IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13620 of 2006 1. KAMDEO MAHTO, SON OF SRI HARIHAR PRASAD MAHTO. 2. SUBHASH KUMAR MAHTO ALIAS SUBHASH KUMAR, SON OF SRI NIRMAL KISHORE MAHTO, BOTH ARE RESIDENTS OF VILLAGE BANIYAPATTI, P.O. BITHAULI, P.S.-K.NAGAR, DISTRICT-PURNIYA. ................................... PETITIONER Versus 1. THE STATE OF BIHAR. 2. THE COLLECTOR, PURNEA. 3. THE SUB-DIVISIONAL MAGISTRATE, SADAR, PURNEA. 4. THE EXECUTIVE MAGISTRATE, SADAR, PURNEA. 5. THE ANCHALADHIKARI, K. NAGAR, PURNEA. 6. THE SUPERINTENDENT OF POLICE, PURNEA. 7. THE OFFICER-IN-CHARGE, OF K. NAGAR POLICE STATION, DISTRICT- PURNEA. ............................................. RESPONDENTS ----------- 3 29/4/2009 Heard counsel for the petitioners and counsel for the State. In this writ application the petitioner’s prayer in paragraph no.1 of the application reads as follows:- “That this is an application for commanding the respondents to hand over the vacant possession to the petitioners by removing the illegal encroachment and occupation from the unauthorized persons by issuing a writ of mandamus or any other writ or writs, order or orders, direction or directions.” The writ application, in fact, seeks eviction of large number of persons whose names (as many as 80 persons) find place in the order dated 26.7.2004 passed under section 145 of the Code of Criminal Procedure as contained in Annexure 4. None of them, however have been impleaded as parties to this writ application and still a relief has been sought directly against them. This Court is of the view that in absence of the necessary parties, the second party in one 145 proceedings as 2 recorded in Annexure 4, this writ application is not maintainable. It must be noted here that counsel for the petitioner, in fact, has sought implementation of an order passed under section 145 (5) of the Code of Criminal Procedure which surprisingly directs the Circle Officer, who was made receiver during pendency of 145 proceedings, to hand over possession of the land to the petitioners. Such is not the scope of the proceedings under section 145 of the Code of Criminal Procedure and therefore this Court cannot perpetuate the illegality committed by the learned Magistrate by issuing a direction to follow the aforementioned illegal order. That would be the second ground for not allowing prayer of the petitioners. There would be yet another ground for not allowing the petitioner to raise such an issue because there is question of removal of private individuals not from the public land but from the land allegedly belong to the petitioners, which does not come within the domain of law and authorities and recourse to such mode can only be taken if there is a decree of the Civil Court whose execution has to be made by the authorities of the State. Reliance placed by learned counsel for the petitioner on a judgment of this Court in the case of ‘Prithwi Chand Gupta Vs. The State of Bihar & Ors’, reported in 2008 (3) PLJR 442 is wholly misplaced because even in that criminal writ petition, (unlike the present one filed and instituted as a civil writ petition), all that was held therein is that the law and authorities are enjoined 3 with the duties to protect rights of Citizens for enjoyment of their safe custody of their property. There can be no two views on the aforesaid settled position in law but that will not mean that the law and order authorities including the police is also vested with power to decide the question of title and possession for restoring possession of one person by dispossessing the other. This can only be done under the orders of Civil Court in a property constituted suit. Counsel for the State, in fact, has brought on record a counter affidavit in which there has been specific statement in paragraph 8 which reads as follows:- “That the petitioner also moved before the Civil Court for eviction between the private respondent. It is also pertinent to mention here that the Government authority is not authorized to remove the encroachment from the private land.” This part of the statement in the counter affidavit, copy whereof has been served on the counsel for the petitioner way back in the month of April, 2008, has not been controverted till date and therefore this Court would find that the issue as to whether the petitioners have already taken recourse before the Civil Court or not, the same in no view of the matter can be adjudicated within the four corners of a civil writ application. That being so, this Court for the reasons indicated above must hold this writ application seeking virtually execution and enforcement of an alleged order under section 145 of the Code of Criminal Procedure is wholly misconceived and the same is 4 accordingly dismissed. Dismissal of this application, however, will not come in the way of the petitioners in instituting an appropriate proceedings before the competent court of law. Abhay Kumar (Mihir Kumar Jha, J.)