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2007 DIGILAW 41 (PAT)

Sachchidanand Panda v. State Of Bihar

2007-01-08

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard Sri Ashutosh Jha, learned counsel for the petitioner and the learned Government Pleader No. 10 for the State. 2. This contempt proceeding was initiated against O.P. No. 3 for alleged violation of the order dated 25.9.1987 passed in CWJC No. 2139/1982 and further, order dated 9.4.1998 passed in MJC No. 837/89. 3. The short facts of this case are that the petitioner earlier approached this court for quashing the order dated 4.3.1980 passed by the Additional Collector in Appeal No. 16/74 and also for quashing the orders dated 19.8.1980 and 23.3.1982 passed by the Commissioner, Bhagalpur in Munger Revision Case No. 35 of 1980-81. The said orders had been passed in a proceeding under sec. 4(h) of the Bihar Land Reforms Act. After hearing the parties, this court allowed the writ applications holding that the impugned orders are wholly illegal and cannot be sustained since the respondents had failed to show from any material that the settlement had been made after 1.1.1946 and further, that the said respondents have failed to take into consideration that the 7 & 1/2 decimals of land involved in the settlement formed a small part of the larger plot on which certain public institutions were situated. 4. Subsequently, on the initiation of certain proceedings u/s 144 of the Cr.P.C. the petitioner approached this court by filing MJC No. 837/89 which was disposed of with observation that unless and until, the opposite parties proceed against the petitioner in accordance with law and unless any valid and legal order is passed against them, they should not be dispossessed from 7 & 1/2 decimals of land of the plot in question which was the subject matter of the earlier writ application. 5. It appears that subsequently, there were number of litigations including writ applications and Title Suits between various parties, including the petitioner, in which each of them were claiming the other side to have encroached upon public land and by various order of this court, it was directed that the said matter can only be settled in appropriate proceedings and, ultimately, Encroachment Case No. 05/02-03 was initiated against several parties including the petitioner. 6. It appears that the notice dated 20.5.04 (Annexure-7) was received by the petitioner in which it was stated that he has been found guilty of encroachment on plot no. 6. It appears that the notice dated 20.5.04 (Annexure-7) was received by the petitioner in which it was stated that he has been found guilty of encroachment on plot no. 196 and he was directed to remove the said encroachment by 5.6.2004. In the said notice, no case number was mentioned. On 21.5.2004, the petitioner filed a petition before the C.O, Tarapur without mentioning the Encroachment Case No. but stating the fact that he had received notice dated 20.5.2004 for removal of encroachment and praying for certified copy of the order and the entire order-sheet for the purpose of filing an appeal before the competent court. Petitioners case is that the certified copy of the order was deliberately not supplied by the CO. and in the meantime, on 8.6.2004, the Opposite Party alongwith Police Party came to the spot and demolished the house, which included the residence and shops of the petitioner and also looted away property worth Rs. 25,00,000/-(twenty five lacs). In the said circumstances, the petitioner filed the present contempt application before this court. 7. The main contention of the petitioner before this court from the very beginning was that no such order for removal of encroachment has been passed in any case and, therefore, the O.P No. 3, has committed contempt of court by violating the orders dated 25.9.1987 and 9.4.1988 of this court. Show cause and supplementary show-cause has been filed on behalf of O.P No. 3 in paragraph 8 of which it is stated that only after passing the final order in the encroachment case, he demolished the construction over the encroached area. However, on going through the original records produced before the court on 6.3.2006, this court was pleased to observe that no such order has been passed in Encroachment Case. Thereafter, again another record has been produced from which it appears that Encroachment Case No. 05/02-03 was initiated on 14.9.2002 against nine persons for various plots of land including plot nos. 197 & 196 relating to the petitioner. In the said proceedings by order dated 22.10.2002, a finding was recorded inter alia that the petitioner had encroached over plot no. 197 and a direction was made for removing the encroachment, and, accordingly, encroachment was also removed which fact is admitted by learned counsel for the petitioner and which matter is not in dispute in the present case. In the said proceedings by order dated 22.10.2002, a finding was recorded inter alia that the petitioner had encroached over plot no. 197 and a direction was made for removing the encroachment, and, accordingly, encroachment was also removed which fact is admitted by learned counsel for the petitioner and which matter is not in dispute in the present case. Thereafter, the matter appears to have been taken up on different dates with respect to Plot No. 196 and ultimately, on 24.1.2004, after hearing learned counsel for both the parties including the learned counsel for the petitioner, it was directed that the opinion of the Government Pleader, Munger should be taken on the point whether the encroachment proceedings can be continued with respect to the lands in question. Again, the matter was taken up on 12.2.2004 in which the opinion of the Government Pleader, Munger was considered wherein it was opined that the encroachment proceedings can be legally held with respect to the land in question but nothing was referred with respect to the pending Title Suit in the matter. It was directed for further opinion. Again, the opinion of 27.2.2004 was perused and the matter was adjourned for final hearing on 20.5.2004. After considering the entire materials, the Circle Officer came to the conclusion that the petitioner had made illegal encroachment on public land, and, accordingly directed removal of the said encroachment by 5.6.2004 failing which it would be removed by the authorities. Thereafter, the matter was again placed for order on 6.6.04 and finding that the encroachment has not been removed, it was directed to remove by 8.6.04 by official process. Again, by order dated 8.6.04, the Executive Magistrate alongwith force was deputed to remove the encroachment. Thereafter, it is stated in the order dated 9.6.2004 that the encroachments have been removed by demolishing the house and the proceedings are closed. 8. Again, by order dated 8.6.04, the Executive Magistrate alongwith force was deputed to remove the encroachment. Thereafter, it is stated in the order dated 9.6.2004 that the encroachments have been removed by demolishing the house and the proceedings are closed. 8. Learned counsel for the petitioner has submitted that the action of the O.P No. 3 is mala fide and he has acted in a deliberate manner to cause undue loss to the petitioner by passing the order behind his back without intimating him about the final hearing and further not supplying him certified copy of the order and creating a situation that the petitioner could not obtain a stay of the demolition from the appellate authority by filing an appeal before him and, thus, demolished the house and caused huge loss to the petitioner to the extent to Rs. 25,00,000.00 (twenty five lacs). 9. In support of the said proposition, learned counsel for the petitioner relies upon a decision of the Supreme Court in the case of Vijay Kumar V/s. Ramchandra Sahu : 2003(1) PUR 182(SC) and a decision of this court in the case of Kamalnath Prasad @ Kamal Nath Sahu V/s. The State of Bihar, 2006(4) PLJR 362 . So far as the first mentioned case is concerned, the same related to a bail order passed by the Sessions Judge not being obeyed by the respondent police officer in question by releasing the accused, and in those circumstances, it was stated that he was definitely guilty of commit contempt of court and liable for punishment for the same, as it was not open to a Police Officer to ignore a bail order passed by the Sessions Judge. In Kamal Prasads case, this court had come to the conclusion that the order had been passed by the Anchaladhikari by sitting in his office and deciding that the petitioner had encroached upon public land and, accordingly, demolished the same without being satisfied as to the measurement taken and without keeping the records of measurement and, for the said reasons, this court permitted the petitioner of that case to reconstruct the construction which had been demolished and further, the Anchaladhikari was directed to pay compensation of Rupees one lac to the petitioner. 10. 10. So far as the case cited by the petitioner is concerned, it is clear that flouting of an order of court would definitely amount to a contempt of court and any Public Officer involved in the same would be punished for contempt of court. However, the facts of the said case have no relevance to the facts at this matter. So far the case of Kamalnath Prasad is concerned, the order in question had been passed in Civil Writ Jurisdiction under Article 226 of the Constitution of India and not in a contempt matter. Where violation of the orders of this court are under consideration, this court is only concerned whether the Opposite Party has wilfully disobeyed and violated any orders of this court. 11. It is true that earlier on 6.3.06, this court on examining records produced before it came to the conclusion that there was no order on record to show that any valid and legal order for demolishing the encroachment in question had been passed. It is, however, submitted by learned Government Pleader that on the said date, due to inadvertence and negligence of the concerned officials, the correct record was not produced before the Court and thus, this Court had rightly observed on that day, but from perusal of the actual records of the case, which are detailed and show date by date progress running into nearly two years period, and which clearly show that valid and legal orders to the knowledge of the petitioner had earlier been passed in the same matter with respect to the other plot of land on which he had committed encroachment, namely, plot no. 197 and from which encroachment had been removed much earlier in the year, 2002. It was submitted that the petitioner cannot be permitted to take the plea that there was no such order. In fact, it is submitted that the petitioner had himself become aware of the order of 20.5.04 itself when the notice under the Act was duly served upon him pursuant to which he claims to have filed a petition for obtaining certified copy on the next date. This also according to the learned counsel for the State makes it very clear that the order has been passed on that day in the encroachment proceeding holding that the petitioner had encroached on plot no. 196 involved in the said proceeding. 12. This also according to the learned counsel for the State makes it very clear that the order has been passed on that day in the encroachment proceeding holding that the petitioner had encroached on plot no. 196 involved in the said proceeding. 12. From perusal of the records which have now been produced before me, it does not appear prima facie that any manipulation, etc. has been made in the records. It, thus appears probable that an order dated 20.5.04 has been passed for demolition of the encroachment of land in question in a proceeding which had continued for nearly two years and in which the petitioner had participated through his counsel. 13. In the aforesaid circumstances, a quasi-judicial order has been passed by the competent authority, namely, O.R No. 3, who cannot be said to be guilty of violation of any order of this court. If the petitioner was/is aggrieved by such order, then his remedy is elsewhere, not in the contempt jurisdiction of this court, and he was/is free to pursue the said remedy before the appropriate forum. 14. In the aforesaid circumstances, the contempt proceedings aganist O.P No. 3 Anil Kumar Sharma, Circle Officer, Tarapur is dropped.