IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.257 of 2007 Shyam Lal Gopalika son of Late Damodar Ram Gopalika, resident of P.O. & P.S. Bhawanipur, District Purnea …Petitioner Versus 1. The State Of Bihar through the District Magistrate cum Collector, Purnea 2. The Sub Divisional Officer, Dhamdaha, District Purnea 3. The Circle Officer, Bhawanipur Rajdham, District Purnea 4. The Officer In-charge, Bhawnipur Police Station, Bhawanipur Rajdham, District Purnea 5. Anil Sah son of Late Pratap Sah, residentof At, P.O., P.S. Bhawanipur Rajdham, District Purnea …Respondents ____ For the Petitioner : Mr. S.D.Sanjay, Advocate For Respondent No.5: Mr.Dhrub Narain, Sr.Advocate Mr. Anil Kumar Roy, Advocate For the State : Mr.Hari Shankar Roy,A.C. to AAG 2 _______ 6 3.3.2009 In the instant writ petition the petitioner prays for a direction to the respondent authorities in the proceeding under section 144 Cr.P.C. to prevent him from being disturbed by respondent no.5. He further prays for issuing a direction to the respondent authorities to take appropriate steps for removing the construction forcibly made by respondent no.5 by encroaching over the passage of the petitioner on the eastern side of his house. The case of the petitioner is that he had left some space on both sides of his house i.e. Eastern and Western side in order to get sunlight and air for this house. He submits that respondent no.5 illegally made construction on the eastern side of his house beyond the boundary by encroaching upon his land. The said construction deprives the petitioner of free access of light and air in his house. Learned counsel for the petitioner submits that a proceeding under section 144 Cr.P.C. was initiated on his application. After hearing both the parties the learned S.D.M., Dhamdaha, Purnea found - 2 - the claim of the first party petitioner sustainable and as such by order dated 17.8.2005 made the rule absolute against the second party which is respondent no.5 herein. He further submits that under section 144 Cr.P.C. proceeding a Magistrate can direct any individual to abstain from a certain act or to take certain order with respect to certain property in his possession which in fact the Magistrate did by making the rule absolute against other side. He submits that the Magistrate could have passed an appropriate order deciding the possession and passing an appropriate order in this respect under section 145(4) Cr.P.C. Mr.Dhrub Narain, learned Sr. Counsel appearing for the private respondents by referring to section 144(4) Cr.P.C. submits that no order under this section shall remain in force for more than two months from the making thereof. He further submits that in paragraph 3 of his application made to S.D.M. Dhamdaha the petitioner has not specified as to how much land he had left behind his boundary wall on the eastern side. He submits that the remedy to the petitioner was by way of filing an appropriate suit. Chapter X Part C of the Cr.P.C. provides power to the administrative authority to pass appropriate order to prevent breach of peace or a disturbance of the public tranquility or a riot or an affray. While exercising such power the Magistrate can direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession. In the 144 Cr.P.C. proceeding the Magistrate had made such - 3 - KHAN direction by order dated 17.8.2005, however the same looses its force in two month as per section 144(4) Cr.P.C. Learned counsel for the petitioner submits that he has fundamental right to air and light as they are facets of Article 21 of the Constitution of India. After hearing learned counsel for the parties, this court is of the view that it will be always open to the petitioner to file appropriate application under the Code or a suit in case if he feels aggrieved by the action of the respondents. In case such an application is filed the respondent authorities would duly enquire into. With the aforesaid observation, this writ petition stands disposed of. (S.P.Singh,J)