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Judgment
This Letters Patent Appeal arises out of an order dated
11.07.2014 passed by the learned Single Judge of this Court in CWJC
No. 2153/2005 by which the learned Single Judge having discussed
the facts and the issues involved in the present case reached to a
conclusion that the disputed plots being still in possession of the
Circle Officer, Mahua as receiver under Section 146 of the Code of
Criminal Procedure, he is legally bound to hand over possession of
the plots to the petitioners in accordance with law but unfortunately
the concerned receiver has failed to do so. In the given circumstance
the learned Single Judge has directed respondents no. 2, 3 & 4, who
are District Magistrate, Superintendent of Police and Circle Officer,
Mahua, to take effective steps to restore the possession of petitioners
over the plots in question within two weeks from the date of receipt /
production of a copy of the order.
The learned Single Judge having found that on the
earlier occasion not only the Sub Divisional Magistrate, Mahua,
Vaishali but also other concerned officials refused to give any
assistance to the petitioner to get possession of the plots which was a
clear indication of failure of administration also directed by the
impugned order that any failure on the part of the concerned
respondents in implementation of the order within the period, as fixed
by the Court, shall entail the State to pay a compensation of Rs.
20,000/- to the petitioners and the petitioners shall be at liberty to seek
appropriate remedy before the appropriate forum, regarding non-
implementation of the order.
The private respondent no. 7, who despite service of
notice in the Writ Application did not turn up to contest the writ, is in
appeal before us and is assailing the order passed by the learned
Single Judge on the ground inter alia that it is an ex parte order and
the writ petitioner concealed before the learned Single Judge that a
Title Suit bearing no. 215/2004 in respect of the disputed plots was
going on in the court of learned Sub Judge I, Hajipur for a declaration
that the land in question is a part of Imambara / Kabristan / Karbala
etc., throughout used by the local Muslims.
We will discuss the facts of the case giving rise to
present situation a little later in this judgment.
This case essentially raises an issue as to what is the
Rule of Law. ''Rule of Law'' may have several meanings and one of
them is that ''Rule of Law'' means ''No person or government is above
the law''. If we enter into the origin and concept of the Rule of Law,
the term ''Rule of Law'' is derived from the phrase ''La Principe de
legality'' (the principle of legality) which refers to ''a government
based on principles of law and not of men''. The law must be obeyed
by the people. According to World Justice Project, a multi
disciplinary organization working to advance the Rule of Law around
the world, definition of ''Rule of Law'' comprises of the following
universal principles:-
(i) The government and its officials and agents as well as
individuals and private entities are accountable under the
law.
(ii) The laws are clear, publicized, stable, and just; are
applied evenly; and protect fundamental rights; including
the security of persons and property and certain core
human rights.
(iii) The process by which the laws are enacted,
administered and enforced is accessible, fair and efficient.
(iv) Justice is delivered timely by competent, ethical and
independent representatives and neutrals, who are of
sufficient number, have adequate resources and reflect the
make up of the communities they serve.
These four universal principles constitute a working
definition of ''Rule of Law''.
The Constitution of India, in its Preamble, reads as
under:
"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; ...."
Our Constitution guarantees justice to all its citizens. In
the aforementioned background, we find that the learned Single Judge
has categorically discussed the case of the writ petitioners taking note
of the chequered history of litigation in which the petitioners have
come out successful at all stages of the prosecution. The writ
petitioners, who are respondents no. 7 & 8 in the present appeal, claim
their right, title and interest as also possession over the Plots No. 668
and 669 under revisional Khata No. 201 and 20 measuring an area
0.18.1, Plots No. 676 and 679 falling in revisional Khata No. 201 and
202 and Plots No. 679, 668, 562, 690 and 679 falling under revisional
Khata No. 201 measuring an area 04.16, 03.6, 0.3.0 respectively and
some other plots situated at Chakazinizam, P.S. Mahua, District
Vaishali as per detail shown in the writ application. It has been the
consistent case of the writ petitioners - respondents no. 7 and 8 that
they purchased the land in question in the year 1966 from Bibi Saleha
Bandi, wife of Ghulam Hasan and also from Gulam Hasan and
accordingly they came in possession of the aforesaid plots. The names
of the writ petitioners - respondents no. 7 and 8 were mutated in
revenue records and they started paying rent to the State Government
but after some time a dispute arose between the petitioners and the
present appellant as also some of the other private respondents who
were arrayed as parties in the Writ Application. A proceeding under
Section 145 Cr.P.C. bearing Case no. 474 of 1967 / Trial No. 89 of
1979 was initiated in which the petitioners'' possession was declared.
The private respondents of the Writ Petition challenged the said order
in Cr. Revision No. 1010 of 1979 before this Court which was also
disposed of by a bench of this court.
The learned Single Judge has meticulously taken note
of each and every stage of the proceeding. In the Criminal Revision
preferred before this Court it was ordered that the entire matter be sent
back to the Consolidation Officer and the order passed under Section
145 Cr.P.C. will be subject to the result of the proceeding before the
Consolidation Officer (Annexure-1 to the Writ Application).
Thereafter, the writ petitioners lost their case before the
Consolidation Authorities and their request to correct their names in
the consolidation records on the basis of the sale deed was not
accepted, therefore, the petitioners moved this Court in CWJC No.
5/1980 for setting aside those orders and the Writ Application was
allowed and the matter was remitted back to the Consolidation Officer
to dispose of the same in the light of the observations given by this
Court (Annexure-2 to the Writ Application). Thereafter, vide order, as
contained in Annexure-3 to the Writ Application, the Consolidation
Officer decided the matter in favour of the writ petitioners; the private
respondents of the Writ Application challenged the legality of the
order before the Director of Consolidation, Bihar, Patna but they lost.
A Writ Application being CWJC No. 11190/1994 was filed by one
Gulam Mohammad Siddique and others before this Court challenging
the order of the Joint Director of Consolidation, however, vide
Anexure-4 to the Writ Application, the same was dismissed. In an
intra-court appeal vide LPA No. 1480/1995, a co-ordinate bench of
this Court disposed of the appeal with the following observations:-
"We fully agree with the view taken by the learned Single Judge that on the basis of the materials on the record no illegality can be found in the order. However, it will be open for the appellant to get the matter decided by a civil court in view of the law laid down by a Full Bench of this court in the case of Seikh Haider v. Md. Yusuf Ansari, reported in 2000 (2) PLJR 338 (DB)."
Thereafter, a final Chakbandi Khatiyan was also
prepared in the name of the writ-petitioners. During pendency of the
case before the consolidation court, a proceeding under Section 145
Cr.P.C., bearing Case no. 3059/1996, was started over the land which
the writ petitioners were claiming and vide order dated 06.03.1987 the
land, description of which has been mentioned in paragraph 22 of the
Writ Application, was attached under Section 146 Cr.P.C. and the
Anchal Adhikari, Mahua was appointed as receiver of the aforesaid
land. The writ petitioners challenged the proceeding initiated under
Section 145 Cr.P.C. in this Court vide Cr. Misc. No. 9967/1987 as it
was the case of the writ petitioners that the case between the parties
had already been decided by the consolidation court and, therefore, a
direction be given to the learned court below to drop the proceeding
under Section 145 Cr.P.C. Vide Annexure-6 to the Writ Application,
which is an order dated 26.11.1987 in Cr. Misc. No. 9967/1987, a
learned Single Judge of this Court held that the dispute between the
first party petitioner and the second party in relation to the land
involved had already received adjudication in favour of the petitioners
by the Consolidation Officer, Mahua by the judgment dated
21.01.1987. No appeal was preferred against the said order, therefore,
the right of the petitioners in all respect, i.e., title and interest, has
been decided. The Learned Single Judge directed the concerned
magistrate to examine this aspect of the matter and if the issue
between the parties had already been determined by the consolidation
authority finally, he should drop the proceeding. In the light of the
order passed by this Court, the learned Executive Magistrate, Mahua,
Vaishali examined the matter and concluded that the order passed by
the Joint Director, Consolidation, is an order passed by the
Consolidation Authority is final. The learned Executive Magistrate
also concluded that on Plot No. 668 measuring area 3 decimals there
is an old structure of Muslim community which has been found by the
Consolidation Officer and, therefore, the same is excluded from the
order.
As it appears, the private respondents including the
present appellant filed a declaratory title suit giving rise to Title Suit
No. 215/2004 in the court of the learned Sub Judge I, Hajipur at
Vaishali in which they sought a declaration that the sale deed dated
08.12.1966 executed by Gulam Hassan and his wife Saleha Bandi in
favour of the defendants of the suit (the writ petitioners) is fraudulent
and not binding upon the Muslim community and that the suit land be
declared a land in use for the relevant purpose of Muslim community
such as Karbala / Imambara / Kabristan. A copy of the plaint of T.S.
No. 215/2004 is available on the record.
Since the Consolidation Authority finally concluded
the right, title and possession of the writ petitioners in respect of the
land, except the land on which the old structure of Muslim community
was standing, and the 145 Cr.P.C . proceeding in which attachment
order was passed stood dropped, the writ petitioners sought
restoration of their possession from the receiver.
Despite all efforts taken by the writ petitioners to get
restored their possession by the receiver Anchal Adhikari, the
petitioners were not given possession of those land on the solitary
ground that apprehending communal tension the State administrate
were not providing adequate police force to put the writ petitioners in
possession by applying force if required. The writ petitioners,
therefore, approached this Court vide CWJC No. 2153/2005 with a
prayer to issue a writ or order or direction to the respondents to give
legal protection to the petitioners'' life and property by passing an
appropriate order. The prayer portion of the Writ Application reads as
under:-
"It is, therefore, prayed that your lordship may be graciously pleased to admit this application, call for the record of the case, issue notice to the respondents to show cause as to why the possession of the petitioners be not restored over the land in question and after cause being shown, if any, direct the respondents to restore possession of the petitioner over the land in question and it is further prayed that a direction be issued to respondent to protect the petitioners life, liberty and property in accordance with law or pass such order or orders as your lordship may deem fit and proper."
Notices were issued to the private respondents but
despite service they did not turn up to contest the Writ Application.
The Circle Officer, who was also appointed as a
receiver of the land, filed a counter affidavit in the Writ Application
on behalf of District Magistrate, Vaishali (Respondent no. 2) in which
besides stating the facts of the earlier round of proceeding, the only
reason given by him for not handing over possession of the land to the
petitioners is given in Paragraph 26 of his counter affidavit and, for
the sake of ready reference, the same is reproduced hereunder:-
"That with regard to the averment made in Paragraph 31 of the writ petition the respondent humbly submits that it is not fully correct. The C.O. Mahua has taken
all proper steps as per letter bearing letter no. 543 dated 7.12.1995 for fixing date for giving possession. S.P. Vaishali and in this several proper steps have been taken by these respondents but on objection raised by the private respondents process of giving possession could have been expedited."
Thus, what appears from a bare reading of the stand
taken by the Circle Officer, he was unable to hand over possession of
the land of which he is the receiver because of the objection taken by
the private respondents to the Writ Application. This is what has been
taken seriously by the learned Single Judge and rightly so because the
stand taken by the Circle Officer clearly indicates failure of the State
administration in implementing the Rule of Law. The learned Single
Judge has gone by the stand taken in the counter affidavit filed by the
District Magistrate and sworn by the Circle Officer, as stated above,
and having taken note of the stand of the District Magistrate, the
learned Single Judge has come to a conclusion that from the materials
available on the record even though the disputed plots are still in
possession of the concerned receiver and he is legally bound to hand
over all the disputed plots to the writ petitioners in accordance with
law but unfortunately the receiver has not done so which is clearly
indicating that there is a failure of administrate.
One of the private respondents, who has filed the
present intra-court-appeal initially took a stand that there was title suit
bearing no. 215/2004 pending in the court of the learned Sub Judge I,
Hajipur against the writ petitioners, however, the same was
suppressed by the writ petitioners and thereby played a fraud upon the
Hon''ble Court and got an ex parte order passed in this case. This
Court finds that mere filing of a declaratory suit, that too, in respect of
plots under attachment U/S 146 Cr.P.C . without their being any relief
for recovery of possession was of no significance. There was no order
of injunction so it cannot be said to be a case of suppression,
however, this issue has further lost its relevance as after filing of the
Letters Patent Appeal and during its pendency the plaintiffs of the said
suit failed to establish their case and could not prove that the sale deed
in favour of the writ petitioners were fraudulent, the suit failed,
however, learned counsel for the appellant has audacity to argue that
despite the failure of the plaintiffs to get a decree in their favour the
dispute is not final and the dispute cannot be said to have come to an
end. A copy of the judgment and decree of the learned Sub Judge in
the said Title Suit No. 215/2004 has been brought on the record,
which is Annexure-F to the counter affidavit filed on behalf of the
respondents no. 7 & 8 in the present LPA. A perusal of the judgment
and decree of the learned trial court would show that the learned trial
court has declared the right of the Muslim community over 17
decimals of land in Plot No. 674 and one decimal of land in Plot no.
675 but so far as their claim against the writ petitioners was
concerned, they failed to establish that the sale deed in favour of the
private respondents (the writ petitioners) were fraudulent. In fact the
private respondents are not claiming their right, title and possession
over Plots No. 674 and 675 which are recorded in the Khatiyan in the
name of Karbala / Kabristan / Imambara. The plaintiffs have nothing
to do with those plots, still the private respondents are not allowing
the receiver to hand over possession of the land of which right, title
and interest have been declared in favour of the writ petitioners and
they have acquired legal right to get possession from the receiver.
So far as the submission of the appellant that it is an
ex parte order is concerned, the submission is baseless as there is a
report showing service of notice on the private respondents but
despite service of notice they did not turn up to contest the Writ
Application.
In the present Letters Patent Appeal, once again a
counter affidavit has been filed on behalf of the Superintendent of
Police, Vaishali through the Additional Superintendent of Police. The
affidavit was sworn on 30.04.2015 and perusal thereof only confirms
the belief that the district administration has not given effect to the
various orders of the court below and they are trying to sit idle over
the matter in the name of objection from the private respondents.
In view of what has been discussed hereinabove, this
Court would reach to an inescapable conclusion that the Circle Officer
being a receiver is holding the property in question as custodia legis,
i.e., the property is in possession of law and once it has been held by
the various courts of law and the authorities that the writ petitioners -
respondents no. 7 and 8 in the present appeal are having right, title
and interest in those lands, the receiver, who is the custodian of the
property, has to hand over the possession to the writ petitioners and in
order to abide by the mandate of our Constitution which guarantees
justice to each and all citizens of the country, the district
administration is bound to comply with the order passed by the
learned Single Judge which must be done within a period of 15 days
from the date of receipt of a copy of this order.
At the very beginning of the judgment, we have noted
the definition of ''Rule of Law'' and we reiterate the same that ''Rule of
Law'' refers to ''A government based on principles of law and not of
men''. The law must be obeyed by the people.
The Letters Patent Appeal is thus dismissed. There
will be no order as to costs.