Babu Lal And 2 Others vs State Of U.P. And 13 Others
2022 Latest Caselaw 566 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 21
 

 
Case :- WRIT - C No. - 7741 of 2022
 

 
Petitioner :- Babu Lal And 2 Others
 
Respondent :- State Of U.P. And 13 Others
 
Counsel for Petitioner :- Rajendra Prasad Tiwari,Smt Alpana Tiwari,Vinay Kumar Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Dinesh Pathak,J.

The instant writ petition has been filed praying for following relief:

'Issue a writ order or direction in the nature of mandamus directing the respondent no.1 to 5 command to respondent no.6 to 14 not to raise construction of wall, pillars and new graves in khata No.00062 and khasra no.391, 392, 394kha, 396, 426, 433, 434, 435, 402khaBhumidari land of the petitioners situated in Mohalla Patiwara, Fatehpur Bajariya Mahoba against the spirit of order dated 25.02.1982 and modified order dated 13.08.1982 passed by Hon'ble Court in Second Appeal No.1289/1981, Babu Lal vs. Sahabuddin & others, petitioner no.2 sent representation dated 20.09.2021 to the District Magistrate Mahoba against the illegal construction of boundary wall, pillars and making the new graves on the aforesaid disputed land.'

It is clear from the facts narrated in the writ petition that the dispute between the parties relates to right and title as well as possession over immovable property and it is also clear from the prayer clause that a Second Appeal No.1289 of 1981 is pending consideration before the Court.

In such view of the matter, filing of instant writ petition for a direction to the executive authority i.e. District Magistrate to decide any part of the lis is abuse of process of law. The District Magistrate having regard to the nature of dispute will not have any power to adjudicate in absence of any duly constituted proceeding.

Learned counsel for the petitioner has placed reliance on order passed by this Court in Writ C No.39011 of 2018 (Chhote Lal and another vs. State of U.P. and 3 others) in contending that direction can be issued to executive authorities even if the dispute relates to adjudication of civil rights. We have gone through the said judgment. Therein, the parties had litigated in relation to their rights upto the stage of appeal and the judgment of the appellate authority had attained finality. Despite the same, the persons who have lost the litigation were allegedly interfering with the rights of the petitioner therein and in that context this Court has held that petitioner was entitled to police protection.

In the instant case admittedly, the litigation between the parties is still pending adjudication in second appeal and therefore, the direction issued in the said judgment cannot be applied to the facts of instant case.

The writ petition on the face of it is not maintainable as in pith and substance, the relief sought is against private persons.

Accordingly, the writ petition is dismissed.

Order Date :- 6.4.2022

Deepika