MAHENDRA PRASAD SAHU Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE petitioner has filed two separate writ petitions i.e. W.P(C) No. 4074 of 2011 and W.P(C) No. 831 of 2012.

(2.) IT is the case of the petitioner that he has instituted a Partition Suit No. 24 of 1990 for a relief of 1/12th share in the suit properties against the defendants including respondent nos. 6,7 and 8.In the said suit, the petitioner has claimed exclusive possession over portion of plot no. 825,Khata No.168/371,Area 0.04 acres with Khapraposh building. The petitioner had filed an application on 14.8.1995 under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure in the Partition suit No. 24 of 1990 seeking for order of permanent injunction in respect of claiming 1/12th share in the entire properties against all the defendants including respondents no. 6,7 and 8 (defendants no. 4,5 and 6) who were interested to make construction and interfere with the possession of the petitioner. The learned court below, after hearing the plaintiff and defendants, passed an order on 7.9.1995 directing both the parties to maintain "Status quo  on the immovable properties of the suit. According to the petitioner, despite the existing order of maintaining the status quo the respondents no. 6,7 and 8 wanted to interfere with the peaceful possession of the petitioner in violation of the order of status quo. It is the case of the petitioner that the respondent no. 6 to 8 had disobeyed, disregarded and violated the order of the statusquo passed on 7.9.1995 and therefore, the petitioner was compelled and forced to file an application under Order 39 Rule 2(A) of the Code of Civil Procedure in the court of Sub -Judge -1 Giridih against the respondents no.6,7 and 8 for disobeying the order of statusquo which was registered as Misc.Case No. 74 of 1996.It is further the case of the petitioner that the petitioner examined several witnesses including Survey Knowing Pleader Commissioner appointed by the learned District Judge, Giridih and the said witnesses have proved the case of the petitioner that the respondents had violated and disobeyed the order of Status quo passed on 7.9.1995. According to the petitioner, inspite of pendency of the aforesaid Misc. Case No. 74 of 1996, the respondents no. 6,7 and 8 again wanted to put locks upon the door of the front portion of the premises of the petitioners possession and started causing illegal demolition and destruction. As against that, the wife of the petitioner namely Smt.Gita Debi had fled a Complaint Case No. 1092 of 1998 in the court of Chief Judicial Magistrate, Giridih. After recording statements on solemn affirmation and statement of witnesses in the inquiry, the learned Sub -divisional Judicial Magistrate, Giridih took cognizance of the offence on 7.12.1998 under sections 147, 148, 149, 120B, 452,323, 341, 342,354, 380 and 384 of the Indian Penal Code. Against the order of taking cognizance the accused persons including respondents no. 6,7 and 8 filed an application before this Court by way of filing Cr.M.P. No. 246 of 2005 which was dismissed on 15.2.2008 on merit. It is the further case of the petitioner that when he approached the Officer -in -charge, Dhanwar Police station for protection of his life including his family members and properties it prima facie appears that the concerned police officer of the Dhanwar Police station sided with the respondent nos. 6,7 and 8 on the pretext that they have moved before the Supreme Court against the order passed in Cr.M.P No. 246 of 2005. Thereafter, the petitioner filed an applications before the Superintendent of Police on 13.10.2010 and 19.10.2010 for issuance of an appropriate direction upon the Sub -ordinate Police officials for providing protection to the petitioner and its properties. The superintendent of Police after receipt of the applications has directed the Sub -Divisional Police Officer to look into the matter. The learned counsel for the petitioner submitted that despite grant of order of status quo by the court below, the respondents no. 6,7 and 8 took law in their hands and committed breach of order passed by the court below and even despite pendency of the application filed by the petitioner under order 39 rule 2(A) of the Code of Civil Procedure before the court below which was registered as Misc.Case No. 94 of 1996, the said respondents violated and disregarded the order of status quo. The petitioner approached the police authorities and despite issuance of direction by the Superintendent of Police, the respondents no. 6,7 and 8 in connivance with the police authorities continued the violation of the order of status quo and thereby caused harassment to the petitioner. It is further submitted that despite the direction issued by the respondent no. 3,the Police Administration did not come in rescue of the petitioner and therefore, the petitioner was advised to give a notice under section 80 of the Code of Civil Procedure through Advocate upon the respondents. However, respondents did not reply to the said notice and therefore, according to the learned Senior Counsel appearing for the petitioners, the respondents no. 2 to 5 have acted arbitrarily in not providing any protection whatsoever to the petitioner and acted in violation of Article 300A of the Constitution of India. It is also submitted that the concerned respondents no. 2 to 5 police authorities did not take any action against the offenders respondent nos. 6 to 8 amounts to violation of Article 21 of the Constitution of India, and therefore, the petitioner had no other alternative efficacious remedy save and except to approach this Court seeking appropriate direction upon the said respondents.

(3.) CONSIDERING the aforesaid rival submissions and on perusal of the materials on record it appears that both writ petitions are arising out of the partition suit No. 24 of 1990 pending in the court of the learned Sub -Judge I Giridih. In the said partition suit the petitioner is claiming 1/12th share in the suit properties against the defendants including respondent nos. 6 to 8.In the said suit the petitioner has claimed exclusive possession over portion of plot No. 825,Khata No. 168/371,Area 0.04 acres with Khapraposh building. The petitioner had also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure on 14.8.1995 in the partition suit no. 24 of 1990 and after hearing both the parties the learned court below passed an order dated 7.9.1995 directing both parties to " maintain status quo  on immovable properties of the suit. It is alleged by the present petitioner that the respondents no. 6 to 8 have committed breach of the said order of status quo and therefore, he moved an application under order 39 Rule 2(A) of the Code of Civil Procedure in the court of Sub -Judge -I Giridih which was registered as Misc. Case No. 74 of 1996 and the said Misc. Case is still pending. It also appears that wife of the petitioner namely Smt. Gita Debi has also filed a Complaint case No. 1092 of 1998 in the court of Chief Judicial Magistrate, Giridih against the respondents no. 6 to 8.After recording statements on solemn affirmation and statement of witnesses in the inquiry, the learned Sub -divisional Judicial Magistrate Giridih took cognizance of the offence under sections 147/148/149/120B/452/323/341/ 342/354/380 and 384 of the Indian Penal Code. Being aggrieved and dissatisfied by the order of taking cognizance on 7.12.1998 the respondents No. 6 to 8 moved before this Court by way of filing Cr.M.P. No. 246 of 2005 which was dismissed on merit on 15.2.2008 and thereby the said complaint case is still pending. It also appears that Superintendent of Police on receiving the representation dated 19.10.2010 directed the Sub -Divisional Police officer to look into the matter and inspite of the aforesaid direction by the Superintendent of Police, the police officials did not come in rescue of the petitioner; and therefore the petitioner served a notice under section 80 of the Code of Civil Procedure through his Advocate upon the accused persons including the respondents No. 6 to 8.