Jharkhand High Court

Geeta Devi vs State Of Jharkhand on 28 March, 2022

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               IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(Cr.) No. 40 of 2022

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1.Geeta Devi, wife of Late Shravan Kumar, aged 58 years

2.Sangeeta Verma, wife of Rajkumar Agarwal, aged 36 years ,

Both resident of Qr.No.B-8, near Hinoo Bal Mandir School, Hinoo, P.O.-Hinoo, P.S.-Doranda, District-Ranchi(Jharkhand) ..... Petitioners

-- Versus --

1.State of Jharkhand, through the Secretary, Department of Home, Government of Jharkhand, Project Building, H.E.C., P.O. and P.S.Dhurwa, District-Ranchi (Jharkhand)

2.Director General of Police, Department of Home, Government of Jharkhand, H.E.C., P.O. and P.S. Dhurwa, District-Ranchi (Jharkhand)

3.Senior Superintendent of Police, Ranchi, P.O.-G.P.O., P.S.-Kotwali, District-Ranchi (Jharkhand)

4.Officer In-charge, Airport Police Station, Ranchi, P.O.-Hinoo, P.S. Airport, District-Ranchi (Jharkhand)

5.Deputy Commissioner, Collectorate Building, P.O.-G.P.O., P.S.-Kotwali, District-Ranchi (Jharkhand)

6.Circle Officer, Argora Circle, P.O.-Hinoo, P.S.-Doranda, District-Ranchi (Jharkhand)

7.Ajay Kachhap, son of Sukra Kachhap, resident of Pokhartoli, P.O.Doranda, P.S.-Airport, District-Ranchi (Jharkhand) ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :-

Mr. Shashank Shekhar, Advocate For the State :-

Mrs. Vandana Singh, Sr.S.C.-III For the Intervenor :-

Mr. Kaushalendra Prasad, Advocate For the R.M.C. :-

Mr. R.S. Mazumdar, Sr. Advocate For Resp.No.7 :-

Mr. Navin Kumar Singh, Advocate

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7/28.03.2022 A reference may be made to the orders dated 15.02.2022,

16.02.2022, 21.02.2022, 07.03.2022 and 08.03.2022 by which

opportunities are provided to the petitioners as well as to the

respondent-State, Ranchi Municipal Corporation and the counsel for the

intervenors as well as the respondent no.7. By order dated 08.03.2022,

in presence of the Deputy Commissioner, Ranchi and the Senior

Superintendent of Police, Ranchi, the order has been passed to demolish

the part of the boundary-wall by which the access road of the petitioner

has been blocked. The order dated 08.03.2022, by which the direction

was issued to remove the part of the boundary-wall in question was

passed after hearing the learned counsels appearing for the parties. The

objection taken by the respondent State and the intervenor as well as the

respondent no.7 have been considered by this Court and thereafter the

order has been passed. The order dated 08.03.2022 is quoted

hereinbelow:

"This petition was registered on 14.02.2022 and the matter was mentioned before this Court and seeing the exigency in the matter, this writ petition was directed to be listed on 15.02.2022. Paragraph 7 of the order dated 15.02.2022 is quoted herein below:

"7. It has been disclosed in the petition that petitioner no.1 is in peaceful possession over the land bearing R.S. Khata No.78, Plot No.863, area 2 Kathas (3.30 decimals) of Village- Hundru, Thana- Doranda (now- Airport), District- Ranchi since 1954-55. S.A.R. Case No.742/2008-09 was instituted under Section 71-A of Chotanagpur Tenancy Act, 1908 in the court of Special S.A.R. Officer, Ranchi and vide order dated 05.04.2009, the petitioner no.1 was directed to deposit a sum of Rs.95,000/- per Katha in lieu of compensation to the complainant. In compliance of the said order, such amount was deposited by petitioner no.1. The land in question was mutated in the office of the Circle Officer, Argora Circle, Ranchi vide Mutation Case No.5232-R-27/2011-12. The name of the petitioner no.1 is also mutated in the Ranchi Municipal Corporation and she is paying Holding Tax to the Ranchi Municipal Corporation. On 31.01.2022 when petitioner no.2 visited her house along with petitioner no.1 located at New Saket Nagar, Hinoo, Ranchi, they found that the only approach road of the house was encroached by Ajay Kachhap (respondent no.7) and others by erecting a boundary wall and constructing a room upon the same."

2. This is the second incident in the capital city of Jharkhand. Identical position was therein W.P.(Cr.) No.137 of 2021 with W.P.(Cr.) No.416 of 2021, which were mentioned by the learned counsel stating therein that in the broad day light and in presence of the police, by way of erecting boundary wall, the main gate of the building of the petitioner has been blocked. In that case, the private respondent was also noticed. After report of the Ranchi Municipal Corporation, direction was issued to remove the encroachment and recover the cost from the private respondent. The private respondent has herself removed the encroachment and report to that effect has been filed by the officer of the State that the encroachment in question has

been removed by the private respondent herself. This is the second incident before this Court, whereby, the access road of the petitioner has been blocked. On that day, respondent no.3 was directed to ensure the passage of entry of the petitioners' house and to apprise this Court as to why status quo ante on the premises be not maintained by tomorrow i.e. 16.02.2022.

3. This writ petition was again taken on 16.02.2022.

Pursuant to the order dated 15.02.2022, the Senior Superintendent of Police, Ranchi has appeared in person on that day along with learned State counsel Mrs. Vandana Singh, learned Sr. S.C.-III and they took time and submit that they will find out and provide access road to the petitioners. Paragraph 7 of the said order is quoted herein below:

"7. In view of the above facts and considering the detailed order dated 15.02.2022 and also considering that the access road of the petitioners' house has been stopped by erecting a boundary wall, the Court asked the learned State counsel as well as the Senior Superintendent of Police, Ranchi to find out solution so that access to the house of the petitioners be provided. They fairly submit that they will find out and provide access road to the petitioners and for that they seek some time."

4. On their fair submission, the matter was adjourned till 20.02.2022 and the appearance of the Senior Superintendent of Police, Ranchi was dispensed with.

5. The matter was again taken on 21.02.2022 and on that day, counter affidavit was filed on behalf of respondent no.3 and in one of the report of the Deputy Superintendent of Police, Hatia, Ranchi, it has been stated in many words that there was no road and the land in question was of Sarana Samiti. In view of the pleadings and submissions of the learned counsel for the parties, this Court directed the petitioners to array the Municipal Commissioner, Ranchi Municipal Corporation as one of the respondent and the Municipal Commissioner was directed to depute a competent officer to go on site and file report to him and in his turn the Municipal Commissioner was directed to file an affidavit. By the said order, this Court has also appointed two member Pleader Commissioners and Mr. Kumar Vaibhav and Mr. Sumit Prakash, Advocates of this Court were appointed as Pleader Commissioners and they were directed to submit a report to this Court in a sealed cover.

6. The affidavit of the Municipal Commissioner and the report of the Pleader Commissioners have been submitted and the same have been considered on

07.03.2022. The sealed cover report of the Pleader Commissioners was opened in the open Court, in course of the proceeding and copy of the same was handed over to the learned counsel for the respondent-State, learned counsel for the intervenor and learned counsel for the petitioners. In view of the affidavit of the Municipal Commissioner and report of the Pleader Commissioners, the Deputy Commissioner, Ranchi and the Senior Superintendent of Police, Ranchi were directed to appear in the Court in person at 01:00 p.m. today.

7. In view of that order, both the officers of the State are physically present in the Court. It has been disclosed in the affidavit of the Ranchi Municipal Corporation that as per boundary of plot mentioned in the sale deed, 10 feet wide road about 104 feet long is proposed on west side of plot, which is presently blocked. It has also been disclosed in the said affidavit that there is no means of access to reach the site in question. The said report has also been annexed at Annexure-A to the said affidavit. The said report has been prepared by the Town Planner and Junior Engineer of Ranchi Municipal Corporation as they have been deputed by the Municipal Commissioner. Paragraph 3 of the said affidavit is quoted herein below:

"3. That the respondent respectfully submits that the Town Planner and Junior Engineer of Ranchi Municipal Corporation inspected the spot on 22-02-22 and found that at present, there is no means of access to reach the site in question. As per boundary of plot mentioned in the sale deed, a 10 feet wide road about 104 feet long is proposed on west side of plot, which is presently blocked."

8. It has also been stated in so many paragraphs in the report of the Pleader Commissioners that there is no access to the petitioners' house and it has also been disclosed that by way of erecting boundary wall in front of the petitioners' house, the said gate of the petitioners has been blocked.

9. In view of these two reports, there is no doubt that the road in question was existing there and the petitioners' access road was blocked by way of erecting boundary wall.

10. Learned counsel for the petitioners submits that the petitioners had approached the Airport Police Station. The documents to that effect are annexed at Annexure-5 of the petition and reminder at Annexure-6 of the petition, but the police officer has not taken any steps.

11. Mrs. Vandana Singh, learned Sr. S.C.-III appearing for the State submits that after the dispute came to the

knowledge of the police, the same has been sent to the learned court of SDM under Section 144 Cr.P.C. She further submits that there is disputed question of fact and this Court may not entertain this petition under Article 226 of the Constitution of India. To buttress this argument, she relied upon the judgment rendered by the Hon'ble Supreme Court in the case of P.R. Murlidharan & others v. Swami Dharmananda Theertha Padar & others, reported in (2006) 4 SCC 501.

12. Paragraph 18 of the said judgment is quoted herein below:

"18. In the case on hand, various disputed questions arose based on a deed of trust and the facts pleaded by the writ petitioner and controverted by the other side. The High Court should have normally directed the writ petitioner to have his rights adjudicated upon, in an appropriate suit in a civil court. The fact that a writ petitioner may be barred from approaching the civil court, in view of Order 9 Rule 9 of the Code of Civil Procedure, or some other provisions, is no ground for the High Court to take upon itself, under Article 226 of the Constitution, the duty to adjudicate on the civil rights of parties for the purpose of deciding whether a writ of mandamus could be issued to the police authorities for the protection of the alleged rights of the writ petitioner. A writ of mandamus directing the police authorities to give protection to the person of a writ petitioner can be issued, when the court is satisfied that there is a threat to his person and the authorities have failed to perform their duties and it is different from granting relief for the first time to a person either to allegedly protect his right to property or his right to an office, especially when the pleadings themselves disclose that disputed questions are involved. My learned Brother has rightly pointed out that the High Court was in error in proceeding to adjudicate on the rights and obligations arising out of the trust deed merely based on the affidavits and the deed itself. I fully agree with my learned Brother that the High Court should not have undertaken such an exercise on the basis that the right of the writ petitioner under Article 21 of the Constitution is sought to be affected by the actions of the contesting respondents and their supporters and that can be prevented by the issue of the writ of mandamus prayed for."

13. Mr. Ajit Kumar, learned Senior counsel appearing for the intervenor also submits that there is disputed question of fact and this is not the forum to decide the case. He relied upon the judgment rendered by the Hon'ble

Supreme Court in the case of Roshina T. v. Abdul Azeez K.T. & others, reported in (2019) 2 SCC 329.

14. Paragraphs 10, 16 and 17 of the said judgment are quoted herein below:

"10. It is not in dispute that the reliefs for which the writ petition was filed by Respondent 1 herein against the appellant pertained to possession of the flat. It is also not in dispute that one Civil Suit No. 807 of 2014 between the appellant and Respondent 1 in relation to the flat in question for grant of injunction was pending in the Court of Munsif at Kozhikode. It is also not in dispute that the appellant and Respondent 1 are private individuals and both are claiming their rights of ownership and possession over the flat in question on various factual grounds.

16. We cannot, therefore, concur with the reasoning and the conclusion arrived at by the High Court when it unnecessarily went into all the questions of fact arising in the case on the basis of factual pleadings in detail (43 pages) and recorded a factual finding that it was Respondent 1 (writ petitioner) who was in possession of the flat and, therefore, he be restored with his possession of the flat by the appellant.

17. In our opinion, the High Court, therefore, while so directing exceeded its extraordinary jurisdiction conferred under Article 226 of the Constitution. Indeed, the High Court in granting such relief, had virtually converted the writ petition into a civil suit and itself to a civil court. In our view, it was not permissible."

15. Mr. L.C.N. Shahdeo, learned counsel appearing for the Ranchi Municipal Corporation submits that two officers of the Corporation were deputed, who have given the report, which has been brought on record at Annexure-A to the affidavit, filed by the Ranchi Municipal Corporation.

16. In reply, learned counsel for the petitioners submits that the petitioners are in possession since 1954 pursuant to the order passed in SAR Case No.742/2008-09. He further submits that it is well settled that easement right of the petitioners cannot be taken. He refers Section 15 of the Indian Easements Act, 1882 and submits that acquisition of prescription is defined as where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption.

17. Mr. Navin Kumar Singh, learned counsel appearing for respondent no.7 submits that respondent no.7 is not land broker and he is not the owner of the land, in

question and the land in question is Bakast Bhuihari Pahani land as per the revenue records.

18. This Court has not expressed any final opinion so far as respondent no.7 is concerned that he is a land broker. In the order dated 16.02.2022, this Court has already discussed that the Court is not examining right, title or interest of any of the parties and that will be adjudicated by the competent court of jurisdiction. This Court has entertained this petition under Article 226 of the Constitution of India only considering the fact that access to the house of the petitioners has been blocked by way of erecting the wall.

19. In view of the above facts and considering the submission of the learned counsel for the parties, this Court is conscious of the fact that this petition is being entertained under Article 226 of the Constitution of India. It is well settled that in a case where any disputed question of fact involved and having alternative remedy, the writ Court generally restrained itself to pass any order. However, the facts of this case has compelled this Court to entertain this case. The question remains that in capital city of the Jharkhand if such thing has happened and situation brought to the notice of the Court, whether this Court will remain mute spectator or will entertain the case to save the liberty of any person, which is guaranteed under Article 21 of the Constitution of India. How the land mafias in the State of Jharkhand are creating disturbance, it is well known fact in the State. The law abiding citizens are being harassed by unsocial elements, who have courage to do it regularly, which has been done in the case in hand and at the earlier occasion, it has been dealt with by this Court in W.P.(Cr.) No.137 of 2021 with W.P.(Cr.) No.416 of 2021. The affidavit of the Ranchi Municipal Corporation as well as the report of the Pleader Commissioners clearly suggest that the access road of the petitioners has been blocked by way of erecting boundary wall wherein a room has been constructed.

20. In view of these two reports, it is crystal clear that the road of access to the petitioners' house has been blocked. Resort to Article 226(1) of the Constitution of India has been provided inter alia for enforcement of one's right to life and personal liberty guaranteed under Article 21. Enforcement means to impose or compel obedience to law or to compel observance of law. When a right is so guaranteed, it has to be understood in relation to its orbit and its infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of the society,

including the State, to observe that right, that is to say, not to act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law. When such a right of a person is threatened to be violated or its violation is imminent and the affected person resorts to Article 226, the Court can protect observance of his right by restraining those who threaten to violate it. A reference may be made to the judgment rendered by the Hon'ble Supreme Court in the case of S.M.D. Kiran Pasha v. Government of Andhra Pradesh & others, reported in (1990) 1 SCC 328.

21. The right to live with human dignity was the subject matter in the case of People's Union for Civil Liberties & another v. State of Maharashtra & others, reported in (2014) 10 SCC 635. Paragraphs 16 and 17 of the said judgment are quoted herein below:

"16. Article 21 of the Constitution provides "21.Protection of life and personal liberty.--No person shall be deprived of his life or personal liberty except according to procedure established by law."

This Court has stated time and again that Article 21 confers sacred and cherished right under the Constitution which cannot be violated, except according to procedure established by law. Article 21 guarantees personal liberty to every single person in the country which includes the right to live with human dignity.

17. In line with the guarantee provided by Article 21 and other provisions in the Constitution of India, a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights. In spite of constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, the cases of death in police encounters continue to occur. This Court has been confronted with encounter cases from time to time. In Chaitanya Kalbagh7, this Court was concerned with a writ petition filed under Article 32 of the Constitution wherein the impartial investigation was sought for the alleged killing of 299 persons in the police encounters. The Court observed that :

"1. ... in the facts and circumstances presented before it there was an imperative need of ensuring that the guardians of law and order do in fact observe the code of discipline expected of them and that they function strictly as the protectors of innocent citizens."

22. Recently, the illegal construction in connivance with Noida Development Authority was the subject matter before the Hon'ble Supreme Court in the case of Supertech

Limited v. Emerald Court Owner Resident Welfare Association & others, reported in 2021 SCC OnLine SC 648.

23. The judgment relied by Mr. Ajit Kumar, learned Senior counsel appearing for the intervenor in the case of Roshina T. (supra) is on the point of restoration of that petitioner's possession over flat in question and on that ground that order has been passed by the Hon'ble Supreme Court. The liberty of person in that case was not the subject matter in the judgment, relied by the learned counsel for the intervenor. Thus, that judgment is not helping the intervenor.

24. In the judgment relied by the learned counsel for the State in the case of P.K. Murlidharan (supra), the dispute was with regard to property of Vadayampadi Asharamam and in that case the civil court has also adjudicated the dispute and in view of those facts, that order has been passed. The right of easement and access road of the house by way of erecting boundary wall was not the subject matter of that judgment. Thus, that judgment is not helping the State.

25. In so many words, this Court has already discussed the scope of Article 226 of the Constitution of India and as per the situation which has been brought to the notice of this Court, this petition has been entertained under Article 226 of the Constitution of India.

26. In view of the above facts and considering the submission of the learned counsel for the parties, this Court comes to the conclusion that it is a fit case to issue direction upon the respondent to immediately swing in action and demolish the part of the construction whereby access of the petitioner has been blocked. Accordingly, the respondent- Ranchi Municipal Corporation shall ensure to take drive for demolishing the part of the construction whereby access of the petitioner has been blocked by 25.03.2022. The Court is of the view that this demolition must be carried out within twenty four hours, however, on repeated request of the Deputy Commissioner, Ranchi and the Senior Superintendent of Police, Ranchi through Senior Standing Counsel on the ground of going of Assembly session, time till 25.03.2022 is allowed for demolition. The Deputy Commissioner, Ranchi and the Senior Superintendent of Police, Ranchi, who are present in the Court shall provide all protection to the authorities of the Ranchi Municipal Corporation to carry out the direction given by this Court. The respondent-Ranchi Municipal Corporation and the respondent-State shall file affidavit to that effect. The

Deputy Commissioner, Ranchi and the Senior Superintendent of Police, Ranchi assured the Court that they will ensure to provide adequate security to carry out the demolition. This has been submitted by them in the open Court.

27. Let a copy of this order be communicated to the learned counsel for the State, learned Senior counsel for the intervenor, learned counsel for the Ranchi Municipal Corporation, learned counsel for respondent no.7 and learned counsel for the petitioners.

28. The appearance of the Deputy Commissioner, Ranchi and the Senior Superintendent of Police, Ranchi are dispensed with for the time being.

29. The bill supplied by the Pleader Commissioners, appointed by this Court, before the Registrar General of this Court shall be released forthwith in favour of each of them, as directed by this Court.

30. Let this matter appear on 28.03.2022."

2. This Court is not examining the right, title or interest that

has been recorded in paragraph no.18 of the order dated

08.03.2022(supra) and in earlier orders also, that has been recorded.

3. Mrs. Vandana Singh, the learned Sr. S.C.-III appearing on

behalf of the respondent State submits that supplementary counter

affidavit has been filed disclosing therein that the order dated

08.03.2022 has been complied with.

4. Mr. R.S.Mazumdar, the learned Senior counsel, appearing

for the Ranchi Municipal Corporation submits that the compliance report

has been filed by way of filing the supplementary affidavit. This fact has

been accepted by the learned counsel for the petitioners that the order

has been complied.

5. In earlier orders, this Court has repeatedly observed that

the right, title and interest of any of the parties is not being decided by

the Court.

6. Since two reports of Ranchi Municipal Corporation as well as

two Members of the Pleader Commissioner was there wherein it has been

disclosed that the access road of the petitioners have been blocked and

considering that, the order has been passed. In passing the order, several

judgments of the Hon'ble Supreme Court has also been considered with

regard to Article 21 of the Constitution of India. The judgments relied by

the respondent-State and the intervenor in opposition have also been

considered by the Court.

7. Today, Mr. Kaushalendra Prasad, the learned counsel after

taking No Objection from the earlier counsel of the intervenor has

appeared before the Court on behalf of the intervenor and submits that

I.A.No.2219 of 2022 has been filed for modification of order dated

08.03.2022 in view of the scheduled area the Government has got no

authority to look into that. He refers to paragraph no.17 of the I.A.

No.2219 of 2022, which is part of another case which has been annexed

in the said I.A. in Annex.I/7, submits that in view of Article 243 (Z)(C) of

the Constitution of India, this Court is not having jurisdiction to pass such

order. When the Court invited the learned counsel to take up Jharkhand

Municipal Act, 2011 and peruse Section 2(94) (definition clause) of

Jharkhand Municipal Act, 2011, he straight-way submitted that he will not

look into that and in high pitch he submitted that he will not go through

the Jharkhand Municipal Act, 2011 and he will argue according to his own

will which has been witnessed by the learned counsels present in the

Court and when the Court dictated and concluded he further shouted in

high pitch and pursuant thereto, he has referred to Article 243 (Z)(C) of

the Constitution of India. For convenience, Section 2(94) (definition

clause) of the said Act is quoted hereinbelow:

" "Street" means a public street or a private street, and includes any highway and any causeway, bridge, viaduct, arch, road, lane, foot-way, sub-way, court, alley or riding path or passage, whether a thoroughfare or not, over which the public have a right of passage or access or have passed and had access uninterruptedly for a period of twenty years; and, when there is a foot-way as well as a carriage way in any street, the said term includes both:"

8. On perusal of Section 2(94) of Jharkhand Municipal Act,

2011 it is crystal clear that if a passage or access or have passed and

had access uninterruptedly for a period of twenty years, and, when there

is a foot-way as well as a carriage way in any street, the said term

includes "street". In the case in hand, the petitioners were using the path

way since 1954-55 as has been discussed in the S.R. court's order. Thus,

in view of the meaning of 'street' in terms of Jharkhand Municipal Act,

2011, it is deemed to be street. Moreover, this Court has not decided

right, title and interest of any of the parties; in deciding the access road,

the order has been passed. So far as Article 243 (Z)(C) of the

Constitution of India is concerned, that has been considered by the

Division Bench of this Court in the case of "Debashish Soren v. State of

Jharkhand and Ors. etc." reported in 2008 1 JCR 542 (Jhar.), wherein it

has been held that the existing laws relating to State Municipalities which

were in existence prior to the commencement of 74th Amendment in the

Constitution of India, which were not consistent, were allowed to operate

for a specified period by virtue of Article 243ZF. Paragraph no.6 of the

said judgment is quoted hereinbelow:

"6. Having considered the submissions made by the counsel for the parties and having gone through the relevant records as well as the provisions under the Acts and the relevant Articles of the Constitution, we are of the view that the submissions made by the counsel for the petitioners seeking for the declaration questioning the vires of the provisions of the Jharkhand Municipal Amendment Act, 2006 and Ranchi Municipal Corporation Amendment Act, 2006 cannot be accepted and the same is liable to be rejected on the following reasons:

(i) The main ground on the basis of which the learned Senior Counsel for the petitioners has based his arguments is that Article 243ZC provides that the provisions relating to Part IX A of the Constitution relating to Municipalities can be extended only by the Parliament to the Scheduled Areas and the State cannot do that in view of the prohibition contained in the said Article and, therefore, the Act passed by the State, which extends the provisions of Municipality to Scheduled Areas is unconstitutional and beyond its legislative competence; This argument looks on the face of it as unacceptable in the light of the wordings contained in Article

243ZC and Article 243ZF. The conjoint reading of both the Articles would give the answer to the effect that the above said submissions made by the counsel for the petitioners has no substance. Let us quoteArticle 243ZC:

Article 243ZC. Part not to apply to certain areas- (1) Nothing in this Part shall apply to the Scheduled Areas referred to in Clause (1), and the tribal areas referred to in Clause (2), of Article 244.

(2) Nothing in this part shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill Council constituted under any law for the time being in force for the hill areas of the district of Darjeeling in the State of West Bengal.

(3) Notwithstanding anything in this Constitution, Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the Tribal Areas referred to in Clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of Article 368.

(ii) It is clearly provided in this article that this will not apply to Scheduled Areas and the Tribal Areas and the Parliament alone can extend the provisions of this part to the Scheduled Areas and Tribal Areas.

(iii) Now, let us quote Article 243ZF:

Article 243ZF Continuance of existing laws and Municipalities.- Notwithstanding anything in this part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment Act, 1992, which is inconsistent with the Provisions of this Part, shall continue to be in force untilamended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier:

Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the legislative Assembly of that State, or in the case of a State having a Legislative Council, by each House of the Legislature of that State.

(iv) This Article 243ZF provides for the continuance of the existing laws relating to Municipality, which were introduced and enforced even before the introduction of the 74 th Amendment of the Constitution of India, which were inconsistent with the provisions in Part IXA for a specified period.

(v) The reading of both the articles would make it obvious that the provisions relating to the Part IX A cannot be extended to Scheduled Area, but the existing laws relating to State Municipalities which were in existence prior to the commencement of 74 th Amendment in the Constitution of India, which were not consistent, were allowed to operate for a specified period by virtue of Article 243ZF.

(vi) Thus, it is clear that the proviso to Article 243ZF clearly provides existing laws relating to Municipalities which were available before the commencement of the 74 th Amendment will continue to be in force until it is amended or until expiration of one year from such commencement whichever is earlier, but this condition would be for existing laws which are inconsistent with the provisions of this part. This means even though existing laws, which are inconsistent with the provisions of this part, are permitted to continue until it is amended or repealed by the legislature or after the expiration of one year.

(vii) But, this condition relating to continuance for the specific period of existing laws would apply only to the existing laws which are inconsistent with the provisions of this part and not to the existing law which are consistent with the provisions of this part.

(viii) In other words, there is no specific bar for the continuance of the existing laws if they are not inconsistent with the provisions of this part, i.e., if they are consistent with the provisions of this part.

(ix) It is pointed out by the counsel for the respondents that even before the 74 th Amendment was introduced, the Bihar Municipal Act, 1922 came into force. This Act was applicable in the entire erstwhile State of Bihar including the areas, which now fell within the State of Jharkhand.

(x) Let us quote Bihar Municipal Act, 1922, which prescribes the short, title and commencement of the said Act:

1. Short title, and commencement - (1) This Act may be called the Bihar Municipal Act, 1922.

(2) It extends to the whole of the State of Bihar. (3) It shall come into force on such date as the State Government may by notification direct.

(4) Notwithstanding any thing in Sub-section (2), it shall not take effect in any cantonment or part of a cantonment without the consent of Central Government previously obtained.

(xi) There is no dispute in the fact that after creation of the State of Jharkhand, the Bihar Municipal Act, 1922 was adopted by the State of Jharkhand in exercise of the powers under Section 85 of the Re-Organisation Act, 2000 vide Notification issued under memo No. 2755 dated 14.11.2002.

(xii) In other words, the provisions relating to Municipality were in existence even prior to the 74 th Amendment, namely, Part IXA of the Constitution of India and the same is applicable in the State of Jharkhand including the districts identified as Scheduled Areas.

(xiii) As indicated above, neither in the writ applications nor in the oral arguments, anything was pointed out by the counsel for the petitioners that any provision of Bihar Municipal Act, 1922 (now Jharkhand Municipal Act, 2000) or Ranchi Municipal Corporation Act is inconsistent with any of the provisions of Part IXA of the Constitution of India. In such a situation, we are to uphold the argument of the counsel for the respondents to the effect that earlier Municipal Act shall continue to operate in the Scheduled Areas though Part IXA is not applicable to Scheduled Areas since

the said Act was introduced even before commencement of Part IXA which is consistent with that part.

(xiv) It is also noted that from perusal of the preamble of the Amendment Act introduced by the State, that the said amendment was made only for increasing the penalty and to rationalize the upper limit of reservation. There is no other addition to the earlier Act, which is inconsistent with the provisions of Part IX A.

(xv) Similarly, from perusal of Ranchi Municipal Corporation Act, 2006 it would be obvious that the said amendment was made with a view to increase the penalty in order to rationalize it with the devaluation of Indian currency over the period of time since enactment of Municipal Act and also to rationalize and/or fix the upper limit of reservation to the extent of 50 per cent for Ward Commissioners of Scheduled Caste, Scheduled Tribe and Backward Classes. The said amendment Act which increases the penalty and/or prescribes the limit of reservation is in no manner can be said to be inconsistent with the provisions of the Constitution of India.

(xvi) Part B Section 5 of the 5 th Schedule empowers the Governor to direct that any particular Act of Parliament or the Legislature of the State may apply or may not apply to the Scheduled Areas. (xvii) In the 5 th Schedule of the Constitution of India, special provisions have been made with regard to the administration and control of Scheduled Areas and Scheduled Tribes. In Part B of Section 5 of the 5 th Schedule of the Constitution it gives power to the Governor of a particular State to direct that any particular Act of Parliament or of the Legislature of the State may apply or may not apply to a Scheduled Area. The said provisions are quoted hereinbelow for ready reference:

5. Law applicable to Scheduled Areas.-(1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled An a or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.

(2) The Governor may make regulations for the peace and good government of any area in the State which is for the time being a Scheduled Area. In particular and without prejudice to the generality of the foregoing power, such regulations may -

(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;

(b) regulate the allotment of land to members of the Scheduled Tribes in such area;

(c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area.

(3) In making any such regulation as is referred to in sub- paragraph (2) of this paragraph, the Governor may repeal or

amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question.

(4) All regulations made under this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect.

(5) No regulation shall be made under this paragraph unless the Governor making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council. (xviii) Under this provision, it is clear that notwithstanding anything in Constitution, the Governor by public notification may direct that any Act of Parliament or Legislature of the State shall not apply to the Scheduled Area. Even though these powers are conferred to the Governor, the same have not been exercised by the Governor to direct that this Act of 1922 not to be applied for the Scheduled Areas.

(xix) As indicated above, the provisions of Bihar Municipal Act, 1922, at adopted and amended by the State of Jharkhand were made applicable to the entire State of Jharkhand even prior to the 74 th Amendment of the Constitution of India. Only the Governor of Jharkhand being vested with the powers under 5 th Schedule is empowered to restrain the applicability of the said Act from any other Scheduled Area, who did not chose to pass any orders or give any direction that the provisions of the said Act, namely Bihar Municipal Act, 1922 will not be applicable to the Scheduled Areas of the State of Jharkhand.

(xx) Learned Counsel for the petitioners would mainly rely upon the decision of Division Bench of Patna High Court reported in 1996 (1) BLJR 425 and AIR 1995 AP 274 and contend that the finding given by the said judgment was while dealing with the analogous Article, i.e., Article 243M of the Constitution of India which deals with the Constitution of Panchayats, that the Act cannot be passed by the State Government in respect of Panchayats would apply to the present case also.

(xxi) These two judgments, in our view, would not apply to the present facts of this writ petitions. In both the cases a new Act was enacted by the State Legislature extending the provisions of Part IX relating to Panchayats in the respective States. The said Acts were new Acts which were formulated in terms of Part IX of the Constitution of India for extending the provisions for the entire State.

(xxii) It is in that background the said judgment was delivered by the Andhra Pradesh High Court and Patna High Court holding that the State Government cannot enact a law extending its application to the entire State in violation of Article 243M of the Constitution. (xxiii) Moreover these judgments have not dealt with the existing laws which are allowed to be continued, which were introduced prior to the 74 th amendment. Further, the provisions relating to Article 243M which are part materia to Article 243ZF which deals with the aspect of continuance of existing laws have not been

taken into consideration. Therefore, those judgments would not be of any help to the petitioners.

(xxiv) The learned senior counsel for the petitioners would refer to various authorities to show that the 74 th Amendment is a later one and, as such, the same would prevail. We need not refer to those decisions as that is not the relevant issue before this Court, since in this case, as indicated above, Governor has not chosen to exercise those powers either this way or that way.

9. In view of the above facts, as well as considering the

submissions of the parties as answered above and considering that the

order has been complied with, this petition [W.P.(Cr.)No.40 of 2022]

is disposed of in the light of the above observation.

I.A. No.2219 of 2022

10 The conduct of Mr. Kaushalendra Prasad, the learned

counsel appearing on behalf of the intervenor casts aspersion on the

independence of the Bar and the independence of the Bar is in danger. A

reference may be made to the case of "R. Muthukrishnan v. Registrar

General, High Court of Judicature at Madras" reported in (2019) 16 SCC

407. Paragraph nos.19 to 24, 25, 26, 80 and 81 of the said judgment are

quoted hereinbelow:

"19. Role of the Bar in the legal system is significant. The Bar is supposed to be the spokesperson for the judiciary as Judges do not speak. People listen to the great lawyers and people are inspired by their thoughts. They are remembered and quoted with reverence. It is the duty of the Bar to protect honest Judges and not to ruin their reputation and at the same time to ensure that corrupt Judges are not spared. However, lawyers cannot go to the streets or go on strike except when democracy itself is in danger and the entire judicial system is at stake. In order to improve the system, they have to take recourse to the legally available methods by lodging complaint against corrupt Judges to the appropriate administrative authorities and not to level such allegation in the public. Corruption is intolerable in the judiciary.

20. The Bar is an integral part of the judicial administration. In order to ensure that judiciary remains an effective tool, it is absolutely necessary that the Bar and the Bench maintain dignity and decorum of each other. The mutual reverence is absolutely necessary. The Judges are to be respected by the Bar, they have in turn equally to respect the Bar, observance of mutual dignity, decorum of both is necessary and above all they have to maintain self-respect too.

21. It is the joint responsibility of the Bar and the Bench to ensure that equal justice is imparted to all and that nobody is deprived of justice due to economic reasons or social backwardness. The judgment rendered by a Judge is based upon the dint of hard work and quality of the arguments that are advanced before him by the lawyers. There is no room for arrogance either for a lawyer or for a Judge.

22. There is a fine balance between the Bar and the Bench that has to be maintained as the independence of the Judges and judiciary is supreme. The independence of the Bar is on equal footing, it cannot be ignored and compromised and if lawyers have the fear of the judiciary or from elsewhere, that is not conducive to the effectiveness of the judiciary itself, that would be self-destructive.

23. Independent Bar and independent Bench form the backbone of the democracy. In order to preserve the very independence, the observance of constitutional values, mutual reverence and self-respect are absolutely necessary. The Bar and Bench are complementary to each other. Without active cooperation of the Bar and the Bench, it is not possible to preserve the rule of law and its dignity. Equal and even-handed justice is the hallmark of the judicial system. The protection of the basic structure of the Constitution and of rights is possible by the firmness of the Bar and the Bench and by proper discharge of their duties and responsibilities. We cannot live in a jungle raj.

24. The Bar is the mother of the judiciary and consists of great jurists. The Bar has produced great Judges, they have adorned the judiciary and rendered the real justice, which is essential for the society.

25. The role of a lawyer is indispensable in the system of delivery of justice. He is bound by the professional ethics and to maintain the high standard. His duty is to the court, to his own client, to the opposite side, and to maintain the respect of opposite party counsel also. What may be proper to others in the society, may be improper for him to do as he belongs to a respected intellectual class of the society and a member of the noble profession, the expectation from him is higher. Advocates are treated with respect in society. People repose immense faith in the judiciary and judicial system and the first person who deals with them is a lawyer. Litigants repose faith in a lawyer and share with them privileged information. They put their signatures wherever asked by a lawyer. An advocate is supposed to protect their rights and to ensure that untainted justice is delivered to his cause.

26. The high values of the noble profession have to be protected by all concerned at all costs and in all the circumstances cannot be forgotten even by the youngsters in the fight of survival in formative years. The nobility of the legal profession requires an advocate to remember that he is not over attached to any case as advocate does not win or lose a case, real recipient of justice is

behind the curtain, who is at the receiving end. As a matter of fact, we do not give to a litigant anything except recognising his rights. A litigant has a right to be impartially advised by a lawyer. Advocates are not supposed to be money guzzlers or ambulance chasers. A lawyer should not expect any favour from the Judge and should not involve by any means in influencing the fair decision-making process. It is his duty to master the facts and the law and submit the same precisely in the court, his duty is not to waste the courts' time.

......... xxx ......

80. It is also true that the Disciplinary Committee of the Bar Councils, as observed by this Court in Mahipal Singh Rana and Mohit Chaudhary, has failed to deliver the goods. It is seen that the disciplinary control of the Bar Council is not as effective as it should be. The cases are kept pending for a long time, then after one year they stand transferred to the Bar Council of India, as provided under the Advocates Act and thereafter again the matters are kept pending for years together. It is high time that the Bar Council, as well as the various State Bar Councils, should take stock of the situation and improve the functioning of the disciplinary side. It is absolutely necessary to maintain the independence of the Bar and if the cleaning process is not done by the Bar itself, its independence is in danger. The corrupt, unwanted, unethical element has no place in the Bar. If nobility of the profession is destroyed, the Bar can never remain independent. Independence is constituted by the observance of certain ideals and if those ideals are lost, the independence would only remain on paper, not in real sense.

81. The situation is really frustrating if the repository of the faith in the Bar fails to discharge their statutory duties effectively, no doubt about it that the same can be and has to be supervised by the courts. The obligatory duties of the Bar Council have found statutory expression in the Advocates Act and the Rules framed thereunder with respect to disciplinary control and cannot be permitted to become statutory mockery, such non-performance or delayed performance of such duties is impermissible. The Bar Council is duty-bound to protect the Bar itself by taking steps against black sheep and cannot bely expectation of the Bar in general and spoil its image. The very purpose of disciplinary control by the Bar Council cannot be permitted to be frustrated. In such an exigency, in a case where the Bar Council is not taking appropriate action against the advocate, it would be open to the High Court to entertain the writ petition and to issue appropriate directions to the Bar Council to take action in accordance with the law in the discharge of duties enjoined upon it. But at the same time, the High Court and even this Court cannot take upon itself the disciplinary control as envisaged under the Advocates Act. No doubt about it that the Court has the duty to maintain its decorum within the court premises, but that can be achieved by taking appropriate steps under the Contempt of Courts Act in

accordance with law as permitted under the decisions of this Court and even by rule-making power under Section 34 of the Advocates Act. An advocate can be debarred from practising in the Court until and unless he purges himself of contempt."

11. The proceeding inside the Courts are always expected to be

held in dignified and well-behaved manner. If this Court will not refer the

matter to Jharkhand State Bar Council, this Court will fail in its duty to

maintain the independence of Bar and the independence of the Bench

and to considering that without cooperation of Bar it is not possible to

preserve the rule of law and its dignity, it is necessary to send the matter

to Jharkhand State Bar Council. For the conduct of Mr. Kaushalendra

Prasad, the learned counsel appearing on behalf of the intervenor, this

matter is referred to Jharkhand State Bar Council to look into it as the

said Council is statutory in nature and also the disciplinary authority of

the Advocates. This Court expects from the Jharkhand State Bar Council

to implement the ideas as has always done by it and cannot lag behind

in cleaning process which is need of the hour. The profession is required

to be more noble and it is absolutely necessary to remove the persons

from the profession to preserve the real ideals of the Bar and on which it

struggled for the values of freedom. There is no doubt that the Court is

not required to control the Bar, it is statutory duty of the Bar go make it

more noble and to protect the Judges and the legal system so that the

Bar may not be destroyed and the respect of the judiciary must be

maintained which is an important pillar of democracy. In view of the

provisions of the Advocates Act, the Jharkhand State Bar Council is

expected to maintain discipline amongst the members and punishing

those who go astray from the path of rectitude set out for them.

12. This Court has already disclosed in earlier orders that the

right, title or interest of any of the parties has not been decided by this

Court.

13. The argument on behalf of the learned counsel who has

appeared after taking no objection on behalf of the intervenor has been

discussed (supra) in paragraph no.7. In view of the above discussion,

There is no merit in I.A. No.2219 of 2022, which is accordingly,

dismissed, and the said I.A. is dismissed with a cost of Rupees One Lac

to be deposited before Secretary, Department of Women and Child

Development & Social Welfare, Government of Jharkhand, Ranchi,

towards the Juvenile Justice Fund. The same will be deposited in the

Bank Account No.37344984625, Jharkhand, Juvenile Justice Fund, State

Bank of India, Project Bhawan, Hatia, Ranchi either by cheque or bank

draft, within a period of three weeks from today. The proof of depositing

the amount shall be filed in the Registry by the intervenors. This amount

shall be utilized for the welfare of the juveniles as per the duties assigned

by the State under the Juvenile Justice Act. When this order of cost was

dictated by the Court the learned counsel Mr. Kaushalendra Prasad again

started shouting upon the Court and submits that for inviting this order,

he was arguing the case. He further submits that let it be One crore, he

does not bother. This shows his conduct and arrogance how he has

addressed the Court. How he has addressed the Court when the Court

invited the attention of the learned counsel so far as the Jharkhand

Municipal Act, 2011 is concerned, that has been discussed in paragraph

no.7 of this order.

14. This Court has already passed the order on 08.03.2022

which has been complied with.

15. In view of specific bar which is contained in section 362

Cr.P.C., this Court has got no power to review or modify the order which

has already been complied with. Section 362 of Cr.P.C. provides as

follows:

"362. Court not to alter judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its

judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

In the said I.A. filed by the newly appointed learned

counsel Mr. Kaushalendra Prasad the new facts have been discussed

which is dealt by the Division Bench of this Court in the case of

"Debashish Soren v. State of Jharkhand and Ors. etc." (supra). It is well

settled that in absence of statutory provision for review,

a review/modification application cannot be entertained, in the garb of

clarification the earlier order cannot be modified or corrected.

Conferring jurisdiction upon the Court/Tribunal/Authority is a legislative

function and the same cannot be conferred by the Court or by the

authorities. Thus, the contention of the intervenor for modification of the

order is rejected. In the case in hand, the said order was passed after

hearing of all the parties which has been discussed supra. The

intervenor's Senior counsel was also heard and now by way of the new

counsel these things have been raised.

16. The way, in which Mr. Kaushalendra Prasad, the learned

counsel appearing on behalf of the intervenor has argued the matter

before the Court is unwarranted. This is not the way to address the Court

which has been witnessed by the learned counsels present in the Court.

The conduct of Mr. Kaushalendra Prasad, the learned counsel for the