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2014 DIGILAW 465 (JHR)

Vidya Binod Prasad v. State of Jharkhand

2014-04-01

R.BANUMATHI, SHREE CHANDRASHEKHAR

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Judgment : Challenging the order passed by the learned Single Judge in W.P.(C) No. 5760 of 2012 and being aggrieved by the dismissal of the writ petition, declining to issue a direction upon the respondents to depute a Magistrate along with police force for removal of the alleged encroachment over the appellant's plot, the appellant has filed this intra Court appeal. 2. The case of the appellant is that his father Badri Narayan purchased a plot measuring 60 ft. x 40 ft. in Basant Vihar Colony, Dimna Road by the sale deed dated 18.11.1998. According to the petitioner, he has been serving in the Army as doctor and subsequently joined the medical services of the State. It is stated that on 21.9.2009 when the appellant visited his plot, he found that a PCC road has been constructed in his plot encroaching 10 ft. wide area throughout the plot by making construction of PCC road by the Mango Notified Area committee. Further, case of the appellant is that he has obtained information under Right to Information Act, from which he came to know that as per the Resolution of the District Development Committee, the road was resolved to be constructed by Mango Notified Area Committee. In this regard, the appellant has made representation before the Deputy Commissioner, East Singhbhum at Jamshedpur on 23.10.2009 and on 21.8.2010 the Circle Officer made an enquiry. According to the petitioner, as per the report of the Circle Officer, the Circle Officer 2.demarcated the area of the encroachment and enquiry report was sent to the Sub-divisional Officer, Dhalbhum for doing needful. The grievance of the appellant is that inspite of the report of the Circle Officer, which was sent to the Sub-divisional Officer, Dhanbhum to do the needful for removal of encroachment and for construction of boundary wall over the demarcated area, no action has been taken, the petitioner-appellant has filed W.P.(C) No.5760 of 2012, seeking for a direction upon the respondents to depute a Magistrate along with the police force for removal of encroachment over the appellant's plot. 3. The learned Single Judge held that the Court cannot exercise the writ jurisdiction for issuance of a direction for deputing a Magistrate along with police force for removal of encroachment and also for issuing other direction for construction of boundary wall over the property in question, which is alleged to be encroached by the other parties. 3. The learned Single Judge held that the Court cannot exercise the writ jurisdiction for issuance of a direction for deputing a Magistrate along with police force for removal of encroachment and also for issuing other direction for construction of boundary wall over the property in question, which is alleged to be encroached by the other parties. The learned Single Judge dismissed the writ petition holding that the petitioner has not made out a case for exercise of discretionary jurisdiction. Being aggrieved by the dismissal of the writ petition, the petitioner has filed this intra Court appeal. 4. Mr. V.Shivnath, learned Senior Advocate appearing for the appellant has placed reliance upon the report of the Deputy Collector addressed to the Sub-divisional Officer, Dhalbhum in which the Circle Officer is said to have demarcated the alleged encroachment and also requested the Sub-divisional Officer to do the needful. The learned Senior Advocate submitted that the learned Single Judge ought to have kept in view the report of the Circle Officer and other materials and issued direction upon the respondents for deputing the Magistrate along with police force for removal of encroachment over the appellant's plot. 5. Mr. Rajesh Kumar, learned G.P. V appearing on behalf of the respondent-State of Jharkhand, has submitted that there are serious disputed question of facts involved and, therefore exercising writ jurisdiction, the Court could not resolve such disputed question of facts and the learned Single Judge rightly 3.dismissed the writ petition and the order warrants no interference. 6. As rightly contended by the learned Government Pleader, appearing for the respondents, there are disputed question of facts to be resolved. Whether the Notified Area Committee has actually encroached 10 ft of the appellant's plot is a disputed question of fact, which cannot be resolved exercising jurisdiction under Article 226 of the Constitution of India. A writ of mandamus can be issued to the respondents, only if the petitioner has shown his established right and that the respondents have failed to exercise the statutory duty/obligation upon them. 7. When serious disputed question of facts are involved, no direction can be issued to the respondents to depute a Magistrate along with police force for removal of encroachment over the appellant's plot. 7. When serious disputed question of facts are involved, no direction can be issued to the respondents to depute a Magistrate along with police force for removal of encroachment over the appellant's plot. The learned Single Judge rightly held that no legal right has been shown to be made out for issuance of such a direction for deputation of a Magistrate or police force for removal of such encroachment and, therefore we do not find any infirmity in the order of the learned Single Judge. 8. This Letters Patent Appeal is, accordingly, dismissed. However, liberty is given to the appellant to work out his remedy, in accordance with the law, including approaching the competent civil court.