Ashwani Sharma vs State Of Jharkhand And Ors

The present writ petition is taken up today through Video conferencing.

The present writ petition has been filed for quashing the letter no.411 dated 24th March, 2018 (Annexure-3 to the writ petition) issued by the Sub-

Divisional Officer, Chandil-respondent no.2 whereby the petitioner has been directed to produce documents and evidences in respect of the land

situated at Mouza - Kadamdih, P.S - Chandil, P.S No. 247, Khata No. 87, Plot Nos.28, 29 and 30, measuring an area of 0.27 acres (hereinafter to be

referred as the 'said land').

The factual background of the case as stated in the writ petition is that Gyani Ram Pandit was Sevayat of Satya Narayan Bhagwan temple

(hereinafter to be referred as the 'said temple') situated over the said land. A final settlement of the said land under Section 83(2) of the Chotanagpur

Tenancy Act, 1908 was published on 11th November, 1963 (certificate of final publication was signed on 13th November, 1963) wherein the name of

Gyani Ram Pandit was shown as the Sevayat of the said temple. The name of Gyani Ram Pandit was mutated in the record of rights on 21st March,

2015 and he also paid the rent and cess to the Government. After his death, his sons, namely, Shyam Sundar Sharma and Mohan Lal Sharma started

worshipping in the temple. Shyam Sundar Sharma died leaving behind his wife Dhanwanti Devi, daughter Ruchi Sharma (adopted) and son Ankit

Sharma (adopted), and Mohan Lal Sharma resides in Haryana. Thereafter, the petitioner married Ruchi Sharma and started living in the said premises

of the temple and he has been performing all the duties of Sevayat of deity Satya Narayan Bhagwan. The respondent no.4 sent a legal notice dated

12th March, 2018 to the petitioner and his wife claiming his right and title upon the said temple which was replied by the petitioner on 16th March,

2018 denying the claim of the respondent no.4. Thereafter, the respondent no.4 filed a petition, whereupon, the respondent no.2 sent the impugned

notice to the petitioner as contained in letter No.411 dated 24th March, 2018 directing him to produce the documents and evidences making allegation

that at present the petitioner is performing the worship of deity less and engaged more in illegal activities in the premises of temple.

The learned counsel for the petitioner submits that that the said notice is illegal and arbitrary and the same was issued by the respondent no.2 on

being influenced by the respondent no.4. It is further submitted that the respondent no.2 has not mentioned any provision of law in the impugned notice

under which such proceeding has been initiated and as such further order to produce the documents and evidences is bad in law and without

jurisdiction. It also submitted that the claim of the respondent no.4 is purely civil in nature for which the respondent no.2 has no jurisdiction. No

proceeding can be initiated under the Bihar (now Jharkhand) Land Encroachment Act, 1956 as the temple in question is not a government property.

The petitioner apprehends that he may be evicted by the respondent no.2 through a proceeding which is unknown in the eyes of law. The petitioner

also runs an Ashram in the temple and from the earning of the Ashram he takes his livelihood and also maintains the temple. Even if for the sake of

argument it is accepted that the petitioner has been found engaged in illegal business in the premises of temple, then also the respondent no. 2 has no

authority to evict the petitioner without following the legal procedure. It is further submitted that on 26th March, 2018, the respondent no.4 tried to take

possession of the said land forcefully by beating the petitioner and a first information report was lodged on 27th March, 2018 for the same but till date

no action has been taken against the respondent no.4, rather local police has been putting pressure on the petitioner to vacate the said land. It is also

submitted that from the content of the legal notice dated 12th March, 2018, it would appear that the same has not been issued for breach of public

tranquility, rather it has been issued on the ground that the petitioner is carrying illegal business in the premises of the temple.

The learned counsel for the respondent no.4 on the contrary submits that the father of the respondent no.4 had constructed the said temple and

appointed Gyani Ram Pandit as Sevayat/priest for performing daily puja and he was also allowed to stay in the temple premises. During the life time

of Gyani Ram Pandit, his son Shyam Sunder Sharma also performed puja but he had no issue and thus had allowed one Ruchi Sharma to enter in the

premises of the temple who claimed herself to be the adopted daughter of Shyam Sundar Sharma. After the death of Shyam Sundar Sharma, Ruchi

Sharma and her husband, who is petitioner herein, have made unauthorized encroachment in the temple premises and have started illegal hostel as well

as carpentry business therein and thus have been disturbing the devotees in performing Puja. It is further submitted that the said land was never

transferred in the name of the deity or its Sevayat and as such the petitioner and his wife have no legal right to reside over the said land. It is also

submitted that neither a trust has been created nor the land has been transferred in favour of any one. The respondent no.4 had made complaint

before the respondent no.2 against the nuisance being created by the petitioner and his wife upon the said land whereafter the respondent no.2 called

for a report from the Circle Officer, Chandil, who submitted a report on 17th February, 2018 stating that the petitioner and his wife were running a

hostel over the said land and had also supplied desks and benches to several schools which were manufactured in the temple premises and had also

constructed a toilet at temple gate due to which, the worshippers were facing great inconvenience. It is further submitted that the respondent no.2 is

the authority appointed under law to prevent nuisance and maintain public order and impugned notice has been issued in discharge of the statutory

duties. The petitioner is running hostel in temple premises and also carrying on carpentry business, which is not permissible since the land belongs to

the respondent no.4.

The learned counsel for the respondent-State submits that the respondent no.2 has rightly issued notice no.411 dated 24th March, 2018 under

Section 107 Cr.P.C to the petitioner after getting information that the petitioner is likely to commit a breach of peace or disturb the public tranquility or

to do any wrongful act. The petitioner is engaged in the illegal business in addition to running an Ashram in the temple premises which can only be

used for performing puja of Lord Satyanarayan Bhagwan. It is further submitted that in view of Section 91 Cr.P.C, the respondent no.4 is empowered

to issue summons to any person to produce documents for the purpose of an inquiry to be made in any proceeding under the Code of Criminal

Procedure but the petitioner neither attended nor produced any such document and thereby violated the order of the respondent no.2. The respondent

no.2 has issued the notice only to maintain peace and for security of life of the pubic as an administrator of the locality under his jurisdiction. So far as

the issue of possession over the disputed land is concerned, the appropriate forum is the competent court of civil jurisdiction.

Heard the learned counsel for the parties and perused the materials available on record. The petitioner has challenged the impugned notice dated

24th March, 2018 whereby the respondent no.2 has called upon him to produce the documents and evidences alleging that he has been engaged in

illegal activities more than the act of worship of deity on the said land.

The legal principle with regard to the extent of intervention of the writ court at the stage of show cause notice has been laid down by the Hon'ble

Supreme Court in the case of Union of India & Another Vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28, the relevant paragraphs of

which read as under:-

The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ

petition may be held to be premature. A mere charge- sheet or show-cause notice does not give rise to any cause of action, because it does not

amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is

quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings

and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause

notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a

party is passed, that the said party can be said to have any grievance.

Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-

cause notice or charge-sheet.

No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly

without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.

Thus, no interference is warranted at the stage of issuance of show cause notices since it does amount to an adverse order. It is quite possible that

after hearing the parties and taking into consideration the reply, the proceeding itself may be dropped. However in a very rare and exceptional

circumstance, the High Court may entertain a writ petition at the stage of issuance of show cause notices on the ground of jurisdiction.

In the present case, the claim of the petitioner is that the grandfather of his wife was ""Sevayat"" of the said temple which would also be evident

from the final settlement made under section 83(2) of the Act, 1908. It has further been claimed that he worships the deity in the said temple,

however, the respondent no.4, who is an influential person, has been trying to evict him from the said land. The said argument of the petitioner is not

relevant in the present proceeding in view of the stand of the respondent-State that the said notice has been issued in connection with a proceeding

initiated under section 107 Cr.P.C which provides that if an executive magistrate receives information that a person is likely to commit a breach of

peace or to disturb the public tranquility or to do any wrongful act that may probably occasion breach of the peace or disturb the public tranquility and

is of opinion that there is sufficient ground for proceeding, he may require such person to execute bond for keeping peace for such period not

exceeding one year as the magistrate thinks fit. Thus, the intervention of this Court sought by the petitioner under writ jurisdiction on the ground that

he may forcefully be evicted in the garb of the said impugned notice appears to be mere imagination and is not such a strong ground to invoke the

extraordinary writ jurisdiction at this stage. Moreover, by the reasons of said notice, the petitioner has been called upon to produce documents and

evidences alleging that certain illegal activities are going on over the said land, the decision whereupon is yet to be taken. The learned counsel for the

petitioner has raised jurisdictional incompetency of the respondent no.2 to issue such notice to the petitioner. However, Section 91 of Cr.P.C, as relied

by the respondent- State, empowers the Court to issue summons to a person calling upon to produce any document necessary for an appropriate

proceeding under the Code. Thus, the petitioner has not been able to show an exceptional circumstance so as to convince this Court for entertaining

the present writ petition.

In view of the aforesaid facts and circumstance, the respondent no.2 is directed to appoint a fresh date for production of documents and evidences

and to intimate the same to the petitioner within one week in advance and after taking into consideration the reply and the documents submitted by the

petitioner, to pass an appropriate order in accordance with law.

The writ petition is accordingly disposed of. Interim order dated 30th April, 2018 stands vacated.

I.A No. 4951 of 2020 is also disposed of accordingly.