IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14432 of 2001 Janki Devi, wife of Sri Shankar Dayal Singh, resident of Village-Dumraon Tola, P.S.-Dhangain, (Jagdishpur) District-Bhojpur ……………………………………… Petitioner Versus 1. The State of Bihar. 2. District Magistrate cum Collector, Bhojpur Ara. 3. Superintendent of Police, Bhojpur at Ara. 4. Additional Collector, Bhojpur at Ara. 5. Sub-Divisional Officer, Bhojpur at Ara. 6. Anchal Adhikari, Jagdishpur Anchal, B-Block, Bhojpur at Ara. 7. Officer-in-Charge, Dhangain P.S.-Jagdishpur District-Bhojpur. ……………………………… Respondent 1st Party 8. Radhika Devi, wife of Hari Shankar Singh, resident of village and P.S.-Nawada, District-Bhojpur. 9. Rajmani Devi wife of Sant Bilash Singh, resident of Village-Jagdishpur, P.S.-Jagdishpur, District- Bhojpur. ………………………… Respondents 2nd Party For the Petitioner : Mr. Farooque Ahmed Khan, Sr. Adv. with Mr. Sufiyan, Advocate For the Respondents: G.P.- 2. ----------- 6 8/4/2009 Heard counsel for the petitioner, counsel for the State as also counsel for the private respondents. Prayer of the petitioner in this writ application reads as follows : - “That this application under the writ jurisdiction of the Hon’ble Court is directed for issuance of writ, order or direction in the nature of certiorari for quashing the order dated 12.7.99 passed by the District Magistrate, Bhojpur at Ara in Misc. Case No. 10/99-2000 by which he has declared the 2 possession of respondents second party over the land in dispute measuring an Area of 5.69 acres situated in village Bichla Jangal under Anchal and P.S. Jagdishpu District Bhojpur and thereby given forcible possession to respondents second party by giving notice protection with the good officials of the armed police force although the petitioner was in peaceful possession of the same and the same is under challenge vide Annexure-1 to this application and the same is liable to be quashed as illegal, arbitrary, malafide and against the principle of law and Code of Criminal Procedure.” The issue which thus really needs to be answered in this writ application is as to whether a person threatened of his/her life and/or property can be denied protection by the authorities enjoined with the duty to maintain law and order?. That is precisely the import of the impugned order which came to be passed on an earlier direction of this Court in the earlier round of litigation. Thus adverting to the facts first, this Court would find that the petitioner claims to be have her right and title in the land in question, as owner of the land, in Survey plot Nos. 72, 84, 89, 71, 437, 660 under Khata nos. 151 and Survey 3 plot nos. 569, 563, 595, 605, 524, 652, 656, 658, 659, 653, 3156, 2059, 2062 under Khata no. 152. The only basis for claiming such a right of ownership in the aforesaid land is a Will of the year 1989 allegedly executed by one Late Bihari Singh, who was admittedly a Jamabandi raiyat of the land in question. There is no dispute that the aforesaid Will till date has not been probated. On the other hand, private respondent nos. 8 and 9 are the daughters of Late Bihari Singh, the jamabandi raiyat, who claim that as her father died without any male issue, they along with five other sisters had inherited his whole property including the aforementioned land. The two rival competing claim one by Will and other by inheritance came on the fore when the private respondents were threatened possession of their land by the alleged high handed approach of the sons and the husband of the petitioner. It is not in doubt that a criminal writ petition was Cr.W.J.C. No. 706 of 1997 was filed wherein this Court noticing the grievance 4 of the private respondents relating to a threat to their life and property on account of the aforementioned disputed land at the instance of the petitioner, her son and husband had disposed of the aforesaid writ petition by an order dated 24.11.1997 giving liberty to the private respondents, who were petitioners in that writ petition, to approach the local authorities for giving protection to them in accordance with law. This Court, however, had expressed no opinion with regard to claim of the private respondents, but had only indicated that law and order authority being the local authority will look into the grievance of the petitioner and if it is found that the land in question is in their possession such protection be given to them in accordance with law. From here started orders of the law and order authorities as would be noted from reading of the impugned order. Earlier on the basis of the order of the Additional Collector followed by the order of Collector of the district an order came 5 to be passed on 29.8.1998 wherein the Collector of the district having taken note of all the relevant materials had recorded that the land in question was in possession of all the seven daughters of the jamabandi raiyat Late Bihari Singh and as such they should be given protection by law and order authorities for retaining and remaining in possession of their ancestoral properties. Such order was assailed by the petitioner in a writ petition being C.W.J.C. No. 8975 of 1998 and the only grievance against the said order was that if at all the Collector had decided to give protection to the private respondents for continuing in possession of their ancestor properties, the petitioner who had competing claim of the land in question and was allegedly in possession ought to have been heard before passing of the aforesaid order by the Collector of the district. It was in this background that this Court by order dated 7.5.1999 had very clearly after noticing the submission of counsel for the petitioner made the following observations 6 and consequential directions:- “It is not possible for this Court to record a finding as to whether the petitioner or the private respondents are in possession. Pursuant to the observation of this Court in Cr.W.J.C. No. 706 of 1997 dated 24.11.1997 fairness demanded that if the District Magistrate was making an enquiry with regard to the possession of the land in question, the petitioner should also have been heard in the matter. This was necessary for the limited purpose of satisfying himself that this was an appropriate case in which police protection should be given to the private respondents. This does not mean that his finding on the question of possession is final because that is subject to any decision of a court of law in civil or criminal proceeding. However, for limited purpose of granting police protection with a view to permitting the private respondents to cultivate and harvest the crops from the land in question, he should have in fairness heard the petitioner and thereafter passed an order. 2.In those circumstances, the matter is remitted to the District Magistrate, Bhojpur, who shall after hearing the petitioner as well as the private respondents pass appropriate orders. If he finds that the private respondents are in possession, he will confirm the order dated 29.8.1998, but if he finds that the petitioner is in possession of the land in dispute, he shall recall the order dated 29.8.1998. The interim order of this Court shall continue till the disposal of the matter by the District 7 Magistrate, Bhojpur. Both the parties who are represented through counsel are directed to appear before the District Magistrate, Bhojpur, on 7th June, 1999, when he shall either hear the parties or fix a date of hearing of the parties in the matter.” The said order, in fact, of the learned Single Judge stands affirmed even by the Division Bench, in as much as, the appeal filed by the petitioner being L.P.A. No. 893/1999 was dismissed by order dated 24.9.2001 with the following observations:- “The appellant had preferred the connected writ petition, C.W.J.C. No. 8975 of 1998, for quashing an order by which police protection was provided to the private respondents by the District Magistrate, Bhojpur. The learned single Judge noticed that the order had been passed without hearing the appellant, and observing where rival claims set up by the parties, opportunity of hearing should be given, i.e, directed the District Magistrate to hear the parties and pass a fresh order for “limited purpose of granting police protection”. Till the District Magistrate passed the order, interim order passed earlier was to continue. The learned Single Judge has said nothing which could cause prejudice to the appellant. In fact, the court directed the District Magistrate to hear the appellant which he 8 had failed to do, and pass fresh orders. In course of hearing it transpired that the District Magistrate passed a fresh order pursuant to the direction of this Court, after hearing the parties, making inspection and examining the witnesses. If the appellant is aggrieved by the said order it was/is open to him to challenge the same in accordance with law in separate writ petition. The appeal stands dismissed.” In pursuance of affirmance of the order passed by the learned Single Judge and even by the Division Bench there would be little prospect for this Court to hold that a person in possession of the property, threatened in any manner of his/her life or such property cannot be allowed protection by law and order authorities and at least the petitioner cannot question such dictum of law based on an inter parte order between the petitioner and the private respondents. This Court, therefore can not allow the learned counsel for the petitioner to take a plea as has been sought to be raised in paragraph 25 of this writ application which to say the least would 9 only reflect contemptuous approach of the petitioner to the order of this Court which has been allowed by her to become final in the order of division bench dated 24.9.2001, affirming the order of learned Single Judge passed on 7.5.1999 in C.W.J.C. No. 8975 of 1998. The writ petition in Para 25 of the writ petition has stated that :- “That it is relevant to mention here that in the case of petitioner it is very unfortunate that the Hon’ble court was pleased to vest such power in District Magistrate, Bhojpur (Respondent no. 2 although the said officer had been acting in a most arbitrary manner in favour of Respondent 2nd party in order to dispossess the petitioner from the land in her possession by passing successive order in the teeth of the orders of the Hon’ble Court and as such it was never safe to vest such power in the said officer which has ultimately caused miscarriage of justice.” Such outrageous and contemptuous statement of the petitioner would itself go to show that has no respect of law and as such she would not be entitled for any relief even on equitable consideration. This Court fails to understand as to how the petitioner could have now questioned indirectly the directions given by this 10 Court in the order dated 7.5.1999 as noted above in C.W.J.C. No.8975 of 1998 when her appeal had already been dismissed with a clear finding that the order of the learned Single Judge had said nothing which could prejudice the petitioner. Apparently, if at all the petitioner had reason to be aggrieved by order of the learned Single Judge and the order of the Division Bench remedy for her was to assail the same in a special leave to appeal before the Apex Court. That having been not done by the petitioner, at least this Court is not in a position to allow the petitioner to raise such plea against the earlier inter parte order. Therefore the first submission of Mr. Farooque Ahmad Khan, learned Senior counsel that the Collector of the district had no authority to decide the question of possession in pursuance of inter parte order as contained in Annexure-13 affirmed in L.P.A. No. 893 of 1999, must be rejected. Even otherwise, it would be too late in the day to questions the settled proposition of law as with regard to 11 giving protection to life and property of a Citizen of India by the State and its functionaries moreover on the materials produced by the parties this Court is satisfied that it is the petitioner, her sons and her husband who had sought to dispossess the private respondents by giving threat to her or his life and/or property. The very concept of Article 14 read with Articles 19 and 21 of the of the Constitution of India would definitely give this much protection to every Citizen of India that he/she will have the remedy of at least getting his life and property secured by taking recourse to law by seeking protection of law and order authorities. That in fact will not be end of the matter because Mr. Khan also contends that between the parties there was earlier 144 proceedings and when the same was converted into 145 Cr.P.C. proceedings it was the private respondents who had opposed the same. Submission of Mr. Khan cannot be accepted as there is nothing to show that at that point of time the 12 petitioner was deprived from approaching the civil court and getting the dispute adjudicated for once and ever. Yet again reliance placed by Mr. Khan on the order of the revenue authorities refusing mutation in the name of private respondents cannot be a proof of the petitioner being a title holder of the land because Anchaladhikari himself recorded that initial basis of claim of the petitioner on the Will, as stated above, had still not been probated. Therefore claim of the petitioner to exclude the private respondents from inheriting the property on the ground that jamabandi raiyat Bihari Singh had died issueless cannot be adjudicated and because it is the petitioner who seeks to displace the private respondent on such plea, it was for her to approach the civil court to get a declaration of her right, title and interest including confirmation of her possession by filing a civil suit. That having been not done, it was another deliberate lache on the part of the petitioner. 13 Normally presumption of inheritance of the property of father being acquired by the daughters can be dispelled only a finding of the civil court. It was in this background that all the authorities in their enquiry right from the Anchaladhikari, Sub.Divisional Officer, Additional Collector and ultimately the Collector had come to record a concurrent finding of a fact on different occasions that the private respondents were the rightful owner and also in possession of the land in question, the property of their father and therefore the impugned order was passed for giving police protection to them. Such action was of course taken by way of compliance of the order of this Court. In such a situation, reliance placed by the learned counsel for the petitioner on a report of the Officer Incharge as contained in Annexure-14 with regard to assistance given to the private respondents in agricultural operation leading to sowing of the crops can have no other meaning but only by way of 14 implementation of operative portion of order of the Collector of the district. The overemphasized submission of learned senior counsel for the petitioner that this document should be read to mean as delivery of possession is not acceptable to this Court because all that is sought to be intended to convey therein (Annexure-14) is that the security was given to the private respondents for their being kept in possession. This aspect of the matter, in fact, stands clarified from the supplementary counter affidavit filed by the Dy. Collector, Arrah, who in paragraph no. 3 and 4 has clarified the position in the following words:- “That in compliance of the order passed by Hon’ble high Court, Patna in C.W.J.C. No. 8975/98 annexure-13 of the writ petition the District Magistrate, Bhojpur, Ara instituted Misc. No. 10/99-2000 and after hearing both the parties and considering all the facts and circumstances passed the order dated 12.7.1999 regarding possession on the land in dispute. In this order police protection was provided to Rajmuni Kumari and Radhika Devi daughters of Late Awadhesh Bihar Singh as they were found in natural possession over the disputed land based on the enquiry report of Executive Magistrate, Jagdishpur vide letter no. 43 dated 10.3.98 and as such 15 the order passed through Memo no. 1153 dated 29.8.1998 was confirmed. The Sub-divisional Officer, Jagdishpur, Anchal Adhikari, Jagdishpur and Officer-in-Charge of concerned P.S. Dhangai were directed to give protection to Rajmuni Kumar and Radhika Devi to cultivate the land. That as regarding annexure-14 of the writ petition it seems that the Officer-in-Charge of concerned P.S. Dhangai has written by mistake that possession was given peacefully. These words are irrelevant in above context.” This Court would accept the aforesaid explanation not only because they are supported by the recording the case but also because the petitioner has not chosen to controvert the same by filing any further rejoinder affidavit. Even from the attending circumstances it would be clear that the Circle Officer, Sub.Divisional Officer, Additional Collector and the Collector had never found the petitioner to be in possession of land in question and as such there was no question of handing over possession to the petitioner as is being claimed by the petitioner on the basis of the document as contained in Annexure-14. In such a situation, the impugned 16 order which only discusses regarding different materials on record including the enquiry report of the superior authorities holding that private respondents are in possession of the land and as such in terms of the order of this Court they are entitled to be given police protection for security of their life and property, does not suffer from any error and as such this Court would dismiss this writ application. In the light of the aforementioned submission, this Court would not like to make any comment as with regard to either the petitioner having no locus standi to file this writ application because her husband is still alive and has not approached this Court nor this Court would give any finding as with regard to disentitlement of the share in the property on account of prohibition under section 25 of the Hindu Marriage Act because all these question can be gone into in a civil suit if and when filed by the petitioner who has to prove her claim in the property either by way of Will or 17 by exclusion of right of the private respondents being not the daughter of the recorded jamabandi raiyat Late Bihari Singh. This Court, however, would make it clear that as there is an order in the L.P.A. filed by the petitioner, as referred to above, giving liberty to the petitioner to file writ petition assailing order passed by the Collector, this writ petition must be held to be maintainable and to that extent objection of the learned counsel for the private respondents must be rejected. This Court would therefore find that the impugned order does not give any further right to the private respondents except in the light of the inter party consolidation proceedings recording name of the private respondents for the land in question and the report of possession by the Circle Officer, Sub.Divisional Officer, Additional Collector and the Collector, as recorded in the impugned order, was rightly relied for giving protection to private respondents for retaining possession of such land but all 18 these things can definitely be gone into at any point of time if and when the petitioner or her family member files civil suit. It is made clear that in the event such civil suit is filed by the petitioner none of the finding recorded by the law and order authorities with regard to title or possession of the land will be binding on the civil court which will ofcourse decide the matter on merits after taking into account the evidence on record adduced by both the parties. With the aforementioned observations and clarifications this application is dismissed. (Mihir Kumar Jha, J.) Abhay Kumar