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2008 DIGILAW 789 (PAT)

Anil Kumar Mishra v. State Of Bihar

2008-06-27

NAVANITI PRASAD SINGH

body2008
Judgment 1. The petitioners have come to this Court challenging the proceedings as initiated by the Circle Officer, Rahika, District-Madhubani by which a restraint order was issued against the petitioners in respect of petitioners enjoying land. Having issued the restraint order, the Circle Officer then made a recommendation to the Additional Collector.The Additional Collector instead of taking the proceeding further against the petitioners, stayed the order of the Circle Officer. Against this action of the Additional Collector, the Collector was then moved who has stayed the order of the Additional Collector in effect reviviing the restraint order against the petitioners restraining them from enjoining their property. Two persons have been made private respondents, who are alleged to be intervening and obstructing the right of the petitioners in enjoyment of their property. Respondent no.4 is represented through a lawyer and respondent no.5 has chosen to appear in person and happens to be an advocate. 2. Counter affidavits have been filed and parties have been heard and with their consent this writ application is being disposed of at the stage of admission itself. 3. In my view, a very short issue arises in the present case. The petitioners questioned the authority and the jurisdiction of the respondents in taking up any such proceeding against the petitioners. The proceeding, as initiated is not disclosed to be a proceeding under any statutory provision. When confronted with the question as to what would be the provision of enactment under which the proceeding had been initiated by the Circle Officer against the petitioners and restraint order issued, both the private respondents agreed that they are not referable to any statutory enactment or exercise of any statutory power. It appears that the petitioners are in possession of the land purported to have been settled with them by Raj Darbhanga. That land is low land laying and had termed as a dranage point for neighboring residents. Petitioners were trying to fill up that land for their use. It was objected to by neighbours. For enforcement of their easement right, they filed a suit, inter alia, against the petitioners. The suit was in representative capacity and was ultimately dismissed holding that the plaintiff had no such easement right and the petitioners(defendants) could not be restrained from using those lands. 4. Respondent no.5 alleging that the petitioners had entered into an agreement for sale. For enforcement of their easement right, they filed a suit, inter alia, against the petitioners. The suit was in representative capacity and was ultimately dismissed holding that the plaintiff had no such easement right and the petitioners(defendants) could not be restrained from using those lands. 4. Respondent no.5 alleging that the petitioners had entered into an agreement for sale. Having accepted consideration and not executing sale deed in respect of the suit land as filed, a Suit for specific performance was filed which is also pending. Respondent no.4 has also filed a title suit in respect of the said land claiming to be a prior purchaser being a purchaser of the suit land almost 80 years back. Thus, it is clear that respondents while claiming right as against the petitioners are before Civil Court. Yet they could not seek interim remedy from the Civil Court but seek to get order from executive in administrative capacity. None of the respondents could point out any statute or statutory provision under which the Circle Officer, the Additional Collector or the Collector of the district exercised the power restraining the petitioners from using their land. In such a situation, in my view, so long Art. 300A of the Constitution is concerned, no persons right to enjoyment of land can be interfered with in such a manner. The district officials are mere public servant and can interfere with the rights of the parties only when they are so specifically authorized by statute. None has been brought to the notice of the Court by any party. In such a situation, I have no option but to hold that the proceeding as initiated by the Circle Officer, namely, Sairat Misc. Case no. 1/04 is held to be wholly illegal and without jurisdiction. Order passed therein has no legal sanctity. If that be so, then automatically the orders as passed by the Additional Collector and/or the Collector of the district are equally null and void. The respondents are restrained from interfering with the rights of the petitioners in any manner except in accordance with law. 5. With these directions the writ petition stands allowed.