no.7 is not land broker and he is not the owner of the land, in question and the land in question is Bakast Bhuihari Pahani land as per the revenue records.
18. This Court has not expressed any final opinion so far as respondent no.7 is concerned that he is a land broker. In the order dated 16.02.2022, this Court has already discussed that the Court is not examining right, title or interest of any of the parties and that will be adjudicated by the competent court of jurisdiction. This Court has entertained this petition under Article 226 of the Constitution of India only considering the fact that access to the house of the petitioners has been blocked by way of erecting the wall.
19. In view of the above facts and considering the submission of the learned counsel for the parties, this Court is conscious of the fact that this petition is being entertained under Article 226 of the Constitution of India. It is well settled that in a case where any disputed question of fact involved and having alternative remedy, the writ Court generally restrained itself to pass any order. However, the facts of this case has compelled this Court to entertain this case. The question remains that in capital city of the Jharkhand if such thing has happened and situation brought to the notice of the Court, whether this Court will remain mute spectator or will entertain the case to save the liberty of any person, which is guaranteed under Article 21 of the Constitution of India. How the land mafias in the State of Jharkhand are creating disturbance, it is well known fact in the State. The 8 law abiding citizens are being harassed by unsocial elements, who have courage to do it regularly, which has been done in the case in hand and at the earlier occasion, it has been dealt with by this Court in W.P.(Cr.) No.137 of 2021 with W.P.(Cr.) No.416 of 2021. The affidavit of the Ranchi Municipal Corporation as well as the report of the Pleader Commissioners clearly suggest that the access road of the petitioners has been blocked by way of erecting boundary wall wherein a room has been constructed.
20. In view of these two reports, it is crystal clear that the road of access to the petitioners' house has been blocked. Resort to Article 226(1) of the Constitution of India has been provided inter alia for enforcement of one's right to life and personal liberty guaranteed under Article 21. Enforcement means to impose or compel obedience to law or to compel observance of law. When a right is so guaranteed, it has to be understood in relation to its orbit and its infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right, that is to say, not to act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law. When such a right of a person is threatened to be violated or its violation is imminent and the affected person resorts to Article 226, the Court can protect observance of his right by restraining those who threaten to violate it. A reference may be made to the judgment rendered by the Hon'ble Supreme Court in the case of S.M.D. Kiran Pasha v. Government of Andhra Pradesh & others , reported in (1990) 1 SCC 328.
21. The right to live with human dignity was the subject matter in the case of People's Union for Civil Liberties & another v. State of 9 Maharashtra & others, reported in (2014) 10 SCC 635. Paragraphs 16 and 17 of the said judgment are quoted herein below:
"16. Article 21 of the Constitution provides "21.Protection of life and personal liberty.--No person shall be deprived of his life or personal liberty except according to procedure established by law."
This Court has stated time and again that Article 21 confers sacred and cherished right under the Constitution which cannot be violated, except according to procedure established by law. Article 21 guarantees personal liberty to every single person in the country which includes the right to live with human dignity.
17. In line with the guarantee provided by Article 21 and other provisions in the Constitution of India, a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights. In spite of constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, the cases of death in police encounters continue to occur. This Court has been confronted with encounter cases from time to time. In Chaitanya Kalbagh7, this Court was concerned with a writ petition filed under Article 32 of the Constitution wherein the impartial investigation was sought for the alleged killing of 299 persons in the police encounters. The Court observed that :
"1. ... in the facts and circumstances presented before it there was an imperative need of ensuring that the guardians of law and order do in fact observe the code of discipline expected of them and that they function strictly as the protectors of innocent citizens."
22. Recently, the illegal construction in connivance with Noida Development Authority was the subject matter before the Hon'ble Supreme Court in the case of Supertech Limited v. Emerald Court Owner Resident Welfare Association & others, reported in 2021 SCC OnLine SC 648.
23. The judgment relied by Mr. Ajit Kumar, learned Senior counsel appearing for the intervenor in the case of Roshina T. (supra) is on the point of restoration of that petitioner's possession over flat in question and on that ground that order has been passed by the Hon'ble Supreme Court. The liberty of person in that case was not the subject matter in the judgment, relied by the learned counsel for the intervenor. Thus, that judgment is not 10 helping the intervenor.
24. In the judgment relied by the learned counsel for the State in the case of P.K. Murlidharan (supra), the dispute was with regard to property of Vadayampadi Asharamam and in that case the civil court has also adjudicated the dispute and in view of those facts, that order has been passed. The right of easement and access road of the house by way of erecting boundary wall was not the subject matter of that judgment. Thus, that judgment is not helping the State.
25. In so many words, this Court has already discussed the scope of Article 226 of the Constitution of India and as per the situation which has been brought to the notice of this Court, this petition has been entertained under Article 226 of the Constitution of India.
26. In view of the above facts and considering the submission of the learned counsel for the parties, this Court comes to the conclusion that it is a fit case to issue direction upon the respondent to immediately swing in action and demolish the part of the construction whereby access of the petitioner has been blocked. Accordingly, the respondent-Ranchi Municipal Corporation shall ensure to take drive for demolishing the part of the construction whereby access of the petitioner has been blocked by 25.03.2022. The Court is of the view that this demolition must be carried out within twenty four hours, however, on repeated request of the Deputy Commissioner, Ranchi and the Senior Superintendent of Police, Ranchi through Senior Standing Counsel on the ground of going of Assembly session, time till 25.03.2022 is allowed for demolition. The Deputy Commissioner, Ranchi and the Senior Superintendent of Police, Ranchi, who are present in the Court shall provide all protection to the authorities of the 11 Ranchi Municipal Corporation to carry out the direction given by this Court. The respondent-Ranchi Municipal Corporation and the respondent-State shall file affidavit to that effect. The Deputy Commissioner, Ranchi and the Senior Superintendent of Police, Ranchi assured the Court that they will ensure to provide adequate security to carry out the demolition. This has been submitted by them in the open Court.
27. Let a copy of this order be communicated to the learned counsel for the State, learned Senior counsel for the intervenor, learned counsel for the Ranchi Municipal Corporation, learned counsel for respondent no.7 and learned counsel for the petitioners.
28. The appearance of the Deputy Commissioner, Ranchi and the Senior Superintendent of Police, Ranchi are dispensed with for the time being.
29. The bill supplied by the Pleader Commissioners, appointed by this Court, before the Registrar General of this Court shall be released forthwith in favour of each of them, as directed by this Court.
30. Let this matter appear on 28.03.2022.
(Sanjay Kumar Dwivedi, J.) Ajay/