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2019 DIGILAW 1629 (JHR)

Shiv Shankar Sahu v. State of Jharkhand

2019-09-16

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition is under Article 226 of the Constitution of India whereby and whereunder direction has been sought for upon the respondent no. 2 to 4 to afford protection to the life and property of the petitioner as well as the construction of the boundary wall of the petitioner’s property which was purchased by the parents of the petitioner through two different sale deeds in the year 1962 and 1964 respectively and was decreed by the Civil Court at Hazaribagh in T.S. No. 38 of 1984. 2. The brief facts of the case as per the pleading made in the writ petition is that the landed property in question pertaining to Plot no. 34, Khata No. 1, area 4½ decimal situated at village Naisarai, Thana no. 145 district Hazaribagh, now Ramgarh has been purchased by the petitioner’s parents namely Asharfi Lal Sah and Shakuntala Devi by virtue of two registered sale deeds on 25.09.1962 and 20.05.1964. The Plot no. 34 was initially recorded as Gairmazarua Khas land of Zamindar and after vesting Zamindari, the said land was also vested in the State of Bihar in the year 1954. The Anchal Adhikari, Ramgarh settled an area of 50 decimals of Plot No. 34 to Mostt. Mulia widow of Late Chhedi Mian of village Naisarai on 26.12.1957 and put the said settlee Mostt. Mulia and granted rent receipts. Subsequently Most. Mulia sold an area of 2 decimals of land out of 50 decimals to Asharfi Lal Sah on 25.09.1962 through registered deed of sale and put him Khass possession and again sold 2 and ½ decimals of land out of remaining 48 decimals to one Shakuntala Devi through registered deed of sale on 20.05.1964 and put her Khas possession. After purchase of the aforesaid land through Most. Mulia, parents of the petitioner filed separate application for mutation of their name in the Siristha of Anchal Adhikari, Ramgarh whereon the name of Asharfi Lal Sah and Shakuntala Devi entered into the Register-II, the rent had been paid and in view thereof rent receipts had been issued, the parents of the petitioner constructed a house and will on the said land. 3. 3. The dispute about the title over the land in question has come on surface when on 21.04.1984, the Executive Magistrate, Anchal Adhikari and Circle Inspector with the police force went to demolish the house due to dispute of locality, in consequence thereof, a suit against the State of Bihar through the Deputy Commissioner, Hazaribagh after serving a notice under Section 80 of the C.P.C. being Title Suit No. 38 of 1984 has been filed with a prayer for restraining the defendants by permanent injunction from demolishing the suit house. The suit has ultimately been decreed on 27.11.1986. The petitioner since then is in peaceful possession of the land in question. The Mohsin Mian and Waris Mian raised dispute regarding land which led the petitioner to file complaint before the concerned police station, upon which the complaint has been lodged and a proceeding has been initiated under Section 144 of the Cr. P.C. and a miscellaneous case was registered being Misc. Case No. 15 of 2016 and accordingly notice have been issued upon both the parties under Section 144 of the Cr. P.C. upon which the respondent no. 4 has directed the Circle Officer, Ramgarh to submit a report regarding the nature of land and possession, accordingly a report was submitted stating inter alia therein that the petitioner is son of Asharfi Lal Sah and in possession of 4 and ½ decimals of land in Plot no. 34 referring the said land free from Gairmazarua Khas and reference about the creation of mutation and acceptance of rent has been made. The petitioner has also filed an application before the Circle Officer, Ramgarh on 11.05.2016 for measurement of the said land which was registered as Case No. 7 of 1916-17, accordingly the land was measured on 30.01.2017 and to that effect a report was submitted on 02.02.2017 and when the petitioner has started giving boundary, upon the land in question, hurdle has been created by the local people and to provide police protection in making construction over the land in question but having taken no action, the present writ petition has been filed. 4. Mr. P.P.N. Roy, learned senior counsel for the petitioner has submitted that it is a clear cut case of depriving the petitioner from his fundamental right to life as enshrined in the Constitution of India. 4. Mr. P.P.N. Roy, learned senior counsel for the petitioner has submitted that it is a clear cut case of depriving the petitioner from his fundamental right to life as enshrined in the Constitution of India. As per the provision of Article 32 and 226 of the Constitution of India, the Supreme Court or the High Court is to protect the fundamental rights conferred to the citizen of India under the Constitution of India but in the present case the petitioner has made an application for protecting his right but no action has been taken, therefore, there is inaction on the part of the State authority in providing police protection and as such it is a fit case where the appropriate direction is required to be issued in order to protect the right of the petitioner of property. He has relied upon the judgment of the Hon’ble Apex Court rendered in the case of P.R. Murlidharan and Others vs. Swami Dharmananda Theertha Padar and Others, (2006) 4 SCC 501 and judgment rendered by the Hon’ble Madras High Court in the case of S. Ashokan and Others vs. State Represented by the Commissioner of Police, The Greater Chennai and Others in Crl. O.P. No. 4983 of 2015 and M.P. No. 2 of 2015 wherein in the similar circumstances the Hon’ble Courts have passed direction upon the concerned authority to provide police protection. 5. Per contra, Mr. Binod Kumar Sahu, GP-III has vehemently opposed the submission and prayer made on behalf of the petitioner and submitted by making reference of paragraph 16 to the writ petition which suggests that there is dispute in between the two private parties, upon which the proceeding has been initiated under Section 144 of the Cr. P.C. Notices have been issued to both the parties which has been dropped as would appear from order dated 02.04.2016, part of Annexure-4. It has been submitted that the petitioner in the garb of the present writ petition is seeking execution of the decree passed in the T.S. No. 38 of 1984 wherein the decree has been passed for declaration of title and confirmation of possession, this Court under Article 226 cannot be said to be an executing court to the decree passed by the competent court of civil jurisdiction. Further submission has been made that although reference of proceeding under Section 144 Cr. Further submission has been made that although reference of proceeding under Section 144 Cr. P.C. has been made which has been dropped but no initiation has been taken for challenging the dropping of the aforesaid proceeding or for conversion of proceeding from 144 to 145 of Cr. P.C. and furthermore that the private parties have not been impleaded as party whose reference has been made at paragraph 16 to the writ petition and on the basis of these factual aspects, the writ Court being the court of summary proceeding may not exercise its extraordinary jurisdiction conferred to the this Court under Article 226 of the Constitution of India. 6. Having heard learned counsel for the parties and after appreciating the rival submissions, this Court deem it fit and proper before entering into the factual aspect by first to deal with the main argument as has been advanced by the learned senior counsel appearing for the petitioner about the scope of Article 32 and 226 of the Constitution of India. Article 32 to the Constitution of India provides right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part and Supreme Court shall have power to issue directions or order or rights including the writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari whichever may be appropriate for the enforcement of any of the rights conferred by this part. The sole object of Article 32 is the enforcement of the fundamental rights guaranteed by the Constitution. Whatever other remedies may be open to a person aggrieved, he has no right to complain under Article 32 where no fundamental right has been infringed, reference in this regard may be made to the judgment of the Hon’ble Apex Court in the case of Gopal Das Mohta vs. Union of India, AIR 1955 SC 1 . It is also settled law that a writ under Article 32 would not lie for enforcement of Government policy or a directive principles. It is also settled law that a writ under Article 32 would not lie for enforcement of Government policy or a directive principles. Para materia provision is under Article 226 of the Constitution of India with a non-substante clause to the effect that notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including an appropriate cases, any Government, within those territories direction, orders or a writs, including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari or any of them. Article 226 of the Constitution of India confers extraordinary jurisdiction upon the High Court to issue high prerogative writs for enforcement of fundamental rights or for any other parties as such it is wide and expensive. The question of enforcement of provision of Article 226 of the Constitution of India to enforce the fundamental right conferred under part III. It is evident from conjoint reading of Article 32 or Article 226 of the Constitution of India which provides a provision for enforcement of fundamental rights as provide under Part-III to the Constitution of India which starts from Article 14 which pertains to right to equality, by which the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15 provides that the State shall not discriminate against any citizen on the ground of only of religion, race, caste, sex, place of birth or any of them. Article 16 provides for equality of opportunity in matters of public employment. Article 17 provides about the untouchability which shall be an offence punishable in accordance with law. Article 18 provides about no title to be conferred by the State. Article 19 provides all citizens shall have the right to freedom of speech and expression, who assemble peacefully to firm, organizations or unions to move freely throughout the India to resides and settle in any part of the territory of India and to practice any profession or to carry on any occupation, trade or business. Article 19 provides all citizens shall have the right to freedom of speech and expression, who assemble peacefully to firm, organizations or unions to move freely throughout the India to resides and settle in any part of the territory of India and to practice any profession or to carry on any occupation, trade or business. The right to property which earlier was a fundamental right but has been excluded from the list of fundamental rights by omitting sub-clause (f) of Clause 1 of Article 19 making it statutory right as per the amendment incorporated under 44th Amendment Act, whereby and whereunder a provision has been inserted by way of Article 300 A by which it has been provided that no person shall be deprived of his property saved by authority of law. Article 20 confers right upon a person to the effect that no person shall be convicted of any offence except for violation of law enforced at the time of the commission of the act charged as an offence while Article 21 provides provision that no person shall be deprived of his life or personal liberty except according to established by law. 7. This Court also consider it fit to deal with the judgment upon which the learned senior counsel has placed reliance i.e. judgment of the Hon’ble Apex Court in the case of P.R. Murlidharan and Others (Supra) wherein the issue pertains to provide police protection by way of issuance of mandamus when to be resorted wherein the facts have been discussed under Article 12 and 14 which has bearing upon the factual aspect of this case wherefrom it is evident that the Hon’ble Apex Court has been pleased to hold laying down upon the jurisdiction of this Court while granting relief to the citizen of India so as to protect his life and liberty as enumerated under Article 21 of the Constitution of India but while doing so it could not go into that question, determination wherein would undoubtedly be beyond its domain, what was necessary for determination of the question arising in the writ petition was not interpretation of the documents alone, it require addiction of oral evidence as well, such evidence was necessary for the purpose of explaining the true nature of the deed of trust as also the practice followed by the trust. However, at paragraph 14 the order passed by the High Court has been set aside with an observation that in the event the first respondents feels that he as a person should receive protection to his life he may make a proper application to the Superintend of Police who after an enquiry made in this behalf may pass an appropriate order as permissible in the law, for ready reference the aforesaid paragraph 12 and 14 are quoted herein-below: “12. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact. Respondent 1 who sought to claim a status was required to establish the same in a court of law in an appropriate proceeding. He for one reason or the other, failed to do so. The provisions of Order 9 Rule 9 of the Code of Civil Procedure stare on his face. He, therefore, could not have filed a writ petition for getting the selfsame issues determined in his favour which he could not do even by filing a suit. Indeed the jurisdiction of the writ court is wide while granting relief to a citizen of India so as to protect his life and liberty as adumbrated under Article 21 of the Constitution, but while doing so it could not collaterally go into that question, determination whereof would undoubtedly be beyond its domain. What was necessary for determination of the question arising in the writ petition was not the interpretation of the documents alone, but it required adduction of oral evidence as well. Such evidence was necessary for the purpose of explaining the true nature of the deed of trust, as also the practice followed by this trust. What was necessary for determination of the question arising in the writ petition was not the interpretation of the documents alone, but it required adduction of oral evidence as well. Such evidence was necessary for the purpose of explaining the true nature of the deed of trust, as also the practice followed by this trust. In any event, the impleading applicant herein, as noticed hereinbefore, has raised a contention that he alone was ordained to hold the said office as per the bye-laws of the trust. The qualification of the first respondent to hold the office was also in question. In this view of the matter, we are of the opinion that such disputed questions could not have been gone into by the High Court in a writ proceeding. 14. For the foregoing reasons, the impugned judgment cannot be sustained which is set aside accordingly. However, in the event the first respondent feels that he as a person should receive protection to his life, he may make an appropriate representation to the Superintendent of Police who after causing an inquiry made in this behalf may pass an appropriate order as is permissible in law. The appeal is allowed with the aforementioned observations.” It is evident from the aforesaid paragraph that the High Court by entering into the disputed question of facts has passed an order by providing police protection treating it infringement of the fundamental right as provide under Article 21 of the Constitution of India but the Hon’ble Apex Court has been pleased to set aside the aforesaid by holding the jurisdiction of the High Court by not going through the factual dispute about determination of a factual aspect, however, if a person is requiring a protection of his life the liberty has been accorded to approach before the concerned Superintendent of Police. Likewise, the judgment rendered by the Hon’ble Madras High Court, the factual aspect leading to the aforesaid case is that in pursuance to a declaratory suit, the title and possession were confirmed by the High Court in the judgment rendered in the second appeal which was affirmed by the Hon’ble Apex Court but there possession has been sought to be disturbed by respondent no. 4 to 7, therefore, the police protection has been sought for to protect the possession of the property of the petitioners of the aforesaid case, and the Hon’ble Madras High Court while dealing with the factual aspect therein has come to the finding that when the rights having been determined by the Civil Court, police protection cannot be sought for in the aforesaid judgment, the reference of a judgment rendered in the case of Moran M. Baselios Marthoma Mathews and Others vs. State of Kerla and Others, (2007) 6 SCC 517 i.e. wherein the Hon’ble Apex Court has been pleased to hold that the disputed question of fact cannot be gone into by the Court while dealing with the writ petitions and therefore, after considering the right having been determined by the civil court in favour of the petitioners of the aforesaid case, police protection has been directed to be protected. So far the fact in hand is concerned, it is not in dispute herein is that the ancestor of the petitioner for claiming declaration of right and title and confirmation of possession has approached to the competent court of civil jurisdiction in T.S. No. 38 of 1984 which was decreed on 27.11.1986. The petitioner claims that he is in possession, rents are being paid and rent receipts in lieu thereof has been received up to the year 2011-12 but thereafter some dispute has arisen in between the petitioner and the grand sons of the vendors of the ancestor of the petitioner, namely Mohsin Mian and Waris Mian which led to initiate a proceeding under Section 144 of the Cr. P.C. which ultimately was dropped vide order dated 02.04.2016 but the petitioner has not taken further recourse against the dropping of the said proceeding. The petitioner is claiming his title by virtue of the decree passed in Title Suit No. 38 of 1984 which was passed way back on 27.11.1986 i.e. 33 years prior to filing of the present writ petition and in the meanwhile a proceeding by way of initiation under Section 144 Cr. P.C. has been initiated but dropped on the ground that there is no more law and order turbulence in the area due to this dispute. The aforesaid order clearly reflects that some dispute over the land in question is there. 8. P.C. has been initiated but dropped on the ground that there is no more law and order turbulence in the area due to this dispute. The aforesaid order clearly reflects that some dispute over the land in question is there. 8. In the aforesaid factual aspect, this Court is to scrutinize about the applicability of the two judgments, upon which the reliance has been placed by the learned senior counsel representing the petitioner as also to determine as to whether there is any infringement of fundamental right guaranteed under Article 21 of the Constitution of India, requiring this Court to issue writ of mandamus, directing the concerned competent police authority of the district to provide police protection. It is not in dispute, if in case of any threat upon life of a person, the same being the fundamental right as enshrined under Article 21 of the Constitution of India, the police is to provide protection i.e. life. The same has been decide and the same is also the subject matter which has been answered by the Hon’ble Apex Court in the case of P.R. Murlidharan and Others (Supra). 9. Admittedly herein, as would appear from the representation filed by the petitioner that there is no threat upon the petitioner as a person to receive protection to his life rather the petitioner has made representation to provide police protection to protect his property by allowing him to construct boundary wall over the land in question, therefore, the petitioner is seeking for police protection for securing the right to property which admittedly is not the fundamental right after its omission from the list of fundamental as was enshrined under Article 19(f) by virtue of the 44th Amendment to the Constitution of India making it statutory right as per the provision inserted under Article 300 A of the Constitution of India. 10. In view thereof and as per the discussion made by the Hon’ble Apex Court at paragraph 14 to the judgment rendered in the case of P.R. Murlidharan and Others (Supra) since it is not a case to receive protection to his life as a person rather to receive protection to save his property and hence it cannot be said that there is any infringement of the fundamental rights warranting interference of this Court by issuing writ of mandamus upon the concerned respondent. Further, this Court after taking into consideration the factual aspect as has been referred at paragraph 12 of the judgment rendered by the Hon’ble Apex Court in the case of P.R. Murlidharan and Others (Supra), is of the view that herein also a judgment has been passed way back on 27.11.1986 but thereafter some dispute has arisen in between the petitioner as well as private parties as would appear from the statement made at paragraph 16 to the writ petition and hence the same depends upon determination of the factual aspect and in that factual background, it will not be proper for this Court to issue direction by way of issuance of writ of mandamus to provide police protection. So far as the fact involved in the judgment rendered in the case of Madras High Court, this Court is of the view that Hon’ble Madras High Court, by taking into consideration about no dispute on the factual aspects, has passed an order directing the police protection but the fact in the present case is quite different to that of the said case since herein due to a dispute under Section 144 of the Cr. P.C. has been initiated which ultimately has been dropped against which no further proceeding has been initiated. Further, the petitioner has also not impleaded Mohsin Mian and Waris Mian, the grand sons of Most Mulia, the vendors of ancestor of the petitioners against whom a proceeding under Section 144 Cr. P.C. has been initiated. 11. This Court, therefore, in the entirety of the fact and circumstances, is of the view that it is not a case in the nature, where a direction is required to be issued under Article 226 of the Constitution of India to provide police protection to the petitioner. 12. In view thereof, there is no merit in this writ petition, accordingly, the writ petition fails and is dismissed. 13. However, it is open for the petitioner to search out his remedy available before the alternative forum for redressal of his grievance.