Smt. Maya vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 20628 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Court No. - 28
 
Case :- APPLICATION U/S 482 No. - 6967 of 2023
 
Applicant :- Smt. Maya
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko And Another
 
Counsel for Applicant :- Diwakar Pratap Pandey,Rameshwar Tiwari
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Shree Prakash Singh,J.

1. Supplementary affidavit filed by counsel for the applicant is taken on record.

2. Heard Sri D.P. Pandey and Sri Rameshwar Tiwari, learned counsel for the applicant, Sri Aniruddh Kumar Singh, learned A.G.A.-I for the State and perused the material on record.

3. Instant application has been filed with the prayer to quash the impugned Judgment and order dated 14.2.2023 passed by the Additional District & Sessions Judge, Court No.8/Special Judge, Gangster Act, Lucknow in Criminal Revision No.483 of 2016, Police Station Aminabad, District Lucknow as well as the order dated 28.9.2016 passed in Case No.117 of 2016 under Section 133 Cr.P.C. State Vs. Smt. Maya Police Station Aminabad, Lucknow.

4. Learned counsel for the applicant submits that in the year 2016, the City Magistrate, Lucknow registered a Case No. 117 of 2016 under section 133 Cr.P.C., State Vs. Smt. Maya wherein it has been said from the State side that there is encroachment over the public pathway on the east side of Radha Ji and Kaliji Mandir, Aminabad, situated in back portion of Khiyamal Sari Centre, Aminabad. This proceeding was initiated on a police report dated 6.5.2015 but in the report, the incorrect facts were mentioned. Further in the year 1997, the applicant instituted Regular Civil Suit No.126 of 1997 (Smt. Maya versus Babuwa Giri and others) which was decided on 21.8.1998 and the judgement and decree was passed in favour of the applicant. The operative portion of the decree reads as under:-

"oknuh dk okn ,d i{kh; :i ls fMdzh fd;k tkrk gSA izfroknhx.k dks vknsf'kr fd;k tkrk gS fd os iz'uxr nqdku dks fof/k fo:) rjhds ls /oLr u djs vkSj u gh oknuh ds 'kkafr iw.kZ dCtk o n[ky esa vU;Fkk fof/k fo:) rjhds ls gLr{ksi djsaA"

5. Referring the aforesaid, he submits that in the Judgment and decree dated 21.8.1998, the area and boundaries have been mentioned and the applicant is not encroaching on other area than the area and boundary mentioned in the Judgment and decree dated 21.8.1998. Adding his arguments, he submits that though, due to wrong advice, another suit was instituted bearing Original Suit No.262 of 2000 (Maya Devi Vs. Babuwa Giri and others), wherein an intrim relief application was also filed which was rejected on 23.12.2000 but the same would have no bearing on the final Judgement and decree dated 21.8.1998, as the same has not been challenged by any of the parties and that has attained finality. Ignoring the aforesaid facts, proceeding under section 133 of Cr.P.C. was initiated and, ultimately, the City Magistrate, Lucknow passed the order impugned, dated 28.9.2016. Against the order dated 28.9.2016, a revision bearing No.483 of 2016 (Smt. Maya Vs. Raj Kumar Bansal), was instituted by the applicant, which was dismissed, vide order dated 14.2.2023, which is also under challenge in the instant application.

6. He further contended that neither the City Magistrate nor the Revisional Court considered the order dated 21.8.1998 passed by the civil court in regular civil suit, wherein the interest of the present applicant was protected and, thus, the impugned orders are in contravention of the Judgment and decree passed by the civil court. He submits that it is trite law that the orders passed by the civil courts have binding effect over the criminal courts and since the decision of the civil court dated 21.8.1998, is in favour of the applicant, therefore, the same is to be honoured and followed by the criminal courts.

7. Next contention is that the State authorities are adamant to disturb the possession of the applicant after the order dated 14.2.2023 passed by the revisional court, as such, the interest of the applicant may be protected and the opposite parties may be directed to proceed in pursuant to the Judgment and decree dated 21.8.1998 passed by the civil court.

8. On the other hand, learned A.G.A. for the State has vehemently opposed the contention aforesaid and submitted, on the basis of instructions, that after thorough scrutiny of the facts, the City Magistrate passed the order in the year 2016, under Section 133 Cr.P.C. and, thereafter, when it was challenged before the revisional court, the revisional court, while considering each and every aspect of the matter, passed the order dated 14.2.2023 and upheld the order dated 28.9.2016 passed by the City Magistrate. He next added that the public pathway is the different area than the area and boundaries mentioned in the Regular Suit No.126 of 1997.

9. He added that in the Judgement, it is shown that backside of the wall as well as the backside of the temple, is encroached but it is the fact that exit gate of Radha Ji & Kaliji Mandir has been encroached, which is different than the subject matter which was before the civil court at the time of deciding the issue in Regular Suit No.126 of 1997. He next added that it is not a case wherein all of a sudden, proceedings have been initiated but after calling the detailed report and thereafter going through exhaustively in the matter, the order dated 28.9.2016 as well as 14.2.2023 have been passed, thus, there is no ambiguity or unlawfulness in the orders impugned, therefore, the submission is that no interference is warranted by this Court.

10. Having heard learned counsel for the parties and after perusal of the material on record, it transpires that a dispute arose, when the present applicant Smt. Maya said to have encroached certain land and then she filed the Regular Suit No.126 of 1997, before the trial court whereafter the same was decided in favour of the applicant on 21.8.1998. It is also borne out from the record that another suit bearing Original Suit No.262 of 2000, was instituted by the applicant, wherein, interim relief application was rejected, vide order dted 23.12.2000 and the plea has been taken by another side that since the interim relief application has been decided against the applicant, thus, the applicant is not entitled to any relief.

11. So far as the Regular Suit No.126 of 1997 is concerned, it reveals that the regular suit was instituted by the applicant and after thoroughly considering the facts and circumstances, the Judgment and decree has been passed and the matter has been finally settled wherein certain piece of land has been decided to be possessed/acquired lawfully by the applicant. Further so far as the Orginal Suit No.262 of 2000 is concerned, though not finalized yet and the interim relief application has been rejected therein but the same would have no bearing over the Judgment and decree dated 21.8.1998 passed by the civil court in regular civil suit, which has attained finality as no appeal etc. has been filed as per the version of the learned counsel for the applicant and that too was not controverted by the State counsel.

12. The anxiety of the applicant is that the applicant is being dispossessed from the property which has finally been decided to be lawfully possessed by her as per the Judgment and decree dated 21.8.1998. In this respect, learned counsel for the State has submitted on the basis of instructions, that applicant's possession over the property, which is already settled by giving description in the Judgment and decree dated 21.8.1998, is not being disturbed and, now, this time, the dispute is with respect to a different property, which is public pathway of east side of Radha Ji & Kaliji Mandir, Aminabad, which has been encroached by the present applicant and if the situation is such, then certainly the State Authorities can invoke the jurisdiction under Section 133 of the Cr.P.C.

13. Be that as it may, the State Authorities are hereby directed not to invoke any jurisdiction or any proceeding in furtherance thereof so far as the land/property with respect to which description of area and boundary has been mentioned in the Judgment and decree dated 21.8.1998 passed in Regular Suit No. 126 of 1997.

14. Further it is open to the State Authorities to proceed as per law if any encroachment is found on the public pathway and there is no legal impediment.

15. With the aforesaid observation/directions, the instant application is hereby disposed of.

Order Date :- 4.8.2023

Ram Murti