Rafeek Ahmad vs State Of U.P. And 9 Others
2017 Latest Caselaw 5377 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 29
 

 
Case :- WRIT - C No. - 35669 of 2017
 

 
Petitioner :- Rafeek Ahmad
 
Respondent :- State Of U.P. And 9 Others
 
Counsel for Petitioner :- Adya Prasad Tewari,Sheo Shankar Tripathi
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Tarun Agarwala,J.

Hon'ble Ajay Bhanot,J.

We have heard Sri A.P. Tewari, the learned counsel for the petitioner and Sri Suresh Singh, the learned Additional Chief Standing Counsel for the State respondents.

The facts culled out from the pleadings is that the petitioner and respondent no.10 are brothers.  The petitioner alleges that he had purchased plot no.385 by means of a registered sale deed in the year 1986.  There is a dispute between the petitioner and respondent no.10 with regard to the land in question.  Respondent no.10 has filed original suit no.270 of 2012.  The petitioner has also filed original suit no.991 of 2012 praying that the defendant, namely, respondent no.10 should be restrained for opening a way from the land in question for his ingress and egress.  Both the suits are consolidated and are pending before the Civil Judge (Senior Division), Gorakhpur.  No injunction has been granted in favour of either of the parties. 

During pendency of the aforesaid case, respondent no.10 filed an application before the Sub-Divisional Magistrate making an allegation that his ingress and egress to his shops has been obstructed by the petitioner by the piles of logs/wood being placed by the respondent no.10.

The Sub-Divisional Magistrate passed an order

dated 02.05.2017 directing the Station House Officer to enquire in the matter.  The Station House Officer submitted a report dated 27.3.2017 indicating that the private pathway of respondent no.10 was blocked by the piles of wood placed by the petitioner.  The Sub-Divisional Magistrate, accordingly, directed the Naib Tehsildar by an order dated 10.04.2017 to take action in accordance with law.  Based on the said direction, the Tehsildar passed an order dated 25.04.2017 directing the Revenue Inspector to personally clear the pathway with the help of police force.  This order of the Tehsildar was endorsed by the District Magistrate as well as by the Sub-Divisional Magistrate by orders dated 02.05.2017 and 06.05.2017 respectively.  

Based on the aforesaid order, the revenue officials along with police force removed the piles of wood/logs from the disputed place and cleared the way for ingress and egress of respondent no.10.  The petitioner made a complaint to the higher authority and when no action was taken by the administration, the present writ petition was filed praying for a direction to quash the orders passed by the District Magistrate, Sub-Divisional Magistrate as well as Tehsildar.  The petitioner has also prayed for a mandamus commanding the respondents to give back the wood/logs that was taken away by the district administration at the time when the police force came and cleared the way.  A prayer was also made that action be taken against all the officials for their unlawful act.

A counter affidavit dated 07.09.2017 has been filed by Shashank Shekhar Rai, posted as Naib

Tehsildar on behalf of all the respondents, namely, respondent nos.2,3,4, 5 and 6 admitting that the wood/logs were removed on the complaint made by the respondent no.10.  The counter affidavit reveals conflicting stand of the authority, namely, at one place it was stated that the wood/logs were obstructing the public pathway and at another place it was asserted that the wood/logs were lying on the side of the road.  It was asserted at one place that the wood/logs were removed and at another place it was asserted that the wood/logs were shifted and kept on the vacant land and  in front of saw mill of the petitioner after clearing the pathway. 

On the basis of the stand taken by the respondents that they were clearing the road it was found by the Court that the land on which the alleged wood/logs were kept by the petitioner is not a public pathway and the Court by an order 03.10.2017 directed the Tehsildar to appear before the Court.

On the issue of the removal of wood/logs there has been conflicting stand between the parties. The stand of the petitioner is, that the police took away the wood/logs from the spot in question.  The counter affidavit reveals conflicting stand.  At one place it is asserted that the wood/logs were removed and at another place it was asserted that the wood/logs were shifted to a vacant land and in front of the saw mill of the petitioner. 

In rejoinder affidavit the petitioner filed a report of the Sub-Inspector indicating that the wood/logs were given in the supurdgi of

respondent no.10.  When this fact was accosted to the learned Additional Chief Standing Counsel, a prayer was made for seeking further instruction.  An affidavit has been filed indicating that the Sub-Inspector has given a wrong report and a preliminary enquiry has been initiated against the said Sub-Inspector, Awadhesh Kumar Upadhyay. 

The respondents in their supplementary affidavit further indicated that the Tehsildar had wrongly taken an action in clearing the pathway and interfered in the private dispute between the petitioner and respondent no.10 in violation of the Government Order dated 01.12.2014 and a recommendation has been made to the Board of Revenue to initiate disciplinary proceedings against the Tehsildar, Ajay Kumar Tripathi, who has been transferred earlier to another place. 

In the light of the aforesaid facts, one thing which is admittedly clear is, that there is a private dispute between the petitioner and respondent no.10.  The land in question, of which ingress and egress of respondent no.10 is alleged to be obstructed, is an  issue involved in the two original suits.  The land in question is also not a public pathway but it is a private land.  There is a Government Order dated 01.12.2014, which in clear terms directs the revenue officials not to interfere in a private dispute.  In the instant case, on an application of respondent no.10 and without verifying the actual facts, the district administration has interfered and cleared the pathway for respondent no.10 taking a stand that it was done in public interest as there was apprehension of breach of peace.  This action of respondents is patently erroneous and is an after

thought. No such report has been brought on record to indicate that there was an apprehension of breach of peace on account of a dispute between two private parties.  Such assertion is merely an after thought, which cannot be accepted. 

From the aforesaid, it is admittedly clear that the officials have clearly interfered in a private dispute. The Tehsildar, Sub-Divisional Magistrate, etc. had no authority to pass any kind of order directing the authority to take action for removal of the wood/logs.  There appears to be clear dereliction of duty on the behest of these officials. An affidavit has been filed that the action has been taken against the Tehsildar.

In our opinion this is insufficient.  The State Government should look into all aspects of the matter taking into consideration the action of each and every official.

We, accordingly, direct the Commissioner, Gorakhpur Division, Gorakhpur to initiate a fact finding enquiry after perusing the records relating to the order passed by each and every official including the Sub-Divisional Magistrate, Tehsildar, Circle Officer and all other officials and whosoever is found guilty, disciplinary proceedings should be initiated against them.  Such fact finding enquiry should be initiated within four weeks from today and report and action taken should be done within four weeks thereafter.

Insofar as restoration of wood/logs is concerned,

 .

there is a factual dispute.  According to the petitioner, the wood/logs were removed for ingress and egress of respondent no.10 to his shop.  The respondents have  refuted this allegation and contend that the wood/logs were shifted to a vacant land in front of saw mill of the petitioner.  There is also a report of the Sub-Inspector indicating that the wood/logs have been given in the supurdgi of respondent no.10 . 

Since there is a factual dispute and respondents are not coming out with a clear version, we direct the petitioner to lodge a first information report before the relevant Police Station.  Such complaint shall be lodged within 10 days from today, which will be registered by the Station House Officer and necessary enquiry would be conducted under the supervision of Senior Superintendent of Police and the same would be taken to its logical end within eight weeks from today.  We make it clear that in the event the wood/logs are not found and restored to the petitioner, the Senior Superintendent of Police after conclusion of investigation will make adequate arrangement of payment of the cost of the wood/logs to the petitioner for the loss of woods. 

Before we part, we make it clear that time and again we are finding that the district administration is interfering in the judicial process.  The matters which are required to be decided by a Court of law are being encroached upon undermining the dignity and majesty of the Court. Powers of Executives and Judiciary are clearly demarcated.  These are not overlapping and therefore we make it loud and clear that the

district administration should be cautious in interfering in matter which is in the domain of the judiciary.  The Government Orders are required to be strictly followed by the officials of the State Government.   

The writ petition is disposed off. 

A certified copy of this order be sent to the Chief Secretary for necessary information and compliance by the Registry within three weeks from today.

Order Date :- 12.10.2017

MAA/-

(Ajay Bhanot,J.)        (Tarun Agarwala,J.)