Vijai vs State Of U.P. And 6 Others
2022 Latest Caselaw 9916 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									AFR 
 
                                                                    Judgment Reserved on 4.8.2022
 
                                                                 Judgement Delivered on 11.8.2022
 
Court No. - 39
 
Case :- WRIT - C No. - 20102 of 2022
 

 
Petitioner :- Vijai
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Kamlesh Shrama
 
Counsel for Respondent :- CSC,Rahul Kumar Singh,Shreya Gupta
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Om Prakash Shukla,J.

(Delivered by Hon'ble Om Prakash Shukla, J)

1. Heard Sri Kamlesh Sharma, learned counsel for the petitioner, Sri K.R. Singh, learned Chief Standing Counsel appearing for the State and Ms. Shreya Gupta, learned counsel for the respondent no. 7.

2. The petitioner has knocked the doors of this Court under Article 226 of the Constitution of India being aggrieved by the action on the part of the Sub-Divisional Magistrate, Tehsil - Kasimabad, District - Ghazipur in foraying into the dispute relating to private property on the application filed by the respondent no. 7 before the District Magistrate, Ghazipur and as such has prayed, inter alia, for the following reliefs:

(I) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 3 to restore the land of the petitioner in its previous position which was dispossessed by he respondents during pendency of the Appeal No. 11 of 2022 (Natthe & anothr Vs. Vikrama) pending before the learned District Judge, Ghazipur.

(II) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 1 to take disciplinary action against the respondent nos. 2 to 6 who have illegally dispossessed the petitioner from his land without adopting any legal procedure.

3. This Court while issuing notice in the present writ petition vide interim order dated 20.7.2022 has expressed its reservation to the manner in which the authorities got indulged in a private dispute and knowingly or unknowingly side with one of the contesting parties to the litigation, resulting in filing of similar kinds of writ petitions in the past. In the said background, this Court had called upon the District Magistrate, Ghazipur, and Sub-Divisional Magistrate, Tehsil - Kasimabad, Ghazipur to file their respective personal affidavits explaining as to how they had entered into the dispute between private parties relating to the immovable property and that too during the pendency of the proceedings between parties before the Civil Court. This Court has also directed the Principal Secretary (Revenue), Government of UP, Lucknow to take action against the erring officers by initiating disciplinary proceedings.

4. The personal affidavits of DM, Ghazipur and SDM, Kasimabad, Ghazipur have been filed and the same were taken on record. Vide order dated 4.8.2022, the explanation received by the Chief Standing Counsel from the office of the Principal Secretary, Government of UP, Lucknow was also taken on record on the same date.

5. The facts of the present case lie within a narrow compass. It is the contention of the petitioner that he is Bhumidhar of Araji No. 932 measuring area 0.0900 hectare and respondent no. 7 is Bhumidhar of Arjai No. 933-A situated at village Kodari, Pargana - Pachotar, Tehsil - Kasimadabad, District - Ghazipur. Since both the Arajis are continguous, there is ensuing dispute lead to filing of Original Suit No. 679 of 2008 for permanent injunction by respondent no. 7 before the learned Additional Civil Judge (Junior Division), Ghazipur against the petitioner.

6. It is the case of the petitioner that the aforesaid suit was decided in favour of respondent no. 7 on 4.1.2022 and aggrieved therefrom the petitioner has preferred an appeal bearing No. 11 of 2022 before the District Judge, Ghazipur on 15.3.2022 which is still pending and, as such, according to him the matter is sub judice.

7. It is further the case of the petitioner that although the respondent no. 7 has neither filed execution of the judgment / order dated 4.2.2022 of the Additional Civil Judge (Junior Division), Ghazipur, nor has filed any demarcation proceedings under Section 24 of the UP Revenue Code, 2006 during the pendency of the civil appeal, but in order to short circuit the entire civil proceedings, has filed an application on 18.4.2022 before the District Magistrate, Ghazipur for demarcation and possession of the land in dispute.

8. It seems that on the said application, the DM, Ghazipur had issued direction to the SDM, Tehsil - Kasimabad, District - Ghazipur, to make inquiry on the spot. The spot inspection and measurement of the plot in question then followed under the instruction of the DM, Gahzipur whereafter reports dated 26.4.2022, 3.5.2022 and 18.5.2022 were submitted by the Revenue Inspector. Pursuant to the said reports the petitioner contends that the SDM, Kasimabad, Ghazipur alongwith revenue authorities visited the spot on 26.5.2022 and directed both the contesting parties to maintain status quo. However, subsequently, revenue authorities alongwith local police again visited the spot on 11.6.2022 and allegedly put on pressure upon the petitioner and after obtaining his signatures had forcibly dispossessed him and gave possession of the disputed land to respondent no. 7.

9. After the said dispossession, the petitioner has moved a representation to the Superintendent of Police, Ghazipur on 13.6.2022 and the DM, Ghazipur on 14.6.2022, disputing his signatures on the alleged spot memo dated 11.6.2022 and complaining about the action on the part of the local police and the revenue authorities.

10. This Court has taken pain in narrating the facts in details to convince itself and yet again this is the case wherein the respondent-authorities have embarked on the path of interjecting into the dispute relating to the immovable property between private person during the pendency of the civil litigation, which has been deprecated by this Court on several occasions.

11. This Court in the case of Jitendra Bahadur Singh Vs. State of UP and others in Civil Misc. Writ Petition No. 50033 of 2015 has directed the Principal Secretary (Revenue) to take disciplinary action against officers concerned, who entered into the dispute between two private parties in respect of immovable property. Pursuant thereto, the Government Order was issued on 16.10.2015 as reminder to the District Magistrates in the State of UP to desist from taking any action in a dispute of immovable properties of private persons and especially those where matter is pending in the Civil Court. It means that the orders issued by the State Government are being ignored by the Administrative Officers as the Court is receiving petitions against such orders almost on daily basis.

12. In a recent decision on 13.6.2022 in Civil Misc. Writ Petition No. 17951 of 2022 Shree Energy Developers Pvt Ltd. Vs. State of UP ans 6 others), the Principal Secretary, Government of UP, Lucknow was directed to look into the matter and to issue direction to the District Magistrates of all the Districts in the State of UP not to interfere into any kind of private dispute relating to immovable property. The Principal Secretary, Government of UP was directed to submit action taken report to this Court through the Registrar General of this Court. No such report had been brought before us and, moreover, this Court is flooded with this kind of litigations where the District Magistrate, Sub-Divisional Magistrates and the police authorities on the complaint of private parties are passing administrative orders to deal with their disputes relating to immovable property.

13. In the aforesaid compelling circumstances, this Court found its bounden duty to call upon the administrative authorities for explanation. The respondent no. 2 in the affidavit filed in his personal capacity has justified his act by stating that before 14.6.2022 neither the petitioner nor the respondent no. 7 ever informed in writing or orally about the pendency of any civil suit or appeal in Civil Court.

14. He states that he came to know about the civil suit / appeal when he received the order dated 20.7.2022 passed by this Court in the present writ petition. In the first blush the justification seems to be bonafide and this Court expected restitution in the light of its earlier judgment and Government Order as stated herein above. However, it seems that the respondent no. 2 has taken deep inquiry into the matter, wherein he has not only taken pain to justify his stand but has also went a step further in entering an arena shadowed with dispute essentially belonging to the competent civil or criminal courts.

15. Apparently, the respondent no. 7 had filed representation dated 18.4.2022 to the respondent no. 2, wherein he claimed seeking resolution of the boundary disputes with the petitioner and as such had prayed for intervention of the District Magistrate. It is this representation which formed the basis of the whole gamut of actions and highhandedness of the respondent no. 2 to dispossess the petitioner. This Court find absolutely absurd as to how the respondent no. 2 can claim to justify in his affidavit that action under Section 129 of the UP Revenue Code, 2006 can be initiated against the petitioner, whereas foundation seems to be essentially the boundary dispute covered under Section 24 of UP Revenue Code. Further this Court find it unable to understand as to how the respondent no. 2 has shown such teary hurry in calling for a report on the said representation given in 'Janata Darshan'. Although the procedure for initiating process under Section 24 or Section 29 of the UP Revenue Code is all together different and governed under the UP Revenue Code and the Rules framed thereunder.

16. This Court is also convinced that the respondent no. 2 has deliberately either ignored the reports dated 26.4.2022 and 3.5.2022 of the revenue authorities or proposal, remained silent about the same in his affidavit, which sufficiently indicates that the issue was relating to boundary dispute and could be resolved in an appropriate proceeding under Section 24 of the UP Revenue Code and, in any case, the reports in clear terms indicated that the same was made on the basis of consideration of the court cases pending between the parties and as such the parties were required to maintain status quo and all further action in the matter was subject to the resolution of the boundary dispute and the decision of the competent court of law.

17. Although the respondent no. 2 has mentioned in the affidavit that the application dated 25.5.2022 of the respondent no. 7 also did not indicate about any civil suit or order passed by the civil court, but this Court find the said stand to be meaningless in the presence of the reports dated 26.4.2022 and 3.5.2022 of the revenue authorities. There was no occasion for the respondent no. 2 to claim that no action was taken by the SDM concerned and call for another report dated 31.5.2022 issuing fresh direction to take action, which has led to the revenue officials going on the spot on 26.5.2022 and ultimately dispossessing the petitioner on 11.6.2022. The explanation offered by respondent no. 2 is an effort to misguide this Court. The appropriate cause of action for the District Magistrate was to direct the applicant/respondent no. 7 to approach the competent revenue / civil court to seek appropriate remedy, soon after the presentation of the application on 18.4.2022 in 'Janta Darshan' as the dispute was about an immovable property between private persons. No explanation could be given by him about this digression from the settled legal principle at the first instance.

18. Secondly, even after the reports were submitted by the revenue officials dated 26.4.2022 and 3.5.2022 giving clear opinion that the applicant/respondent no. 7 has to wait for the outcome of the litigation pending in the Court, the respondent no. 2/ District Magistrate, Ghazipur entertained another application on 25.5.2022 of the respondent no. 7 and issued direction to take action against a private person, the petitioner herein.

19. We are afraid to accept that the reports dated 26.4.2022 & 3.5.2022, which were forwarded to the higher authorities, did not come to the knowledge of the District Magistrate. Had it been otherwise, the District Magistrate/respondent no. 2, instead of issuing fresh direction on the application dated 25.5.2022, ought to have sought reports from the SDM about the action taken on his previous directions. In any case, the justification of the respondent no. 2/ District Magistrate of his action is not convincing.

20. Thus, this Court finds that the respondent no. 2 has proceeded in a reckless manner resulting in the dispossession of the petitioner in the first instance and later seeking to take shelter under Section 129 of the UP Revenue Code in his personal affidavit filed in this Court. In any case, this Court is unable to appreciate the manner in which the respondent no. 2 has conducted himself and the proceedings in the present case as he has sought to justify his highhandedness under Section 129 of the UP Revenue Code. Although he was fully well aware about the dispute relating to the boundary issue and pendency of the civil proceedings between the parties relating to the disputed land before the civil court. The respondent no. 2 has overreached his jurisdiction by entering into the disputes to be adjudicated by the revenue court or the civil court.

21. There is another aspect of the matter, the respondent no. 2 has after receipt of the order dated 20.7.2022 passed by this Court, promptly directed the SDM concerned to make an inquiry and submit a report relating to the allegations made by the petitioner in his letter dated 14.6.2022. The SDM concerned gave the report dated 30.7.2022 that the petitioner was not only present on the spot on 11.6.2022 and the demarcation was done in his presence but also reported that respondent no. 7 was given possession of the disputed land in the presence of the petitioner and he had also appended his signatures on the said alleged spot memo. This Court find it difficult to appreciate the teary hurry of the SDM and especially when he was made aware about the pendency of the Civil case between the parties in the reports dated 26.4.2022 and 3.5.2022 submitted by the revenue officials. It was expected that once the respondent no. 3 was made aware of the pendency of the case in the Civil Court, he ideally would have submitted his report to the District Magistrate instead of proceeding to dispossess the petitioner on 11.6.2022, despite having knowledge of the private dispute relating to immovable property between two private individuals rather than justify his actions and highhandedness in his action on 11.6.2022.

22. Further, the respondent no 2 in his affidavit has also tried to justify his action by stating that the patta in the name of the petitioner's mother was canceled vide order dated 30.7.2014 and although the revision filed by the petitioner before the Additional Commissioner, Varanasi was allowed by virtue of the order dated 2.11.2018 by which the patta cancellation order was set aside and the matter was remanded back to the concerned authority for deciding afresh, but as a Writ-C No. 5086 of 2019 has been filed against the said revisional order wherein an interim order staying the order passed by the Additional Commissioner has been passed on 20.2.2019, the patta cancellation order stood revived. The said petition is still pending consideration before this Court and hence the action taken by him under the shield of Section 129 of the Revenue Code is justified. Be that as it may, this Court does not intend to dwell into the merits of the claim in the writ petition, which obviously would be decided on its own merit, but the factum of there being proceedings pending relating to the immovable property before the Civil Court and the court of competent jurisdiction cannot be negated.

23. The respondent no. 3 further stated in his affidavit that after he joined as SDM, Kasimabad only on 29.6.2022, an order dated 14.7.20122 has been issued by him to the effect that as the case is pending before the Civil Court and further that with respect to the map correction is pending before the Additional District Magistrate (LR), both the contesting parties should maintain the status quo on the spot and may not raise any new constructions on the spot. Both the parties, however, started quarreling on the spot and as such a challani report under section 151, 107, 116 Cr.P.C. has been submitted. Both of the parties also lodged NCR on 17.7.2022 against each other. The officer now posted as the sub-division officer, however, showed his ignorance about the previous action taken in the matter.

24. The specific query of this Court in the order dated 20.7.2022 seeking explanation from the DM and SDM as to how they entered into private dispute relating to immovable property remained unanswered in the affidavit of both the officers.

25. From the aforesaid conspectus of the fact, it is evident that the situation of law and order that has arisen on the spot due to the dispute involving immovable property belonging to private individuals could have been easily avoided, had the respondent authorities observed restrained and guided themselves by the orders passed by this Court as well as the Government Orders.

26. In our Constitution, there is clear separation of judicial and executive powers. The civil disputes are to be decided by the Civil Court and unsuccessful litigant has a right to file an appeal. The Administrative Officials cannot enter into any such dispute in exercise of the power conferred on them under the provisions of Cr.P.C. and the Revenue Code to fill in the gap and pass executive orders which explicitly belongs to the realms of Civil Court or the revenue court respectively. The due process of law has to be followed in all respect and the executive authorities are not supposed to usurp the the power bestowed on the civil / revenue courts as it would not only be exercise of excessive jurisdiction not permissible under law but would also lead to overlapping jurisdiction which is against the tenets of the basic structure of our Constitution.

27. The present case is a glaring example of encroaching and over reaching the realm of the Civil Court on the part of the respondent-authorities. Although the respondent no. 2 has taken a stand that he was not aware of the pendency of the civil appeal, but the action of the respondent no. 2 even after submission of the reports by the revenue officials does not seem convincing to this Court from any angle. The authorities concerned ought not to have exercised administrative power for entering into the disputed property and issue order for delivery of possession etc against one or the other party. This primarily should be left to the competent court of civil jurisdiction.

28. The very issuance of advisory by the Government of UP dated 3.8.2022 vide No. 1291/EK-2022/9-RA-9 pursuant to the Government order dated 16.10.2015 is evident of the fact that even the Government of UP is not oblivious to the exercise of excessive administrative powers by the execution in civil dispute relating to immovable properties between private individuals. It is high time that the said advisory acts like yet another reminder to all the executive authorities to desist from taking any action in a dispute relating to immovable properties of private persons and especially when the matter is pending in a civil court as in the present case.

29. Having noted the effort of the Government of UP in issuing the aforesaid advisory, this Court further expects that the Government should also prescribe consequential effect against the erring officers and provide for remedial steps by framing high level committee of senior officers at the Government level, which should include the Revenue Secretary so that not only accountability can be fixed but a redressal forum be available to the victims and this Court is not flooded with similar kinds of litigations in future.

30. For all above reasons, we are inclined to allow this writ petition. This court without expressing any view on the merits of the dispute pending before the competent courts and in the peculiar facts and circumstances of the present case directs the District Magistrate, Ghazipur and the SDM, Tehsil - Kasimabad, District - Ghazipur to ensure that the parties are restored possession as was existed prior to 11.6.2022 in order to bring them to their original position. Needless to say that such arrangement shall be subject to the out come of the civil appeal and other litigations pending between the petitioner and respondent no. 7. We clarify that we have not expressed anything on the merit of the contention of the parties, which may be permissible to the parties as per law and as such we did not find any reason to issue notice to respondent no. 7 before passing this order.

31. Further, before parting with this judgment, this Court issues strict warning to the respondent no. 2 the officer posted as the District Magistrate, Ghazipur for trying to mislead this Court, to refrain from repeating any such mistake in future. We call upon the departmental head to issue a Warning to the District Magistrate, Ghazipur to be kept in his service record. A Warning be also issued to all such erring officials, to be circulated widely, so that they shall desist from repeating such acts in future and that any such repetitive act must entail disciplinary action against them as per the Rules.

32. With the aforesaid observations and directions, the writ petition stands disposed of.

33. No order as to cost.

Order Date : 11.8.2022

SKS