MADAN YADAV v. THE STATE OF BIHAR

:- Mr. Akhileshwar Pd. Singh, Advocate Mr. Radhe Mohan Pandey, Advocate Mr. Satish Kumar, Advocate Mr. Ashok Kumar, Advocate :- Mr. Narmdeshwar Sinha, AAG-7 For the State For the Respondent No.6 :- Mr. L. K. Sharma, Advocate ---------------- 10 17/04/2009 Heard learned counsel for the parties. The petitioner has come here for restraining the respondents First Set from executing the order dated 27.7.2007 passed by the Sub-Divisional Magistrate, Jagdishpur (respondent No. 3) in case No. 06 of 2007 (Miscellaneous) as contained in Annexure 6 by which the respondent no. 3 has directed the local police station to provide police to the Anchal Adhikari who was appointed as Magistrate for fencing the disputed 9 kathas of land revisional survey plot No. 1320 for securing the possession of respondent no. 6. Case of the petitioner is that his grand father acquired 2 lands of Cadastral Survey khata No. 257 plot no. 1039, 1037, 1058 and 1088 area 2.01 acres from Dumraon Maharaj in the year 1919. Since the plot no. 1039 was a big plot so 8 plots were carved out in course of revisional survey from this plot bearing R.S. Plot No. 1319 to 1326 in the name of petitioners grand father kadam Ahir for which final publication was made on

22.6.1971. Adjacent to south to Plot No. 1320 R.S. Plot No. 1322, 1321, 1323, 1324, 1325 and 1326 are located. Residential house and other constructions of the petitioner are situated over plot No. 1322 and 1321. Petitioner’s grievance respondent no. 6 being the powerful person wanted to grab the land and house of the petitioner and so in connivance with local police station he filed Demarcation Case No. 03 of 2007-08 before the Anchal Adhikari, Sahpur for demarcation of his purchased area of 9 Kathas of plot no. 1320. Anchal Adhikari had no jurisdiction of demarcation but he got the measurement done by the Anchal Amin, received his report and closed the demarcation case without confirming the measurement report and demarcation. No notice was issued by the Anchal Adhikari and in fact the Amin has not made any measurement. The petitioner had to institute Title (encroachment) Suit No. 57 of 2007 and respondent no. 6 and his family has started raising claims over R.S. Plot No. 1322 and 1321. Respondent No. 6 filed a petition before the respondent no. 3 on 6.7.2007 in which he sought police force for demarcation and fencing the 3 land on the basis of order dated 17.5.2007. The petitioner appeared in the case and filed show cause but order was passed on 27.7.2007. The petitioner came here to challenge the order dated

27.7.2007 passed by respondent no. 3 in Case No. 6 of 2007. This Court on 7.9.2007 after hearing the parties passed order of issuance of show cause to respondent no. 6 in admission matter and till the next order the order dated

27.7.2007 was ordered to be kept in abeyance. The parties appeared and their stands. Respondent first set appeared and pointed out that the writ itself has becomes infructuous because the order dated 27.7.2007 has already been executed. In fact respondent no. 3 has not ordered for any delivery of possession and the order was executed only to maintain law and order over the land in question because the petitioner has physically obstructed the respondent no. 6 from going to the land in question. Respondent no. 3 Sub-Divisional Magistrate, Jagdishpur apprehended imminent breach of peace and so he had reason to implement the order. The respondent no. 4 only got the land measured because he is the custodian of revenue of records including Register II (Tenant’s Ledger) and for that purpose Amins are posted in Anchal office. Any one, desiring for measurement of his land deposits the requisite fees and after that Amin is posted for that purpose. Respondent no. 6 Sanjay 4 Kumar Yadav for getting his land measured deposited the fee and by way routine work by the Anchal Adhikari the land was measured. No title has been decided and only the land was measured. There is specific denial that there is any residential building of the petitioner on the land in question and according the respondent first set the petitioner is owning a big residential house a few yards away from the land in question. The petitioner filed the interlocutory application no. 1728 of 2007 in which he pointed out that despite communication of the order of this court the respondents have violated the order of this Court and demolished the house of the petitioner and prayer has been made that they should be suitably punished as it was deliberate action. Respondent no. 4 is the Anchal Adhikari and he has filed his supplementary counter affidavit also in which he has stated that the order was executed on 8.9.2007 and on that date no order was communicated to the respondent no. 4 either by the petitioner or by any administrative authority concerned. Learned counsel for the petitioner has pointed out once the order was passed in presence of the government advocate then there is assumption that the order was communicated to him and despite that order respondent no. 4 has violated the order of this court by demolishing the house of the petitioner. Here disputed facts have arisen. The case of the petitioner is that demolition was carried so the order has been 5 violated and compensation for demolition has also been sought for, the counter affidavit denies the existence of any house so it becomes disputed question of the fact and once the question of facts becomes disputed then it is not proper for a writ court to pass any order. If dispute arises as to whether there is existence of land or not then this question can only be decided by a proper suit and not by the writ application. It appears from the facts of the case that tile suit is also being contested so any order passed in favour of either of the parties may effect out come of the title suit which will not be in the interest of justice. Whosoever may have grievance is entitled to go and seek proper remedy before the courts where the facts are to be marshaled so that a judgment can be given. In my view, this court should refrain itself giving its opinion with regard to right and tile of the parties in the present criminal writ. It is made clear that any observation of this court will not affect any right or title of any of the parties. Accordingly, this writ application is disposed of. (Shyam Kishore Sharma, J.)