IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6623 of 2010 1. Uday Singh S/O Late Vijay Singh R/O Moh. Raipatti Dighwara, P.S.Dighwara, Distt-Saran at Chapra. Petitiner. Versus 1. The State Of Bihar 2. The Commissioner, Saran Division, Distt-Saran 3. The Officer-Incharge, Dighwara,P.S.Dighwara, Distt-Saran 4. The Deputy Inspector General Of Police, Distt- Saran At Chapra 5. The Deputy Director-Cum-Incharge, Public Grievance Cell, Commissionary Office Saran, Division at Chapra 6. The Circle Inspector, Dighwara Anchal-Cum-the Deputed Magistrate, for the purpose of Delivery Of Possession Distt-Saran at Chapra 7. Jai Praksh Gupta S/O Late Pannalal Gupta, R/O Moh. Raipatti, P.S. Dighwara, Distt-Saran at Chapra. ----------- For the petitioner : Mr. Ganpati Trivedi, Mr. Madan Mohan, Advocates For the respondent no.7 : Mr. Suresh Prasad Singh Advocate For the State : Mr. Dhurjati Kumar Prasad G.P.VII. ------- 7. 13.7.2011. Heard learned counsel appearing on behalf of the parties. The writ petition has been filed challenging the order passed by the Commissioner, Saran Division at Chapra on a representation dated 18.9.2009 filed by the respondent no.7, alleging forceful possession of his shop at the hands of the petitioner. The respondent no.2 by an order on the representation has directed the Officer- in-Charge, Dighwara Police Station, respondent 2 no.3 herein, to break open the lock placed at the shop of which, ownership was claimed by the respondent no.7. and to restore the possession of the shop to him. The facts of the case briefly stated are that the respondent no.7 filed a complaint petition before the Commissioner, Saran Division, Chapra respondent no.2 at the Janta Darbar on 18.9.2009 alleging forceful possession of his shop situated at Khata No.16, 82, and 4 and Survey Plot Nos.382, 383, 384, 395, 282, 284 and 285 measuring 1 katha 19 dhoors, 3 dhurki and 15 furki, Tauzi No.3142, Thana No.142, Jamabandi No.347 of Mauza Shitalpur in the district of Saran at Chapra. The respondent no.7 in his complaint petition has stated that the petitioner requested him to give his shop in dispute on rent and which was refused by him on grounds that the said shop is to be utilized by his sons who had become adult for setting up of business. It is stated that while the respondent no.7 had gone to Patna in connection with marriage of his daughter, the petitioner herein forcefully entered into the said shop along with his brother Roshan Singh on 24.4.2009 and is in illegal occupation thereof. The respondent no.7 thus 3 prayed before the respondent no.2 to get the shop vacated from the illegal occupation of the petitioner. Strangely the respondent no.2, instead of directing the respondent no.7 to seek his remedy before the Civil Court of competent jurisdiction as the issue required determination of title, instead, directed the Officer-in-charge, Dighwara Police Station to make enquiry and restore the possession of the shop to the respondent no.7 herein, after breaking open the lock. The order was passed on the petition itself and without hearing the petitioner. The follow up action taken by the District Authorities has been dealt elaborately in the counter affidavit filed on behalf of the Station House Officer, Dighwara himself. In paragraph-6 of the counter affidavit, it is stated that in compliance of the directions of the Commissioner, the respondent no.2, the deponent directed the Executive Officer, Dighwara Notified Area Committee vide dispatch no.83 dated 19.1.2010 to examine the title and ownership of the shop in question and pursuant to the said direction, a report was submitted by the Executive Officer, Dighwara Notified Area Committee and in which it 4 was mentioned that the plot in question indeed was standing in the name of the respondent no.7. It is stated that upon getting the information regarding the title and ownership of the shop standing thereon, the Station House Officer, Dighawra requested the Circle Officer, Dighwara Anchal to depute a magistrate for carrying out the exercise of restoration of possession and pursuant thereto, the respondent no.6 was deputed as the Executive Magistrate to complete the exercise of restoration of the shop to the respondent no.7. The lock of the shop is said to have been broken open by the Station House Officer, Dighwara in presence of the Executive Magistrate, the Executive Officer, Dighwara Notified Area Committee and the petitioner, and after preparation of a inventory, the possession was restored to the respondent no.7. It is stated that as the order of status quo passed by this Court on 4.5.2010 was thereafter received, hence the parties were requested to maintain status quo. The aforesaid sequence of events are not in dispute. The reliance of the petitioner on a receipt dated 23.8.1986 issued by the Notified Area 5 Committee, Dighwara for establishment of his claim of settlement over the shop in question, does not instil much confidence. No other paper has been brought on the record of the proceedings by the petitioner to establish his claim over the shop in question. On the contrary, the inquiry conducted by the district administration manifests that the shop in question and the plot under consideration were settled in favour of the respondent no.7. This Court however would not delve into the merits of the rival claims at this stage. Even going by the report of the Executive officer, Notified Area Committee, Dighwara that the shop in question was settled with the respondent no.7 and that he is a bonafide purchaser of the plot in question over which the shop is situated, the action taken by the authorities of the district administration on the directions of the Commissioner respondent no.2 to enter into the issues which involves determination of title and possession without examining the rival claims can not be upheld. Issues of title, possession and eviction can not be determined by executive orders and that also without hearing the effected parties. The 6 directions of the respondent no.2 as contained in the representation of the respondent no.7 dated 18.9.2009 in its marginal column, suggests absolute abuse of executive powers. As the follow up action by the Station House Officer in compliance of such illegal directions resulting in breaking open of the lock of the shop and restoring the possession to the respondent no.7 is based upon such illegality, the same also can not be upheld. The issues of title, eviction and the like are to be determined by the appropriate forums of competent jurisdiction and can not be done by exercise of executive powers. It is not a case of maintenance of the law and order. Even for sake of assumption, if this court, without expressing any opinion as to the rival claims, accepts the contention as set out by the respondent no.7 in his representation in the light of the report of the Executive Officer of the Notified Area Committee and in the back drop of the facts that no document has been produced by the petitioner to establish his claim, yet this was certainly not the manner in which the respondent no.7 could have sought restoration of his shop. The respondent no.7 indeed has tried to 7 obtain a relief by bye-passing the process of law and which can not be upheld. For the reasons aforesaid, the directions of the Commissioner respondent no.2 dated 18.9.2009 as mentioned in the margin of the representation filed by the respondent no.7 of the same date, can not be upheld and is set aside and as a consequence thereof, the entire action taken by the authorities of the district administration including the Station House Officer, Dighwara are held illegal and unsustainable. As a consequence, the possession of the shop which is the subject matter of the dispute, would have to be restored to the petitioner. The Station officer, Dighwara and the respondent Executive Magistrate are directed to restore the possession of the shop in question to the petitioner within a period of 30 days from the date of receipt/production of a copy of this order. The writ petition is allowed. This order, however, in no manner would preclude the respondent no.7 from approaching the appropriate forum of competent jurisdiction for the redressal of his grievance. ahk (Jyoti Saran, J.)