Anand Kishore Prasad Sinha vs The State Of Bihar, Through The ...
2021 Latest Caselaw 1842 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Criminal Writ Jurisdiction Case No.366 of 2020
       Arising Out of PS. Case No.-102 Year-2020 Thana- SAMASTIPUR District- Samastipur
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Anand Kishore Prasad Sinha S/o Late Kameshwar Prasad Sinha Resident of Mohalla - Kashipur, Kachari Road, Ward No. 12, P.S. Samastipur Nagar, District - Samastipur.

... ... Petitioner Versus

1. The State of Bihar, through the Chief Secretary, Govt. Of Bihar

2. The Director General of Police (DGP), Government of Bihar, Patna.

3. The Inspector General of Police (I.G.), Mithila Range, Darbhanga.

4. The Superintendent of Police (SP), Samastipur.

5. The Station-In-Charge, Samastipur Nagar Thana, Samastipur.

6. The District Magistrate, Samastipur.

7. The Circle Officer, Samastipur.

8. Pramodanand Prasad S/O Late Dharmavtar Prasad currently resident of Mohalla - Kashipur, Ward No. 5, P.S. Samastipur Nagar, District - Samastipur.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr.Ankit Katriar, Advocate For the Resp. No. 8 : Mr.Aditya Shankar, Advocate Mr. Prakash Chandra, Advocate Mr. Sanchay Srivastava, Advocate Mr. Ravi Prakash, Advocate For the State : Mr. Prabhu Narayan Sharma, A.C. to A.G. For the Intervenor : Mr. Subodh Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD C.A.V. JUDGMENT Date : 05-04-2021

This writ application has been preferred seeking

issuance of a writ in the nature of a writ of mandamus or any

other appropriate writ/order/direction to the respondent

authorities to take immediate steps to protect the life of the

petitioner and his family. Further prayer has been made to

direct the respondent authorities to drive out the anti-social Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

elements who have forcibly entered into the office premises of

the petitioner who is an Advocate practising at Samastipur Bar.

The petitioner prays that his possession be also restored.

Brief facts of the case

2. It is the case of the petitioner that he is a senior

lawyer, aged about 78 years practising in the Samastipur Civil

Court. His residence and office are on contiguous piece of land

measuring around 4 kathas containing different plots situated in

ward no. 12 at Samastipur. According to the petitioner, his

residence is situated at new holding no. 187 (old 169) bearing

new plot no. 109, 109k (old plot no. 153 and 154). His office as

lawyers' chamber is situated at new holding no. 185 (old no.

167), bearing new plot no. 115 (old plot no. 152) and new plot

no. 117 (old plot no. 152). The petitioner claims to have

purchased these plots during the year 1955 and 1965. It is

stated that he is in possession of his residential house and the

chambers for two generations. It is a valuable property situated

only three buildings after the Civil Court compound at

Samastipur. The police station is said to be situated at 200

meters arena.

3. According to the petitioner, the alleged occurrence

took place on 09.06.2020 at 06:00 A.M. When the respondent Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

no. 8, namely, Pramodanand Prasad along with about 50 other

unnamed accused armed with pistols, hammers, iron rod etc.

forcibly entered the house of the petitioner. They broke open

the four locks of the two shutters on the Southern end and

entered the petitioner's office/chamber. They allegedly tore of

all the clients briefs, files, law journals etc. and threw them out

in the residential office campus. They also broke the table,

chairs, almirah and a trunk and threw them outside the campus.

They also uprooted 8 CCTV cameras.

4. It is further alleged that the accused entered the

residential quarters of the petitioner, brutally assaulted the

lawyer's wife, son, daughters, son-in-law using sticks and

pistol's butt. They destroyed the hard disk attached to the

CCTV cameras, smashed LED TV and a dish antenna. They

uprooted the electric meter bearing consumer no.

401297398/SM/T-2/SVR which was in the name of the

petitioner. They also looted away some jewelry and cash worth

Rs.1,75,000/-

5. It is stated that the petitioner's daughter who has

graduated in law somehow ran to the police station, narrated

the entire incident but the police refused to even hear the

petitioner's daughter and told her to get away otherwise she Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

would be locked up in the Hazat of Mahilla Police Station. The

petitioner states that he was somehow able to come out of his

house and went to the police station but instead of taking

action, the police abused him and asked the petitioner to first

submit a written complaint. The petitioner though submitted a

written complaint, by that time the accused persons had fled

away after inflicting maximum damage to his property.

6. It is stated that the petitioner then pulled down the

shutter of his office and put his own locks on them, thereafter in

the evening at 06:45 P.M. police personnel came over there in

two vans and asked the petitioner to open the locks of his

chambers/office in order to enable the police to put their own

locks. This was, though resisted by the petitioner and his family

but under duress of the police personnel they had to relent and

then police personnel put their own locks. The keys were kept

with the police station and were not handed over to the

petitioner despite repeated request. It is stated that in the

meantime, the complaint of the petitioner was registered as

Samastipur Nagar P.S. Case No. 102 of 2020 for the offences

under Section 147, 148, 149, 452, 341, 323, 354, 504, 379 and

427 of the Indian Penal Code. Another FIR bearing no. 104 of

2020 dated 10.06.2020 was registered against the petitioner at Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

the behest of the named accused person.

7. Learned counsel for the petitioner has relied upon

the following judgments:-

(1) Anju Devi Vs. Commissioner of Police reported in

1994 SCC Online Del 327; (2) Vijay Khanna & Anr. Vs.

Union of India reported in 1998 SCC Online Del 846; (3) Waf

Alalaulad and Anr. Vs. Sundardas Daulatram and Sons and

Ors. reported in 1996 SCC Online All 176 = AIR 1996 All 355.

8. It is submitted that in the facts and circumstances

of the present case this Court may direct that the respondent no.

4 be directed to remove the lock and seal placed on the

Chambers of the petitioner and put him back in possession of

his chambers.

9. On notice respondent no. 8 has entered appearance. He

has denied the allegations of forcibly taking possession of the

chambers of the petitioner. It is his submission that there is no

complaint at all by the petitioner that he was dispossessed from

his chambers on 09.06.2020. The respondent no. 8 claims that

he and his wife Smt. Rita Sinha purchased a piece of land

including house measuring 17 dhoors bearing Khata No. 56,

Khesra No. 113, 114, 115 & 116 situated at Kasipur, Kachhari Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

Road, Ward No. 12, P.S. - Samastipur Nagar, District -

Samastipur. He has brought on record a sale deed dated

29.04.2011 said to have been executed by one Sri Jagdeep

Prasad. It is stated that said Jagdeep Prasad had purchased the

land from Ram Chandra Shah and Kapileshwar Shah through

two sale deeds. The respondent claims that after purchasing the

land and house, mutation was done in his name by order dated

31.07.2013 passed by learned Deputy Collector, Land Reforms,

Samastipur. Respondent no. 8 filed a case before Samastipur

Municipality for mutation and said case was registered as

Dakhil Khariz Case No. 04/2013-14 where respondent no. 8

prayed to issue the holding no. 185 in his name which was

earlier registered in the name of the petitioner. After hearing

both the sides, the application filed by respondent no. 8 for

mutation was allowed vide order dated 24.01.2014 and holding

no. 185 was issued to respondent no. 8. Respondent no. 8 claims

that he is paying the holding tax continuously to the Samastipur

Municipality and the petitioner did not challenge the order as no

appeal was preferred before the competent court.

10. Giving the background of the title of the vendor of

respondent no. 8, it is stated that the vendor of respondent no. 8

had filed a Partition Suit No. 271/2000 titled as Jagdeep Prasad Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

Singh Vs. Anand Kishore Prasad Sinha and others before the

Sub- Judge, Samastipur in respect of the same land. The

petitioner was made party Defendant No. 1 and the said suit

was ex-parte decreed in favour of Jagdeep Prasad on

16.08.2003. The ex-parte judgment was challenged by the

petitioner by filing a Miscellaneous Application No. 04/2004

but the same has been dismissed vide order dated 23.01.2010.

Copy of the order passed in Partition Suit has been brought on

record.

11. According to respondent no. 8, the holding number of

the petitioner is 187 which is distinguishing the house of the

petitioner and the plot of respondent no. 8. He claims that the

petitioner has made illegal attempts to grab the land and house

of respondent no. 8.

12. Mr. Sandip Kumar, learned counsel for the

respondent no. 8 argued the matter on several dates, however,

towards the end of the matter, Mr. Aditya Shankar, learned

counsel assisted by Mr. Prakash Chandra and Mr. Sanchay

Srivastava has led the argument on behalf of the respondent no.

8. On both the occasions, learned counsel for respondent no. 8

have heavily relied upon the judgments of the Hon'ble Apex

Court in the case of Mohan Pandey & Ors. Vs. Smt. Usha Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

Rani Rajgaria reported in 1992 (4) SCC 61 and the judgment

rendered in the case of Roshina. T Vs. Abdul Azeez K.T. &

Ors. reported in 2019 (1) PLJR 230 SC = (2019) 2 SCC 329.

Learned counsel for the respondent no. 8 has given much

emphasis on the proposition that where there is an existing civil

dispute, civil suit pending between the parties therein and it is

claimed that a person has been dispossessed "illegally" the said

person may take back his possession by following proper legal

channels.

13. It is his submission that the petitioner has got his

remedy under Section 6 of the Specific Relief Act and further

under Section 456 of the Code of Criminal Procedure where the

learned court has got power to restore possession of any

immovable property to the person who has been forcibly

dispossessed, if necessary after evicting by force any other

person who may be in possession of the property. However, an

order under Section 456 Cr.P.C. may be passed only when the

respondent no. 8 is found guilty of an offence showing that by

force or show of force or intimidation he has dispossessed the

petitioner.

14. Learned counsel for respondent no. 8 has further

relied upon the judgments of the Hon'ble Madras High Court in Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

the case of M.K. Sethuraman Vs. District Collector & Ors.

passed in W.P.(MD) No. 6589/2019, wherein it has been held

that when there is an alternative efficacious remedy available,

the special and extraordinary remedy under Article 226 of the

Constitution of India cannot be exercised.

15. During the pendency of the writ application police

has completed investigation in the matter and having found

sufficient materials against respondent no. 8 the Investigating

Officer has submitted a charge-sheet against respondent no. 8

for the offences alleged under Section 147/148/149/452/341/

323/354/504/427/188 of the Indian Penal Code read with

Section 3 of the Epidemic Act, 1837.

16. Strengthened by the police report finding sufficient

materials to proceed against respondent no. 8, learned counsel

for the petitioner submits that in the present case where no suit

is pending between the petitioner and respondent no. 8 and

circumstances show that the petitioner has been forcibly

dispossessed by respondent no. 8 taking the concern police

officers in his connivance, this Court cannot remain a mute

expectator and the remedy of the petitioner to get instant

restoration of dispossession shall not depend upon a long drawn

battle in civil side.

Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

17. It is his submission that in the peculiar facts and

circumstances of the case where the petitioner has been forcibly

deprived of utilizing his chambers, this Court may come to his

rescue without going into the issues of right and title of the

parties.

18. Learned counsel has also drawn the attention of this

Court towards the order dated 29.09.2020 in which the Court

has recorded the information received from the Superintendent

of Police, Samastipur. It is his submission that in this case the

Investigating Officer as well as the S.H.O. of the Police Station

were transferred as they were found negligent in carrying out

their duties and the Superintendent of Police has directed

initiation of departmental proceeding. It is, thus, his submission

that without examining the right, title or possession of the

parties in the present proceeding, in the peculiar facts and

circumstances of the case, this Court may follow the ratio of the

judgment of the Hon'ble Apex Court in the case of Anju Devi

(supra).

Consideration

19. In this case both the sides have exchanged

voluminous pleadings and they have brought on record their

respective documents such as sale deeds, order of mutation etc. Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

to demonstrate as to how they acquired the portion of plot no.

152 (old) from their respective vendors. While the petitioner

claims that his father and ancestors had acquired a little more

than two khatas of land in plot no. 152(old), the respondent no.

8 claims that he had purchased 17 dhoors of land in plot no.

152. While it is the claim of the petitioner that his Chambers is

situated in the plot no. 152(old) which is contiguous to his

residential plot/house, the respondent no. 8 claims that he had

purchased 17 dhoors of land with construction through Jagdeep

Prasad who had earlier filed Title Partition Suit No. 271/2000

against the petitioner. A copy of the judgment of the learned

Sub-Judge, Vth Court, Samastipur in Partition Suit NO.

271/2000 has been brought on record. It shows that the total

area of plot no. 152(old) from which new plot no. 113, 114, 115

and 116 have been carved out is 4 Katha 15 dhoors.

20. In the Suit No. 271/2000, the vendor of

respondent no. 8 claimed his share and according to him he was

entitled for 17 dhoors of land. From the judgment it also appears

that the vendor of respondent no. 8 admitted that the land is an

ancestral land of Ramrup Shah and Ram Sundar Shah who had

sold the land to several persons. The vendor of respondent no. 8

claims to have purchased 17 dhoors of land by virtue of two sale Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

deeds obtained by him. He admits that the defendant (the

petitioner) and others are also purchasers. It was his case that in

absence of partition of the land quarrels were taking place in

between the plaintiff (vendor of respondent no. 8) and the

petitioner. He alleged that the defendant first party (the

petitioner) was raising a boundary wall in a portion of the land

purchased by the plaintiff, the plaintiff asked the defendant no. 1

to stop the construction but he did not agree. The plaintiff

alleged that in December 2000 and January 2001 the defendant

first party (the writ petitioner) raised a boundary on a portion of

the land which belonged to the plaintiff and made a construction

thereon. It is under these circumstances he had brought Partition

Suit No. 271/2000.

21. He had prayed for declaration of his title and

partition of land in question to the extent of his ¼ share equal to

17 dhoors in plot no. 152(old). The said suit was decreed ex

parte. The learned Sub-Judge allowed the suit with a direction to

prepare a preliminary decree. It is the case of the petitioner that

the preliminary decree was never prepared.

22. There is nothing on record showing preparation of

preliminary decree, though respondent no. 8 has placed a xerox

copy of a decree which is prepared under order XX Rules 6 & Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

7 of the Code of Civil Procedure in original suit. There is,

however, nothing to show that at any stage any application was

filed for preparation of final decree, any Pleader Commissioner

was appointed for that purpose and final measurement and

demarcation were done. There is no final decree.

23. The respondent no. 8 claims to have purchased

the land including house measuring 17 dhoors from Sri Jagdip

Prasad by a sale deed registered on 29.04.2011. The sale deed

shows the map of the land and in the northern boundary of plot

no. 152 (old) name of the father of this petitioner is mentioned

in the sale deed. So far as the order of mutation dated

31.07.2013 passed by the D.C.L.R. Samastipur is concerned, it

is evident from Annexure 'P/14' to the rejoinder of the petitioner

that the order of 'D.C.L.R.' has been set aside in mutation

revision case no. 99 of 2013 vide order dated 04.06.2015 passed

by the Collector, Samastipur. The Collector has noticed that the

vendor of respondent no. 8 has executed sale deed no. 5449

dated 29.04.2011 in favour of the petitioner which has been

sought to be cancelled in title suit no. 110/2011 pending in

Samastipur and another sale deed no. 7805 dated 14.06.2011 has

been executed in favour of one Amit Kumar Sinha. These facts

were not disclosed by respondent no. 8 in his counter affidavit. Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

24. The aforementioned documents have been taken

note of only to say that a dispute with respect to right, title and

possession over a portion of plot no. 152(old) had arisen at least

in the year 2000-2001. The vendor of respondent no. 8 had filed

the partition suit and certain facts mentioned therein have been

noted only to notice the kind of disputes which existed prior to

execution of the sale deed in favour of respondent no. 8.

25. This Court, is of the view that who has got right

and title of the land and who may legally possess the disputed

property or can continue with the possession thereof may only

be decided in an appropriate proceeding by a competent court of

law where both the parties may adduce their respective

evidences.

26. It, however appears that the materials collected so

far in course of investigation does indicate that the alleged

occurrence had taken place. In this connection, this Court would

refer briefly the relevant part of the order dated 29.09.2020

hereunder:

"Pursuant to the last order dated 25.09.2020, the Superintendent of Police, Samastipur has submitted a report which has been received in this Court through e-mail. The report dated 27.09.2020 is placed at Flag 'A'. Perusal of the report prima-facie shows that in course of his supervision, the Superintendent of Police found that there was a Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

newly built brick work closing the entry gate of the office premises which was opening towards the campus of the informant. It was found newly plastered at the time of supervision. The Superintendent of Police also found that CCTV camera as well as hard-disk were in broken condition and this was shown to him by the son of the informant, photographs have also been taken under the instruction of the Superintendent of Police which has been mentioned in his supervision note- cum-report II. He has then found that a new electric meter as well as new construction in the backside of the office were present and after taking statement of some of the witnesses who are residing in nearby places the Superintendent of Police found that the case is true under Sections 147, 148, 149, 452, 341, 323, 354, 504, 427 and 188 of the Indian Penal Code read with Section 3 of Epidemic Act, 1897 against the respondent no.8 and 50-60 unknown accused persons. He has issued certain directions to the I.O. of this case, but at the same time has found that the I.O. of the case was negligent and he has not taken proper steps towards conducting fair investigation. .... ....."

27. On behalf of the petitioner reliance has been

placed on the certain judgments of the Hon'ble Apex Court and

Hon'ble High Court which have been mentioned hereinabove.

In the case of Anju Devi (supra) the Hon'ble Delhi High Court

noticed the fact that the respondent no. 3 and 4 did not

controvert the averments made in the writ petition and have not Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

disputed that the petitioner had been living in the premises in

question for the last about four years, although, it was claimed

that she was living as a licensee of respondent no. 3, when the

Hon'ble Court noticed that with the active connivance of the

police the respondent no. 3 & 4 were inducted in the premises,

the Hon'ble Delhi High Court directed restoration of 'status

quo' ante and directed respondent no. 1 & 2 to put the petitioner

back in possession of the property in question within a week.

The Hon'ble Court rejected the contention of the respondents

that the petitioner has filed a suit for possession which is

pending in the civil court and disputed questions of facts and

law form part of the said suit and thus the petition was not

maintainable.

28. The Hon'ble Delhi High Court held that it was not

concerned with the title of the property in question and on

noticing the fact that the respondent no. 3 & 4 were inducted

into possession in connivance with police and the petitioner was

thrown out of the house where she was living for about four

years, the court took a view that it has quite and ample powers

to pass appropriate orders including orders for restoration of

possession. The Hon'ble Court observed inter alia as under:-

"..... .....In such circumstances, this Court, to do complete justice between the parties, has Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

wide and ample powers to pass appropriate orders including orders for restoration of possession. On the facts like the present it is the duty of the Court to come to the aid of person who is oppressed and is in disadvantageous position and, therefore, it is necessary to make innovations and forge new tools when atrocities are committed by those who are required to enforce the rule of law. The alleged offender cannot be permitted to take advantage of delay in justice delivery system. The contention that they may have prima facie committed the offence of trespass for the purpose of registration of FIR, which may be registered, and that the law will have its own course after registration of the FIR and at this stage no orders for delivery of possession can be passed, cannot be accepted on the peculiar facts of this case.

Of course, the criminal law will have its own course. Of course, the suit would also be decided on its own merit and this order will not prejudice parties in those proceedings but all this does not persuade us to deny the relief of putting the petitioner back into possession. All situations are not alike. What relief deserves to be given in exercise of jurisdiction under Article 226 cannot be placed in a rigid mould. It cannot Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

be put in a straight jacket. The relief is to be moulded as the facts and circumstances of the case and cause of justice may demand. .............."

29. In the case of Vijay Khanna and Anr.(supra)

again the Hon'ble Division Bench of Delhi High Court was

examining a case in which restoration of possession was sought

for in writ jurisdiction. The petitioners were alleging

dispossession from the ground floor portion of the house by

respondent no. 15 and others while from first floor portion by

respondent no. 16 and others on 14th April, 1994 and 26th April

1994 respectively. The Hon'ble High Court rejected the

contention of the respondents that the petitioner may get

restored their possession in terms of Section 456 Cr.P.C. and

expressed its views in the following words:-

"....... ..... It will not be out of place to state that power to restore possession of immovable property under Section 456 Cr.P.C. can be resorted to by the court only after recording the finding of guilt against the accused and the decision in case FIR No. 259/1994 is likely to take couple of years time. Taking note of the ratio in Smt. Anju Devi's case (supra) and the facts and the circumstances of the case, the Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

petitioners deserves to be put back into possession of their house. ... ..."

30. Learned counsel for the petitioner has referred the

judgment of the Hon'ble Allahabad High Court in the case of

Waf Alalaulad and Anr.(supra). Paragraph 14, 15, 16, 17, 19,

20 and 21 from the said judgment may be usefully extracted

hereunder in the facts of the present case.

"14. But dispossessing a person from his property otherwise than in due course of law is different from grabbing the property by terrorising the person in possession. To capture the property forcibly by creating terror by applying brute force is not a simple case of dispossessing a person from property. In a country governed by rule of law no person can be deprived of his life, liberty and property by third degree methods, such as terrorising and man-handling the person concerned. In such a case not only the person who has been dispossessed of his property but the society itself is taken to ransom by brute force. Such an act creates terror in the minds of the people and has the effect of shaking the social fabrics of the society. These acts also hit and damage the authority of the Government with the result that the public order, peace and tranquility of the society are disturbed. In such cases it is the duty of the Government to come to the rescue of the persons who are threatened or have been dispossessed from their property by brazen act of law-lessness.

15. In Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, generally known us "Bhopal Gas leak disaster case" the Supreme Court while dealing with the Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

concept known as "parens patrias", has held that the Government has the sovereign power of guardianship over the persons under disability and it is its duty to protect them. It was further held that where the citizens are not in a position to protect their rights the Government must intervene and fight for their rights. Relevant extract from the above decision of the Supreme Court is reproduced below at page 1504 :

"There is a concept known both in this country and abroad, called "parens patriae". Dr. B. K. Mukherjee in his 'Hindu Law of Religious-and Charitable Trusts,' Tagore Law Lectures, Fifth Edition, at p. 454, referring to the concept of parens patriae, has noted that in English Law, the Crown as parens patriae is the constitutional protector of all property subject to charitable trusts such trusts being essentially matters of public concern. Thus the position is that according to Indian concept parens patriae doctrine recognised King as the protector of all citizens and as parent. In Budhkaran Chaukhani v. Thakur Prasad Shah, AIR 1942 Cal 311 the position was explained by the Calcutta High Court at page 318 of the report. The same position was reiterated by the said High Court in Banku Behary v. Banku Behary Hasra AIR 1943 Cal 203 at pp. 205 of the report. The position was further elaborated and explained by the Madras High Court in Kumaraswami Mudaliar v. Rajammal AIR 1957 Mad 563 at p. 567 of the report. This Court also recognised the concept of parens patriae relying on the observations of Dr. K. Mukherjee aforesaid in Ram Saroop v. S. P. Sahi, (1959) 2 Supp SCR 583 at pp. 598 and 599;

AIR 1959 SC 951 at pp. 958-959. In the "words and phrases" permanent Edition, Vol. 33 at p. 99, it is stated that parens patriae is the inherent power and authority of a Legislature to provide protection to the person and property of persons non suijuris, such as minor, insan, and incompetent persons, but the words "parens Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

patriae" meaning thereby 'the father of the country', were applied originally to the King and are used to designate the state referring to its sovereign power of guardianship over persons under disability. (Emphasis supplied). Parens patriae jurisdiction, it has been explained, is the right of sovereign and imposes a duty on sovereign, in public interest, to protect persons under disability who have no rightful protector. The connotation of the term "parens patriae" differs from country to country, for instance, in England it is the King, in America, it is the people, etc. The Government is within its duty to protect and to control persons under disability. Conceptually, the parens patriae theory is the obligation of the State to protect and take into custody the rights and the privileges of its citizens was discharging its obligations. Our Constitution makes it imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert and secure their rights, the State must come into picture and protect and fight for the rights of the citizens. The preamble to the Constitution, read with the Directive Principles. Arts. 38, 39 and 39A enjoins the State to take up the responsibility. It is the protective measure to which the social welfare State is committed. It is necessary for the State to ensure the fundamental rights in conjunction with the Directive Principle of State Policy to effectively discharge its obligation and for this purpose, if necessary, to deprive some rights and privileges of the individual victims or their heirs to protect their rights better and secure these further."

16.The position of the Government being that of parent it has to act, intervene and protect lives, liberty and property of the people when threatened or invaded. Its duly is much greater in the case of a person under disability. A person is under disability not only when he suffers from physical or legal infirmities, but also when Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

he is unable to stand up and protect his right and property from invasion by or with the help of anti social elements, Mafias and terrorists. In such a case it is not only duty of the Government to protect a person in distress and restore the possession of his property to him, but it is also the duty of this Court, when approached, to pass appropriate orders and issue necessary directions to the Government to protect his life, liberty and property and, when found necessary, to restore him the possession of his property.

17.A learned Single Judge of this Court in Jai Prakash Vashisht v. Addl. District Magistrate, 1995(26) All LR 46 has, in this connection, laid down as under:

"Illegal house grabbing seems to be rapidly becoming the order of the day in many places in Uttar Pradesh. This Court will be failing in its duty if it does not voice its protest against these brazen acts of lawlessness. A man's house is said to be his castle. But when the castle is invaded illegally by a mob of anti social elements who beat up the inhabitants, throw them out and illegally occupy the same, it is the matter of great concern for all law abiding citizens. Several instances of such illegal house grabbing have lately come to the notice of this Court, and reports about them have been published widely by the newspapers."

19.In National Human Rights Commission v. State of Arunachal Pradesh (I) JT 1996 SC 163 : 1996 AIR SCW 1274 a public interest petition under Article 32 of the Constitution was filed before Supreme Court in order to protect and enforce the rights under Article 21 of the Constitution of Chakma tribals by preventing their eviction from the State of Arunachal Pradesh. Supreme Court while granting necessary relief, has laid down as under :--

"We are a country governed by the Rule of law. Our Constitution confers certain rights on citizens. Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise, and it cannot permit any body or group of persons e.g. the AAPSU to threaten the Chakmas to leave the State, failing which they would be forced to do so. No State Government worth the name can tolerate such threats by one group of persons to another group of persons, it is duty bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its constitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law. The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well being of Chakmas residing in the State without being inhibited by local politics." Supreme Court accordingly directed the State of Arunachal Pradesh to ensure that life and personal liberty of every Chakma residing within the State is protected and any attempt to forcibly evict or drag them out of the State by organisations or group of persons shall be repelled, if necessary by requisitioning service of para-military or police force. It was further directed that the Chakmas will not be denied domestic life and comfort therein.

20.When a person, who has been dispossessed from his property by brazen acts of lawlessness by or with the help of anti-social elements, approaches this Court under Article 226 of the Constitution, this Court does not exercise its power to enforce the contractual and legal obligations of the parties. It only directs the Government to enforce the Rule of law and to protect the lives, liberty and the properties of the people and, if found necessary, to restore the possession of the property to the person who has been dispossessed therefrom, leaving it open to the parties to get their rights adjudicated through Civil Court. To tell a person Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

whose property has been forcibly captured and seized by or with the help of anti social elements, to file a suit for its recovery and be on the street till the suit is decided by the last Court, is nothing but slapping a person in distress. The first two preliminary objections raised by the learned counsel for the owner are, therefore, rejected.

21.As regards the third preliminary objection it may be mentioned that Supreme Court in Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, (1989) 4 SCC 131 : AIR 1989 SC 2097 (supra), relevant extract from which has been reproduced before, has held that no person can forcibly be dispossessed from property even by the owner except by recourse to law. If a person is sought to be dispossessed by brute force he has a right to approach this Court, to protect his possession and it is the duty of this Court to issue appropriate order, direction or writ in the nature of mandamus to the Government to protect the possession of the property of such a person till he is dispossessed therefrom through a Court. In the instant case period of lease expired on 31- 12-1994. But the tenants have a right to continue in its possession till they are evicted through Court. They thus have the right to approach the Court to protect their possession of the property. Their writ petition as such cannot be said to be not maintainable. The third preliminary objection is also rejected..... ......."

31. So far as the judgments on which reliance has

been placed by learned counsel for the respondent no.8 is

concerned, in the case of Mohan Pandey & Anr. (supra) the

Hon'ble Apex Court has discussed the facts of the said case. The

facts of the case revealed that a suit for eviction of the Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

appellants from the building was pending in the trial court. The

respondent no. 1 claimed that she had let-out the same to one Sri

B.K. Pandey who later on illegally handed over possession

thereof to the appellant no. 1. A portion of the said house

property which was the subject matter of the present suit was

beyond the purview of the pending suit. The respondent claimed

that the occasion for initiating the present proceeding with

respect to this portion arose because of the high handedness of

the appellant who illegally trespassed beyond the area which the

subject matter of the pending suit and indulged in several illegal

activities.

32. The Hon'ble Apex Court found that the appellants

were said to be a trespasser. On this, in the facts of the said case,

the Hon'ble Apex Court held that the regular suit is the

appropriate remedy for settlement of disputes. This Court finds

that facts noted in the judgment of the Hon'ble Apex Court

nowhere discloses use of force and it was an admitted position

that the appellant no. 1 was in possession of a portion of the

property though it was alleged that he was put in possession

illegally by the tenants.

33. In the case of Roshina T (supra) the facts of the

case would disclose that the dispute relates to the possession of Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

a Flat on third floor of a building. Respondent no. 1 filed a writ

petition in the High Court of Kerala seeking a relief of

restoration of possession over the Flat. The Division Bench of

the High Court allowed the writ petition and directed the

restoration of possession of the Flat in question to respondent

no. 1. Before the Hon'ble Supreme Court, a question was raised

as to whether the High Court was justified in entertaining the

writ petition filed by the respondent no. 1 and whether the High

Court was justified in issuing a mandamus against the appellant

directing him to restore the possession of the Flat to respondent

no. 1. In paragraph '11' of the said judgment the Hon'ble Apex

Court noticed the fact that one Civil Suit no. 807/2014 was

pending between the appellant and respondent no. 1 in relation

to the Flat in question for grant of injunction. It was not in

dispute that appellant and the respondent no. 1 were private

individuals and both were claiming their rights of ownership

and possession over the Flat in question on various factual

grounds. In that background, the Hon'ble Apex Court took a

view that civil suit is a proper remedy. The judgment of the

Hon'ble Apex Court in the case of Mohan Pandey (supra) and

Dwarka Prasad Agrawal Vs. BD Agrawal reported in (2003)

6 SCC 230 were referred to.

Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

34. To this Court, it appears that the facts of the case

of Roshina T (supra) and that of the present case are clearly

distinguishable. In this case no lis was pending between the

petitioner and respondent no. 8 with respect to right, title and

possession over any portion of plot no. 152(old). There is

nothing on the record to show that in Title Partition Suit No.

271/2000 the construction allegedly raised by the petitioner

were either demolished or the petitioner was ousted from the

occupied portion of the disputed land through the process of the

court. Without prejudice to the rights and contentions of the

either parties, this Court would notice that the vendor of

respondent no. 8 had himself taken a plea in Partition Suit No.

271/2000 that the present writ petitioner had constructed a

boundary over a portion of plot no. 152(old) and had raised a

construction thereon in the shape of a house. Whether or not the

petitioner has right, title or interest over the said portion of plot

no. 152(old) and whether the petitioner is entitled to possess the

said portion of land will be a question which may be adjudicated

by a competent civil court.

35. For the present, this Court is required to consider

the matter from the angle as to whether the petitioner has been

forcefully dispossessed from his chambers in connivance with Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

the police officers who allegedly did not act in time and later on

put their lock on the chambers of the petitioner. On behalf of the

State respondents, there is no denial of the statements made in

paragraph '6G' of the writ application wherein the petitioner has

claimed that he was asked to remove his lock and under duress

of the police personnel the petitioner was asked to open his

locks whereafter the police personnel put their own lock on the

premises and took away the keys. Petitioner has made specific

statements indicating how he has been thrown out from his

chambers by use of force and the police has connived with the

respondent no. 8. If these uncontroverted statements of the

petitioner are considered together with the information

furnished to this Court by the Superintendent of Police,

Muzaffarpur, as recorded in the order dated 25.09.2020, the

same strengthens the views of this Court that in the facts and

circumstances of the case, the ratio of the judgments relied upon

by learned counsel for the petitioner must be followed. To ask

the petitioner to await the outcome of the criminal case or to

recover his possession of chambers through a civil suit, in the

opinion of this Court would only amount to adding assault to his

injury.

36. This Court, therefore, forms an opinion that the Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

line of judgments relied upon by learned counsel for the

petitioner would be applicable in the facts and circumstances of

the present case.

37. From the materials on the records, it appears that

the Superintendent of Police, Samastipur had in course of his

inspection of the spot noticed that there was a newly built brick

work closing the entry gate of the office premises opening

towards the campus of the informant. It was found newly

plastered at the time of supervision. This Court, therefore,

directs the Superintendent of Police, Samastipur to restore status

quo ante by allowing the petitioner to restore his possession to

the extent over the Lawyers' Chambers by opening the lock

within 15 days from the date of receipt of a copy of the

judgment.

38. This Court would reiterate that whatever

observations have been made hereinabove shall not be taken as

any opinion of this Court on any of the issues in any civil or

criminal proceeding and it will be open for the parties to get

each and all issues involved in the matter resolved in accordance

with law through the competent civil court/Tribunal of

competent jurisdiction. In such adjudication neither party shall

rely upon any observation of this Court in the present Patna High Court CR. WJC No.366 of 2020 dt.05-04-2021

proceeding.

39. The observations are only for purpose of the

present case and without prejudice to either party.

40. This Writ Application stands disposed off

accordingly.

                                                                (Rajeev Ranjan Prasad, J)
 Sushma2/Rajeev

 AFR/NAFR                            AFR
 CAV DATE                         01.03.2021
 Uploading Date                   05.04.2021
 Transmission Date                05.04.2021

Note: The ordersheet duly signed has been attached with the record. However, in view of the present arrangements, during Pandemic period all concerned shall act on the basis of the copy of the order uploaded on the High Court website under the heading 'Judicial Orders Passed During The Pandemic Period'.