Bhuwneshwar Sah vs State Of Jharkhand Through Its ...
2021 Latest Caselaw 293 Jhar

                                 1

         IN THE HIGH COURT OF JHARKHAND AT RANCHI

                   W.P.(C) No. 5446 of 2018
Bhuwneshwar Sah                             ...   ...     Petitioner
                                   Versus
1.   State of Jharkhand through its Chief Secretary
2.   Director General of Police, State of Jharkhand, Ranchi
3.   Deputy Inspector General of Police, Dumka Range, District- Dumka
4.   Deputy Commissioner, Jamtara
5.   Superintendent of Police, Jamtara
6.   Sub-Divisional Officer, Jamtara
7.   Station-In-Charge, Mihijam Police Station, District- Jamtara
8.   Jogendra Tiwari
                                              ...     ...Respondents

With W.P.(C) No. 5511 of 2018

1. Gopal Prasad Shaw

2. (a) Babita Shaw

(b) Dibyendu Shaw

(c) Shreya Shaw

3. Champa Kumari ... ... Petitioners Versus

1. The State of Jharkhand

2. Deputy Commissioner, Jamtara

3. Sub-Divisional Officer, Jamtara

4. Superintendent of Police, Jamtara

5. Jogendar Tiwari ... ...Respondents

CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioners :- Mr. Amritansh Vats, Advocate [in W.P.(C) No. 5446 of 2018] Mr. Indrajit Sinha, Advocate [in W.P.(C) No. 5511 of 2018] For the State :- Mr. Gaurav Abhishek, A.C. to A.G.

[in W.P.(C) No. 5446 of 2018] Mr. Praveen Akhauri, SC (Mines)-I [in W.P.(C) No. 5511 of 2018] For the Private Respondents:- Mr. Radhey Shyam Pandey, Advocate

Order No. 09 Dated: 20.01.2021 The present cases are taken up through video conferencing.

2. W.P.(C) No. 5446 of 2018 has been filed for issuance of direction upon the respondent no. 4- the Deputy Commissioner, Jamtara and respondent no. 5- the Superintendent of Police, Jamtara to take appropriate measures and actions forthwith to open the seal/lock of

the petitioner's shop namely 'Kailash Hotel' (food vending establishment) situated at sub-plot no. 41/32, Ward no. 4, Mihijam, Jamtara. Further prayer has been made for issuance of direction upon the respondent nos. 4 and 5 to provide appropriate police force to maintain law and order to ensure opening of the petitioner's hotel in a peaceful manner without hindrance from any corner and to take appropriate measures on the complaints/representations made by the petitioner to remove the unlawful assembly of local goons and anti- social elements who are continuously threatening the petitioner and not allowing him to carry on business as well as trying to dispossess him from the said place where he has been carrying his business for more than 40 years.

3. W.P. (C) No. 5511 of 2018 has been filed for issuance of direction upon the respondent authorities to show cause as to how and under what authority the commercial premises of the petitioners has been sealed by the private respondent no.5 and also to get the same unsealed immediately.

4. The claim of the petitioner of W.P.(C) No. 5446 of 2018 is that he has been running a small food vending shop/hotel/canteen for more than 40 years situated at sub-plots of plot no. 41 and 41/3019 of khata no. 127. The said portions of land have been marked as sub- plot nos. 41/40, 41/D and 41/3019/40 measuring an area of 1.375 decimals at Mauza - Mihijam, Ward no.4, Mihijam, District Jamtara. The petitioner purchased the said land from one Smt. Ruma Pal through her power of attorney holder namely Sri Nandu Mahto by virtue of registered sale deed dated 27.07.2018.

5. In W.P.(C) No. 5511 of 2018, the petitioner no.1 claims that he purchased a shop standing over a portion of the land appertaining to sub-plot nos. 41/38, 41/B, 41/39/A and 41/3019/39/A measuring an area of 1.517 decimals from Smt. Ruma Paul through her power of attorney holder-Sri Nandu Mahto by virtue of registered sale deed dated 27.07.2018 on payment of consideration of Rs.9.90 lacs. Similarly, the petitioner no.2 purchased a shop standing over a portion of the land appertaining to sub-plot nos. 41/34, 41/A, measuring an area of 0.862 decimal from Smt. Ruma Paul through

her power of attorney holder- Sri Nandu Mahto by virtue of registered sale deed dated 28.07.2018 on payment of consideration of Rs.6.00 lacs. The petitioner no.3 also purchased a shop standing over a portion of the land appertaining to sub-plot nos. 41/39/B, 41/C and 41/3019/39/B measuring an area of 0.758 decimal from Smt Ruma Pal through her power of attorney holder- Sri Nandu Mahto by virtue of registered sale deed dated 28.07.2018 on payment of consideration of Rs.5.00 lacs.

6. Learned counsel for the petitioner-Bhuneshwar Prasad Saw [in W.P.(C) No. 5446 of 2018] submits that in the morning of 10.10.2018, the private respondent no. 8 in association of few local goons and antisocial elements attacked on the petitioners' hotel, assaulted the petitioner and his staff and also snatched Rs.9,500/- from the billing counter of the hotel. Thereafter, they forcefully sealed the entire premises of the petitioner's hotel. The petitioner reported the said incident to Mihijam Police Station leading to lodging of FIR being Mihijam P.S Case No. 118 of 2018 under Sections 147/149/448/341/323/380/506 of the Indian Penal Code. It is further submitted that even after lodging of the FIR, the police did not take any step to open/unlock the seal of the petitioner's hotel. The petitioner made representations to the senior police officers, other administrative authorities including the respondent nos. 2, 4, 5 and 6 and even before the Chief Minister's Public Grievances Cell in this regard, however none of the authorities took any action on the same.

7. Learned counsel for the petitioners of W.P.(C) No. 5511 of 2018 submits that the similar incident occurred with them as happened with the petitioner of W.P.(C) No. 5446 of 2018. They reported the alleged incident to the police officials and also the state authorities, however no action was taken. Even F.I.R. was not lodged for the said occurrence against the private respondent (respondent no. 5) namely Jogendra Tiwari.

8. It is jointly submitted by the learned counsel for the petitioners that the hotel/shops of the petitioners were the only source of income for their family which have been locked by the private respondent namely Jogendra Tiwari in association of local goons

forcefully and the police as well as the administrative authorities did not take any action to open/unseal the same. The administrative authorities instead of taking action against the accused persons are asking the petitioners to prove their right, title and interest over the property in question which they have purchased through registered sale deeds and are also possessing all requisite permissions, licenses for running the same. It is further submitted that the petitioners have also been paying holding tax and other revenue to the Nagar Parishad. The act of the state respondents in not providing proper security to the petitioners and not taking any action upon the complaints/FIR made by the petitioners, is violative of their fundamental rights as guaranteed in Articles 19(1)(g) and 21 of the Constitution of India. The right to life of the petitioners and their employees is under imminent risk as they are getting threatening for not opening/unsealing the premises and the district administration is a mute spectator. The police has submitted final form in Mihijam P.S. Case No. 118 of 2018 stating that the dispute is of civil nature and thus has closed the case.

9. The learned counsel appearing on behalf of the State respondents while referring to counter affidavit dated 25.01.2019 filed on behalf of the respondent no. 5 in W.P.(C) No. 5446 of 2018, submits that on the date of the alleged incident i.e. 10.10.2018, one Jogendra Tiwari of Mihijam (private respondent in both the writ petitions) also filed an application before the Officer-in-charge of Mihijam Police Station stating that at about 8.00 a.m., when he was going to Paul Kothi, he saw one Black Scorpio vehicle parked there and Kailash Shaw and some others called him. Subsequently, they forcibly got him to the Scorpio vehicle and told to forgo his claim over the land of Paul Babu otherwise he would be killed. They also got his signatures on some blank papers. On the basis of the said information, Mihijam P.S. Case No. 119 of 2018 was registered under Sections 147, 149, 341, 323, 364, 511 and 506 of IPC against the petitioner-Bhuneshwar Sah and five others and the case is under investigation. Both the case and counter case are being investigated. It is further submitted that the proceedings under Section 107 Cr.P.C

and Section 144 Cr.P.C. have been recommended against both the parties to the court of S.D.M. Jamtara. While referring to counter affidavit dated 20.08.2019 filed on behalf of the respondent no. 6 in W.P.(C) no. 5446 of 2018, it is submitted that a proceeding under Section 144 of Cr.P.C was initiated after instituting a case being Criminal Misc. Case No. 565 of 2018. Subsequently, the proceeding under section 144 Cr.P.C. was converted under section 145 Cr.P.C. vide order dated 07.01.2019. It is further submitted that the property in question is presently closed and from the applications filed by informant of both the cases, it would appear that both are claiming their respective title over the land in question on the strength of different documents, which is a matter of civil dispute. However, both the cases are being investigated by the police. Learned counsel appearing on behalf of the State respondents further submits that it is not clear as to who was in possession of the property in question. Immediately after receiving the letter from the office of Chief Minister's Public Grievances Cell no. 2018-99385, the matter was enquired by the respondent no. 7 and necessary steps were taken including initiation of proceedings under Sections 107 and 144 Cr.P.C.

10. Learned counsel appearing on behalf of the private respondent- Jogendra Tiwari submits that the plot nos. 41/34, 41/35, 41/36, 41/37, 41/38, 41/3019 and 41/3019/40 were purchased by the said respondent from Tridip Kumar Pal and Anita Chatterjee vide different registered sale deeds as the managing partner of M/s Swastik Traders and Others and took possession of the same. Late Gopi Nath Pal- the grandfather of Tridip Kumar Pal and Smt. Anita Chatterjee, was the owner of plot nos. 41 and 41/3019 and several other land of Mouza - Mihijam as Zamindar of the said Mouza. Gopi Nath Pal executed a Will and bequeathed all his properties including plot nos. 41 and 41/3019 in favour of his two sons namely Madhusudan Pal and Ashok Pal. After the death of Gopi Nath Pal, the probate of the said Will was also granted by the Calcutta High Court. Thereafter, the property was partitioned. Plot no.41 delineated as plot no.41/34, 41/35, 41/37, 41/38, 41/39, 41/3019/39, 41/3019/40 were allotted exclusively to Madhusudan Pal along with some other properties. Madhusudan Pal

bequeathed the same to his eldest son namely Pradeep Kumar Pal and after the death of Madhusudan Pal, the probate of the Will of his father was also granted to him in Probate Case No. 49 of 2011 by City Civil Court, 8th Bench Kolkata vide order dated 19.05.2016. After the death of Pradeep Kumar Paul, who died intestate in unmarried state, all his properties devolved in his brother Tridip Kumar Pal, sister Anita Chatterjee and Ruma Pal- the widow of his predeceased brother namely Deepak Pal as his successors. It is further submitted that Pradeep Kumar Paul did not leave any property in favour of the widow of Deepak Pal namely Ruma Pal. The land in question has been illegally transferred in the name of the petitioners and some other by Ruma Pal on 27.07.2018/28.07.2018 against which the present respondent had raised objection by serving a legal notice to her. The private respondent is in the peaceful possession of the land in question and contemplating to renovate and reconstruct the building over the land as the same is in dilapidated condition and is not in a position for safe inhabitation. Both the parties are claiming their respective right, title and interest upon the said land which can only be adjudicated by a competent civil court and as such, the present writ petitions are not maintainable. It is also submitted that the private respondent has bonafide right, title and interest over the land in question and is in peaceful possession of same which has been purchased from the rightful owner.

11. Heard the learned counsel for the parties and perused the materials available on record. The petitioners have sought direction of this Court to the respondent authorities to open/unseal the premises in question claiming their right, title and interest over the same. It is claimed by the petitioners that they have purchased their respective shops and land from Smt. Ruma Pal through her power of attorney holder by way of different registered sale deeds and are in peaceful possession of the same, however private respondent in association of some local goons forcibly evicted them from their respective shops/hotels, assaulted them, snatched money and put seal/locks in their premises.

12. The State respondents by filing counter affidavits have brought

the facts on record that on the same day i.e. 10.10.2018, two incidents were reported; one by the petitioner of W.P.(C) No. 5546 of 2018 as well as the petitioners of W.P.(C) no. 5511 of 2018 and another by the private respondent-Jogendra Tiwari. Thereafter, the police lodged FIR for both the incidents and started investigation. In the meantime, recommendations were made to the Sub-Divisional Officer, Jamtara to initiate proceeding under Section 107 Cr.P.C. and Section 144 Cr.P.C for maintaining peace and security. The proceeding under section 144 Cr.P.C was subsequently converted into a proceeding under Section 145 Cr.P.C. which is said to be still pending adjudication before the Sub-Divisional Officer, Jamtara.

13. For better appreciation of the present case, the provisions of Section 145 Cr.P.C are reproduced hereinbelow:-

"145. Procedure where dispute concerning land or water is likely to cause breach of peace.

(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression" land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

(4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub- section (1), in possession of the subject of dispute:

Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the

report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1).

(5) Nothing in this section' shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final. (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub- section (4), may restore to possession the party forcibly and wrongfully dispossessed.

(b) The order made under this sub- section shall be served and published in the manner laid down in sub- section (3).

(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of. such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale- proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107."

14. Thus, Section 145 Cr.P.C. empowers the Executive Magistrate to initiate a proceeding if on the report of the police officer or upon other information, it appears to him that a dispute is likely to cause breach of peace concerning any land or water or the boundaries

thereof within his local jurisdiction and after hearing the parties and taking into consideration of the materials produced by them in support of their claim, pass an order with respect to the fact as to who is in actual possession of the subject of dispute at the time of passing of the order. The proviso to sub-section (4) provides that if the Magistrate finds that any of the parties to the proceeding has been dispossessed forcibly and wrongfully within two months next before the date on which the report of the police officer or other information was received by the Magistrate or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). Sub-section (6) further empowers the Executive Magistrate to restore the possession in favour of the party forcibly and wrongfully dispossessed as also to issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction.

15. It appears from the record that the proceeding under Section 145 Cr.P.C. is still pending wherein the Executive Magistrate (Sub- Divisional Officer, Jamtara in the present case) is empowered to determine the question as to who is in possession of the property in question and may also restore the possession in favour of the party forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by him, or after that date and before the date of his order under sub-section (1). The incident of alleged dispossession of the petitioners from the said property is still to be verified by the Sub-Divisional Officer, Jamtara after taking evidence from both sides and as such I am of the view that under the present circumstance, no order can be passed by this Court under writ jurisdiction for opening of the seal/lock of the respective shops/premises of the petitioners.

16. The learned counsel for the petitioners in support of their case have put reliance on the judgment of this Court passed in W.P.(C) No. 1437 of 2020 (S.R.P. Oil Pvt. Ltd. represented by its Director-Kashvi Dugal Vs. The State of Jharkhand & Another). In the said case, this

Court vide order dated 11.09.2020 directed the respondent authority to remove the seal of the entire hotel premises after preparing an inventory of articles, if so required, in connection with the pending criminal cases. The relevant part of the said judgment is reproduced hereinbelow:-

"16. It is, thus, well settled that the power of sealing of property carries civil consequences. A person can be deprived of the property only by following due procedure in accordance with law. No person shall be deprived of the right of property, except by the procedure prescribed under law.

17. In view of the aforesaid factual and legal position, I am of the considered view that the sealing of the said premises by the order of the respondent no.2 is not in accordance with the provisions of the Code of Criminal Procedure. So far as the provisions of Sections 30 and 34 of the Act, 2005, which have been referred by the learned counsel for the respondents to justify the order of sealing of the said premises, are concerned, no such power of sealing of any premise/building has been conferred to the Senior Incident Commander-cum-Sub Divisional Magistrate. Moreover, the order of sealing also does not appear to be reasonable and proportionate, as the same has been done for an indefinite period. Even if the alleged crime scene is to be protected to ensure that the evidence of alleged offence does not disappear, the concerned authority after locking and sealing the crime scene does not require much time to reopen the same and to prepare an inventory. Nonetheless, the authorities cannot be allowed to keep the premises locked for unreasonably long period than what is absolutely necessary. By doing so, the authorities definitely violate the right of the owner or occupier of the premises being without any legal sanctity. Even if it is assumed that there are evidences relating to the alleged offence in the premises of the said hotel, the same cannot empower the respondents to continue with the sealing for an indefinite period. The purpose of sealing must be to collect evidences within a reasonable time. In case, some of the evidences were of such nature which could not have been removed from the said premises, the requirement was to prepare a record of seizure of those articles pending trial of the case. Undisputedly, there are several offices of different companies/firms in the hotel premises, which have no bearing with the allegations levelled in both the first information reports irrespective of the fact that one of the directors of the said companies/firms, namely, Rajiv Singh Dugal is also involved in commission of the alleged offence and, therefore, the respondent no.2 was otherwise not empowered to seal the entire premises particularly the offices of different companies/firms. The Court cannot be unmindful of the fact that due to sealing of the entire premises, several employees have gone unemployed and are facing financial difficulties."

17. The fact of the aforesaid case was that the hotel of the

petitioner was sealed by the respondent authorities for an indefinite period. The fact of sealing of the premises by the respondent authorities was not disputed and it was found by this Court that the hotel premises was sealed without following due procedure of law. There was also no dispute about the petitioner's right, title and interest of the hotel in the said case. Since the fact of the present case is entirely different from the fact of S.R.P. Oil Pvt. Ltd. (supra), the observation made by this court in the said judgment, will not help the case of the present petitioners.

18. The learned counsel for the petitioners further put reliance on the judgment of the Hon'ble Supreme Court rendered in the case of B.K. Ravichandra & Others Vs. Union of India & Others (Civil Appeal No. 1460 of 2010). The Hon'ble Supreme Court has held in the said case that though the right of property is not a fundamental right protected under Part III of the Constitution of India, it remains a valuable constitutional right and the landowner's right to property cannot remain suspended indefinitely at the wishes of the State or its agencies. It has further been held that it is no longer open to the State in any of its forms (executive, state agencies or legislature) to claim that the law or the constitution can be ignored or complied at its convenience.

19. This Court has no doubt with the proposition laid down in the aforesaid case. However in the present case, the right to property is still to be adjudicated by the competent civil court since both the petitioners and the private respondent are claiming their respective right, title and interest over the same on the strength of different sale deeds and as such the ratio laid down by the Hon'ble Apex Court in the aforesaid case will not be applicable here.

20. The further contention of the learned counsel for the petitioners is that the police has arbitrarily submitted the final form in Mihijam P.S. Case No. 118 of 2018 stating that the matter involves civil dispute. On the said issue, I am of the view that if the informant (petitioner-Bhuwneshwar Sah) was not satisfied with the final form submitted by the police, he could have filed protest petition in the form of a complaint before the concerned Judicial Magistrate, who is

empowered to take cognizance in the matter.

21. Since no property can be kept sealed for an indefinite period, the Sub-Divisional Officer, Jamtara is directed to expedite the proceeding initiated under section 145 Cr.P.C. and to take all possible steps to dispose of the same on the basis of available material within two months from the date of receipt/production of a copy of this order. If the petitioner-Bhubneshwar Sah [in W.P.(C) No. 5446 of 2018] is dissatisfied with the final form submitted in Mihijam P.S. Case No. 118 of 2018, he is at liberty to take appropriate recourse under the relevant provisions of the Cr.P.C.

22. The writ petitions are, accordingly, disposed of with aforesaid observation and direction.

(Rajesh Shankar, J.) Ritesh/A.F.R.