MANOJ SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner in this application seeks to challenge an order dated 13. 2. 1996 passed by the S. D. O. Sadar, Gaya in Misc. Case No. 235/1996 (copy at Annexure 7)whereby the Magistrate, initiating a proceeding under Section 144 of the Code of Criminal Procedure restrained both the petitioner and respondent no. 3 from going over the disputed land and/or committing an act there which may lead to a breach of peace.

(2.) MR. Tara Kant Jha, learned counsel appearing on behalf of the petitioner assailed the order on the ground that in the facts and circumstances of this case, it was wholly unauthorised and an abuse of the process of the Court. Mr. Jha submitted that the petitioner was admittedly in possession of the disputed land on the basis of a five years lease executed by the wife and the sons of respondent no. 3. He had established a brick kiln over some parts of the disputed land and the order restraining him from going over the land was calculated to cause considerable loss and damage to him. It was further stated that the lessors had filed T. S. No. 6/1996 in the court of munsif III, Gaya alleging breach of the terms of the lease and in that suit a petition was also filed for interim injunction, under order 39 rule 1 of the Code of Civil Procedure. Thus, the same dispute was pending before the civil court on which it was yet to pass an order. It was further submitted that a proceeding under Section 144 Cr. PC. (registered as Case No. 212/1996) was earlier initiated on 9. 2. 1996 between the same parties and in respect of the same dispute. This proceeding was, however, dropped the next day on 10. 2. 96 and hence the re-initiation of the impugned proceeding 13. 2. 1996 was wholly uncalled for and an unreasonable exercise of power.

(3.) IT appears that the petitioner had obtained a five years lease commencing from june, 1995 in respect of the disputed land. Under the terms of the lease the petitioner was given the right to establish a brick kiln and to cut earth from the leased out land for manufacturing bricks. The lease, however, clearly specified the plot of land on which the brick kiln was to be established and the plots from where earth was to be cut and the extent of the permissible earth cutting.