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2017 DIGILAW 102 (UTT)

Anil Kumar Rana v. District Magistrate Haridwar

2017-02-16

V.K.BIST

body2017
JUDGMNT : V.K. Bist, J. By means of this writ petition, the petitioner has sought a writ in the nature of mandamus directing the respondent nos.1 to 4 to remove the statue of Baba Sahab Dr. Bhim Rao Ambedkar kept on the land of the petitioner depicted by khasra no.170 situated in Village Saidpura, Mewarkala, District Haridwar in the intervening night of 2/3 of September, 2016 by respondent nos.5 to 7. 2. Brief facts of the case, as narrated in the writ petition are, that petitioner instituted a civil suit no.117 of 2008 Anil Kumar vs. Mustakeem and others against the respondents for grant of temporary injunction in respect of khasra no. 133 (old). By judgment and order dated 30.01.2014, the trial court proceeded ex-parte and dismissed the suit of the petitioner. Against the order dated 30.1.2014, the petitioner filed an appeal before the Court of District Judge, Haridwar. The said appeal was allowed on 28.02.2015 and respondents/defendants were restrained from interfering into the peaceful possession of the petitioner. Petitioner alleges that, after the appeal was decided in favour of the petitioner, the respondents/defendants left the place from where they were having illegal possession, but handed over the said land to some other persons, namely, Rikham, Pahari, Ishwar and Mahipal, by asking them to interfere in the peaceful possession of the petitioner, who put their illegal belongings in the land of the petitioner in the form of log wood. Being threatened by the said persons, the petitioner moved an application before the respondent no.2 (Sub-Divisional Magistrate, Roorkee), on which a report was provided to him, in which it was clearly stated that appropriate police force be provided in order to ensure peace and order at the spot, but, as no action was taken; the petitioner filed Writ Petition being WPMS No.448 of 2016 before this Court. The said writ petition was decided by this Court on 27.02.2016 and direction was issued by Co-ordinate Bench of this Court to the respondent no.2 to decide the representation of the petitioner expeditiously. Thereafter, the respondent no.2, in compliance of the Court’s order and on the basis of earlier report, called the police force and removed the illegal encroachment of the above-named persons from the land of the petitioner. Thereafter, the respondent no.2, in compliance of the Court’s order and on the basis of earlier report, called the police force and removed the illegal encroachment of the above-named persons from the land of the petitioner. The petitioner further alleges that, in spite of the action taken by respondent no.2, these persons were not permitting the petitioner to work on his land and were threatening him with dire consequences, upon which the petitioner filed a criminal writ petition before this Court seeking police protection against the said persons. Besides this, the petitioner also filed two other writ petitions for the purpose that he may not be stopped from raising construction on his land depicted by khasra no.170 situated in Mauza Saidpura Village Mewarkala, District Haridwar. The petitioner further alleges that the respondent nos.5 and 6 filed a civil suit being O.S. No.76 of 2016 pertaining to the same land in dispute by concealing the fact that they have already lost the appeal in relation to the said land and that a decree is operating against them. The said respondents also filed a writ petition before this Court being WPMS No.2218 of 2016, which got dismissed by judgment & order dated 16.08.2016 with the observation that these respondents have taken appearance in the execution proceedings and have filed their objections as well. Thereafter, the respondent nos.5 and 6 moved an application under Order 41 Rule 21 C.P.C. before the court of 2nd Addl. District Judge, Roorkee, District Haridwar, seeking recall of the order dated 28.2.2015, by which the appeal of the petitioner was allowed. The said respondents also moved an application under Section 5 of the Limitation Act alongwith the recall application. The application under Section 5 of the Limitation Act as well as the recall application was dismissed by the court below, vide order dated 01.09.2016. Against the said order dated 01.09.2016, Writ Petition being No.2475 (M/S) of 2016 was filed. Same was dismissed on 28.10.2016. The petitioner further alleges that, after the dismissal of Section 5 application, the respondent nos.5 and 6, in collusion with respondent no.7, in the intervening night of 3/3-9-2016, put a statue of Baba Sahab Dr. B.R. Ambedkar in the middle of the land of petitioner. Hence, this writ petition. 3. Counter affidavit has been filed on behalf of respondent no. 4 i.e. Station House Officer, Police Station Kaliyar, District Haridwar. B.R. Ambedkar in the middle of the land of petitioner. Hence, this writ petition. 3. Counter affidavit has been filed on behalf of respondent no. 4 i.e. Station House Officer, Police Station Kaliyar, District Haridwar. In the counter affidavit, the respondent no. 4 submitted that in Village Mewarkala on the land in question, statue of Baba Sahab Dr. Bhim Rao Amedkar was installed by some unknown persons in the intervening night of 2/3.09.2016. It is further stated that the representation of the petitioner was sent to the Police Station Piran Kaliyar for enquiry. After due enquiry it was found that the allegation levelled in the application with regards to threatening to the petitioner were found false and after concluding enquiry, the enquiry report alongwith application of the petitioner was sent to the office of the Senior Superintendent of Police, Haridwar. It is further submitted in the counter affidavit that when the authority came to know that a statue of Baba Sahab Dr. Bhim Rao Ambedkar was placed on the disputed land, the authority, in order to avoid tension in the Village, sent the police force at the spot and there is no tension right now. It is also stated that proper protection was provided to the petitioner as well as to his family. 4. Respondent no. 7, who is Gram Pradhan of Village Mehwar Kala, has also filed counter affidavit. Relevant paragraphs of the counter affidavit are reproduced below: “2. Before making parawise reply it is humbly submitted that the writ petition filed by the petitioner is not maintainable inasmuch as the petitioner has prayed a writ in the nature of mandamus for removing the statue of Baba Sahab Dr. Bhim Rao Ambedkar kept on the land of being khasra no. 293 situated in Village Saidpura, Mehwarkla, District Haridwar, which is land of class 6.2 and is being used for the community purposes and does not belong to the petitioner and petitioner has not annexed any document of title of the land with the writ petition. The property depicted in prayer is in the ownership and possession of respondent no. 5 & 6 and duly recorded in their name in capacity of sankramaniya bhumidhar. 3. That the property upon which the petitioner claims the ownership as per sajra plan prepared in the year 2000-2001 accordingly fasli year 1408, which reveals that khasra no. The property depicted in prayer is in the ownership and possession of respondent no. 5 & 6 and duly recorded in their name in capacity of sankramaniya bhumidhar. 3. That the property upon which the petitioner claims the ownership as per sajra plan prepared in the year 2000-2001 accordingly fasli year 1408, which reveals that khasra no. 170 situated in Village Saidpura measures only 0.070 hectare is bounded and butted towards north by Khasra no. 171, 172, 173 owned/recorded in the name of Paritosh w/o Satypal, towards south by khasra no. 293 measuring 0.1620 hectare which is recorded in the name of Devsthan, towards East khasra no. 175 recorded in the name of kabristan and towards west khasra no. 169 recorded in the name of kabristan. 4. That the land in which the statue of Dr. B.R. Ambedkar is situated belongs to Devstahan and pooja is being offered by the villagers to the deity. The land as per CH-45 is also recorded as per public utility land (than Devta).” It is further stated in the counter affidavit that in order to grab the land, for which petitioner has no possession or title recorded in his name, has filed two writ petition being WPCRL no. 601 & 881 of 2016 arraying respondent no.7 as party respondent. Further, it is stated that the petitioner is trying to mix two proceedings, inasmuch as, the statue has been placed in Khasra no. 269, which is marked for such purposes. It is stated that the statue is not erected in Khasra no. 170 as the same is a land owned by the respondent no. 5 & 6 as per revenue records and they are in the possession of the land and the petitioner was never in the possession of the land being khasra no. 170 of village Saidpura. It is further stated that the petitioner is always at a liberty to take recourse available to him. 5. Counter affidavit has also been filed on behalf of respondent nos. 5 & 6. In their counter affidavit, it is, inter alia, stated that the khasra no. 170 never belonged to the petitioner. It is also stated that the petitioner instituted execution proceeding before the executing court and respondents have filed their objection to it, which are still pending. They have further stated that the Statue of Dr. 5 & 6. In their counter affidavit, it is, inter alia, stated that the khasra no. 170 never belonged to the petitioner. It is also stated that the petitioner instituted execution proceeding before the executing court and respondents have filed their objection to it, which are still pending. They have further stated that the Statue of Dr. B. R. Ambedkar is not situated/erected in the land bearing Khasra no. 170 measuring 0.0700 Hectare of Village Saidpura Tehsil Roorkee District Haridwar, of which respondent nos. 5 & 6 are the recorded owner in revenue records and they are in possession of the same. 6. Short counter affidavit filed by respondent nos. 1 & 2 (District Magistrate & Sub-Divisional Magistrate) is also relevant, wherein, it is, inter alia, stated as follows: “3. That in Village Saidpura Pargana and Tehsil Roorkee, Distt. Haridwar the land situated in Khasra No. 170 measuring 0.0700 Hectare, the aforesaid land is endorsed in the revenue records in the name of Kali Ram and Tirath Singh S/o Harmal Singh, R/o Village Saidpur and their name are registered in the Khata no. 24. 4. That as per the order passed by the II Additional District Session Judge, Roorkee Distt. Haridwar in Appeal No. 6 of 2014 Anil Kumar Vs. Mustakeep vide order dated 28.02.2015 the land which was situated in the old Khasra No. 133 and new Khasra No. 170 out of this Khasra 640 sq. mt. land was under the possession of the Anil Kumar and other persons are prohibited and restricted to interfere in the peaceful possession of Anil Kumar. Thereafter, Anil Kumar preferred a writ petition before this Hon’ble Court and in compliance of the Hon’ble High Court’s order the demarcation of the aforesaid land situated in Khasra No. 170 was done and possession was handed over to the petitioner Anil Kumar. It is submitted that in the intervening night of 2/-3-9-2016 some unknown persons have placed a statue of Baba Sahab Dr. Bhim Rao Ambedkar. Therefore the Sub Divisional Magistrate, Roorkee informed the Police Station, Piran Kaliyar on 3-9-2016 to maintain the peace and harmony on the spot and the police force was deployed therein. If the said statue be removed from the said land peace and harmony of the place will be disturbed. 7. Bhim Rao Ambedkar. Therefore the Sub Divisional Magistrate, Roorkee informed the Police Station, Piran Kaliyar on 3-9-2016 to maintain the peace and harmony on the spot and the police force was deployed therein. If the said statue be removed from the said land peace and harmony of the place will be disturbed. 7. Learned counsel for the petitioner submitted that after loosing litigations from competent court, the respondent nos.5 and 6 put up the statue of Baba Sahab B.R. Ambedkar over the land of the petitioner in order to deprive the petitioner of his property. Now, whenever the petitioner or anyone of his family tries to go on his land in Khasra No. 170, the respondent nos. 5 & 6, alongwith their goons, who are local residents of village Mewarkala, try to attack them. He submitted that the conspiracy of respondent nos. 5 & 6, in keeping the statue of Dr. B.R. Ambedkar in the land of the petitioner in Khasra no. 170, is their tactics to raise the sentiments of the Scheduled Caste community, who are closely associated with Dr. B.R. Ambedkar and, in a sense, by the said act, the respondent nos. 5 & 6 are making an attempt to take possession of the land of the petitioner illegally. He further contended that the conduct of respondent nos. 1 to 4 is extremely callous, as they have not made even a single attempt to remove the statue of Dr. B.R. Ambedkar from the land of the petitioner, on the ground, that the same may create a serious law and order problem and petitioner should bring an order from the Court for the removal of the statue, only then they can do something in the matter. He also contended that the act of the respondent nos. 5 & 6 is highly deplorable in putting of the statue of Dr. B.R. Ambedkar in the land of the petitioner in Khasra no. 170 Mauja Saidpura, Village Mewarkala, District Haridwar in the intervening night of 02/03.09.2016 and respondent nos. 1 to 4. Learned counsel for the petitioner further submitted that respondent no.6 Tirath Singh had filed WPMS No.2475 of 2016 before this Court challenging the order dated 01.09.2016 passed by II Addl. District Judge, Roorkee, Haridwar, in Misc. Case No.09 of 2016, which has been dismissed by this Court on 28.10.2016. 1 to 4. Learned counsel for the petitioner further submitted that respondent no.6 Tirath Singh had filed WPMS No.2475 of 2016 before this Court challenging the order dated 01.09.2016 passed by II Addl. District Judge, Roorkee, Haridwar, in Misc. Case No.09 of 2016, which has been dismissed by this Court on 28.10.2016. Said judgment has not been challenged by the respondent no.6 and thus the order passed by the appellate court has become final. He submitted that since the statue of Dr. B.R. Ambedkar has illegally been put up on the plot of the petitioner, the respondent nos.1 to 4 be directed to remove the same. 8. Learned counsel for respondent no.5 and 6 submitted that since in the suit filed by the petitioner for permanent prohibitory injunction for a property being khasra no.133, he did not array any person, who has right or title in the property, therefore, the suit was a collusive suit in respect of a property for which the petitioner had no title and the title which was alleged to have been acquired was on the basis of an unregistered sale deed from a person who was scheduled caste and the land was of ZA, however, on the application of respondent nos.5 and 6 they were impleaded and the suit was dismissed. He further submitted that the decree passed in appeal is a nullity and non executable inasmuch as the schedule of property reveals that the same is passed regarding khasra no.133 and the consolidation proceeding came to an end in the year 1998 and the khasra no.170 was made in which petitioners are the recorded tenure holder for their share which they inherited from their father as 1/4th share of Khasra no.133 and not the share of Patram from the property is alleged to have been purchased by the petitioner. He further submitted that knowing this fact the petitioner in place of pressing the execution proceeding, resorted to approach the SDM and moved representation and approached this Court by short circuiting the legal procedure and obtained orders from this Court. He further submitted that knowing this fact the petitioner in place of pressing the execution proceeding, resorted to approach the SDM and moved representation and approached this Court by short circuiting the legal procedure and obtained orders from this Court. He further submitted that in WPMS No.1932 of 2016 in which the respondent nos.5 and 6 were not party, the petitioner has stated that he is the owner of khasra no.170 but did not reveal that execution proceeding are pending before the executing court, and obtained the order dated 15.07.2016 whereby the Sub Divisional Magistrate has stated that he is not interfering in the construction activity of the petitioner. He further submitted that the petitioner is trying to raise construction on the property of respondent no.5 and 6 being khasra no.170 of which they are the recorded tenure holder and this property is not the suit property, and under the garb of ex-parte decree, which is under challenge and the execution proceeding are pending, without having any authority of law, the petitioner is interfering in the peaceful possession of the respondents. He further submitted that instead of pressing his execution application, the petitioner has chosen a path for execution of his decree by a writ of mandamus, which is not permissible under the law. He further submitted that the implementation and execution of a decree is in the exclusive domain of the civil court. He submitted that prayer made by the petitioner is not legal and writ petition should be dismissed with heavy costs. 9. Learned Chief Standing Counsel appearing for the State has submitted that there is no law in the State regarding grant of permission for installation of statute in the private land. In fact, in order to install statue of some individual person or an idol of god, private person is free to install the same over his own land, provided such action does not create any communal tension or law and order situation in the area. He further submits that the government authorities cannot be asked to remove the statue from the land in question and the petition should be dismissed. 10. I have heard learned counsel for the parties and have perused the papers available on record. 11. I find that there has been a dispute about the ownership of land on which statue has been installed. 10. I have heard learned counsel for the parties and have perused the papers available on record. 11. I find that there has been a dispute about the ownership of land on which statue has been installed. All the respondents have disputed the claim of the petitioner about his ownership of land where statue has been installed. It is the case of private respondents that the land where statue has been installed does not belong to the petitioner. This Court, under Article 226 of the Constitution of India, cannot adjudicate disputed question of fact about ownership of parties. Obviously, the remedy is before the civil court. It is a case of the petitioner that he has a decree in his favour from the civil court. If that is so, in that event, he is free to get the decree executed from the competent court. Every individual is free to utilize his land in the manner he wants to, but in a lawful manner. Even statue of a private individual or an idol of God can be installed. Court cannot direct the police authorities/administration to put or remove the statue. Only, in public interest petition, for greater public interest, public safety or safety of community, Court can consider such request. If land in question belongs to the petitioner, he is free to remove the statue from his land as he has right to utilize his land in the manner he wants to but in a lawful manner. If petitioner finds threat to his life, he can approach concerned police station. It is the duty of the official respondents to grant protection to every citizen, if there appears threat to his life. It is also their duty to maintain law and order. 12. In view of the above discussion, no direction can be issued to the respondent nos.1 to 4 to remove statute of Baba Sahab Dr. Bhim Rao Ambedkar kept on khasra no.170 situated in Village Saidpura Mewarkala District Haridwar, which land, according to the petitioner, belongs to him. It is also made clear that this Court has not said anything about the ownership of the land in question. It is for the competent court to decide the same and, in case, dispute regarding land in question has already been decided by the competent court, concerned party, including the petitioner, is free to get the decree executed. It is also made clear that this Court has not said anything about the ownership of the land in question. It is for the competent court to decide the same and, in case, dispute regarding land in question has already been decided by the competent court, concerned party, including the petitioner, is free to get the decree executed. If the land in question belongs to the petitioner, the petitioner is free to remove the statue of Baba Sahab Dr. Bhim Rao Ambedkar, from his own land. 13. With the aforesaid observation, the writ petition stands disposed of finally.