Nawal Kishore Sureka vs The State Of Bihar
2021 Latest Caselaw 1388 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8844 of 2020
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1. Nawal Kishore Sureka S/o Late Murlidhar Sureka Resident of Henry Bazar, Loharpatti, Police Station- Motihari Town, District- East Champaran, at present Sureka Saolan- Sutapati, Police Station- Town, District Muzaffarpur.

2. Dhrub Prasad Son of Late Kashi Sah Resident of Mohalla- Banjaria, Police Station- Banjaria, District- East Champaran.

3. Suraj Kumar Son of Sachidanand Prasad Resident of Mohalla- Khoda Nagar, Police Station- Chitoni, District- East Champaran, Motihari.

... ... Petitioner/s Versus

1. The State of Bihar.

2. The Director General of Police, Bihar.

3. The District Magistrate, East Champaran, Motihari.

4. The Superintendent of Police, East Champaran, Motihari.

5. The Circle Officer, Sadar, Motihari, East Champaran (Notified).

6. The Officer Incharge, Sadar Motihari Police Station, East Champaran, Motihari.

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

For the Petitioner/s : Mr.Mahasweta Chatterjee For the Respondent/s : Mr.Nasrul Hoda Khan (SC 1) ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 10-03-2021

The petitioners are seeking a direction to the State

respondents to restore their possession over a two-storey building

standing over plot no. 474, 472, 475, 447, 458, 459, 466, 470, 461,

462 and 471 which according to them, is their personal property

over which they have right, title and interest. Further, they are

seeking an order from this Court restraining the District Patna High Court CWJC No.8844 of 2020 dt.10-03-2021

Magistrate, East Champaran at Motihari from interfering with the

said property except in accordance with law.

2. It is their case that the aforesaid plots appertaining to

Khata No. 122 was transferred in the name of one Manbhari Kuar,

the grandmother of petitioner no. 1, by one Maulvi Mahmood

Alam and Md. Safiruddin through registered sale deeds no. 1700

and 1701 dated 12.02.2014. The land was mutated in her name and

she started paying rent, which was paid up to the year 2020-21. A

land possession certificate was also issued in her name by the

Circle Officer, Sadar, Motihari, East Champaran. After the death of

Manbhari Kuar in 1948, father of petitioner no. 1 came into

possession over the plots and in 1965, he constructed a two-storey

building over the plots, which he would rent for seminars and

marriages etc. The father of petitioner no. 1 (Murlidhar Sureka)

died in 1978 whereafter petitioner no. 1 took over the said

property.

3. It is the petitioners' specific case that no

Dharamshala ever existed over the said plots and the building is

still known as Marwari Vivah Bhawan.

4. To strengthen their case, the petitioners have asserted

that the writ application was filed before this Court giving rise to

C.W.J.C. No. 8048 of 2015 for closure of all the marriage halls, as Patna High Court CWJC No.8844 of 2020 dt.10-03-2021

they were causing pollution in the locality. Petitioner no. 1 was

impleaded as respondent no. 24 in the said writ application.

Subsequently by an order dated 06.04.2016, the Bihar State

Pollution Control Board had asked the petitioner to close the

marriage halls with immediate effect and the writ petition was

disposed of by an order dated 11.04.2016 recording therein that no

marriage halls should be operated within the municipal limits of

Motihari, Nagar Parishad except in accordance with law. The

marriage hall is closed since 2016.

5. Further, according to the petitioners, a registered rent

agreement was entered into between petitioner no. 1 and some

tenants including petitioners no. 2 and 3 on 28.12.2016 at monthly

rental of Rs. 10,000/- for a period of 11 months. After expiry of the

said agreement, the petitioner no. 1 executed another rent

agreement on 20.11.2019 in favour of petitioners no. 2 and 3 for a

period up to 27.10.2020 at the rate of Rs. 11,000/- per month and

thus petitioners no. 2 and 3 remained in possession till 30.07.2020.

Besides, it is further their case, that petitioner no. 2 was running a

Jewellery shop, for which he was using the premises in question

for manufacturing ornaments whereas petitioner no. 3 was residing

in the house with his family and children.

Patna High Court CWJC No.8844 of 2020 dt.10-03-2021

6. Later one Deepak Agarwal and Anil Agarwal filed a

petition claiming the premises to be a Dharamshala and a public

trust on the basis of unregistered Samarpannama dated 08.04.1952

allegedly executed by said Manbhari Kuar whereby the premises

was donated to the Marwari Samaj. They questioned the authority

of petitioner no. 1 to let out the said property. It is the petitioners'

case that the police upon enquiry had concluded that the property

belonged to the petitioner and by an order dated 11.04.2019, a

proceeding initiated under Section 144 of the Criminal Procedure

Code was dropped by Sub-Divisional Officer, Sadar, Motihari. It

has further been asserted that a title suit has been filed by the said

Deepak Kumar registered as Title Suit No. 176 of 2020 on

03.07.2020, in which, all the three persons are defendants, seeking

a declaration that the said premises is a public trust. The

petitioners have alleged that under the influence of the said

plaintiff Deepak Kumar, a local MLA, who is a Minister in the

State Government, requested the Chief Minister of Bihar to get the

said Dharamshala free of any encroachment and at the same time

he asked the District Magistrate to get the Dharamshala vacated. It

has been asserted in the writ petition that on 30.07.2020, the Circle

Officer accompanying police force provided by Motihari, Sadar

Police Station came to the premises and threw out the belonging of Patna High Court CWJC No.8844 of 2020 dt.10-03-2021

the petitioners on road. The Minister has allegedly written a letter

to the Chairman of the Bihar State Board of Religious Trust

(hereinafter referred to as 'the Board') for constitution of a

committee. One of the plaintiffs of the Title Suit has filed a

petition before the Board, concealing the fact regarding pendency

of the Title Suit. It has been stated that the Chairman of the Board

has declared the said Manbhari Kuar Dharamshala, as public trust

and has directed for completing all the formalities within two days

for getting the Dharamshala registered with Bihar State Board of

Religious Trust Board.

7. Ms. Mahasweta Chatterjee, learned counsel appearing

on behalf of the petitioners with her usual vehemence has argued

that it is an example of total high handedness on the part of the

local administration whereby the petitioners were forcibly thrown

out of the premises, which they were legally occupying since long.

She has contended that no procedure at all was followed before

throwing the petitioners out of the premises. She has argued that

the petitioners are in possession of the documents in support of

their respective claims to own and occupy the premises in

question.

8. Md. Nasrul Hoda Khan, learned SC-1 representing the

respondents while opposing the reliefs sought for in the present Patna High Court CWJC No.8844 of 2020 dt.10-03-2021

writ application has submitted that the petitioners' claim of title

and right to occupy the premises in question, cannot be

adjudicated upon in a writ proceeding under Article 226 of the

Constitution of India, in the light of law laid down by the Supreme

Court and this Court in numerous cases.

9. As is clear from the pleadings in the writ application

itself that a suit in respect of the said property is pending before a

Court of competent jurisdiction asserting therein that the said

Manbhari Kuar had executed a Samarpannama on 08.04.1952 for

the premises to be used by public as Dharamshala and a building

was constructed over the land with the donations given by the

public. The title of petitioner no. 1 over the premises has been

completely disputed. In the aforesaid background, one of the

reliefs sought for in the suit is for declaration that the premises in

question is a public trust for use by the general public and that the

petitioner no. 1 did not have any authority to enter into any lease

agreement with petitioners no. 2 and 3. The petitioners are parties

in the said suit.

10. On perusal of the order dated 11.04.2019 passed by

the Sub-Divisional Officer, Sadar, Motihari in the proceeding

under Section 144 of the Cr.P.C., it transpires that while dropping

the proceeding, the Sub-Divisional Officer has specifically Patna High Court CWJC No.8844 of 2020 dt.10-03-2021

recorded that the dispute between the parties before him concerns

title in respect of the premises in question, which could not be

resolved in the proceeding before him. He, accordingly, opined

that the parties should approach competent Court for declaration of

title. It has been averred in the writ petition itself that the

Chairman of the Board has already declared the premises in

question as a public trust with further direction to complete the

formalities for getting Dharamshala registered with the Board by

an order dated 04.08.2020.

11. It is to be noted that Ms. Mahashweta Chatterjee has

vehemently argued that this Court, on the basis of photostat copies

of the documents brought on record, may decide the question, as to

whether, the petitioner no. 1 has title over the property or not and

whether the petitioners no. 2 and 3 have been unlawfully thrown

out of the premises in question.

12. In my opinion, since it has been repeatedly held in

judicial pronouncements that a proceeding under Article 226 of the

Constitution of India is not a correct forum for adjudication of

disputes relating to title, no relief, as sought for by the petitioners

in the present case can be granted. This is because the relief, which

the petitioners are seeking, cannot be granted without recording a

finding of fact that the petitioners were in possession over the Patna High Court CWJC No.8844 of 2020 dt.10-03-2021

premises in question at the relevant point of time, as asserted in the

writ application. Further, this Court in the present proceeding

cannot record a finding of title of petitioner no. 1 over the said

premises. Apparently, there exists dispute in respect of title which

is evident from the pleadings on record inasmuch as a suit is

pending and the Board has already declared the premises to be a

public trust.

13. The Supreme Court in case of Union of India and

Others v. Ghaus Mohammad (AIR 1961 SC 1526) has held in

paragraph 7 as under:-

"7. The question whether the respondent is a foreigner is a question of fact on which there is a great deal of dispute which would require a detailed examination of evidence. A proceeding under Article 226 of the Constitution would not be appropriate for a decision of the question. In our view, this question is best decided by a suit and to this course neither party seems to have any serious objection. As we propose to leave the respondent free to file such a suit if he is so advised, we have not dealt with the evidence on the record on the question of the respondent's nationality so as not to prejudice any proceeding that may be brought in the future."

Patna High Court CWJC No.8844 of 2020 dt.10-03-2021

14. It would be beneficial to note another decision of the

Supreme Court in case of D.L.F. Housing Construction (P)

Limited v. Delhi Municipal Corporation and Others (AIR 1976

SC 386) holding as under in paragraph 20:-

"20. In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course for the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. On this short ground while setting aside the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The appellants may, if so advised, seek their remedy by a regular suit."

15. In case of State of Rajasthan v. Bhawani Singh

and Others reported in 1993 Supp (1) SCC 306, the Supreme

Court has held in no uncertain terms that disputed questions

relating to title cannot be satisfactorily gone into or adjudicated

upon in a writ proceeding. Referring to the aforesaid

pronouncements of the Supreme Court, a Division Bench of this

Court in its decision in case of State of Bihar and Others v.

Chandrabanshi Singh reported in 2015 SCC OnLine Pat 10048 Patna High Court CWJC No.8844 of 2020 dt.10-03-2021

has held that disputed questions of fact relating to title can be

proved only in a proper suit and not in a proceeding under Article

226 of the Constitution of India.

16. For the aforesaid reasons, I do not find any merit in

this application. This writ application is accordingly dismissed.

17. It is made clear that I have not gone into the merit

of the claims of these petitioners in respect of their title or

occupation in respect of the premises in question and, therefore,

any observation made in the present order should not be treated as

an opinion on the merit of respective claims of the parties. The

petitioners shall be at liberty to approach appropriate forum for

adjudication of their claims in appropriate proceeding in

accordance with law.

(Chakradhari Sharan Singh, J) AKASH/-

AFR/NAFR                        NAFR
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Uploading Date                10/03/2021
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