Syed Asghar Ali vs The State Of Bihar
2021 Latest Caselaw 938 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8131 of 2020
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Syed Asghar Ali, Male, aged about 76 years, Son of Late Syed Mohammad Mehdi, Resident of Badshah Manzil, Guzri Bazar, Patna City, P.S.- Khaje- kalan, Patna City, District- Patna- 800008.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Principal Secretary, General Administration Department, Government of Bihar, Patna.

3. The Principal Secretary, Department of Revenue, Government of Bihar, Patna.

4. The Principal Secretary, Cabinet Secretariat Department, Old Secretariat, Government of Bihar, Patna.

5. The Divisional Commissioner, Magadh Division, Gaya.

6. The Collector-cum-District Magistrate, Nawada.

7. The Deputy Collector Land Reforms (DCLR), Nawada.

8. The Circle Officer, Sadar Nawada, District- Nawada.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Shahabuddin Azeem, Advocate For the State : Mr. Md. Khurshid Alam, AAG 12 with Mr. Majid Mahboob Khan, AC to AAG 12 ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 18-02-2021

Heard Mr. Shahabuddin Azeem, learned counsel for

the petitioner and Mr. Md. Khurshid Alam, learned AAG 12

along with Mr. Majid Mahboob Khan, learned AC to AAG 12

for the State.

2. The petitioner has moved the Court for the

following reliefs:

"That the present writ petition is being preferred before this Hon'ble Court for issuance Patna High Court CWJC No.8131 of 2020 dt.18-02-2021

of writ, writs, order, orders, direction, directions, specially a writ of mandamus directing the Collector-cum-District Magistrate, Nawada to stop forthwith the construction work going on over R.S. Plot No. 1096, 1097 and 1100, an area covering about 15 acres, out of total 35 acres, pertaining to Plot No. 1093, 1094 and 1095, for which judgment and decree passed by the learned Sub-Judge 1st, Nawada in Title Suit No. 432 of 2016, CIS No. 468 of 2016 (Syed Asghar Ali Vs. State of Bihar through the Collector, Nawada and Circle Officer, Sadar Nawada).

Further be pleased to restrain the Collector, Nawada for any unlawful coercive step against the petitioner and their workers present at the land which is under the possession of the petitioner from the year 1945 and before 1945 his father Late Syed Mohammad Mehdi, resident of Guzri Bazar, Patna City, P.S. Khaje-kalan, District- Patna-800008.

And further be pleased to pass such order, orders as your Lordships may deem fit and proper in the facts and circumstances of the case in accordance with law."

3. The following facts are not in dispute:

For the lands in question the petitioner filed a Title

Suit which was decreed in his favour confirming his title and

possession over the same. Thereafter, construction was being

made on a portion of the lands in question by the authorities for

an Engineering College. The State also filed appeal against the

judgment of the Civil Court in the Title Suit in favour of the

petitioner, which is still pending. Further, the petitioner filed an

injunction petition in the appeal to restrain the authorities from

making construction over the lands in question.

Patna High Court CWJC No.8131 of 2020 dt.18-02-2021

4. Learned counsel for the State submitted that once

the petitioner has a decree in his favour, if there was any

violation of the same, his remedy was to file an execution case

but not choosing to do that and coming before this Court and

also filing injunction petition in the appeal filed by the State are

thoroughly misconceived. It was submitted the Court would not

interfere in the matter as the petitioner has a decree of a

competent Civil Court in his favour and the remedy available to

him under the common law is required to be availed of and the

Court would not act as an executing authority of any order

passed by the Civil Court for which the Code of Civil

Procedure, 1908 confers special procedure and jurisdiction on

the Courts below. It was further submitted that, as it is, the

interest of the petitioner is protected, for if ultimately he

succeeds, whatever investment or construction the authorities

have made would pass on to the petitioner and, thus, the

petitioner stands to gain.

5. Faced with the situation, learned counsel for the

petitioner submitted that the matter be disposed off with liberty

to move before the Court below for effective implementation of

the decree itself in his favour with regard to the lands in

question.

Patna High Court CWJC No.8131 of 2020 dt.18-02-2021

6. Learned counsel for the State does not object.

7. In view thereof, as prayed for by learned counsel

for the petitioner, the writ petition stands disposed off with

liberty aforesaid. It is made clear that the Court has not

expressed any opinion on the merits of the matter.

8. The interim order dated 29.09.2020 restraining the

authorities from making any construction upon the lands in

question stands vacated.

9. On the apprehension expressed by learned counsel

for the petitioner, with regard to any adverse effect due to

disposal of the present case, the Court would only observe that

this order shall not prejudice the petitioner in any proceeding

which he may institute with regard to the lands in question

based upon the decree in his favour in the suit.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR U T