LACHHMAN PRASAD BHAGAT Vs. GOVERNMENT OF BIHAR

JUDGEMENT

(1.) The petitioner moved this Court under Article 226 of the Constitution and prayed for issue of writ or direction in the nature of mandamus to the opposite party, but the application was summarily dismissed by a Division Bench. We are asked to certify under Article 132 (1) of the Constitution that the case involves a substantial question of law as to the interpretation of the Constitution, or, at any rate, to certify that it is a fit case, for' appeal to the Supreme Court within the meaning of Article 133 (1) (c) of the Constitution.

(2.) The facts material to the point raised before us are shortly these : The petitioner claims to have, raised, as 16 annas landlord, paddy and rabbi crops on his 'bakasht' and 'ghairmazrua' land measuring about 100 bighas in village Kathra, police station Bahera, in the district of Darbhanga. His case is that in spite of a civil court decree in his favour in respect of the land and delivery of possession thereof the refractory tenants of the village removed the paddy crop from a portion of the land on the 1st December 1949. Apprehending further trouble on account of the highhanded act of the tenants, he moved the District Magistrate of Darbhanga on the 2nd December 1949, to give him protection under the Police Act. The District Magistrate ordered the Subdivisional Officer to proceed to the spot immediately and maintain the peace. The Subdivisional Officer deputed a Magistrate to proceed to the spot and requisitioned additional police force from the Superintendent of Police, but in spite of the order of the District Magistrate and of the Subdivisional Officer no additional police force was deputed, with the result that lawlessness continued in the village and paddy and timber worth about Rs. 20,000 were damaged and looted away from the petitioner's bakasht land. The petitioner's contention is that failure of the police and the executive authorities to give legitimate protection by deputing an additional police force was a breach of statutory duty on their part and as such the petitioner was entitled to ask for a writ in the nature of mandamus on the opposite party and that this Court was wrong in summarily rejecting the application of the petitioner under Article 226 of the Constitution. Reliance has been placed in support of this contention on Section 13 of the Police Act, 1861 (Act V of 1861) which runs as follows :

(3.) We think there is no substance in this contention. Section 13 gives statutory protection to the police officers named therein if any of them deputes, subject to the general direction of the Magistrate of the district, any additional police force to keep the peace at any place within the general police district, On the application of any person at his cost. But if the authorities named in the section, in the exercise of their discretion, do not consider it necessary to depute additional police force for the maintenance of peace and order, the person aggrieved or interested cannot claim protection as of right, even if he shows the necessity for the same and undertakes to meet the cost. In the case before us, although the attention of the District Magistrate as also of the police officers and other authorities was repeatedly drawn to the situation, it was not considered necessary by the officers concerned to grant the prayer of the petitioner. If the prayer was not granted, the petitioner could seek protection of his right under the provisions of the Code of Criminal Procedure or seek remedy in the civil court. It has been held repeatedly by this Court that if another remedy is open, a writ in the nature of mandamus cannot be granted: Vide 'BUKHTI-ARPUR BIHAR LIGHT RLY. CO. LTD. v. DISTRICT BOARD, PATNA', 30 Pat. 287 and 'BAGARAM v. STATE OF BIHAR', 29 Pat 491 (F.B.),