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2019 DIGILAW 1592 (ALL)

Savitri Devi v. Commissioner, Kanpur Division

2019-07-03

ANJANI KUMAR MISHRA

body2019
JUDGMENT : 1. Heard Shri Raghuvansh Misra for the petitioner, learned Standing Counsel for the State-respondents, Shri S.F.A. Naqvi for the respondent no. 5 and 6 and Shri H.N. Singh, learned Senior Advocate for respondent no. 4. 2. The instant writ petition has been filed seeking a writ of certiorari for quashing the orders dated 17.12.2018 passed by the Commissioner, respondent no. 1 and the order dated 16.01.2019 passed by the Sub Divisional Magistrate, Sadar, Kanpur. 3. The dispute in the writ petition pertains to plot no. 1059 area 1096.92 Sq. Meter situated in Village Mauja Chanderi, Pargana and District Kanpur Nagar, which is stated to have been allotted Municipal No. 18D(4) Pokharpur, Lal Bungalow, Kanpur Nagar. 4. The order dated 17.12.2018, is a letter written by the Commissioner addressed to the District Magistrate, Kanpur Nagar, on an application filed by Rajkumari, respondent no. 5, through her power of attorney, wherein, it appears to have been alleged that the respondent's premises had been unauthorizedly occupied by putting a lock on the boundary wall and that the unauthorized occupation was liable to be removed. It was therefore, directed that the orders passed by the competent courts be complied with on the spot and the unauthorized occupation be got rid of. 5. In pursuance of the letter aforesaid, the Sub Divisional Officer, Sadar, Kanpur Nagar, wrote a letter to the S.H.O, Chakeri, Kanpur Nagar on 16.01.2019 directing him to, consequent to the order of the Commissioner, to reach plot no. 1059 area 0.160 hectare at 11.00 A.M. on 22.01.2019 and to ensure delivery of possession of the said property to the respondent no. 5. It is alleged that on the basis of the aforesaid two orders, the petitioner was forcibly dispossessed from plot no. 1059, on 22.01.2019. 6. With regard to the above, the contention of counsel for the petitioner is that plot no. 1059 was recorded in the name of one Babu Lal, who on 27.10.1966, executed a registered sale deed in favour of one Bhagwan Lal @ Bhagwan Das. The purchaser Bhagwan Lal @ Bhagwan Das, on 11.06.1975, executed a sale deed in favour of the petitioner regarding the land in question and in pursuance thereof, the petitioner was duly mutated. 7. On 29.01.1982, one Ramrati Devi filed a declaratory suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, regarding disputed plot no. The purchaser Bhagwan Lal @ Bhagwan Das, on 11.06.1975, executed a sale deed in favour of the petitioner regarding the land in question and in pursuance thereof, the petitioner was duly mutated. 7. On 29.01.1982, one Ramrati Devi filed a declaratory suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, regarding disputed plot no. 1059 on the ground that Babu Lal was a caretaker of the property and he got the names of several persons recorded over the plot. This suit was numbered as Suit No. 1059 of 1981-82. 8. During the pendency of the suit, the plaintiff Ramrati Devi died and was substituted by the respondent no. 5, Rajkumari Devi. 9. The suit aforesaid was decreed by the Sub Divisional Officer on 30.05.1996. However, the decree was set aside on a recall application filed by the petitioner vide order dated 02.04.1997. 10. Against the order dated 02.04.1997 allowing the recall application of the petitioner, a revision was filed by Rajkumari Devi, which was allowed by the Additional Commissioner vide order dated 05.12.2002. As a consequence, the decree in favour of the plaintiff, stood revived. 11. Against the order of the Additional Commissioner, the petitioner is stated to have filed Revision No. 27 of 2003-04, which is stated to be pending before the Board of Revenue. 12. On the strength of the above facts, the contention of counsel for the petitioner is that in any case, the decree in favour of respondent no. 5 was merely a declaratory decree under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act. The suit was not one for possession. Neither any decree for possession has been passed. Therefore, the petitioner could not be evicted from the land in question. The eviction of the petitioner is therefore, without sanction of law and such forcible dispossession is not sustainable. The petitioner is therefore, entitled to be put back in possession as status quo anti is necessarily required to be restored. The petitioner, if at all, could be dispossessed only in accordance with law and not forcibly as has been done by the respondent authorities, in compliance of the orders dated 17.12.2018 and 16.01.2019, which orders have been passed without any notice or information to the petitioner. 13. When the matter initially came up before this Court for admission on 10.05.2019, learned Standing Counsel had been directed to obtain instructions. 13. When the matter initially came up before this Court for admission on 10.05.2019, learned Standing Counsel had been directed to obtain instructions. The instructions have been received and a copy of the same has been taken on record. 14. The respondent no. 4 has put in appearance through Shri Vinit Singh and Senior Advocate Shri H.N. Singh has been heard on their behalf. As noted above, respondent no. 5 and 6 are represented by Shri S.F.A. Naqvi, who has also been heard. Counsel for the respondent nos. 4, 5 and 6 have also filed their written arguments. 15. The case of respondent no. 4 is that he claims on the basis of two registered sale deeds dated 09.12.2015 of portions of plot no. 1059, which sale deeds are for 1300 Sq. Yards. Admittedly, the total area of plot no. 1059 is 1390 Sq. Yards. 16. The contention of Shri H.N. Singh, Senior Advocate is that consequent to the sale deed, the respondent no. 4 was put in possession Original Suit No. 195 of 2016 has been filed by respondent no. 4 and an interim injunction granted on 28.09.2016, is operating. 17. It is also contended that the petitioner has filed two separate suits. One being Suit No. 365 of 2019 instituted on 18.02.2019, which is for permanent injunction and possession. In this suit, the plaint allegation is that the petitioner has been forcibly dispossessed of anti social elements on 21.01.2019 at 7 o'clock. The second, Original Suit No. 622 of 2019 has been instituted on 16.03.2019, which is one for permanent injunction, wherein also the petitioner has admitted her forcible dispossession, on 22.01.2019. Filing of these two aforenoted suits by the petitioner have been concealed in this writ petition. 18. In the written argument, the stand of respondent no. 4, is that the orders impugned in the writ petition have not been passed at their instance. These orders have been passed at the instance of and an application filed by respondent no. 5. It has also been stated that the respondent no. 4 has not filed any suit no. 1775 of 2017, which suit has in fact been filed by the petitioner in the name of the respondent no. 4. The respondent no. 4 has therefore filed an application praying that this suit be dismissed. 19. 5. It has also been stated that the respondent no. 4 has not filed any suit no. 1775 of 2017, which suit has in fact been filed by the petitioner in the name of the respondent no. 4. The respondent no. 4 has therefore filed an application praying that this suit be dismissed. 19. It is also contended that the petitioner has no right, title or interest in the land in dispute and she is already availing an alternative remedy. 20. The contention of Sri. S.F.A. Naqvi, counsel for the respondents no. 5 and 6 who appear to be mother and son is also that the petitioner has concealed the filing of suit nos. 265 of 2019and 622 of 2019. Suit no. 365 of 2019 has been filed on 18.02.2019 and therein, relief for possession has also been sought. 21. It is therefore contended that the petitioner is not only guilty of concealment of material facts, she is also availing an alternative remedy. Therefore, on both counts, the writ petition is liable to be dismissed. 22. On behalf of the State respondents the instructions available on record are to the effect that the revision filed by the petitioner before the Board of Revenue was dismissed on 16.06.2008 and a restoration application has also been dismissed on 27.07.2011. It has also been stated that suit no. 1775 of 2017 is pending before the Civil Judge (Senior Division) Kanpur, which is a suit by the respondent no. 4, against the plaintiff and is one under the Specific Relief Act, wherein neither the State nor any State authority is a party. An application was filed by the respondent no. 5 during Jan Sunwai alleging that despite orders by competent Courts, the land of the respondent no. 5 had been unauthorizedly occupied by the petitioner and a prayer was made that it be got rid of this unauthorized occupation. Therefore, in pursuance of the order dated 17.12.2018 action was taken. It is also stated that the since land mafia had tried to occupy the property in question which was an extremely serious issue, action was taken by the State respondents, in pursuance of G.O. no. 402/1-2-2017-1 Samanaya/2017 dated 01.05.2017. A copy of the notification aforesaid is annexed along with the instructions. 23. The G.O. relied upon by the State Respondents primarily pertains to property belonging to the State. 402/1-2-2017-1 Samanaya/2017 dated 01.05.2017. A copy of the notification aforesaid is annexed along with the instructions. 23. The G.O. relied upon by the State Respondents primarily pertains to property belonging to the State. However, private property is also dealt with in paragraph 4 thereof. In this regard the G.O. clearly directs that persons identified as land mafia should be listed and the criminal cases lodged against them should be proceeded with expeditiously and that persons aggrieved by the actions of such land mafia should be provided all possible help to make them feel that the administration is with them. 24. Upon hearing counsel for the parties and upon a perusal of the record, this Court finds that the reliance by the State-respondents upon the G.O. of 2017 aforesaid, is entirely misplaced. 25. It is not in dispute that the petitioner has been forcibly dispossessed from the land in her possession. It is also writ large on the face of the record that there is a decree in declaratory suit in favour of the respondent no. 4. However, even if, on the basis of the aforesaid decree, it is assumed that the petitioner is an unauthorized occupant, she could not have been dispossessed forcibly, as is alleged and virtually admitted in the instructions received on behalf of the State-respondents. Even an unauthorized occupant can be dispossessed only in accordance with law and not forcibly. The action of the State-respondents, under the circumstances is absolutely illegal and prima facie in collusion with the respondents 4 to 6. 26. In the regard, reference may be made to various observation made by a Division Bench of this Court in Civil Misc. Writ Petition No. 47993 of 2010, Bheekam Chandra Vs. State of U.P. and others, in its order dated 28.08.2010, which are extracted below. "..........A person in settled possession is entitled for protection from forcible dispossession. The Apex Court in the case of S.R. Ejaz vs. The Tamil Nadu Handloom Weavers Co-operative Society Ltd. reported in 2002 A.I.R. S.C. 1152, was considering a case where the tenant was forcibly dispossessed by landlord. The Apex Court laid down that such actions by mighty or powerful cannot be condoned in a democratic country. Following was laid down in paragraphs 2 and 8 of the said judgment:- "2. The Apex Court laid down that such actions by mighty or powerful cannot be condoned in a democratic country. Following was laid down in paragraphs 2 and 8 of the said judgment:- "2. The appellant who was forcibly and illegally dispossessed since May 1986 from the tenanted premises by his landlord is moving from pillar to post for getting justice. Unfortunately, after considering all the relevant facts which were brought on record, the High Court remanded the proceedings under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") for reconsideration by the trial court. It is apparent that the whole purpose of proceedings under Section 6 of the Act is frustrated by such order. The procedure under Section 6 of the Act is summary and its object is to prevent self help and to discourage people to adopt any foul means to dispossess a person. Dispossession of a tenant should be in accordance with law." 8. ......... In our view, if such actions by the mighty or powerful are condoned in a democratic country, nobody would be safe nor the citizens can protect their properties. Law frowns upon such conduct. The Court accords legitimacy and legality only to possession taken in due course of law. If such actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legal rights would be given go bye either by the authority or by rich and influential persons or by musclemen. Law of jungle will prevail and 'might would be right' instead of 'right being might'. This Court in State of U.P. and others vs. Maharaja Dharmander Prasad Singh and others [ (1989) 2 SCC 505 ] dealt with the provisions of Transfer of Property Act and observed that a lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited. The Court also held that there is no question of Government withdrawing or appropriating to it an extra judicial right of re-entry and the possession of the property can be resumed by the Government only in a manner known to or recognized by law." 27. The Court also held that there is no question of Government withdrawing or appropriating to it an extra judicial right of re-entry and the possession of the property can be resumed by the Government only in a manner known to or recognized by law." 27. A Division Bench of this Court in the case of Commander, N.P. Kulshreshtha and others vs. State of U.P. and others reported in 1997(1) A.R.C. 357 , had occasion to consider a case where the owners were dispossessed by use of brute force. The Division Bench observed following in paragraphs 5 and 6:- "5. ....... This Court accordingly in the case of Waqf Alalaulad (supra) laid down that a writ petition for protecting a person's property and liberty and even for restoration of possession of the property to the person who has been dispossessed by anti-social elements by brute force, is maintainable. In this connection, this Court has observed as under:- "When a person, who has been dispossessed from his property by brazen acts of lawlessness by or with the help of anti-social elements, approaches this Court under Article 226 of the Constitution, this Court does not exercise its power to enforce the contractual and legal obligations of the parties. It only directs the Government to enforce the Rule of Law and to protect the oves, liberty and the properties of the people and if found necessary, to restore the possession of the property to the person who has been dispossessed therefrom, leaving it open to the parties to get their rights adjudicated through Civil Court. To tell a person whose property has been forcibly captured and seized by or with the help of anti-social elements. to file a suit for its recovery and be on the streets till the suit is decided by the last Court, is nothing but slapping a person in distress." 6. In the instant case, there is no dispute that the respondent No.6 grabbed the house belonging to the petitioners with the help of anti-social elements by brazen act of lawlessness. There was no justification for the respondent No.6 to forcibly occupy the petitioners' House. The State machinery also failed to provide protection to the petitioners inspite of their requests. In the instant case, there is no dispute that the respondent No.6 grabbed the house belonging to the petitioners with the help of anti-social elements by brazen act of lawlessness. There was no justification for the respondent No.6 to forcibly occupy the petitioners' House. The State machinery also failed to provide protection to the petitioners inspite of their requests. The grievance of the petitioners, to the effect that the administration including the police deliberately ignored their request for help and further that some of the Government officials were acting in collusion with the respondent No.6, cannot be said to be without substance, in view of the averments made in writ petition which have almost remained uncontroverted." 28. The judgment of the Orissa High Court in the case of Ramachandra Deb and others vs. State of Orissa reported in A.I.R. 1957 Orissa 80, does support the contention of the petitioner and the proposition that in such case the remedy of writ is wide enough to entertain such cases. Following was laid down in paragraphs 10 and 13 of the said judgment:- "10. Though the language of Article 226 of the Constitution is very wide it was held by the Supreme Court in State of Orissa v. Madan Gopal ILR 1951 Cut 637: ( AIR 1952 SC 12 ) (C) that the existence of a right is the foundation of the exercise of the jurisdiction of the High Court under Article 226. That right need not necessarily be the right of a full owner over his property. Even the possessory right of a person in long continued possession of immovable property will be right which may have to be protected, in appropriate cases, under Art, 226 against apprehended danger from a person against whom the possessor has no other effective remedy. As pointed out in Bawa Chhatagir v Matanomal, 4 Ind Cas 359 (Sind) (D): "possession in law is a substantive right or Interest which exists and has legal incidents and advantages, apart from the true owner's title.'' This seems to be the principle on which the provisions of Section 9 of the Specific Relief Act and Section 145, Criminal P. C. are based. Section 9 of the Specific Relief Act confers on a person who is dispossessed without his consent of immoveable property otherwise than in due course of law a right to recover possession thereof notwithstanding any title that may be set up by the opposite party. Doubtless, this right is of a very limited nature and is subject to the result of a regular title suit and recovery of possession based on declaration of that title. But a limited right to recover possession based on mere possessory title is implicit in Section 9 of the Specific Relief Act. The object Of that Section is to prevent persons from taking the law into their own hands and from disturbing the peaceful possession except by the due process of law: see Budrappa v. Narsingrao ILR 29 Bom 213 (E) and Sona Mia v. Prokash Chandra, AIR 1940 Cal 464 (F). Similarly Section 145, Cri. P. C requires a Magistrate to maintain a party in possession irrespective of all questions of title until he is evicted 'in due course of law'. It is true that the primary object of a proceeding under Section 145, Cri. P., C. is to prevent breach of peace, but the principle on which that section is based is that whatever may be the strength of anyone's title he should not take the law into his own hands and disturb public peace: see Ghasi Bam v. Amrit Mal, AIR 1917 Pat 606 (G)." 29. In this regard, reference may also be made to an order passed by the Division Bench of this Court in Writ C No. 36622 of 2016, Smt. Madhu Shahi Vs. State of U.P. and 13 others. in its order dated 01.09.2016, whereein it has been observed as below:- "There exists a Government order which prohibits District authorities from interfering in private disputes in respect of immovable property. Prima facie it appears that the District Magistrate has violated the direction contained in the Government Order." 30. Although, it is sought to be argued on behalf of respondent no. 4 that the petitioner was never in possession over plot no. 1059 and, therefore, there was no question of her forcible dispossession, the same cannot be accepted in view of the instructions that have been received from the State-respondents, wherein dispossession of the petitioner is for all practical purposes, admitted having been resorted to by them on 22.01.2019. 31. 4 that the petitioner was never in possession over plot no. 1059 and, therefore, there was no question of her forcible dispossession, the same cannot be accepted in view of the instructions that have been received from the State-respondents, wherein dispossession of the petitioner is for all practical purposes, admitted having been resorted to by them on 22.01.2019. 31. I find substance in the contention of counsel for the petitioner that such action by the State-respondents, in the absence of any order or decree for the petitioner's dispossession, is patently illegal and without sanction of law. The action therefore necessarily and in normal circumstances requires an order for restoration of status quo anti, as also an order for damages for forcible dispossession of the petitioner. However, an order for restoration of status quo anti is not being passed in the instance case because the petitioner has already sought this relief by means of two suits namely suit no. 395 and suit no. 622 of 2019. The petitioner is therefore, not only availing an alternative remedy for restoration of possession in her favour, this Court has also constrained to observe that the filing and pendency of these suits has not been disclosed in the writ petition. 32. Under the circumstances, therefore, this Court is confining itself to the legality of the orders impugned. Moreover, in view of what has been stated above, these orders are found to be illegal for the reasons given above, and also on account of the fact that these orders were passed without any notice or information to the petitioner, especially when the land in question not belonged to the State and was private property and the parties are litigating before the courts of competent jurisdiction. 33. It is also the case in the instructions, as also the case of the contesting respondents that the petitioner's revision before the Board of Revenue has been dismissed. However, this contention cannot be accepted because a certified copy of the entire order sheet of the revision has been produced by counsel for the petitioner and the same was taken on record. From a perusal of the order sheet, it transpires that the proceedings are still pending consideration. 34. However, this contention cannot be accepted because a certified copy of the entire order sheet of the revision has been produced by counsel for the petitioner and the same was taken on record. From a perusal of the order sheet, it transpires that the proceedings are still pending consideration. 34. However, this Court may also observe that nothing material turns upon the fact as to whether the revision is pending or has been dismissed because from the facts stated in the writ petition, it emerges that the revision aforesaid pending before the Board of Revenue was directed only against an order, setting aside the order passed by the trial court on a recall application of the petitioner and recalling a decree passed in favour of the respondent no. 4. The decree in favour of the petitioner was a mere declaratory decree under Section 229-B of the Act, in favour of respondent no. 5. It is nobody's case that this decree was also one for possession under Section 209 of the U.P. Zamidari Abolition and Land Reforms Act. Therefore, no delivery of possession, even by the executing court, could have been effected on the basis of this declaratory decree. 35. In view of the foregoing, the writ petition is allowed. The impugned orders dated 17.12.2018 and 16.01.2019 passed by the respondents 1 and 2, are hereby, quashed. 36. In so far as the restoration of possession over plot no. 1059 is concerned, no orders are being passed by this Court as the petitioner is availing an alternative remedy in this regard, have already preferred a suit before the court of competent jurisdiction. 37. It is however, observed that the Court(s) concerned may endeavour to decide the suit for possession as expeditiously as possible without granting any unnecessary adjournment to any of the parties thereto.