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2012 DIGILAW 384 (JHR)

Amit Kumar v. State of Jharkhand

2012-03-16

APARESH KUMAR SINGH, PRAKASH TATIA

body2012
JUDGMENT Heard learned counsel for the petitioner. 2. The petitioner is challenging the proposed action or action already taken by the respondent-Jharkhand State Housing Board by which, according to the learned counsel for the petitioner, the State Housing Board is either allotted or will allot the plots to private individual. The Housing Board cannot allot the plots to any person because of the reason that on the land in dispute there is old temple and road. The temple was constructed by the local people and road was constructed by local body, therefore, it involves public interest. It is submitted that respondents including the Housing Board did not choose to file any counter affidavit in this writ petition. 3. At this juncture, it will be appropriate to clear the procedural position. As per procedure prevailing in High Court, before filing the writ petition, the petitioner is required to serve a copy of the writ petition upon the counsel of the concerned Department and therefore, the copy of the writ petition was served upon the counsel for the respondents. In most of the cases, the State or it's departments will file reply to the writ petition, though, the Court has not issued any notice to the respondents calling upon them to appear and file counter affidavit. Therefore, learned counsel has submitted that respondents have not filed the counter to the petitioner. We are of the view that the High Court has power and jurisdiction to disposes the writ petition even without issuing notice to other party. The High Court is also not required to call upon other party, even if it is present in Court and has put appearance in the matter unless, in the opinion of High Court, there is reason to call upon other party to appear. 4. After going through the record and after hearing the learned counsel for the petitioner, we are of the considered opinion that even no case is made out to call upon the respondents to file their counter affidavit and to address the Court. 5. The petitioner submitted that he has been authorized by the residents of the Housing colony adjacent to the said Mohalla called Housing Colony Mohalla, Hirapur, Dhanbad, to prosecute the cause on their behalf. 5. The petitioner submitted that he has been authorized by the residents of the Housing colony adjacent to the said Mohalla called Housing Colony Mohalla, Hirapur, Dhanbad, to prosecute the cause on their behalf. However, no material particular has been given by the writ petitioner whether the residents of the said Housing Colony Mohalla or any association was registered or passed any resolution authorizing the writ petitioner to file the writ petition, nor it is mentioned that when the people of that colony had gathered and authorized the writ petitioner, nor it is mentioned that while authorizing the writ petitioner to file this present writ petition, who were those residents and no list of such persons has been submitted before us. 6. Be that as it may, according to the learned counsel for the petitioner, in the Housing colony of Hirapur, Dhanbad, on plot no. 445 measuring 15 decimals, a Shiva temple has been constructed about 30 years ago and a public road has also been constructed on the basis of approved plan and map on plot no. 416. It is submitted that this temple was the subject matter of one litigation under Section 145 Cr.P.C. wherein State Housing Board was a party and in that proceeding being M.P. Case No. 737 of 1996, vide order dated 21.11.2008, after taking note of the fact that respondent-Housing Board had not submitted any document to show its title over the land in question, possession of the temple was declared in favour of the applicants of that proceedings under Section 145 Cr.P.C. 7. Learned counsel for the petitioner also submitted that he has placed on record a sketch map showing the approved plan of public road and xerox copy of the photo of the temple, which clearly demonstrate that temple and public road are old ones. Learned counsel for the petitioner also submitted that he has placed on record a sketch map showing the approved plan of public road and xerox copy of the photo of the temple, which clearly demonstrate that temple and public road are old ones. Learned counsel for the petitioner submitted that as action of the respondent-Housing Board is absolutely illegal and without any justification, they be called upon to show their title over the land in question as well as they be restrained from demolishing temple or road and in case, they failed to establish their title and even if they establish their title, they cannot demolish the temple which was constructed as back as more than 30 years ago and its possession has been recognized by the order of the Court referred above in a proceeding under Section 145 Cr.P.C. 8. We have already observed that we do not find any reason to call upon the respondents to show-cause or to file counter affidavit because of the reasons that firstly, we do not find any basis of the petitioner for claiming that he is prosecuting on behalf of the association of the residents of the locality and secondly, the temple management or deity are not party. Without there being any proof of right or title over the land in question, the petitioner preferred the writ petition to have a roving enquiry about the title of the respondent ignoring that first, petitioner should stand on his own legs and establish his any right or title which is being threatened by respondent. 9. In one proceeding under Section 145 Cr.P.C. the Court had no jurisdiction to decide the question of title and therefore, the respondent-State Housing Board was not required to establish their title before that Court and in that proceeding, possession could have been declared. The question of adverse possession against the Government depends upon many facts and circumstances and declaring of hostile title by the person against the true owner in his knowledge whereas in this case petitioner does not claim title over the land and another legal entity deity, who is not before this Court claiming its title over the land or even for the temple in the said proceedings. We found that none of the necessary efforts have been made by the writ petitioner, so as to bring complete facts on record with respect to the claim of the respondent-State Housing Board after obtaining any information under R.T.I. Act, if they were serious and willing to take effective steps before filing of this writ petition. 10. Learned counsel for the petitioner vehemently submitted that the respondent-State Housing Board failed to show the title over the land in question. 11. With respect to the submission of the learned counsel, we may state straightway that it is not the right of the petitioner to come forward in PIL or in his own capacity in personal interest litigation so as to ask the Court to hold any enquiry and collect evidence from other party to help and assist the petitioner. For maintaining any of the petition, it is necessary for the writ petitioner to plead necessary facts and grounds in the writ petition for claim of his right. It is not necessary for the Court to call upon other party to only serve the purpose of the writ petitioner of taking information so that writ petitioner after filing, can go back satisfied with the information given by respondent by taking advantage of absolutely frivolous litigation. There are no reason for such type of cases to be carried forward wherein the opposite party puts appearance, not in response to the notice of the Court but appeared because of the procedure, which is prevailing in the Court of service a copy of the petition upon the counsel of the Department concerned. 12. The procedure may have consequence. In Public Interest Litigation as per the rules of the High Court itself, that first Court will list the matter for “orders” as per Rule 3 of the High Court's Public Interest Rules, and when prima-facie satisfied with involvement of Public interest then only the matter can be listed for “admission”. Therefore, the respondent litigant will have to bear litigation expenses even when the Court has not found any public interest in the petition and has even not asked for listing the matter for admission and intend to reject at the stage of orders only. 13. Therefore, the respondent litigant will have to bear litigation expenses even when the Court has not found any public interest in the petition and has even not asked for listing the matter for admission and intend to reject at the stage of orders only. 13. Therefore, we found that by this petition, neither the petitioner has done any serious efforts to collected facts to file this petition and the claim of the writ petitioner, particularly, foundation of which is upon one of the order passed by the Court in a proceeding under Section 145 Cr.P.C. in which the Court declared possession of other and not of petitioner and deity is not a party in the petition yet they filed the writ petition before this Court. If there are trustee or any person managing the temple, he is not a party in the writ petition and in absence of that party, no finding can be given by this Court and if that party is not aggrieved against the action of the respondent-State Housing Board, then also there was no reason for calling upon the respondents to file counter affidavit. The brief pleadings, as made in the writ petition are also vague and based on some apprehension. 14. If the trustee or any person on behalf of the Temple would have been before us, we would also have called such person to show any right by or under what title he or they constructed the temple. 15. Learned counsel for the petitioner submitted that so many persons have submitted representation before the authority but they have not taken care of. That can not be the basis for making fresh enquiry into the matter for which we have given detailed reasons. 16. In view of the above reasons also, for want of the sufficient materials and particulars on record, the writ petition of the petitioner on the face of it, is not liable to be placed for admission and is liable to be dismissed without calling upon the other parties. However, in the facts of this case, we are imposing a nominal cost of Rs.2000/-to be paid to the respondent-State Housing Board alone. 17. This writ petition is accordingly dismissed.