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2012 DIGILAW 498 (PAT)

Alok Bajpayee v. State of Bihar

2012-03-23

VIKASH JAIN

body2012
ORDER Vikash Jain, J.-The present writ application has been filed for quashing the notice dated 03.09.2010 issued by S.D.O. Tekari in Misc. Case No. 146/2010 initiating a proceeding under Section 144, Cr.P.C. and for connected reliefs. 2. By an amendment petition in I.A. No. 1384 of 2011, a further relief has been sought by way of quashing of the order dated 01.11.2010 passed by the S.D.O. Tekari by which orders have been passed and proceeding under Section 144. Cr.P.C. has been controverted into a proceeding under Section 145. Cr.P.C.). 3. The dispute relates to plot Nos. 2650 and 2651 under the erstwhile Tekari Raj which are claimed to have been settled by grant of Parwana and rent receipts in favour of Navin Chandra Bajpayee (father of the present petitioners) who was put in possession by Rani Bhubneshwari Kuer. The Parwana is said to have been executed on 23.10.1947 and accordingly the name of Navin Chandra Bajpayee was mutated in place of Rani Bhubneshwari Kuer in the assessment register. 4. Upon vesting of Tekari in the State of Bihar in 1952, the demand register, namely Register II, was opened with the State of Bihar in the name of Navin Chandra Bajpayee and he continued to pay rent till 1955-56 and the property remained under his enjoyment. Soon thereafter, the full brother of Navin Chandra Bajpayee, namely Hiramb Nath Bajpayee, managed to get his name inserted through interpolation in Register II and in the demand register of Tekari municipality, against which Navin Chandra Bajpayee filed an application before the appropriate authority. 5. When in October 1978 Hiramb Nath Bajpayee died, disputes arose between Navin Chandra Bajpayee and Shila Bajpayee, widow of late Hiramb Nath Bajpayee, leading to her filing Title Suit No.53/1952 in respect of the said plot Nos.2650 and 2651, which was however dismissed by judgment and decree dated 13.06.1988. After such dismissal, Shila Bajpayee filed Title Appeal No. 68/1988 which took note of the terms of a compromise petition filed by the petitioners on the one hand and Shila Bajpayee on the other. The compromise provided that the disputed plots exclusively belonged to the petitioners and their father. Navin Chandra Bajpayee and that Shila Bajpayee would not interfere in the title and possession of the petitioners. The compromise provided that the disputed plots exclusively belonged to the petitioners and their father. Navin Chandra Bajpayee and that Shila Bajpayee would not interfere in the title and possession of the petitioners. Such compromise was accepted by the learned District Judge and made part of the decree in the Suit vide order dated 7.03.1990 passed in Title Appeal No. 62 of 1988 (Annexure-8 series). 6. Thereafter in 1993, when Navin Chandra Bajpayee was effecting repairs of the old wall around the suit plots, the State authorities initiated a proceeding under Section 144. Cr.P.C. At the same time, the Director Archeology (Patna) issued a notice (Annexure-10) to Navin Chandra Bajpayee informing that the two plots had been declared protected property and no construction was permissible on the same. An opportunity was granted to him to furnish documents in support of any claim he may have. In response, Navin Chandra Bajpayee produced the necessary documentation including revenue records in support of his claim. 7. In due course, based on the reports of the karmchari and Circle Inspector, the Director Archeology found and held that the disputed plots were outside the Qila and did not need to be declared protected property. 8. Learned counsel for the petitioner submits that the proceeding under Section 144, Cr.P.C. have been maliciously initiated through the machinations of respondent Nos. 5 & 6, who happen to be members of another branch of the petitioners' family. He further submits that the petitioners are very much in possession and there was no need to initiate proceeding under Section 144, Cr.P.C. in the face of unimpeachable documents such as the order dated 7.03.1990 passed in Title Appeal No. 62 of 1988 accepting the compromise aforesaid, and the revenue receipts. He also questions the validity of conversion of the proceedings into one under Section 145, Cr.P C. in the absence of any police report. 9. Learned counsel for the respondent Nos. 5 & 6, Mr. Gautam Kejriwal, appears and has been heard. 10. He also questions the validity of conversion of the proceedings into one under Section 145, Cr.P C. in the absence of any police report. 9. Learned counsel for the respondent Nos. 5 & 6, Mr. Gautam Kejriwal, appears and has been heard. 10. As the outset, he submits with reference to the order dated 16.09.2010 passed in Case No. 146/2010 (Annexure-9) that the present writ petition is not maintainable in view of the present petition having been filed against, the show cause notice dated 03.09.2010 in connection with the proceeding under Section 144, Cr.P.C., whereas the petitioners have already submitted to the jurisdiction of the Sub-Divisional Magistrate, Tekari by filing their show cause reply before him, and this amounts to pursuing parallel remedies which is impermissible. 11. It has further been submitted that in any event the result of Title Appeal No. 62 of 1988 is not relevant, the same having been passed on the basis of a compromise entered into only between the petitioners and Shila Bajpayee, whereas the respondent Nos. 5 & 6 were not parties therein and as such had not been heard in the matter. 12. Learned counsel for the respondent Nos. 5 & 6 has relied on a decision reported in 2004 (2) East Cr C 216 (SC) : 2004 (4) SC 684, State of Karnataka v. Dr. Praveen Bhai Thogadia, to submit that matters of law and order fall within the realm of administration. 13. There is considerable force in the submissions made on behalf of the respondent Nos. 5 & 6. 14. It is borne out from the records that the petitioners did in fact respond to the impugned show cause notice well before the filing of the present writ petition. It is also well settled that parallel proceedings for relief are not to be encouraged. 15. The Apex Court in para 6 of the aforesaid decision reported in 2004 (2) East Cr C 216 (SC) : 2004 (4) SC 684, State of Karnataka v. Dr. Praveen Bhai Thogadia, though in a somewhat distinguishable scenario of facts but still in the context of the scope of Court's interference under Section 482, Cr.P.C. in matters involving Section 144, Cr.P.C., has held as follows :- "Courts should not normally interfere with matters relating to law and order which is primarily the domain of the administrative authorities concerned. Praveen Bhai Thogadia, though in a somewhat distinguishable scenario of facts but still in the context of the scope of Court's interference under Section 482, Cr.P.C. in matters involving Section 144, Cr.P.C., has held as follows :- "Courts should not normally interfere with matters relating to law and order which is primarily the domain of the administrative authorities concerned. They are by and large the best to assess and to handle the situation depending upon the peculiar needs and necessities within their special knowledge. Their decision may involve to some extent an element of subjectivity on the basis of materials before them." 16. Besides the above, it is also apparent that the primary fact with regard to the person who is in possession is itself in dispute. As a matter of fact, the very nature of provisions of Sections 144/145, Cr.P.C. pre-supposes the existence of such dispute over possession based on fact which is the foundation of exercise of power thereunder and any interference by this Court would in effect amount to decision on merits as to possession over the disputed plots. It is well settled that a writ Court will not enter into disputed questions of fact. 17. In the opinion of this Court, the petitioners will get adequate opportunity to establish the fact of their actual and factual possession over the disputed property and there seems little justification for the petitioners' apprehension that the effect of the judgment of the Civil Court may not be considered by the respondent authorities. 18. Learned counsel for the petitioners has also not been able to point out any jurisdictional error in the impugned proceeding on the part of the respondent authorities as may be amenable to judicial review by this Court in its writ jurisdiction. 19. For the aforesaid reasons, therefore, this Court is not inclined to interfere in the matter and the writ petition is accordingly dismissed. Petition dismissed.