Patna High Court
Subhash Kumar Chaudhary vs The State Of Bihar Through Secretary, ... on 15 January, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.1571 of 2023
Arising Out of PS. Case No.- Year-0 Thana- District- Bhagalpur
======================================================
1. Subhash Kumar Chaudhary Son of Sri Krishnadeo Prasad Choudhary
Resident of Mohalla - Anadgardh, P.O. - Tilkamanjhi, P.S. - Tilkamanjhi,
Distt. - Bhagalpur
2. Manish Kumar Son of Sri Krishnanand Kumar Resident of Vill - Jhandapur,
P.S. - Bihpur, Distt. - Bhagalpur
... ... Petitioners
Versus
1. The State of Bihar through Secretary, Revenue Department, Government of
Bihar, Patna
2. The Collector, Bhagalpur
3. The Director General of Police, Home Department, Old Secretariat, Patna
4. The D.I.G., Bhagalpur
5. The senior Superintendent of Police, Bhagalpur
6. The Circle Officer, Sabour, Bhagalpur
7. The S.H.O., Sabour Police Station, Bhagalpur
8. Niranjan Kumar Singh Son of Late Ramswaroop Singh Resident of village
at Post - Bahadurpur, P.S. - Sabour, Distt. - Bhagalpur.
9. Rakesh Kumar Singh Son of Late Manoj Singh Resident of village at Post -
Bahadurpur, P.S. - Sabour, Distt. - Bhagalpur.
10. Bikesh Kumar Singh Son of Late Manoj Kumar Singh Resident of village at
Post - Bahadurpur, P.S. - Sabour, Distt. - Bhagalpur.
11. Abhisekh Kumar Son of Late Manoj Kumar Singh Resident of village at
Post - Bahadurpur, P.S. - Sabour, Distt. - Bhagalpur.11.
12. Rishav Raj, son of Sri Vijay Kumar Singh, Resident of Village-Kathara, P.S.
Sultanganj, District-Bhagalpur.
13. Nisha Kumar, wife of Sri Rishav Raj, Resident of Village-Kathara, P.S.-
Sultanganj, District-Bhagalpur.
14. Sakuntala Devi, Wife of Late Manoj Kumar Singh, Resident of Village-
Bahadurpur, P.S. Sabour Industrial Area, Zero Mile, District-Bhagalpur.
... ... Respondents
======================================================
Appearance :
For the Petitioners : Mr. Rajendra Narayan, Senior Advocate
Mr. Diwakar Upadhyaya, Advocate
Ms. Preety Kunwar, Advocate
For the State : Mr. Raj Kishore Roy, GP-18
For the Resp No. 12 : Mr. Arun Kumar, Advocate
Mr. Swapnil Kumar Singh, Advocate
======================================================
Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
Date : 15-01-2024
This writ application has been filed seeking the
following reliefs:-
"(i) For issuance of appropriate
writ/order/reaction commanding the respondents to
protect the life and liberty of the petitioners as well as
forcibly being dispossessed by Respondents Nos. 8 to
11 with the help of local administration especially with
the help of local police officials over the land
appertaining to Mauza Fatehpur, P.S. Sabour, District
Bhagalpur, C.S Plot No. 266, New Survey Plot No. 28,
pertaining No. 122(Old), 407 (New).
(ii) For issuance of appropriate
writ/order/direction commanding the respondents to
lodge criminal case against the respondents Nos. 8 to
11 on the information on 06.07.2023 given by the
petitioners before all the respondents as well as before
Competent authority for institution of criminal case
against them with regard to illegal acts and omission by
said private respondents.
(iii) For issuance of appropriate writ/orders/
direction commanding the respondents to protect the
possession of the petitioner over the aforesaid land
which is being threaten by private respondents No. 8 to
11 to be dispossessed forcibly acting as MIGHT IS
RIGHT instead of RIGHT IS MIGHT."
2. During pendency of the writ application, the
petitioners filed I.A. No. 1 of 2023 to add some more prayers.
The said I.A. has been allowed. The prayers added to the main
Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024
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writ petition are as follows:-
"(a) The respondent authorities, especially
respondents no. 2 to 7 may be directed to, immediately
restore the possession of the petitioners, over their plots
in question, wherefrom on 10.09.2023 these petitioners
have been dispossessed forcibly by respondents no. 6
Circle Officer, Sabour Bhagalpur and 7 the S.H.O.
Industrial Area (Zero Mile O.P) Sabour Police Station,
Bhagalpur in collusion with the private respondents and
the possession has been handed over illegally to the
private respondents; and
(b) The actions of the respondent authorities
especially respondents no. 6 & 7, dated 10.09.2023,
whereby the petitioners were dispossessed from their
plots, shops, and residence by the local administration
and police may be declared as illegal, bad in law,
beyond their jurisdiction, arbitrary and malicious and an
appropriate order may be passed against the concerned
and responsible authorities; or
(c) The respondent authorities may be
directed to register F.I.R. against the persons involved in
this crime and also to take proper legal actions against
the erring officers, or
(d) Pass such other order/orders as this
Hon'ble Court may deem fit and proper."
Brief facts of the case
3. It is the case of the petitioners that one Baldev
Mandal was the khatiyani raiyat of Old Khesra No. 266, New
Plot No.5 appertaining to Khata No. 122 (old) 407 (new)
measuring an area of 2.76 decimal (one kattha, thirteen dhurs,
six dhurki and eight purki) in Mauja-Fatehpur, P.S.-Sabaur,
Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024
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District-Bhagalpur. Baldev Mandal and his son Ramswaroop
Singh executed a sale deed being Sale Deed No.4766 dated
19.05.1969in favour of one Manorama Karn, wife of Nityanand Karn, resident of Kewanitola, Aurangabad, Gaya. A copy of the sale deed dated 19.05.1969, executed in favour of Manorama Karn is Annexure '1' to the writ application.
4. It is the case of the petitioners that Naresh Chandra Karn, son of Nityanand Karn executed two sale deeds on 11.09.2013 in favour of petitioner nos.1 and 2 respectively and conveyed 2.76 decimal of land in favour of each of the petitioners. Copies of the two sale deeds are Annexure '2' and '3' respectively. The petitioners claim that since after purchasing the property in question, they were coming in peaceful possession over the same.
5. It is alleged that grandson and daughter-in-law of the original khatiyani raiyat, namely Baldev Mandal, created a hindrance in the peaceful possession of the petitioners as they executed a sale deed on 17.07.2022 in favour of Shri Rishav Raj, son of Vijay Kumar Singh and his wife Nisha Kumari (respondents nos. 12 and 13 respectively). The petitioners claim by bringing certain materials on the record that during the survey from Old Khesra No. 266, three plots i.e. Plot No. 28, 29 Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 5/28 and 30 were carved out. As per the map, the area of the Plot No. 266 was 78 decimals only and when the new plots were measured as per new map/khatyian, the total area of Plot No. 28, 29 and 30 were measured as 26 decimals, 26 decimals and 25 decimals respectively, which would come to 77 decimals. The petitioners claim that these facts may be found from the report of the Government Amin and also the private Amins, which are enclosed as Annexure 'P/15'.
6. It is stated that in the year 1969, Smt. Manorama Karn had purchased two plots by one sale deed from khatiyani raiyat, Baldev Mandal (i) Fatehpur-Mauja (Plot No.28) and another (ii) Naulakha-Mauja (Plot No.5) but inadvertently in place of Plot No. 28, Plot No.5 (Mauja-Fatehpur) was mentioned in the sale deeds of the petitioners. It is their stand that from the boundaries described in the sale deeds of Manorama Karn, it would be clear that Plot No.28 was sold and not the Plot No.5. The petitioners claim that it is a pure mistake of pen. They filed a title suit bearing No. 225 of 2020 in the Civil Court at Bhagalpur which is pending in the court of learned Sub-Judge-X. The whole case of the petitioners clusters around this mistake in respect of plot number as according to them, if Plot No.5 is replaced by Plot No.28 in the sale deed, the Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 6/28 entire facts would be clear in favour of the petitioners.
7. The petitioners have placed Annexure 'P/14' series to submit that when the private respondents nos. 12 and 13 applied for mutation, initially the Revenue authorities recorded that "fodzsrk dh tekcanh la[;k 410 esa "sk'k jdck ugha gS] vr% okn dh vuq"kalk ugha dh tkrh gS". Twice the application for mutation was rejected by the Circle Officer (in short 'C.O.') and this would be evident from the endorsements made by the C.O. in Case No. 1331/2022-2023 and Case No. 2476 of 2022-2023 but the same C.O. allowed mutation in favour of private respondents in Case No. 3439 of 2022-2023 without giving any notice to the petitioners.
8. It is stated that at the instance of private respondent no.12, a Measurement Case No. 01/2023-2024 was initiated and in the said report, the Anchal Amin/Surveyor-Sabour has clearly shown Old Plot No. 266 in red color while New Plot No. 28, 29 and 30 in three different colours and it is stated that New Plot No. 28, 29 and 30 have been carved out from Old Plot No. 266. It is, thus, stated that the petitioners who had purchased the land in question from the legal heirs of Manorama Karn had been rightly put in possession of New Plot No. 28 and they were coming in peaceful possession of the property. At the same time, Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 7/28 they had filed the title suit for an appropriate declaration in which an injunction had also been filed and the same was pending.
9. It is the case of the petitioners that they were carrying their business on the premises in question but the private respondents have taken the local police in collusion because of their political connections and influence and dispossessed the petitioners from the plots in question on 10.09.2023. The petitioners lodged a complaint with the Senior Superintendent of Police, Bhagalpur, the Director General of Police, Patna and the Chief Secretary, Patna, copies of which have been placed as Annexure 'P/10, but the grievance of the petitioners is that these authorities did not look into the complaint of the petitioners.
10. The local Police Station S.H.O. at the instance of the respondent no.12 came on the spot with fifty of police personnel without there being any order of a competent court and ensured that the petitioners are evicted from the property. It is alleged that the private respondents in presence of a large number of police personnel of Industrial Area Police Station, Zero Mile Bhagalpur, local criminals and labourers not only dispossessed the petitioners, they looted the entire goods kept in Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 8/28 the general store (shop of the petitioner no.2) and then forcibly erected a wall because of which the petitioners and their family members were deprived of ingress and egress from their residential house to Bhagalpur-Sabour, Main Road. On protest, one of the persons was forcibly pushed into the police jeep. Some photographs of the incident have been enclosed as Annexure 'P/12' and video recording in a pendrive has also been produced.
Case of the private respondents
11. A counter affidavit has been filed on behalf of the respondent no.12. It is the case of the private respondents that they initially entered into an agreement with respondent nos. 8 and 14 for purchase of land measuring area 12.5 decimal and accordingly purchased land appertaining to Khata No.407, Khesra No.28, Area 12.5 decimal vide a registered Sale Deed No.8414 dated 16.06.2022. Thereafter, they applied for mutation of land which was also allowed on 01.04.2023 and a Land Possession Certificate (in short 'LPC') has been issued in their favour. It is stated that when the petitioners created obstruction on the land in question to the private respondents, he filed an application before the S.H.O., Zero Mile, Bhagalpur whereafter the S.H.O. asked both the parties to appear in the Police Station Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 9/28 on 15.04.2023 with their documents to substantiate their rights over the land in question. It is stated that the petitioners did not produce any document in support of the claim but produced only one petition of Title Suit No. 225 of 2020 and left the proceeding and thereafter they never turned up. The private respondents claim that when they went to their plot for putting a boundary, then the petitioners along with several other persons reached there and started creating nuisance whereafter he informed the S.H.O., Zero Mile for proper security. The private respondents were asked to take recourse for measurement of land whereafter respondent no.12 filed an application for measurement in question on 08.04.2023 and accordingly, Land Measurement Case No. 01 of 2023-2024 was initiated and a report was submitted by Anchal Amin. Annexure 'R12/4' is the copy of the report which has been filed by the respondents.
12. According to the private respondents, Old Khata No. 122, Old Khesra No.266 has altogether 99 decimals of land which was standing in the name of khatiyani raiyatdar, namely Baldev Mandal. In the year 1964-65, new survey was done in the locality and accordingly, as per New Survey Khatiyan, New Khata No.407 and four new khesras were made out of Old Khesra No.266. According to this respondent, New Khesra Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 10/28 No./Plot No. bearing 2, 5, 17 and 28 were created. In this regard, he relies upon Annexure 'R12/5'.
13. It is his case that Manorama Karn had purchased 12 and half decimal land in the year 1969 from khatiyani raiyatdar, mentioning the description of land as New Khata No.407 and New Plot No.5 and accordingly, in Mutation Case No. 1586 of 1969-70, the said land was mutated in the name of Manorama Karn and Jamabandi No.787 was created in her name. Both the petitioners purchased the land bearing Khesra No.5 but till date they have not got the land mutated in their names and as such till today, the entire land 12 and half decimal is still standing in the name of Manorama Karn. It is his case that in New Survey Khatiyan as contained in Annexure 'R12/5', Khesra No.5 and Khesra No.28 both were created out of Old Khesra No. 266 which are distinct. Khesra No.28 has total area of 26 decimals out of which two sale deeds each of six and half decimal were executed in favour of Chandan Kumar Thakur and Gaya Prasad Singh and rest of 12 and half decimal of land have been purchased by the private respondents vide registered sale deed dated 16.06.2022.
14. It is stated that on the application filed by respondent no. 12, the measurement was done on 05.07.2023, Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 11/28 by that time, the writ petitioners had no complaint anywhere. He never challenged the mutation order nor the measurement order before the appellate authority as prescribed under the specific statute but when the private respondents went to erect the boundary wall, thereafter the writ petitioners started making allegations that they have been illegally dispossessed with the help of local police with oblique motive. It is stated that the petitioners were not in possession over Khesra No.28, rather they have possession over Khesra No. 5 (part) as per their sale deed as well as the sale deed of their vendors.
Submissions on behalf of the petitioners
15. Mr. Rajendra Narayan, learned Senior Counsel assisted by Mr. Diwakar Upadhyaya, learned Advocate has placed before this Court the photographs which have been enclosed with the interlocutory application and also impressed upon this Court to have a glance over the video recording of the alleged occurrence in which the private respondents are said to have forcefully dispossessed the petitioners with the help of the S.H.O. of local Police Station and erected a boundary wall. Learned Senior counsel submits that in absence of there being any order of a competent court of law to evict the petitioners from the property in question, the S.H.O. of the Police Station had no role to play. The S.H.O., however, entered into the house of the petitioners and Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 12/28 ensured that in his presence, the articles of the petitioners kept in the premises are thrown out and then he allowed erection of the boundary wall over the land in question. It is submitted that pursuant to the order passed by this Court on 17.10.2023, the Deputy Inspector General (D.I.G.), Bhagalpur (Respondent No. 4) has got conducted an inquiry into the matter and a report has been submitted in this Court. A perusal of the report would indicate that the S.H.O. of the concerned Police Station had exceeded his jurisdiction and authority in law. Hence, this Court, while passing an appropriate order directing the respondent authorities to initiate action against the S.H.O. of the concerned Police Station, may direct for restoration of possession of the petitioners over the land in question. He has relied upon a judgment of this Court in the case of Anand Kishore Prasad Sinha vs. The State of Bihar reported in 2021 (2) PLJR 445 and Harisons Continental Private Limited & Anr. vs. The State of Bihar & Ors. reported in 2022 (4) PLJR 643.
Submissions on behalf of Respondent Nos. 12 & 13
16. On the other hand, Mr. Arun Kumar, learned counsel for respondent no. 12, submits that the petitioners are wrongly trying to usurp the land of the private respondents. He relies on Annexure 'R12/5' to submit that the vendors of the petitioners had purchased New Plot No. 5, therefore, there was Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 13/28 no question of selling of New Plot No. 28 by the vendors of the petitioners. Learned counsel submits that it is not a case of forceful dispossession of the petitioners and the whole case of the petitioners that they have been forcefully dispossessed is only an afterthought.
Stand of the State
17. Learned counsel for the State while opposing the writ application submits that this Court has already made it clear in it's order dated 17.10.2023 that the Court does not intend to go into the merit of the dispute and the whole consideration would be confined to the role played by the State Respondents/Police authorities in using of government machinery for forcible eviction of the petitioners, as alleged.
18. Learned counsel submits that as per direction of this Court, the D.I.G., Eastern Zone, Bhagalpur constituted a Committee comprising of the Senior Superintendent of Police, Bhagalpur; Additional Collector, Bhagalpur; Deputy Superintendent of Police (Headquarter-II), Bhagalpur; Additional Superintendent of Police in the Office of the Deputy Inspector General of Police, Eastern Zone, Bhagalpur; Deputy Collector, Land Reforms, Sadar, Bhagalpur and the Senior Deputy Collector, District Revenue, Bhagalpur as members of Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 14/28 the Inquiry Committee. The said Inquiry Committee heard both the parties. The C.O. was also called upon to submit his report.
19. In its affidavit filed by the State, it is stated that the Committee has arrived at a conclusion that there exists a serious land dispute between the parties. The Committee found that the mutation of land of Khata No. 122/407, Khesra No. 266/28, vide Mutation Case No. 3439/2022-23 dated 31.01.2023 done by the C.O. is in violation of the provisions of the Bihar Mutation Act, 2011. There is a dispute between the parties over the shed constructed on the disputed plot but on the date of measurement i.e. 05.07.2023, there is no evidence of erection of boundary wall. The boundary wall was erected on 10.09.2023. A complaint was earlier lodged by Manish Kumar on 03.09.2023 alleging that private respondents were trying to forcefully construct a boundary wall and usurp the property which was entered in the station diary by S.H.O. and he had put a restraint on construction and sent a report to the S.D.M., Sadar, Bhagalpur for initiation of a proceeding under Section 107 Cr.P.C. and 144 Cr.P.C. The report, however, indicts the S.H.O. for not acting with impartiality and records that he had shown much interest in measurement without there being any Magistrate for this purpose.
Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 15/28 Consideration
20. Having heard learned counsel for the parties and on perusal of the records, this Court finds that while the petitioners are claiming that because of a mistake in their sale deeds, New Plot No.5 was mentioned in place of New Plot No.28, the respondent no.12 has brought on record Annexure 'R12/5' with his counter affidavit to show that in fact Plot Nos. 2, 5 and 28 were carved out under New Khata No. 407 and the khatiyani raiyat of this khata was Baldev Mandal, who was the vendor of Manorama Karn. There is another document on the record which is a report of Anchal Amin, according to which three plots i.e. Plot Nos. 28, 29 and 30 were created out of Old Plot No. 266. The petitioners have filed a title suit bearing No. 225 of 2020 in which these issues are being contested. This being the fact situation of the case, this Court is of the considered opinion that what was observed in paragraph '10' of its order dated 17.10.2023 is required to be followed and this Court would not go into the merit of the dispute between the parties.
21. As regards the finding of the Committee in the matter of mutation of land in favour of private respondent nos. 12 and 13, one fact is definitely worrying the Court that twice Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 16/28 the application for mutation was rejected by the C.O. but in third attempt, the same was allowed. The Inquiry Committee has observed in its opinion that in terms of Section 6(12) of the Bihar Land Mutation Act, 2011, no mutation should be allowed where there is a dispute pending in respect of holding before a competent court of law. A prima-facie view has been taken by the Committee. This Court is of the considered opinion that the competent authority under the relevant statute shall take appropriate steps to correct the wrong, if any by the C.O. Petitioners shall also be at liberty to raise this issue before the competent authority in accordance with law. This goes without saying the principles of natural justice shall be followed by the competent authority.
22. From the inquiry report, it further appears that after mutating the land in favour of the respondent nos. 12 and 13, the C.O. issued L.P.C. and thereafter application for measurement was filed by respondent nos. 12 and 13. The inquiry report is indicating that the C.O., Sabour had prima- facie acted contrary to law and that facilitated respondent nos. 12 and 13 in getting L.P.C. which led to further action. This conduct of the C.O. and the role of other persons attached to his office, who had twice reported that mutation cannot be allowed Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 17/28 but in third attempt they changed their report and facilitated the mutation, are also required to be examined by the competent authority in the administrative side and suitable view should be taken on this.
23. The inquiry report in paragraph '3' and '4' are required to be quoted hereunder for a ready reference:-
"3- tk¡p ds Øe esa fookfnr tehu ij fufeZr "ksM ij nksuksa i{k viuk&viuk dCtk jgus dh ckr crk;s vkSj fnukad &05-07- 2023 dks ekih fd;s tkus ds nkSjku fdlh Hkh rjg dk ?ksjkcanh dk lk{; ugha ik;k x;k gSaA fofnr gks fd nksuksa i{k fookfnr LFky ij mifLFkr FksA "ksM ls dqN yksx lkeku@ cksjk gVkrs gq, fn[k jgs gSA ftlij fdlh Hkh i{k }kjk vkifŸk ;k fojks?k vFkok Fkkuk/;{k ds ikl f"kdk;r ugha fd;k x;k gSA ulZjh ds vU; ikS/ks lhekadu ds nkSjku ;Fkkor IykWWV ij j[ks fn[krs gSAa ftlds e/; ls lhekadu fd;k x;k gSA iqfyl cy }kjk vFkok muds lg;ksx ls n[ky@csn[ky djus dh iqf'V ugha gqbZ gSA 4- izFke i{k ds euh'k dqekj fnukad & 03-09-2023 dks tcnLrh nhoky nsus ,oa edku dCtk djus ds laca/k esa Fkkuk esa vkosnu fn;s] ftldk lugk Fkkuk/;{k }kjk djrs gq, fd;s tk jgs fuekZ.k ij jksd yxkrs gq, fnukad & 04-09-2023 dks /kkjk&107 n0iz0la0 ,oa /kkjk&144 n0iz0la0 d¢ varxZr dkjZokbZ gsrq izfrosnu vuqeaMy inkf/kdkjh] lnj] Hkkxyiqj ds ;gkW lefiZr fd;k x;k A ERSS ds Dial & 112 ds lnaHkZ ls irk pyrk gS] ?ksjkcanh dk dk;Z fnukad & 10-09-2023 dks fd;k x;kA blesa Fkkuk/;{k vFkok vapy vf/kdkjh dh mifLFkfr ugha FkhA tk¡p ds nkSjku Hkw[k.M ij djhc 08 QhV m¡pk ckm.Mªh ik;k x;k] ftll¢ lqHkk'k dqekj pkS/kjh ,oa vU; dks vius ulZjh ,oa ifjlj esa tkus dk jkLrk Hkh ckf/kr gks x;k gSA ifjlj esa ulZjh ds ikS/ks ugha ik;s x;sA vuqeaMy n.Mkf/kdkjh] lnj] Hkkxyiqj ds U;k;ky; ls /kkjk& 107 n0iz0la0 ,oa /kkjk& 144 n0iz0la0 ij uksfVl@lquokbZ vHkh Hkh izfrf{kr gSA mDr ifjfLFkfr esa Fkkuk/;{k ds }kjk lhekadu es ftruh vfHk:ph yh x;h] U;k;ky; ds vkns"k izkIr gksus rd ;FkkfLFkfr cuk;s j[kus ds fy, Ik;kZIr dkjZokbZ ugha dh x;h] ;Fkk /kkjk & 144 n0iz0la0 ds ckn fookfnr LFky Ikj cy dh izfrfu;qfDr gsrq rR{k.k vuqjks/k fd;k tk ldrk FkkA lkjka"k esa Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 18/28 dgk tk ldrk gS fd Fkkuk/;{k us oS/kkfud dkjZokbZ fd;s gS] ij ;FkkfLFkfr cuk;s j[kus esa foQy jgsA oLrqr% Fkkuk/;{k }kjk ukih o lhekadu djkus gsrq vfrfjDr cy cqyk;k x;k ,oa n.Mkf/kdkjh ds izfrfu;qDr ugha jgus ds ckn Hkh lfØ; jgdj dkQh vfHk:ph ds lkFk ekih o lhekadu dk dk;Z lEiUu djk;sA bldh rqyuk esa lhekafdr Hkw[k.M ij ;FkkfLFkfr cuk;s j[kus ds fy, rRijrk ugha fn[kk;s vksj ek= /kkjk& 107@144 n0iz0la0 ds rgr izfrosnu lefiZr dj oS| kfud nkf;Ro dk fuokZgu fd;sA bldk ykkHk mBkrs gq, f}rh; i{k us lhekadu mijkar iDdk nhoky [kM+k dj cuk fy;kA blls Fkkuk/;{k dk dk;Zdyki rVLFk izrhr ugha gksrk gSA"
24. From the inquiry report, it is evident that both the C.O., Sabour and the S.H.O. of the concerned Police Station had failed to maintain impartiality. On. 05.07.2023, when measurement was being done, no Magistrate was deputed on the spot. Even the C.O. was not present but the S.H.O. of the Police Station was so much keen in getting it done in his presence that he along with his police got involved in measurement. One can understand the role of Police in maintaining law and order issue but this is beyond comprehension that the S.H.O. will get the measurement done on his own. The Committee has found that from the shed at the disputed place, some people were removing the goods/bags. Further both the officers had taken much interest even as there was no Magistrate appointed for this purpose. It is also recorded that the S.H.O. did not act impartialy and failed to maintain status quo, taking advantage of this, respondent nos. 12 and 13 had erected the boundary wall.
25. The Committee has itself recorded a finding against Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 19/28 the role of the C.O. and the S.H.O. of the concerned Police Station. It is crystal clear that no Magistrate was appointed for this purpose and the S.H.O. had himself been taking much interest without there being any posting of a Magistrate at the spot and that had facilitated construction of the boundary wall. Apparently, the procedures required to be followed in terms of the provisions of the Bihar Land Dispute Redressal Act, 2009. Particularly Section 15 thereof has not been followed. There is no order of the competent authority requesting the concerned Sub-Divisional Magistrate/Executive Magistrate/Officer-in-Charge of the concerned Police Station to take action.
Case-laws discussed
26. In the case of Anand Kishore Prasad Sinha (supra), his residence and office were situated at a contiguous piece of land measuring around four katthas containing different plots. The petitioner claimed to have purchased these plots and was in possession when the respondent no.8 entered forcibly into his house. The petitioner alleged that his forceful dispossession was done by respondent no.8 after taking confidence of the local Police Station who, instead of taking action on the complaint made by the petitioner, abused him and allowed the respondent to inflict maximum damage which could have been done during the period. Respondent no.8 contended before this Court that it is case of land Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 20/28 dispute and there being a civil dispute between the parties, the relief of the petitioner lies before the competent civil court. Dealing with both the lines of judgments of the Hon'ble Supreme Court and other High Courts in India, this Court directed the Superintendent of Police, Samastipur to restore status quo ante by allowing the petitioner to allow his possession to the extent over the Lawyers' Chambers by opening the lock within fifteen days from the date of receipt of a copy of the judgment. The judgment of this Court was challenged in S.L.P. No. 3239 of 2021 which was dismissed vide order daetd 19.04.2021 by the Hon'ble Supreme Court. Paragraph '35' to '37' of the judgment of this Court in the case of Anand Kishore Prasad Sinha (supra) are being reproduced hereunder for a ready reference.
"35. For the present, this Court is required to consider the matter from the angle as to whether the petitioner has been forcefully dispossessed from his chambers in connivance with the police officers who allegedly did not act in time and later on put their lock on the chambers of the petitioner. On behalf of the State respondents, there is no denial of the statements made in paragraph '6G' of the writ application wherein the petitioner has claimed that he was asked to remove his lock and under duress of the police personnel the petitioner was asked to open his locks whereafter the police personnel put their own lock on the premises and took away the keys. Petitioner has made specific statements indicating how he has been thrown out from his chambers by use of force and the police has Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 21/28 connived with the respondent no. 8. If these uncontroverted statements of the petitioner are considered together with the information furnished to this Court by the Superintendent of Police, Muzaffarpur, as recorded in the order dated 25.09.2020, the same strengthens the views of this Court that in the facts and circumstances of the case, the ratio of the judgments relied upon by learned counsel for the petitioner must be followed. To ask the petitioner to await the outcome of the criminal case or to recover his possession of chambers through a civil suit, in the opinion of this Court would only amount to adding assault to his injury.
36. This Court, therefore, forms an opinion that the line of judgments relied upon by learned counsel for the petitioner would be applicable in the facts and circumstances of the present case.
37. From the materials on the records, it appears that the Superintendent of Police, Samastipur had in course of his inspection of the spot noticed that there was a newly built brick work closing the entry gate of the office premises opening towards the campus of the informant. It was found newly plastered at the time of supervision. This Court, therefore, directs the Superintendent of Police, Samastipur to restore status quo ante by allowing the petitioner to restore his possession to the extent over the Lawyers' Chambers by opening the lock within 15 days from the date of receipt of a copy of the judgment."
27. Again in the case of Harisons Continental Private Limited (supra), this Court found that it was a classical case where the petitioner had been ousted by respondent no.7 in collusion with the local Police, unlawfully and by use of force. In this case also, the respondent had pleaded that he had Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 22/28 purchased the property in question under a registered sale deed. The contention on behalf of the respondent no. 7 was that this Court need not entertain the writ application and the parties be left to contest their matter in the civil court and the issue of alleged forceful dispossession of the petitioner may only be adjudicated by a competent civil court. This Court, having found that it was a case of forceful dispossession of the petitioner by the respondent no.7 in connivance with local Police, followed the law laid down by the Hon'ble Supreme Court that no person can be allowed to circumvent and overreach the rule of law. The Special Leave Petition being 9869 of 2022 referred against the said judgment was also dismissed vide order dated 18.10.2022. Paragraph '52' to '55' of the judgment of this Court in the case of Harisons Continental (supra) are being reproduced hereunder:-
"52. In the case of Ram Prasad Narayan Sahi & Anr. Vs. The State of Bihar and others reported in AIR 1953 SC 215, their Lordships of the Hon'ble Supreme Court did not allow to circumvent and overreach the rule of law. This case has been relied upon by a Bench of this Court in the case of Hindustan Petroleum Corporation Ltd. Vs. The State of Bihar and others reported in 1996 SCC Online PAT 378=AIR 1996 PAT 163 and on finding that the college authorities knew it very well that in order to evict the petitioner company it will have to file a suit, instead of doing that an Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 23/28 understanding was reached with PRDA authorities and by demolishing the structure, the petitioner company had been got rid of it, the Hon'ble Court strongly condemned the same in the following words:-
"Thus rule of law has been circumvented and overreached. The college authorities knew it very well that in order to evict the petitioner company it will have to file a suit. Instead of doing that so- called understanding was reached with PRDA authorities and by demolishing the structure, the petitioner company had been got rid of. This Court strongly contends the subversion of rule of law by the PRDA authorities at the instance of the college authorities."
53. In the case of Yar Mohammad vs. Lakshi Das reported in AIR 1956 All page 1 (FB) which has been approved in Lallu Yeshwant Singh & others Vs. Rao Jagdish Singh & Ors. (AIR 1968 SC 620), the Full Bench of Hon'ble Allahabad High Court observed :-
" Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court."
54. In the case of Bishan Das & others Vs. State of Punjab & others (AIR 1961 SC 1570) which has been affirmed in State of UP Vs. Maharaja Dharmander Prasad Singh Vs. Maharani Raj Laxmi Kumari Devi & others reported in AIR 1989 SC 997, their Lordships held that possession of the lessee, even after the expiry of lease or its termination is juridical in nature and forcible dispossession is prohibited and the lessee cannot be dispossessed otherwise than in due course of law. The same principle has been followed in the case of Krishna Ram Mahale VS. Shobha Venkat Rao reported in AIR 1989 SC 2097. Relying on the Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 24/28 principles of Lallu Yeshwant Singh (supra) and Midnapur Zamindary (51 Ind App 243) (PC), the Hon'ble Supreme Court held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law.
55. In the case of Samir Sobhan Sanyal Vs. Tracks Trade Pvt. Ltd. & others reported in 1996 AIR SCW 2539, the Hon'ble Supreme Court did not approve the eviction of the appellant from the demise premises without taking recourse to any process of law even without deciding the question whether the appellant is entitled to remain in possession. The Hon'ble Supreme Court directed the respondents to put the appellant back in possession within 24 hours. The rationale behind such an order was explained by the Hon'ble Supreme Court saying that "The Court cannot blink at their unlawful conduct to dispossess the appellant from demised property and would say that status quo be maintained. If the Court gives acceptance to such high- handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy...."
28. This Court has given anxious consideration to the entire facts and circumstances of the case which have been discussed hereinabove. To this Court, the inquiry report of the D.I.G., Bhagalpur (Respondent No. 4) clearly demonstrates that the S.H.O. of the concerned Police Station had reached at the spot with police force even as no Magistrate was deputed to Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 25/28 oversee measurement and removal of baggage from the shed and thereby eviction of the petitioner from the disputed shed. The Committee found some of the people were removing the bags from the shed and the S.H.O. had failed to maintain impartiality. Further this Court finds that a complaint was lodged by one of the petitioners on 03.09.2023 and as per inquiry report, the S.H.O. had stopped any kind of construction as also recommended action under Section 107 and 144 Cr.P.C., still the boundary wall was erected on 10.09.2023. This could not have happened, had the S.H.O. been acting with impartiality. This clearly indicates that the S.H.O. facilitated erection of the boundary wall by respondent nos. 12 and 13. In this fact situation, this Court cannot remain a mute spectator and being a Constitutional Court, it becomes its' bounden duty to ensure that what has been done unlawfully and illegally in collusion with police must be undone.
29. This Court is of the considered opinion that the inquiry report submitted by D.I.G. Bhagalpur (Respondent No.4) which has been signed by six responsible officers of the State, after hearing all the stakeholders, are clearly indicating towards the facts akin to the above mentioned line of case-laws. There is a prima-facie finding that the C.O., Sabour had Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 26/28 exceeded his jurisdiction and passed an order contrary to Section 6(12) of the Bihar Mutation Act, 2011. This prima-facie view of the Inquiry Committee in conjunction with their further finding as to the role of the concerned S.H.O. saying that he had failed to take appropriate action to maintain status quo and because of the latches on his part, the respondents were able to erect a boundary wall and that the role of the S.H.O. is not found impartial, this Court is of the considered opinion that the ratio of the judgments above discussed must apply. The Hon'ble Supreme Court as well as this Court has been taking a consistent view that the Court would not give its acceptance to a high- handed action and it has been held in the case of Samir Sobhan Sanyal Vs. Tracks Trade Pvt. Ltd. & others reported in 1996 AIR SCW 2539 if this Court would give acceptance to such high-handed action, there will be no respect for rule of law. The inquiry report clearly indicates that the S.H.O. was taking much interest on his own, he did not request for deputation of a Magistrate but himself reached on the spot with police personnel but failed to maintain impartiality and taking benefit of this, respondent nos. 12 and 13 had been able to remove the baggage from the shed and later on when a proceeding under Section 107 Cr.P.C. and 144 Cr.P.C. had been recommended, Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 27/28 they raised a boundary wall. It is, thus, one of those cases in which this Court is required to intervene otherwise those who got removed the bags from the disputed shed and later on erected the boundary wall shall be happy with their success in doing something unlawfully taking advantage of the favour shown by Police. This Court, therefore, directs that the boundary wall which was erected by respondent nos. 12 and 13 shall be demolished immediately/forthwith by the C.O., Sabour and for this purpose the S.H.O. of the concerned Police Station shall provide all assistance to the C.O.
30. The respondent no. 4 shall ensure that the possession of the petitioners in the shed in question, from which the goods were found being removed, shall be restored. The respondent no. 4 shall also consider taking appropriate action in accordance with law against the concerned S.H.O. who as per inquiry report had instead of requisitioning the deputation of a Magistrate on the spot himself took much interest in the matter and failed to maintain impartiality. Such action would be taken in accordance with law independently and no part of the observation of this Court shall be construed to his prejudice. The action of the competent authority shall be in conformity with principles of natural justice.
Patna High Court CR. WJC No.1571 of 2023 dt.15-01-2024 28/28
31. The petitioners, if so advised, shall be at liberty to seek their remedy for damages, etc. before appropriate court.
32. It is made clear that the direction to demolish boundary wall and to restore the possession of the shed to the petitioners shall not be construed as any opinion of this Court on their rights, title and interest in the property. The title suit or any other legal proceeding between the parties which are pending or may be instituted shall be considered and decided by the competent court/forum/authority, as the case may be, in accordance with law. The observations of this Court hereinabove shall not prejudice the case of the either party.
33. This writ application is allowed to the extent indicated hereinabove.
(Rajeev Ranjan Prasad, J) Rishi/-
AFR/NAFR A.F.R. CAV DATE 09.01.2024 Uploading Date 15.01.2024 Transmission Date