Mahendra Singh Soni 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 issuance of direction upon the respondents to allow the petitioner to carry on his business from the shop premises situated at Ward No. 6 (Old) corresponding New Ward No. 15, Doctors Lane, Holding No. 191, Jhumri Tilaiya, P.S.-Tilaiya, District-Koderma, which was purchased by him vide registered sale deed dated 27.03.2010 from the vendors Sardar Kulwant Singh and Sardar Rajendra Singh, as he has been illegally stopped from entering the said shop premises by anti-social elements.

The learned counsel for the petitioner submits that the petitioner purchased the aforesaid shop from his vendors i.e., Sardar Kulwant Singh and Sardar Rajendra Singh vide registered sale deed dated 20.03.2010/27.03.2010 and started his business. It is further submitted that one Bhuneshwar Halwai had filed a title suit being Title Suit No. 24-A/87 against Sardar Kulwant Singh in the court of Sub-Judge-IV, Koderma seeking declaration of title as well as for eviction of the defendant from the suit premises. After the death of Bhuneshwar Halwai, his son namely, Pradeep Kumar Gupta (the respondent no. 5) was subsequently substituted in his place as the sole plaintiff. The said title suit was dismissed vide judgment dated 30.06.2007. Aggrieved by the said judgment passed in the title suit, the respondent no. 5 preferred a title appeal being Civil Appeal No. 23/2007 in the court of District Judge, Koderma which was also dismissed vide judgment dated 29.06.2017. It is also submitted that on 11.09.2011 when the petitioner went to have lunch, some anti-social elements broke the lock of the petitioner's shop and put their own lock and when the petitioner opposed the same, they demanded a ransom of Rs. 5 lacs from him. The petitioner had made a written report of occurrence before the Officer-In-Charge of Tilaiya Police Station, however, no criminal case was registered. Thereafter, he made complaint before the DIG, Hazaribagh and also wrote a letter to the Sub-Divisional Officer, Koderma in the year 2015, however, no heed was paid by them towards the grievance of the petitioner. Subsequently, the Sub-Divisional Officer, Koderma vide letter no. 154 dated 27.01.2018 informed the Superintendent of Police, Koderma that an officer was deputed by the District Administration as magistrate with the task of opening the lock of the shop and to hand over the possession of the shop to the petitioner. However, when the officer went to the shop premises, he faced resistance from the opponents comprising of some female members. Accordingly the Sub-Divisional Officer, Koderma requested the Superintendent of Police, Koderma to send additional lady police force so that the shop could be handed over to the petitioner. However, the shop has not yet been handed over to the petitioner. It is also submitted that by not allowing the petitioner to carry on his business from the said shop which legally belongs to him, amounts to adversely affecting his right of livelihood enshrined under Article 19 and 21 of the Constitution of India.

The learned counsel appearing on behalf of the respondent-State submits that the present writ petition involves disputed question of fact which can only be adjudicated by the fact finding courts and as such, the present writ petition is not maintainable. It is submitted that there is a huge delay of 9 years in filing the present writ petition and hence, the same is liable to be dismissed.

Heard the learned counsel for the parties and perused the materials available on record. The claim of the petitioner is that he purchased the said shop by way of registered sale deed dated 20.03.2010/27.03.2010 and started his business, however, on 11.09.2011, some anti-social elements including the respondent no. 6 forcibly took the possession of the said shop of the petitioner. It has been stated that the private respondent no. 5 has already lost the suit against the vendor of the petitioner as also the appeal filed by him has been dismissed on 29.06.2017.

Be that as it may. Admittedly, the petitioner is out of possession of the said shop since 11.09.2011. However, the petitioner has preferred the present writ petition after about 9 years from the date of dispossession. The petitioner failed to make any sufficient explanation as to why he has moved before this Court after such a huge delay.

In the case of "Shankara Cooperative Housing Society Limited Vs. M. Prabhakar & Ors." reported in (2011) 5 SCC 607, the Hon'ble Supreme Court has held as under:

The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.

(2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.

(3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy.

(4) No hard-and-fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts.

(5) That representations would not be adequate explanation to take care of the delay.

The petitioner has claimed that though for the alleged incident dated 11.09.2011, he approached the police officials, but they did not entertain his application. The petitioner has, however, not taken recourse of law seeking appropriate civil/criminal remedy on the present issue. Thus, I am of the considered view that it is not a fit case to invoke the extraordinary writ jurisdiction of this Court which is otherwise plenary in nature.

The writ petition is accordingly dismissed. However the petitioner is at liberty to seek appropriate civil/criminal remedy as available under the respective laws.