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2012 DIGILAW 329 (PAT)

Rabindra Singh v. State of Bihar

2012-02-24

VIKASH JAIN

body2012
ORDER : Vikash Jain, J. 1. The present writ petition has been filed for quashing the ORDER :dated 15.7.2010 passed by the respondent no. 3 in Cr. Misc. No. 293/2010, whereby a proceeding under Section 144 Cr.P.C. has been converted into one under Section 145 Cr.P.C. by the Sub-Divisional Officer, Chapra at Saran (respondent no. 3). 2. It is the case of the petitioner that he had purchased one Kattha of land of Tauzi No. 8953, Old Holding No. 725, New Holding No. 681 under old Ward No. 18 and New Ward No. 22, Circle No. 16 under Chapra Municipal Corporation from Sri Baliram Prasad Chaurasia through a registered sale deed dated 29.6.2009 and upon such purchase, he was put in possession by his vendor. In due course the said piece of land was mutated in his name vide mutation no. 248/2009-2010, pursuant to which the petitioner has been paying rent to the State Government in respect of said land (Annexure-2). The petitioner has also been paying rent to the Chapra Nagar Parishad as evident from a receipt issued in his name (Annexure-3). 3. It is claimed that when the petitioner started construction on his land some dispute arose with one of the neighbours leading to initiation of proceeding under Section 144 Cr.P.C. on the basis of an enquiry report of the Circle Officer, Chapra Sadar Block (respondent no. 4). This proceeding instituted in the Court of Sub-Divisional Officer, Chapra Sadar (respondent no. 3) was later converted into a proceeding 145 Cr.P.C. by the ORDER :dated 15.7.2010 impugned herein (Annexure-8). 4. Learned counsel for the petitioner has assailed the impugned ORDER :mainly on the following grounds:- (A) The proceeding under Section 144/145 Cr.P.C. was initiated by the State Government through Circle Officer against the petitioner and the State Government is thus a party to the proceedings, whereas the said provisions contemplate a dispute between two private parties. (B) As evident from the impugned ORDER :, the State Government has claimed the subject property as public land whereas the petitioner claims it to be his private property purchased under a sale deed. (B) As evident from the impugned ORDER :, the State Government has claimed the subject property as public land whereas the petitioner claims it to be his private property purchased under a sale deed. It is submitted that cases of dispute over public land must be resolved in terms of the Public Land Encroachment Act being a specific Act for the purpose and the State Government cannot seek resort to the general provisions of Section 144/145 Cr.P.C. and that too, as one of the litigating parties. (C) The scope of Section 145 Cr.P.C. is restricted for determining actual possession and cannot be employed for the purposes of declaration of title which is possible only in a title suit. 5. A counter affidavit has been filed by the State-respondents, according to which a dispute of possession is claimed by the State Government to exist over the land in question which is part and parcel of a big drain known as 'Khanua Nala'. It is stated that the petitioner wanted to take forcible possession of a part of the said Khanua Nala thus necessitating action under Section 144 Cr.P.C. pursuant to report received from police. It is stated that in view of the disturbances created by the petitioner, a proceeding under Section 144 Cr.P.C. had been started even on an earlier occasion. A specific statement has been made that the land in question is not the Raiyati land as claimed by the petitioner, pointing out that the Khesra number (Municipal Khesra) has not been mentioned in the sale deed rather only holding number is mentioned therein and thus there is a clear dispute with regard to whether or not the land in question belongs to the alleged vendor of the petitioner. Even the boundaries stated in the alleged sale deed have been disputed in the counter affidavit. It has further been submitted that the petitioner has improperly obtained the ORDER :of mutation. 6. Another clear averment has been made in the counter affidavit to the effect that the members of the locality have a claim and interest in the land being a part and parcel of the big drain which is used for passage of water. It has categorically been stated that a duly authorized Government Amin had measured the land and has reported to the Court of the S.D.O. that the disputed land is part of Khanua Nala. It has categorically been stated that a duly authorized Government Amin had measured the land and has reported to the Court of the S.D.O. that the disputed land is part of Khanua Nala. It has been submitted that a proceeding under Section 144/145 Cr.P.C. initiated at the instance of the State Government in public interest is maintainable as in such a case the State Government is acting on behalf of the members of the general public. 7. By a supplementary counter affidavit the S.D.O. (respondent no. 3) has stated that during the proceeding under Section 145 Cr.P.C, the Circle Officer once again had the land in question measured by the Anchal Amin, whose report dated 3.3.2011 showed that 5 decimals of the public land (Nala) was being illegally obstructed by the petitioner. It has further been stated that the people of the locality had also made a complaint before the District Magistrate, Saran at Chapra, when the petitioner had started a residential school in a newly built house belonging to his younger brother's wife adjacent to the land in question, pursuant to which the district administration had passed ORDER :s against the unauthorized running of the said residential school. It has thus been submitted that the petitioner has repeatedly been attempting to make obstructions of the said public Nala, thereby threatening the peaceful atmosphere of the locality. 8. Another counter affidavit has also been filed by the Executive Officer, Chapra Nagar Parishad (respondent no. 5). It has been stated at para 4 thereof that the disputed land is a part and parcel of a big drain known as Khanua Nala which is the land of Chapra Nagar Parishad and the petitioner wanted to take forcible possession of a part thereof on the basis of fabricated documents. It was on the basis of public petition that the police had reported for action under Section 144 Cr.P.C. This respondent has also been affirmed in para 5 that the petitioner has been creating disturbances over the land which is not Raiyati land as claimed by the petitioner, thus necessitating proceeding under Section 144/145 Cr.P.C. 9. The respondents have further submitted that a proceeding under Section 144 Cr.P.C. showing the State Government through the Circle Officer as one of the parties is maintainable and there is no bar to such proceeding. The respondents have further submitted that a proceeding under Section 144 Cr.P.C. showing the State Government through the Circle Officer as one of the parties is maintainable and there is no bar to such proceeding. All that is required to be shown is that there is a dispute relating to any land or water as is likely to cause a breach of the peace. 10. It has further been submitted that the fact of the existence of a land dispute is itself not in doubt and so also the likelihood of breach of peace is well established. 11. The respondents further referred to Section 145(5) Cr.P.C. to show that the petitioner already has a remedy thereunder to show that no such dispute exists as is being claimed by him and in which case the ORDER :passed under sub-section (1) would be cancelled by the Magistrate. 12. Having heard the learned counsel for the parties at length and after carefully going through the materials on record, I am in agreement with the stand taken on behalf of the respondents, and I am not included to interfere in the matter. 13. I am unable to find anything in Section 145 Cr.P.C. which might restrict Its application to proceedings involving private persons only. Despite opportunity being granted learned counsel for the petitioner was also not able to cite any judicial authority in support of his proposition that a proceeding under Section 145 Cr.P.C. showing the State Government as one of the parties would be invalid. 14. The precondition for exercise of power under the said provision is merely with reference to the satisfaction of the Executive Magistrate with regard to likelihood of breach of peace concerning any dispute over land or water within his local jurisdiction. These ingredients are well satisfied in the present facts and circumstances of the case and as such the proceeding under Section 145 Cr.P.C. cannot be faulted. 15. I also find substance in the stand of the respondents with regard to the existence of statutory remedy available with the petitioner in terms of Section 145(5) Cr.P.C. whereunder he is entitled to approach the Magistrate for appropriate relief. 16. For the above reasons, therefore, I hold that the writ petition is devoid of merit, which is accordingly dismissed. Petition dismissed