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2012 DIGILAW 1214 (MAD)

A. N. Murthy v. Director General of police

2012-03-07

VINOD K.SHARMA

body2012
Judgment :- 1. The petitioner has approached this Court with a prayer for issuance of writ in the nature of Mandamus, directing the Director General of Police / the first respondent to take appropriate action against the sixth respondent as well as against the Superintendent of Police, the Inspector of Police on the representation dated 05.8.2011 and to restore petitioners' possession of property by removing trespassers in S.F.No.76/3 of Eetiveerampalayam village, Tirupur Taluk and District. 2. The reading of the prayer itself shows that the writ petition is totally misconceived, as the Director General of Police, has no power to restore possession of property. In case any criminal offence is committed, the remedy with petitioners was to file a complaint with the Police station, having jurisdiction over the area where the alleged crime was committed. In absence of registration of case, a complaint can be made to the Superintendent of Police. 3. The petitioners have remedy to file criminal complaint in the Court of Judicial Magistrate, under the Code of Criminal Procedure. 4. The facts pleaded in support of the prayer, reads as under: (1) I am the 1st petitioner herein and as such I am well acquainted with the facts of the case. The 2nd petitioner is my brother and we have jointly filed a suit in O.S. No. 396/2008 on the file of District Munsif Court, Tirupur against the Respondents 4 to 6 herein and hence, I am filing this affidavit for myself and on behalf of the 2nd petitioner herein. (2) It is submitted that I and the 2nd petitioner herein partitioned our agricultural land in S.F. No.76 with an extent of 0.90¼ acres of Eetiveerampalayam Village in Tirupur Taluk & District as per the registered partition deed dated 13.4.2005 and out of which 15½ cents has been demarcated as a common cart track for our usage. (3) It is submitted that the Respondents 4 and 5 herein who were owned properties adjacent to our properties and sold the same to one Bhuvaneswari who in turn sold the same to the 6th Respondent herein. The 6th Respondents had also sold out the properties to the third parties who formed house sites and put up constructions over there. In fact, a barbed wire fencing demarcating our properties and the above said house sites. The 6th Respondents had also sold out the properties to the third parties who formed house sites and put up constructions over there. In fact, a barbed wire fencing demarcating our properties and the above said house sites. Whiles so, without any basis, the Respondents 4 to 6 herein joined together and made the claim of 32 cents of land alleged to be in our possession. The Respondents 4 to 6 herein with an intention to grab the property interfered with our peaceful possession and enjoyment of the property. So, having no alternative, myself and my brother filed the suit in O.S. No. 396/2008 on the file of District Munsif Court, Tirupur praying for the relief of permanent injunction against the Respondents 4 to 6 herein. The Respondents 4 to 6 herein having entered appearance in the suit filed their respective written statements. (4) It is submitted that the Advocate Commissioner appointed by the Court filed his report in I.A. No. 1422/2008 in O.S. No. 396/2008 on the file of District Munsif Court, Tirupur. The advocate commissioner's report confirms that we are in actual possession and enjoyment of the suit property. The respondents 4 to 6 herein being defendants in the suit had not filed any objection against the advocate commissioner's report. However, the 6th Respondent herein has filed an application in I.A. No. 401/2010 in O.S. No. 396/2008 for appointment of another advocate commissioner to measure his alleged possession of 32 cents of land in S.F. No. 76/3 and the same is pending disposal before the learned District Munsif, Tirupur. I and the 2nd petitioner herein filed our counter in the above said application. It is submitted that even in the affidavit filed by 6th respondent herein in support of the above application, he has clearly admitted that we have been in possession of the disputed land of 32 cents but alleged as encroachment. (5) It is submitted that during the pendency of the above suit in O.S. No. 396/2008, the 6th respondent herein made a complaint dated 23.7.2010 before the 3rd respondent herein alleging that we encroached upon his 32 cents of land in S.F. No.76/3 of Eetiveerampalayam Village in Tirupur Taluk & District and the 3rd respondent herein after enquiry closed the complaint as civil in nature and directed the 6th Respondent herein to seek remedy through the civil court. (6) While so, on 17.7.2011 the 6th respondent herein has again preferred another complaint with the same allegation before the 2nd respondent herein and the 2nd respondent herein after enquiry forwarded the complaint to the 3rd respondent herein for investigation, despite it was made known to the 2nd respondent herein about the pendency of civil suit in respect of the same property and also of the similar complaint, made earlier by the 6th respondent herein, closed as civil nature on 23.7.2010. On 05.8.2011, the 3rd respondent herein summoned us to the Police Station for enquiry and on the influence of the 6th Respondent herein, the 3rd respondent herein illegally detained us in the Police Station and helped the 6th Respondent herein to trespass into our property and erect stone pillars to make it to show that 32 cents of land had been in physical possession of the 6th Respondent. It is atrocious on the part of the law enforcement agency to indulge in such an unlawful activity, especially when the dispute in respect of the same is pending before the civil court. We were driven out of our property through threats, illegal detention and coercion by the 2nd and 3rd respondents herein pending civil suit. It is very unfortunate that the very same Inspector of Police viz., the 3rd respondent herein who had closed the complaint given by the 6th respondent herein with the same allegation as civil in nature about an year ago, has now helped the 6th respondent herein to encroach upon our property when the suit was pending disposal, showing least respect to law and justice. The 2nd and 3rd respondents herein have committed constitutional impropriety and thereby made us to feel insecure in our own village. I beg to submit that our constitutional rights of protection for life and property have been infringed and in such circumstances, I have no other alternative, effective and efficacious remedy except to approach this Hon'ble Court invoking article 226 of the Constitution of India for the following among other." 5. The facts pleaded in support of the prayer shows that the dispute with regard to possession of property, is pending in the Civil Court. The petitioners, therefore, also have remedy to seek injunction or other remedy, by moving application in the pending suit. The facts pleaded in support of the prayer shows that the dispute with regard to possession of property, is pending in the Civil Court. The petitioners, therefore, also have remedy to seek injunction or other remedy, by moving application in the pending suit. Once Civil Suit is pending, it is not understood, how writ jurisdiction can be invoked, that too, for issuance of direction to the Director General of Police to restore possession. 6. The affidavit further shows that there were allegations against petitioners for encroaching of land, but the complaint of respondent no.6 was not entertained by the Police, because of pending Civil Suit. 7. The allegations that 2nd and 6th respondents have tried to take possession cannot be gone into in the writ petition, specially when the matter is pending in the Civil Court and an Advocate Commissioner was appointed, who has already given his report, whereas the second application for appointment of Advocate Commission is still pending. 8. It is well settled law that parties cannot have two parallel remedy at the same time. The relief claimed in this petition could be claimed in the Civil Court. The Civil Court has the jurisdiction to do justice, on the pleaded facts and documents placed on record, taking into account its evidentiary value, which is not possible in exercise of writ jurisdiction. 9. The writ petition, being totally misconceived, is ordered to be dismissed. No costs.