Om Prakash Paswan, son of Late Ratilal Paswan, aged about 47 years, resident of v. 1.The State of Jharkhand through its Chief Secretary having its office at Project Building
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letter Patent Appellate Jurisdiction) LPA No. 821 of 2019 Om Prakash Paswan, son of Late Ratilal Paswan, aged about 47 years, resident of Indarwa Basti, Ward No. 5, PO and PS Jhumri Telaiya, District ...… Appellant Koderma, State Jharkhand Versus 1.The State of Jharkhand through its Chief Secretary having its office at Project Building, PO Dhurwa, PS Jagannathpur, District Ranchi, State Jharkhand 2.The Deputy Commissioner, Koderma, PO and PS Koderma, District Koderma, State Jharkhand 3.The Sub-Divisional Officer, Koderma, PO and PS Koderma, District Koderma, State Jaharkhand 4.The Circle Officer, Koderma, PO and PS Koderma, District Koderma, State Jharkhand 5.National Highway Authority of India through its Executive Engineer, National Highway Division Hazaribagh, having its office at behind PTC Ground, PO, PS and Town Hazaribagh, State Jharkhand 6.Kailash Chandra Choudhary, s/o not known to the petitioner, resident of Bandana Sweets, opposite Kali Mandir, PO, PS and District Koderma, State Jharkhand 7.Umesh Yadav, s/o Ishwar Yadav, resident of Indarwa Basti, Ward No. 5, PO and PS Jhumri Telaiya, District Koderma, State Jharkhand 8.Birendra Yadav, s/o Kamal Yadav, resident of Indarwa Basti, Ward No. 5, PO and PS Jhumri Telaiya, District Koderma, State Jharkhand 9.Kalawati Devi, w/o Navin Yadav, resident of Indarwa Basti, Ward No. 5, PO and PS Jhumri Telaiya, District Koderma, State Jharkhand 10.Sudarshan Prasad Yadav, s/o late Rameshwar Yadav, resident of village Gujhandi, PO Gujhandi, PS Telaiya, District Koderma, Jharkhand 825409 …. ... Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE
Legal Reasoning
HON'BLE MR. JUSTICE ARUN KUMAR RAI For the Appellant For the NHAI For the Resp. No. 6 For the State For the Resp. No. 7-9 For the Resp. No. 10 : Ms. Surabhi, Advocate Mr. Ravi Prakash Mishra, Advocate : Mrs. Sweety Topno, Advocate Mr. Amrit Raj Kisku, Advocate : Mr. Shubhashis Rasik Soren, Advocate Ms. Shobha Gloria Lakra, Advocate Ms. Mrinalini Adela Tete, Advocate : Mr. Rakesh Kumar Shahi, AC to SC (L&C) I : Mr. Rama Kant Tiwari, Advocate Mr. Shailendra Kumar Singh, Advocate : Mr. A. K. Sahani, Advocate Mr. Ajit Kumar, Advocate 2 LPA No. 821 of 2019 07th February 2024 Per, Shree Chandrashekhar, A.C.J. The appellant is aggrieved by the order dated 19th September 2019 passed in WP(C) No. 1409 of 2019. 2. The writ Court vide its order dated 19th September 2019 passed in WP(C) No. 1409 of 2019 has held as under: “This Court after hearing the learned counsel for the parties and after perusing the impugned order dated 02.06.2018, where from, it is evident that Umesh Yadav (respondent no.7) has made an application before the Sub-Divisional Officer, Koderma for removal of encroachment over the land which is recorded in revenue records in his name and on being satisfied, the Sub-Divisional Officer, Koderma after visiting the plot where from he has found that one motor garage has been constructed over the land in question by one Kamlesh Yadav, who has not produced any relevant documents substantiating his right about the construction of motor garage and, therefore, he has been found as encroacher over the land. In view thereof, the Sub-Divisional Magistrate under its Magisterial power has acted on the basis of the application made by respondent no.7 the encroachment. for and deputed police personnel Admittedly, the petitioner has got no concern over the land in question. removing The writ petition has been filed under Article 226 of the Constitution of India. It is settled position of law so far as maintainability of writ petition under Article 226 of the Constitution of India is concerned that the applicant who approached before the Court having jurisdiction under Article 226 of the Constitution of India is required to establish his locus as also cause of action and in absence of locus as also cause of action, the applicant would not be said to be aggrieved due to non infringement of any fundamental right. The petitioner's case is that he is not having right over the land in question rather he has come before this Court to canvass his argument on behalf of National Highway Authority of India and, therefore, the petitioner is having no locus as also cause of action. Learned counsel for the respondent-NHAI has submitted that the petitioner has got no locus rather he has supported the order passed by the Sub-Divisional Officer, Koderma since the land has been encroached by one Kamlesh Yadav. Learned counsel for the respondent- State has also submitted that the Sub-Divisional Magistrate under its Magisterial power is supposed to protect the public land. In view of the aforesaid factual aspects as discussed herein above, this Court is of the view that the writ petition deserves to be dismissed and accordingly it is dismissed.” 3. By this order, the writ Court refused to interfere with the direction of the Sub-Divisional Officer to the Officer In-Charge of Telaiya PS to ensure maintenance of law and order during construction of a boundary wall over plot no. 1922 at village Asna in the district of Koderma. 3 LPA No. 821 of 2019 4. On 9th January 2024 the learned counsel for the respondent no. 6 had made a prayer for deleting name of respondent no. 6 from the array of parties. However, no such application has been filed. Mr. Shubhashis Rasik Soren, the learned counsel for the respondent no. 6 submits that due to his knee surgery the respondent no. 6 could not file such an application, nonetheless, the respondent no. 6 sticks to his ground that he is neither a necessary party nor a proper party in the present proceeding. 5. The appellant pleaded before the writ Court that he is the owner of the land comprised in plot no. 1921. Ms. Surabhi, the learned counsel for the appellant submits that the direction to construct a boundary wall over plot no. 1922 which is adjacent to the appellant’s land comprised under plot no. 1921 shall seriously affect the easementary rights of the appellant. Mr. Ajit Kumar, the learned counsel for the intervenor Sudarshan Prasad Yadav who claimed that he purchased 6 decimals of land in plot no. 1921 also makes a similar submission before this Court. However, the stand of the respondents is that the appellant who has sold the entire extent of land comprised in plot no. 1921 cannot maintain this Letters Patent Appeal. 6. As would appear from the materials on record, there was a dispute between Umesh Yadav and Kamlesh Yadav who had constructed a motor garage by encroaching upon the land comprised under plot no. 1922. On a complaint made by Umesh Yadav, the Sub-Divisional Officer called for a report and having regard to the situation reported thereon the Sub- Divisional Officer passed an order for removing the encroachment from plot no. 1922. Kamlesh Yadav did not move this Court and the appellant has also no grievance against that part of the order dated 2nd June 2018. However, a direction to deploy police force to ensure construction of a boundary wall over plot no. 1922 shall amount to adjudicating the easementary and other rights of the parties without hearing the affected parties; the appellant was one such party being the owner of the land comprised under plot no. 1921. 7. This is well-settled that every order passed by an authority must be in the exercise of powers under a statute, rule, regulation or Government resolution but this is not reflected in the order dated 2nd June 2018 that the Sub-Divisional Officer was exercising any statutory power while passing the order dated 2nd June 2018. In our opinion, the Sub-Divisional Officer at 4 LPA No. 821 of 2019 best could have initiated a proceeding under section 144 of the Code of Criminal Procedure (in short, CrPC) and after hearing the parties proceeded under section 145 CrPC, if at all necessary. Admittedly, the Sub-Divisional Officer did not take recourse to the aforesaid provisions of the Code of Criminal Procedure and straightway issued the impugned directions without authority in law. 8.
Decision
For the foregoing reasons, we hold that the order dated 2nd June 2018 passed by the Sub-Divisional Officer is illegal in so far as it affects the rights of the appellant, subsequent purchaser(s) and other parties. 9. LPA No. 821 of 2019 is allowed to the aforesaid extent and, consequently, WP(C) No. 1409 of 2019 also succeeds in the aforesaid terms. Tanuj (Shree Chandrashekhar, A.C.J.) (Arun Kumar Rai, J.)