IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.481 of 2007 SATISH KUMAR SINHA Versus THE STATE OF BIHAR & ORS ----------- 8 4.9.2008 Heard the learned counsel for the parties. 2. In the instant writ application the petitioner has prayed for quashing the order dated 2.4.2007, passed by Sub- Divisional Magistrate, Danapur, respondent no.3 contained in Annexure-2, whereby he directed the Officer-in-Charge, Danapur Police Station to restrain the petitioner from making any construction on the Plot No.1611 – 1621 of P. S. No.21 near St. Karen’s School, Danapur. 3. The case of the petitioner is that the land pertaining to Plot No.1610 of Khata No.391, measuring 33 decimals belonged to ancesters of petitioner Plot No.1611 of Khata No.388 having an area of 33 decimals belonged to ancestors of Respondent No.6. The ancestors of petitioner and ancestors of respondent no.6 exchanged the land some six decades back. Since then the ancestors of the petitioner no.1 and the ancestors of respondent no.6 have been coming in respective possession of the exchanged land, one Lt. Col. Narendra Sinha who was the ancestor of respondent no.6, even sold 1 acre 14 decimals of land including 33 decimals of land of R.S. Plot No.1610, by virtue of sale deed dated 16.6.1972 in favour of one Ram Chandra Mahto . 4. In the meantime respondent no.6 on 2.4.1972 filed a petition before the S.D.M., danapur , respondent no.3 2 alleging therein that the said plot no.1611 belongs to him and the petitioner has collected materials for making construction upon the aforesaid plot. The S.D.M., Danapur, respondent no.3, vide Memo No.626 dated 2.4.2007, directed the Officer-in-Charge, respondent no.5, to restrain the petitioner from making any further construction. A copy of the aforesaid order dated 2.4.2007 is appended as Annexure-2. 5. The petitioner has assailed the aforesaid order dated 2.4.2007 on the ground that without initiating a proceeding under the provision of Chapter-10 of Cr.P.C., an Executive Magistrate could not have passed order restraining the petitioner from making any construction. Learned counsel for the petitioner submits that he has filed the instant writ application as his right to go to the plot in question as well as making construction has been infringed. 6. Learned counsel for the respondent no.6 submits that the instant writ application is not maintainable, as the order is purely administrative in nature. In support of his contention, he relied upon a decision in a case of Jhulan Singh vrs. The State of Bihar and others, reported in 1993 B.B.C.J. 218, as well as a Division Bench decision of this Court in a case of Kartik Lal and ors. vrs. The State of Bihar and others, reported in 1966 BLJR 477. 7. He submits that earlier also a proceeding under section 144 of the Cr.P.C., was initiated on land in question vide Case No.214(M) of 2004, which was made absolute against 3 petitioner, by order dated 16.8.2004, passed by respondent no.3 , S.D.M., Danapur. He submits that in case of apprehention of breach of peace, an Executive Magistrate is fully competent to restrain any person from going over plot. He submits that writ would not be maintainable against such order. 8. After having heard the rival contentions of the learned counsel for the parties, this Court takes up the maintain- ability issue as preliminary issue. 9. Learned counsel for the respondent submits that in view of the Judgment rendered in case of Jhulan Singh vs. The State of Bihar ( 1995 BBCJ 218) writ would not be maintainable. In case of Jhulan Singh (supra), the Sub- Divisional Officer passed a final order making the rule absolute against the petitioner. The respondents then filed a petition before the S.D.O., for direction to the Brahmpur Police to provide protection so that they complete the construction work. Police also prayed before the S.D.O. for deputation of a Magistrate so that the respondents may complete his boundary wall. In the meantime the petitioner filed a petition before the S.D.O. praying for not to take any action, till decision in the Criminal revision preferred by him. But the S.D.O. deputed Block Development Officer, to accompany the police to enforce the order. 10. The respondents argued before this Court that S.D.O. being Incharge of maintaining law and order has administrative authority to depute Magistrate and police force in 4 order to prevent breach of peace. Such orders are administrative in nature and as such criminal writ is not maintainable. The learned Judge held that a criminal writ under Article 226 of the Constitution of India is maintainable against only such administrative order which violates any of the fundamental rights of a citizen. In the aforesaid case the learned Judge relied upon a decision in the case of Gulamabas vs. State of U. P. reported in 1982 (1) S.C.C. 71. In case of Gulamabas (supra), the Hon’ble Apex Court observed that if an administrative order violates or infringes any fundamental right, a citizen would be entitled to move this Court in writ jurisdiction. 11. From the aforesaid Judgment, this much is admitted that a writ would be maintainable against an administrative order, if the same violates fundamental rights of a citizen. Article 226 of the Constitution of India confers power on the High Courts to issue writ for enforcement of any of the rights conferred under part- III of Constitution including legal rights. Under Chapter X of Cr.P.C., an Executive Magistrate is entitled to pass an appropriate order for preventing breach of peace. The impugned order dated 2.4.2007 as contained in Annexure -2 has been passed with a direction to the respondent no.5, the Officer-in-Charge, Danapur to restrain the petitioner from going over to the land for making construction. The order has not been passed in any proceeding, as such no effective remedy is provided in Cr.P.C.. The order does infringe legal right of a party to go over the land, claiming to be his, though may be temporarily for limited purpose of averting breach 5 of peace. Art. 226 of Constitution of India confers jurisdiction on High Court to issue writ not only in cases of violation of fundamental right but for enforcement of legal right. A Writ is maintainable, in appropriate case for enforcement of legal right where there is no alternative and efficacious remedy provided under the law. 12. The respondent has placed reliance on decision in case of Kartik Lal vs. The State of Bihar reported in 1966 B.L.J.R.. The learned Division Bench of this Court held that the District Magistrate or the S.D.M. can depute police to prevent any breach of peace. The order also noticed that a proceeding under section 107 Cr.P.C. was also continuing, and the right of the petitioner Kartik Lal had also been determined by competent civil court in his favour. In the aforesaid background, this Court upheld the order of S.D.M. directing deputation of police force to prevent interference of such rights decreed by a civil court. 13. Now coming back to the facts of the case, I find that impugned order dated 2.4.2007 is an one line order directing the Officer-in-Charge, Danapur Police Station, restraining the petitioner from making any construction on a particular piece of land. 14. An Executive Magistrate can pass restain and prohibitory order if a situation, so requires. There can be emergent situation where it may not be possible to draw a proceeding and then to pass an appropriate order. Such situation should not form a 6 Anilksinha (Samarendra Pratap Singh,J.) regular pattern save and except for administrative exigencies. It would be desirable that after drawing a proceeding, such restrain order should be passed for avowed object of otherwise preventing breach of peace . 15. In the instant case the impugned order dated 2.4.2007 by S.D.M., Danapur is indefinite in nature.The order does not state that there is any apprehension of breach of peace nor it has provided an opportunity to other side to file his show cause. It appears that no subsequent order has followed after passing of the impugned order. In these circumstances, the impugned order dated 2.4.2007 is not sustainable in the eye of law and the same is hereby quashed. 16. However, in the facts and circumstances of the case , will be open to either of the parties to file an application for initiation of an appropriate proceeding and on receipt of such application, the Magistrate concerned may proceed in accordance with law. 17. In view of the facts and circumstances of this case this writ application is allowed to the extent, mentioned above.