Vishwanath Singh v. State Of Bihar — 1993 DIGILAW 133 (PAT)

Judgment S.HODA and R.N.PRASAD JJ. 1. In this application a prayer has been made to quash the order, dated 15-2-1993, contained in Annexure 1 passed by the Sub-divisional Magistrate, Muzaffarpur in Case No. 109 of 1992, by which a direction was given to the Circle Officer to act as Magistrate and with the help of the officer-in-charge, Kazi Mbhanlmedpur Police Station and presence of armed police force get the boundary wall of Respondent No. 3 constructed, so that the petitioner may not go over the disputed land and if any dispute is raised by the petitioners, take serious legal action against them and also submit a report for initiating a proceeding under Section 107 of the Code of Criminal Procedure, hereinafter, referred to as the Code and also to quash the order, dated 4-3-1993 passed by the Sessions Judge, Muzaffarpur in Criminal Revision No. 40/93 dimissing the revision application filed against the aforesaid order, dated 15-2-1993, as contained in Annexure 2 to this petition. 2. Learned counsel, appearing on behalf of the petitioners, sub., mitted that a proceeding under Section 145 of the Code, bearing Case No. (M) 1725 of 1990 is pending between the parties before an Executive Magistrate, with regard to the land in question. Respondent No. 3 filed a petition before the Sub-divisional Magistrate, on which a separate case, bearing Case No. 109/92, was registered. The Sub-divisional Magistrate on the aforesaid petition passed the impugned order, directing the Circle Officer to act as a Magistrate and with the help of police force get the boundary wall of Respondent No. 3 constructed. Learned counsel says that a Sub-divisional Magistrate has no power under the law to pass such an order, as it amounts to adjudication of eight of a party in a dispute. 3. Learned counsel, appearing on behalf of Respondent No. 3, contended that there is no infirmity in the order, The Sub-divisional Magistrate or the Executive Magistrate is competent under the law to pass such an order to maintain peace between the parties- The impugned order is an administrative order for maintaining law and order. In support of his contention learned counsel relied upon a decision in Gulam Abbas and others v. The State of Uttar Pradesh and others AIR 1981 SC 2198 . 4. In support of his contention learned counsel relied upon a decision in Gulam Abbas and others v. The State of Uttar Pradesh and others AIR 1981 SC 2198 . 4. In the said above decisoin it has been held that an Executive Magistrate has no power to adjudicate or decide a dispute of a civil nature or a question of title to the property or entitlement of rights. In the cases where such disputes of title or entitlement of rights have already been adjudicated by a Civil Court of competent jurisdiction, then in exercise of his power under Section 144 of the Code, he must have due regard to such established right, and the power must be exercised in aid to those rights against those who interfere with the lawful exercise thereof, and even in cases where there is no such a declared or established right, the power should not be exercised in any manner that would give material advantage to one party to the dispute over the other. In a similar circumstances in Kartik Lai and others v. The State of Bihar and others, 1966 BLJR 477. where right of the petitioner was established by a Civil Court of competent jurisdiction, it has been held that deputation of police force by an Executive Magistrate to prevent breach of peace is perfectly, correct but if deputation of the police force is to stop petitioner from going on with the construction work of his house on the disputed land, it is illegal and without jurisdiction. 5. It is obvious from the decision, referred to above, that a Executive Magistrate has no power to pass order in a manner which would give material advantage to one party to the dispute over the other unless his rights have already been determined by a Civil Court of competent jurisdiction. Thus, we are of the view that the decisions relied upon by learned counsel for Respondent No. 3 are of no avail to him on the facts and in the circumstances of the case. 6. Thus, we are of the view that the decisions relied upon by learned counsel for Respondent No. 3 are of no avail to him on the facts and in the circumstances of the case. 6. It is not in dispute that the District Magistrate or the Sub-divisional Magistrate or the Executive Magistrate has no jurisdiction to depute a Magistrate or police force to maintain law and order or to prevent, any breach of peace, rather, the question involved in this case is as to whether the Sub-divisional Magistrate or the Executive Magistrate has the sanction of law to pass such an order which would give material advantage to one party to the dispute over the other when his right has not been established by a Civil Court of competent jurisdiction. 7. Nothing was shown to us by Respondent No. 3 that his right has already been determined by a Civil Court of competent jurisdiction, rather it appears from the records of the case that a regular proceeding under Section 145 of the Code is pending between the parties with regard to the land in dispute and during the pendency of the aforesaid proceeding, the impugned order has been passed in the manner adjudicating the right of Respondent No. 3 which would give material advantage to Respondent No. 3. 8. In our view the Sub-divisional Magistrate or the Executive Magistrate has no power under the law to pass such an order, as there is nothing on the record to show that the right of Respondent No. 3 has been determined by a Civil Court of competent jurisdiction. Accordingly, the order of the Sub-divisional Magistrate, contained in Annexure 1 and the order of the Revisional Court contained in Annexure 2 are hereby quashed and the application is allowed.