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Allahabad High Court · body

2021 DIGILAW 153 (ALL)

Indrakali v. State of U. P.

2021-01-27

J.J.MUNIR

body2021
JUDGMENT : 1. The petitioner has come up praying that a mandamus be issued, directing the respondent Authorities to hand over possession of Arazi no.148-Kha, admeasuring 120ft. X 35ft. back to the petitioner, in compliance with the order of the Sub-Divisional Magistrate, Meja, Prayagraj, dated 12.08.2011, passed in Case No. 4/4/4/9/12/13/14/27/30 of 2010-11, Indrakali vs. Uchit Narayan and others, within a determinate period of time. 2. Heard Mr. D.K. Ojha, learned Counsel for the petitioner, Mr. Anurag Rai, learned Advocate appearing on behalf of non-party, Smt. Gudiya, under Chapter XXII Rule 5A of the Rules of the Court and Mr. Dinesh Kumar Srivastava, learned A.G.A. appearing on behalf of respondent nos.1 to 4. No one appears on behalf of respondent nos.5 to 8. 3. The facts, leading to the present writ petition, are that the Sub-Divisional Magistrate, Meja, Prayagraj passed a preliminary order, under Section 145(1) of the Code of Criminal Procedure (for convenience, ''Cr.P.C.), requiring the first party, Smt. Indrakali (the petitioner) and the second party, Uchit Narayan and his three sons, to appear on 05.07.2018 and put in their respective written statements about their claims to possession of the property in dispute. The parties were also directed to produce evidence. This order was passed in Case no.15 of 1998, under Section 145 Cr.P.C. The dispute was about a piece of land, admeasuring 120ft. X 35ft., located in front of the door leading to Indrakali's house. This is how the property is described in the preliminary order. 4. The proceedings under Section 145 Cr.P.C. were initiated on the basis of a report from the Station House Officer, Police Station Khiri, District Prayagraj, dated 10.07.1998, that the dispute between parties relating to possession of the property, above described, had led to a mounting of tension inter se the parties, which could precipitate a breach of peace at any time. 5. About a year after the issue of the preliminary order, the Sub-Divisional Magistrate, Meja, relying on the same report dated 10.08.1998, invoked his powers to attach pending decision of the case under Section 145 Cr.P.C. on ground of urgency and directed attachment of the property in dispute by his order dated 23.07.1999. 5. About a year after the issue of the preliminary order, the Sub-Divisional Magistrate, Meja, relying on the same report dated 10.08.1998, invoked his powers to attach pending decision of the case under Section 145 Cr.P.C. on ground of urgency and directed attachment of the property in dispute by his order dated 23.07.1999. The Sub-Divisional Magistrate, Meja directed the S.H.O. to attach the property, detailed at the foot of the order under Section 146(1) and hand over the same to a respectable man, about which a compliance report was directed to be filed by 09.08.1999. In compliance, the S.H.O., P.S. Khiri attached the property in dispute on 01.09.1999 and delivered it into the joint supurdagi of one Vishnu Datt son of Paras Nath and another Lallu Ram son of Bandhu Lal. 6. The case under Section 145 Cr.P.C. came up for determination before the Sub-Divisional Magistrate, Meja on 12.08.2011. The S.D.M. found for the petitioner and directed release of the attached property in favour of Indrakali. The S.H.O. was ordered to ensure delivery of possession of the attached property to Indrakali after taking it back from the supurdgar's possession. It is the non-compliance of this order dated 12.08.2011, that has led the petitioner to institute this writ petition. She says that the order dated 12.08.2011 was never carried out. The petitioner moved an application on 16.08.2011 before the S.D.M. to ensure compliance of his order dated 12.08.2011. The application was pursued with repeat requests. 7. The Sub-Divisional Magistrate passed an order on 29.12.2015, directing the S.H.O., Khiri to carry out the order dated 12.08.2011, by causing possession of the attached property to be delivered to Indrakali. It is remarked in the Sub-Divisional Magistrate's order dated December the 29th, 2015 that his predecessors too had passed several orders to the same effect. A copy of the Sub-Divisional Magistrate's order dated 29.12.2015 is on record as Annexure no.5 to the writ petition. This order of the Sub-Divisional Magistrate did not move the S.H.O. and the petitioner did not get back her property. 8. The petitioner made a slew of representations dated 24.08.2016, 24.07.2017, 26.10.2017, 14.09.2018, 10.11.2018 and 04.06.2020, all addressed to the Sub-Divisional Magistrate, Meja to the same end, but in vain. A copy of each of these representations, above detailed, are on record as Annexure no.6 to the writ petition. 8. The petitioner made a slew of representations dated 24.08.2016, 24.07.2017, 26.10.2017, 14.09.2018, 10.11.2018 and 04.06.2020, all addressed to the Sub-Divisional Magistrate, Meja to the same end, but in vain. A copy of each of these representations, above detailed, are on record as Annexure no.6 to the writ petition. It appears that on 29.08.2017, the S.H.O., Khiri wrote a memo to the Sub-Divisional Magistrate that a team of Revenue Officials be directed to assist him, so that the attached property may be demarcated and handed over to the petitioner. Acting on the said memo, the Sub-Divisional Magistrate detailed a Lekhpal to demarcate the property in dispute. The Lekhpal submitted a report dated 05.12.2018 that there was an issue between parties about the identity of the property in dispute. This report of the Lekhpal, dated 05.12.2018 was forwarded to the Sub-Divisional Magistrate by the Registrar-Kanoongo, and in turn, by the Tehsildar on 11.12.2018 and 14.12.2018, respectively. 9. It is the petitioner's case that the Sub-Divisional Magistrate passed successive orders on various dates, right upto 16.04.2019 addressed to the S.H.O., Khiri to ensure compliance with his order dated 12.08.2011, but the S.H.O. and the Tehsildar did not carry out the order. Copy of those various orders passed by the Sub-Divisional Magistrate are on record. This matter is, therefore, a classical case for the issue of a writ of mandamus to subordinate Authorities to carry out the orders of a superior made in statutory proceedings, which they have failed to implement. 10. When this petition came up before this Court for admission on 11.01.2011, the Court required the Sub-Divisional Magistrate, Meja to submit a report within 48 hours, indicating why he has not caused his order dated 12.08.2011 to be carried into effect. The Sub-Divisional Magistrate submitted a report dated 12.01.2021, which indicates that the attached property/ property in dispute had been measured on the spot and found to be short in area, because a part of it has been purchased by one Smt. Gudiya Devi wife of Harish Chandra, a resident of Saidabad, Tehsil Handia, District Prayagraj through a registered sale deed and that she was in possession of that part. It was also reported that some construction work was going on, which has been caused to be halted. It was also reported that some construction work was going on, which has been caused to be halted. It was also indicated that the petitioner was called over on 12.01.2021 at 11:00 O' clock in the morning to take possession, but she did not appear until 2:00 O' clock that day. It was reported that for all these reasons, it was not possible to deliver possession to the petitioner on 12.01.2021. 11. This Court thereupon directed the Sub-Divisional Magistrate to cause possession of the property in dispute to be delivered back to the petitioner and a report in that regard submitted to the Court. If that was not done, the Sub-Divisional Magistrate, Meja was directed to appear before the Court in person on 21.01.2021; but not, if the order was carried out and possession delivered. 12. On 21.01.2021, Ms. Renu, the Sub-Divisional Magistrate, Meja, Prayagraj appeared before the Court. She assured the Court that possession would be delivered to the petitioner at site by the following day at 12:00 noon. This Court directed that possession will be given to the petitioner of land as much was attached under the process issued under Section 146(1) Cr.P.C. It was also directed that the identity of the land shall be ascertained with reference to the map drawn up at the time of attachment, comparing it with the memo of attachment/ panchanama. The case was directed to be put up on the following day at 2:00 p.m. 13. On 22.01.2021 when the matter again came up, the learned Counsel for the petitioner submitted that the Sub-Divisional Magistrate, Meja was offering land different from the land in dispute or what was attached under Section 146(1) Cr.P.C. It was indicated that boundaries were different. This Court indicated in the order dated 22.01.2021 that all that was required to be done is to hand over back to the petitioner possession of property, that was attached in proceedings under Section 145/ 146 Cr.P.C., in consequence of the order of attachment being withdrawn on 12.08.2011. 14. That State, on the other hand, took a stand that the petitioner is not accepting delivery of possession of the land, which the Sub-Divisional Magistrate and other Authorities are offering her on the spot. 15. That Court was of opinion that there was no good reason for the petitioner not to accept possession of land, which she had all along been asking for. 15. That Court was of opinion that there was no good reason for the petitioner not to accept possession of land, which she had all along been asking for. The issue between the petitioner and the Authorities appeared to be about the identity of land, which was attached and that being given back to her. 16. In the circumstances, this Court to give effect to the Sub-Divisional Magistrate's order dated 12.08.2011 and to secure the ends of justice consistent with the parties' right directed a commission to be issued to the learned Civil Judge (Sr. Div.), Allahabad, charging the Officer with the duty to demarcate the land/ property earlier attached in proceedings under Section 146(1) Cr.P.C. and now required to be delivered back to the petitioner. Certain ancillary directions, in aid of the commission, were issued to the parties, including the Sub-Divisional Magistrate. It was indicated further that the other party to the proceedings under Section 145 Cr.P.C. shall also be associated in the execution of the commission. 17. In compliance with this Court's order dated 22.01.2021, Ms. Babita Pathak, learned Civil Judge (Sr. Div.), Allahabad executed the commission on 24.01.2021. She submitted her commission report to this Court on 25.01.2021 in a sealed cover along with a memo dated 25.01.2021. The commission report was opened under directions of the Court. A perusal of the commission report shows that the learned Civil Judge has drawn up minutes of the commission dated 24.01.2021 and an inventory of commission/ commission report also dated 24.01.2021. It also carries with it a memo of possession with a map enclosed (not to scale). The commission report is a very detailed document and clearly indicates that possession of all that property which was attached under Section 146(1) Cr.P.C. has been identified, measured, demarcated and handed over to the petitioner. It would be of particular relevance to refer to the minutes of the commission, recorded by the learned Commissioner/ Civil Judge (Sr. Div.), Allahabad, that read : "1. I proceeded in compliance of the Order of The Hon'ble High Court dated 22.1.21 passed in Crl. Misc. W.P. No. 14647/2020 Indrakali Vs. State of U.P. & 3 Ors., to the site which is situated in village Sirhir, Tahsil Khiri, Meja, Allahabad, along with Amin Daya Shankar Tripathi on Sunday 24-01-21 and reached the spot at 10.56 AM. 2. I proceeded in compliance of the Order of The Hon'ble High Court dated 22.1.21 passed in Crl. Misc. W.P. No. 14647/2020 Indrakali Vs. State of U.P. & 3 Ors., to the site which is situated in village Sirhir, Tahsil Khiri, Meja, Allahabad, along with Amin Daya Shankar Tripathi on Sunday 24-01-21 and reached the spot at 10.56 AM. 2. All Concerned persons including the petitioner Indrakali, O.P. No. 1 S.D.M. Meja Mrs. Renu Singh, Tahasildar Mrs. Dipika Singh, S.H.O. Meja Sunil Kumar Bajpai, Baramdeen S/o Uchit Narayan on behalf O.P. No. 5, Indrakali on behalf of O.P. No. 6 Jeet Narayan, O.P. No. 7 Raj Narayan were present on the spot as the Notice of commission was served upon them by special messenger. Only O.P. No. 8 Ram Narayan was not present. However later on at 2.20 PM O.P. No. 8 also reached on the spot. The notices served to concerned parties by special messenger are annexed herewith as Annexure No. E/1 to E/8. 3. I requisitioned/ summoned the necessary records from the SDM concerned. Perused the records and orders passed. The Photo copy of the preliminary order U/s 145 Cr.P.C., the copy of attachment order dt. 23.07.99 U/s 146. Cr.P.C. and the Photo copy of release order dt. 12.08.2011 U/s 146 Cr.P.C. are attached herewith as Annexure No.F/1 to F/3. 4. Thereafter, I identified the disputed plot as per the records & release order dt. 12.08.2011 U/s 146 (1)(a) Cr.P.C. in presence of the parties. 5. Thereafter I and the Amin measured the plot in presence of the parties as per the boundaries mentioned in the records, which were measured as AB as 120 ft., AD as 35 ft. to which the petitioner said that in half portion of the disputed plot towards East, some illegal construction is being made. The petitioner Indrakali also said that Annexed to & behind BC She had a house which has been forcefully occupied by Gudiya. Since I was acting as a Court Commissioner for the disputed plot 148Kh 120 x 35 ft. as per the release order dt. 23.07.99 I was bound by the boundaries mentioned in the release order. The petitioner agreed upon the boundaries measured by me during commission. 6. Thereafter, I along with the amin prepared the Inventory of commission as well as the map of the disputed plot. 7. as per the release order dt. 23.07.99 I was bound by the boundaries mentioned in the release order. The petitioner agreed upon the boundaries measured by me during commission. 6. Thereafter, I along with the amin prepared the Inventory of commission as well as the map of the disputed plot. 7. O.P. No. 8 Ram Narayan S/o Govardhan arrived at the disputed plot at 2.20 P.M. and participated in the proceedings. 8. Consequently, after measuring the disputed plot i.e. 148Kh, 120 X 35 ft. the disputed plot was handed over to the petitioner in presence of all the opposite parties present over there. 9. The Inventory of commission, the memorandum of handing over the possession of the disputed plot was signed by all the concerned persons, two witnesses and Amin in my presence. The duly executed inventory of commission and memorandum of possession are annexed herewith as C/1 to C/2 and D/1 to D/3. The Commission proceeding was conducted peacefully coupled with a peaceful handover of the possession of the disputed plot to the petitioner, which the petitioner Indrakali willfully accepted." 18. The entire report of the commission, which carries seven documents together with an index is made a part of the record. It is stated by the learned Counsel for the petitioner that possession has been delivered to the petitioner over Arazi No. 148 kha, 120ft. x 35ft. in compliance with the order dated 12.08.2011 passed by the Sub-Divisional Magistrate, Meja, District Allahabad (now Prayagraj) in Case No. 4/4/4/9/12/13/14/27/30 of 2010-11, Indrakali vs. Uchit Narayan and others under Section 145/146 Cr.P.C. This possession has been delivered to her by the learned Civil Judge (Senior Division), Allahabad acting as this Court's Commissioner. 19. Mr. Anurag Rai, learned Advocate appearing on behalf of non-party, Smt. Gudiya states that possession of his land has been taken away and given to the petitioner, contrary to her rights. 20. It is beyond the scope of the present writ petition to go into the aforesaid question. 19. Mr. Anurag Rai, learned Advocate appearing on behalf of non-party, Smt. Gudiya states that possession of his land has been taken away and given to the petitioner, contrary to her rights. 20. It is beyond the scope of the present writ petition to go into the aforesaid question. The Commissioner has executed the order of the Sub-Divisional Magistrate, Meja, Prayagraj passed in proceedings under Section 145 Cr.P.C. In case, Smt. Gudiya or any other party respondent(s) or any other person is aggrieved by this delivery of possession made by the learned Commissioner, giving effect to the orders of the Sub-Divisional Magistrate, it will be open to the person concerned to file an appropriately framed suit before the Court of competent jurisdiction and establish his/ her rights. 21. Before parting with this matter, this Court places on record our appreciation for the steadfast and flawless execution of commission by Ms. Babita Pathak, the learned Civil Judge (Sr. Div.), Allahabad in compliance with the Court's orders and aid of justice. 22. This writ petition is disposed of in terms of the aforesaid orders. There shall be no order as to costs.