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2012 DIGILAW 1487 (PAT)

Ashok Kumar v. State of Bihar

2012-10-19

ASHWANI KUMAR SINGH

body2012
CAV ORDER Originally, the following prayers were made in paragraph no. 1 of the writ petition:- “(1) That this is an application for:- (i) Issuance of writ in the nature of mandamus directing the respondents to properly investigate, arrest the accused and recover the stolen goods / articles which are subject mater of Agamkuan P.S. Case No. 20/2007. (ii) To direct the respondent authorities not to disturb the peaceful possession of the petitioner at his godown situated at Dhanki More, Mohalla Kumrahar, under P.S. Agamkuan, Patna in the premises of Ram Swarup Yadav. (iii) For any other consequential relief or reliefs to which the petitioner is found entitled during the course of hearing of this writ application”. 2. During pendency of the writ petition, the petitioner filed an interlocutory application, being I.A. No. (Criminal) 1439 of 2007 and prayed that the following prayer may be added in paragraph no. 1 of the writ petition:- “To direct the respondents to give possession to the petitioner of his godown situated at Dhanki More, Mohalla-Kumhrar, P.S.-Agam Kuan, Patna which was in possession of the petitioner but, subsequently, forcibly possessed by the respondent nos. 6 to 8 in connivance with the local police”. 3. The said prayer of the petitioner to add the prayer in the writ petition was allowed by this Court by order passed on 28.8.2007. 4. It is contended that the petitioner is a businessman, who took the land belonging to one Ram Swarup Yadav (respondent no. 8) situated at Dhanki more, Kumhrar, Patna for godown and by a lease-deed dated 1.6.2001 became his tenant for five years till 31.5.2006. The petitioner, thereafter, started his business after constructing a godown for which he had spent Rs. 3,50,000/-. He got sales tax registration and electricity connection in his name and telephonic connection in the name of one of the Director’s of the Company, namely, Sri Sanjay Kumar. After expiry of the lease period negotiation was going on between the petitioner and the land lord for extension of lease/fresh lease deed with regard to the godown but the same remained pending for one reason or another. In the meantime, on 2.3.2007, the petitioner was informed by one Ramanand Prasad that the landlord Ram Swarup Yadav along with 30-40 persons after breaking open the lock of the petitioner’s godown has removed the goods lying therein. 5. In the meantime, on 2.3.2007, the petitioner was informed by one Ramanand Prasad that the landlord Ram Swarup Yadav along with 30-40 persons after breaking open the lock of the petitioner’s godown has removed the goods lying therein. 5. Learned counsel for the petitioner submits that the petitioner, thereafter, informed the police and gave a written report on 2.3.2007 itself about the occurrence that articles/goods worth Rs. 50 Lakhs were stolen by respondent no. 8 Ram Swarup Yadav and his henchmen. The petitioner gave a list of stolen articles to the Officer-in-Charge, Agamkuan Police Station on 6.3.2007. On the basis of the written report given by the petitioner, Agamkuan P.S. Case No. 20 of 2007, dated 2.3.2007 was registered by the police under Sections 341, 323, 447, 379 read with 34, 504 and 506 of the Indian Penal Code against the respondent no. 8 and 30-40 unknown persons and investigation was taken up. The petitioner met the then Deputy Superintendent of Police, Patna City and the City S.P. Patna but, the police officials did not arrest respondent no. 8 or any other accused persons. The police officials told the petitioner that since the period of lease had already expired, he had no right to remain in the godown. 6. Learned counsel for the petitioner submits that no person can be evicted from any place without the process of law and even a trespasser has a right and can only be evicted through the process of law. He submits that during pendency of the writ petition, the petitioner came to know that one Santosh Kumar Tekriwal had purchased the land, in question, on which, the godown of the petitioner was situated from respondent no. 8, Ram Swarup Yadav. One Punit Jain, a relative of said Santosh Kumar Tekriwal was also involved in the purchase of land in question. The petitioner, thereafter, brought these facts to the notice of the Court by way of amendment petition and Santosh Kumar Tekriwal and Punit Jain were permitted to be impleaded as respondent nos. 6 & 7 in the present writ petition by the Court. 7. Learned counsel submits that the police in course of investigation found the allegations made in the F.I.R. to be true and charge sheet has been submitted in the police case. 8. It is to be noted that initially, in the original writ petition, only respondent nos. 6 & 7 in the present writ petition by the Court. 7. Learned counsel submits that the police in course of investigation found the allegations made in the F.I.R. to be true and charge sheet has been submitted in the police case. 8. It is to be noted that initially, in the original writ petition, only respondent nos. 1 to 5 were impleaded as party respondents. However, during pendency of the writ petition, a petition by way of amendment of the writ petition had been filed on behalf of the petitioner mentioning that the three persons mentioned in the petition may be added as respondent nos. 6 to 8. By order dated 14.5.2007 passed in this case, Santosh Kumar Tekriwal, Punit Jain and Ram Swaroop Yadav were permitted to be impleaded as respondent nos. 6 to 8 in the present case and notices were issued to the newly added respondents by the same order. However, subsequently, by order dated 12.7.2007 the petitioner was permitted to delete the name of respondent no. 7. 9. Respondent no. 6 had filed his counter affidavit. However, during pendency of the writ petition, he died. As such, the petitioner filed I.A. No. 1871 of 2009 for substitution of the deceased respondent no. 6. The counsel representing the deceased respondent no. 6 submitted before the Court that he has instructions to represent the legal heirs sought to be impleaded by the substitution application. He accepted the notice on their behalf and accordingly, this Court by order dated 12.10.2009 allowed the substitution application. The legal representatives of respondent no. 6 were substituted in his place. The legal representatives of respondent no. 6 have subsequently filed a counter affidavit in support of the main counter affidavit filed on behalf of the original respondent no. 6. 10. Learned counsel appearing on behalf of the substituted heirs of respondent no. 6 submits that respondent no. 8 Ram Lakhan Yadav @ Lakhan Yadav and his son Sunil Kumar @ Shashi Kumar were the owners of the land in question and they jointly constituted Ram Swarup Yadav as their constituted attorney and the said attorney leased out, the said land with godown in favour of the petitioner for five years commencing from 1.6.2001 till 31.5.2006. The said lease agreement was never renewed after the expiry of the period of lease. The said lease agreement was never renewed after the expiry of the period of lease. The said Ram Swaroop Yadav (now deceased) sold the property/land in dispute to the respondent no. 6 (since deceased) for a valuable consideration of Rs. 13,20,000/- vide registered sale deed dated 15.2.2007and the said attorney handed over the vacant possession of the land and since then respondent no. 6 and after his death, his legal heirs are in peaceful possession of the same. 11. Advancing his argument, learned counsel submits that after coming in peaceful possession of the land in question, the deceased respondent no. 6 applied for mutation of his name before the Circle Officer, Patna and accordingly, his name was mutated in the records of the State of Bihar. His name was also mutated in Patna Municipal Corporation and he was paying tax to the Patna Municipal Corporation pursuant to the order of mutation. After coming in peaceful possession of the land in dispute, the respnodetn no. 6 shifted his company namely, Azad Transport Corporation Ltd. over the said land, which is still running over there but, the petitioner having no right, title and interest over the land in dispute created hindrance in running the business. Hence, respondent no. 6 filed a civil suit before the court of Sub-Judge, Patna City, bearing Title Suit No. 193 of 2007 against the petitioner for declaration of right, title interest and confirmation of possession over the property/land in dispute. A further prayer was made for restraining the petitioner by an order of ad-interim injunction from interfering in peaceful possession of the respondent no. 6 or causing any loss or injury to the suit property till the disposal of the suit. The deceased respondent no. 6 was the plaintiff in the suit whereas the petitioner is the defendant. The suit is still pending in the court of Sub-Judge-IV, Patna City. The petitioner has appeared in the abovementioned case and is contesting the same. 12. Learned counsel appearing on behalf of the substituted heirs of respondent no. 6 submits that in the said Title Suit No. 193 of 2007 subsequently, an order of injunction was also passed in favour of the respondent no. 6 and against the writ petitioner vide order dated 31.7.2008. By the said order, the petitioner has been restrained from disturbing the peaceful possession of respondent no. 6 submits that in the said Title Suit No. 193 of 2007 subsequently, an order of injunction was also passed in favour of the respondent no. 6 and against the writ petitioner vide order dated 31.7.2008. By the said order, the petitioner has been restrained from disturbing the peaceful possession of respondent no. 6 over the land in dispute till the decision of the suit. The petitioner has challenged the said order of injunction before the learned District Judge, Patna in Misc. Appeal No. 5 of 2009 and after the death of respondent no. 6, he has substituted the heirs of respondent no. 6 as party respondent to said Misc. Appeal No. 5 of 2009 and the same is still pending for adjudication before the court of the learned Additional District Judge-VI, Patna. 13. Learned counsel submits that initially the petitioner had challenged the said order dated 31.7.2008 before this Court in Misc. Appeal No. 625 of 2008 but, later on, it was withdrawn with prayer to file the same before the appropriate forum and then, it has been filed before the court of District Judge, Patna. He, thus, submits that respondent no. 6 was in peaceful possession of the land in question and after his death his legal heirs are in peaceful possession of the land in dispute. According to him, the writ petition is not maintainable. There is an alternative and efficacious remedy available to the petitioner under Section 6 of the Specific Relief Act. The writ petition is also bad for the reason that it raises several disputed questions of fact which can only be adjudicated by the competent court of civil jurisdiction after leading of evidence, cross-examination, etc. and appreciation of oral and documentary evidence. 14. Learned counsel appearing on behalf of the State submits that Agam Kuan P.S. Case No. 20 of 2007 has been registered on 2.3.2007 and within 20 days, the petitioner rushed to this Court under writ jurisdiction making false allegation of the accused being in connivance with the police authorities. The police after institution of the case made a fair and impartial investigation, as a result of that, the named accused Ram Swarup Yadav had been arrested on 28.3.2007. He was, subsequently, released on bail on 18.3.2007. The police after institution of the case made a fair and impartial investigation, as a result of that, the named accused Ram Swarup Yadav had been arrested on 28.3.2007. He was, subsequently, released on bail on 18.3.2007. The two other accused persons, namely, Santosh Kumar Tekriwal and Punit Jain, who were not named in the F.I.R. were granted anticipatory bail in course of investigation. The investigating officer after investigating the case ultimately, submitted charge sheet under Sections 341, 323, 447, 379, 504, 506 and 120B of the Indian Penal Code, on 29.4.2007 in the case. However, it has been contended that so far as the prayer for recovery of the stolen articles is concerned, in course of investigation, several independent witnesses were examined but none of them have supported this fact that any articles/goods were kept in the said godown in question. On the contrary, many witnesses have stated that the said godown had been closed for last 7-8 months and it was completely empty. It has been contended in the counter affidavit duly swore by the Deputy Superintendent of Police, Patna City, Patna that although many witnesses have not supported the allegation of theft, in spite of that the investigating officer of the case, on the basis of allegation made in the F.I.R. conducted several raids on the residence of accused persons as well as different places for recovery of the alleged articles/goods but, nothing incriminating has been recovered from the possession of any accused persons. 15. A supplementary counter affidavit has also been filed on behalf of the respondent nos. 2 to 5, in which, it has been stated that after purchasing the land, the respondent no. 6 or his family members have their peaceful possession over the plot in question. 16. Having heard the parties and perused the affidavits filed in the case, I am of the view that the right claimed by the petitioner is not capable of being established in a summary proceeding under Article 226 of the Constitution of India because, it requires a detailed examination of evidence as may be have in a suit. From the pleading of the parties, it is apparent that highly disputed questions of fact are involved in the present case. The writ petition cannot be converted into suit. 17. From the pleading of the parties, it is apparent that highly disputed questions of fact are involved in the present case. The writ petition cannot be converted into suit. 17. So far as the prayer relating to investigation and arrest of the accused persons of Agam Kuan P.S. Case No. 20 of 2007 are concerned, the prayer in that regard has become infructuous as the investigation is already over and police has submitted its report under Section 173(2) of the Code of Criminal Procedure. The accused persons who were sent up for trial were granted bail / anticipatory bail and by now, two of them are dead. 18. So far as the prayer to direct the respondents to recover the stolen goods/articles are concerned, the same can also not be allowed as the investigating agency, in course of investigation, found no material to support that any goods or articles belonging to the petitioner were kept in the godown in question. 19. So far as the prayer to direct the respondent authorities not to disturb the peaceful possession of the petitioner at his godown in question is concerned, the same can also not been allowed simply for the reason that from the averment made in writ petition itself, it is apparent that on the date of filing the writ petition the petitioner was not in possession of the godown in question. 20. So far as the added prayer of the petitioner to direct the respondents to give possession to the petitioner of his godown in question is concerned, the same can also not be allowed for the simple reason that in Title Suit No. 193 of 2007, the petitioner has been restrained from interfering with the possession of the land/property in question by the Sub-Judge, Patna City, Patna. 21. The petitioner has already challenged the same in a duly constituted proceeding in Misc. Appeal No. 5 of 2009 before the District Judge, Patna, which is presently pending before the learned A.D.J.-VI, Patna. He has the option to take the title suit as also the Misc. Appeal to its logical conclusion. It is well settled that there cannot be two parallel proceeding on the same point. 22. For the reasons assigned, hereinabove, I do not find any merit in the present writ petition. It is dismissed, accordingly.