Allahabad High Court
Ram Babu Mali And Another vs State Of U.P. And 3 Others on 16 January, 2018
Bench: Tarun Agarwala, Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 29 Case :- WRIT - C No. - 33449 of 2017 Petitioner :- Ram Babu Mali And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kartikeya Saran,Anand Bhaskar Srivastava Counsel for Respondent :- C.S.C.,Madan Mohan,Mahboob Ahmed Hon'ble Tarun Agarwala,J.
Hon'ble Saumitra Dayal Singh,J.
(Per S.D. Singh) This writ petition has been filed by the petitioners for the following relief:-
"(i) Issue an appropriate writ, order or direction commanding the respondents to open the seal of the House No. 458/530A, Malviya Nagar, Allahabad and provide the possession of the same to the petitioners.
(ii) Issue an appropriate writ, order or direction commanding the respondents to provide compensation to the petitioners for the unjust and arbitrary police action dated 12.06.2007 and 05.03.2017.
(iii) Issue an appropriate writ, order or direction commanding the respondents not to interfere in the petitioners' possession of the property i.e. House No. 458/530A, Malviya Nagar, Allahabad without following the due process of law.
(iv) Issue an appropriate writ, order or direction commanding the respondents to initiate inquiry in the matter related to the police action dated 12.06.2007 and 05.03.2017 and to take necessary and appropriate actions against the officers involved."
The petitioners have asserted that upon a family partition one Rajesh Malviya (hereinafter referred to as the vendor) became exclusive owner of his 1/3rd share in property- house no. 458/530, Malviya Nagar, Allahabad. He executed a registered sale-deed in favour of the petitioners on 27.12.2005 to transfer the title, in a part thereof, being a duly demarcated portion ad-measuring 131.47 sq. meters (hereinafter referred to as the disputed property), for a consideration of Rs. 4,00,000/-. The petitioners further assert they 'took possession' and 'started living in the premises'/disputed property and thereafter obtained mutation entries in the Khasra records and also they have been paying electricity bills and municipal taxes qua the disputed property.
Then the petitioners assert that they were forcibly evicted from the disputed property by the police authorities, on 12.6.2007 allegedly at the behest of Sewa Samiti Trust, Rambagh, Allahabad, respondent no.5 in the writ petition. In this regard paragraph 8 of the writ petition reads as below:
"That on 12.06.2007, without any notice or legal basis the Police forcibly dispossessed the petitioners from the aforesaid property and sealed the same. On being asked about the whole action, the Police informed the petitioners that the action has been taken on the complaint of one Seva Samiti Trust Rambagh, Allahabad."
From 12.6.2007 to 4.3.2017 i.e. for a period of almost 10 years, admittedly the petitioners were not in possession over the disputed property, rather, they represented to the District Magistrate, Allahabad by means of applications dated 2.8.2016 and 7.9.2016. Copies of the same have been annexed with the writ petition. Perusal of the application dated 2.8.2016 reveals, in that application petitioner no.1 had complained against his illegal eviction by the police authorities in February, 2006. Similar allegations had been made in the other application dated 7.9.2016, also filed before the District Magistrate, Allahabad.
Thus a clear contradiction exists in the facts stated in the applications dated 2.8.2016 and 7.9.2016 and the pleadings made in paragraph 8 of the writ petition wherein the petitioners have stated that they were forcibly evicted by the police on 12.6.2007. That apart, the petitioners do not claim to have been in possession over the disputed property for any length of time since their dispossession in February, 2006 (as stated in the applications dated 2.8.2016 and 7.9.2016), or on 12.6.2007 (as stated in the writ petition), till 4.3.2017.
Then, in response to an application filed under the Right to Information Act, 2005 a report dated 18.2.2017 appears to have been submitted by the Assistant Sub Inspector, Police Station Mutthiganj, Allahabad that the allegations made by the petitioners with respect to the police intervention and consequent eviction of the petitioners were not borne out from the police records and that there was no order in any proceeding under sections 145,146 Cr.P.C. Accordingly, it was inferred in that report that the dispute raised by the petitioners here was a civil dispute.
Then, it has also been averred in paragraph 17 of the writ petition as below:-
"17. That, meanwhile, on 05.03.2017, the petitioners were able to open the back door of the house which was not sealed or locked ad enter the house. However, merely two hours after it, the Station Incharge, P.S. Mutthiganj arrived on the location and asked the petitioners to vacate the property. Considering that the petitioners are poor and do not have the knowledge of the nuances of the law, the petitioners were informed by the Police that they require written orders for entering the premises even though no reason for the sealing was given. Therefore the premises were vacated by the petitioners again after which the Police again sealed the same. A true copy of photographs taken while the police forcibly evicted the petitioners is being filed herewith and marked as Annexure No. 10 to this writ petition."
Thus according to the petitioners, they had enjoyed possession over the disputed property from an unspecified time, after the execution of the sale-deed in their favour on 27.12.2005. Thereafter, they were evicted therefrom by the police authorities. Initially that date was disclosed as February 2006. Later, it was disclosed as 12.6.2007. Then, according to paragraph 8 of the writ petition, ten years later on 5.3.2017 the petitioners, entered into the disputed property from the backdoor which according to them was not locked and/or sealed. Admittedly, within two hours of their entry into the disputed property they had again been forced out of it upon police intervention. They further claimed that the police authorities have then sealed the disputed property.
Upon this writ petition being filed, this Court had initially required the learned standing counsel to take instructions and inform the Court under which provision the police could have evicted the petitioners from the disputed property on 5.3.2017 and sealed it. The then Station House Officer of P.S.- Mutthiganj (Shri. Santosh Kumar Sharma), filed a counter affidavit on behalf of the District Magistrate and Senior Superintendent of Police, respondent nos. 2 & 3. It had been denied that any incident as alleged by the petitioners occurred either on 12.6.2007 or 5.3.2017. In view of certain doubts arising with respect to facts stated in the report of the Assistant Sub Inspector dated 18.2.2017 and the aforesaid counter affidavit dated 8.8.2017, on 10.8.2017 another affidavit came to be filed by the Station House Officer of P.S.- Mutthiganj. It was again specifically stated that the police authorities had not intervened in the matter and had not disturbed the possession of the petitioners and that they had not sealed the disputed property on 05.03.2017. It was specifically stated that respondent no.6 - Mr. Justice (retired) Girdhar Malviya had put his lock over the disputed property. As to the merits of dispute it was stated that it is a private civil dispute between the petitioners and others, not involving any state authority. It was thus stated though there is a registered sale deed in favour of the petitioners, however, the same was stated to be disputed by Mr. Justice (retired) Girdhar Malviya.
While the matter was thus pending, Mr. Justice (retired) Girdhar Malviya filed an impleadment application in this writ petition. It was allowed. Consequently he has been impleaded as respondent no.6. He also filed a detailed counter affidavit in the writ petition disputing the title of Rajesh Malviya - the vendor in the sale-deed dated 27.12.2005 executed in favour of the petitioners. According to him that sale deed was null and void. With respect to possession, he claimed exclusive actual physical possession in his individual capacity; as co-parcener of the joint Hindu Undivided Family; on behalf of the remaining co-parceners of the joint Hindu Undivided Family and; as a manager of a temple that stands on the property, described - Ahiyapur, Prayag now known as House No. 458, Malviya Nagar, Allahabad. It has been referred to as house no. 530A, Malviya Nagar, Allahabad in the writ petition. He further admitted to have put his lock over the portion of that property in his exclusive actual physical possession.
In paragraph 42 of the counter affidavit he has specifically denied the contents of paragraph 8 of the writ petition and stated as below:
"42. That the contents of paragraph no. 8 of the writ petition are totally incorrect, wrong and hence vehemently denied. It is totally incorrect to allege that on 12.06.2007 the police forcibly dispossessed the petitioners from the property in question. It is incorrect to say that police at any point of time has sealed the house. In view of the stand taken by the petitioners in their representations dated 02.08.2016 and 07.09.2016 sent through registered posts that the petitioners were dispossessed in February, 2006 and that they never came in possession till the submission of the said representations dated 02.08.2016 and 07.09.2016, the story set up by the petitioners that they were dispossessed on 12.06.2007 is itself falsified. In view of the admission of the petitioners that they never came in possession of the said house in question after February 2006 till the aforesaid representations were submitted on 02.08.2016 and 07.09.2016, the information supplied by the police under Right to Information Act on 18.02.2017 cannot be given preference over and above the admissions made by the petitioners in their aforesaid representations."
Similarly by means of paragraph 48 of his counter affidavit a denial has been made to the allegation of the petitioners having been forcibly evicted from the disputed property on 5.3.2017 within two hours of their entry into the possession over the same. It reads as below:
"48. That the contents of paragraph no. 17 of the writ petition are totally incorrect, wrong and hence vehemently denied. The story as set up by the petitioners with regard to entering the house from the back door on 05.03.2017 is also concocted. The said story is based on falsehood and has been brought on record by way of representation dated 22.04.2017 for the first time seeking correction in the representation dated 09.03.2017. The said story as such is a result of after thought and "Peshbandi" and is not believable. The alleged photographs enclosed with the writ petition are not relevant and material to decide the disputed question of fact."
The petitioners have filed their rejoinder affidavit to the aforesaid counter affidavit and have denied the pleadings made in paragraphs 42 and 48 of the counter affidavit.
Sri Kartikey Saran, learned counsel for the petitioners has vehemently urged that the police authorities had exceeded their jurisdiction and authority and had actively participated in the eviction of the petitioners from the disputed property on 05.03.2017. He has relied on the evidence in the shape of photographs annexed to the writ petition to contend that the police authorities had forcibly evicted the petitioners from the disputed property. Second, he has relied on the bills in respect of an electricity connection and the mutation entries made in the municipal records in respect of the disputed property, in the name of the petitioner no.1 to claim that the petitioners were always in possession. Last, he has relied upon the inventory prepared in pursuance of an order passed by this Court. In this regard, it has been submitted that items at Sl. No. 8 onwards in that list belong to the petitioner. Therefore, according to him it has to be accepted that the petitioners were in possession over the disputed property on 05.03.2017 before they were forcibly evicted there from by the police authorities.
Opposing the petition Sri Madan Mohan, learned counsel for the respondent no.6 has strenuously urged that the petitioners had never been in possession over the disputed property and that they have belatedly set up a wholly false case of possession. According to him, in any case, it is admitted to the petitioners that they lost possession over the disputed property in the year 2006 or latest in 2007. The further allegation as to occurrence of the incident on 05.03.2017 is wholly imaginary and false. There is no evidence to support the allegations made in the writ petition. Even the inventory prepared pursuant to the order passed by this Court goes to show that the disputed property had not been in occupation or possession of the petitioners for any length of time. No personal effect of the petitioners were found there from. Thus, according to him, a wholly bogus claim has been made in the writ petition to malign respondent no.6.
Ms. Subhash Rathi, learned Additional Chief Standing Counsel appearing on behalf of the State has submitted that the dispute between the private parties i.e. petitioners and respondents no. 5 and 6 is purely civil in nature. The police authorities had no hand to play in that. Both, at the stage of inquiry made in pursuance of the applications filed by the petitioner no. 1 that culminated in the report dated 18.10.2017 and at present, there does not exist any documentary or other evidence to suggest that the police authorities or any State authority had meddled in the dispute between the petitioners and the respondents no. 5 and 6. According to her, admittedly, the petitioners had made complaints to the police authorities and required action to be taken thereon. Also admittedly, the police authorities had made their own inquiries by speaking to some of the concerned individuals. For that purpose, the police authorities may have visited the locality where the disputed property is situated. Some photographs that may have been shot at that time may have been annexed with the writ petition. They were neither in the knowledge of the police authorities nor do these photographs represent or establish involvement of the police authorities in the alleged act of dispossession of the petitioners from the disputed property.
Sri Mahboob Ahmad, learned counsel for the Purvanchal Vidyut Vitran Nigam Ltd. has stated, his client has no concern with the dispute. However, existence of electricity connection at the disputed property in the name of petitioner no. 1 is admitted to his client though full facts in that regard have not been stated on account of some records having been lost etc. Having heard learned counsel for the parties, we find there does not exist any direct material or evidence of police intervention on 5.3.2017 to forcibly evict the petitioners from the disputed property or to seal the same. Then, it is to be considered whether such a conclusion may be drawn on the basis of photographs, mutation entries in municipal records, electricity bills and inspection carried out in pursuance of order passed by this court.
A perusal of the photographs only discloses the presence of certain unidentified police authorities in a residential area. In those photographs, some unidentified police officials can be seen speaking to certain unidentified individuals. However, in none of the photographs any of the police officials can be seen either engaged in removing any effects from any property or physically evicting any person from any property or putting any lock or seal on any immovable property. Thus, the photographs do not support the allegations made by the writ petitioners that they had been forcibly evicted by the police authorities or that the disputed property had been sealed by the police authorities on 5.3.2017.
Also, by the order dated 09.10.2017 this court had required the Station House Officer to open the lock on the disputed property after obtaining its key from the respondent no.6 and to prepare an inventory of articles found inside of those premises. Such a step was considered necessary to test the veracity of the assertions made by the petitioners as to their forced eviction and also as as to actual physical possession over the disputed property.
Upon that order being carried out on 15.10.2017, seal was not found existing on the disputed property. Only two locks were found placed on the outer door of the disputed property. One lock was opened with the key made available by respondent no. 6 and the other with the key made available by the petitioners. These facts have been stated in the compliance report supported by an affidavit dated 24.10.2017 filed by Nishi Kant Rai, Station House Officer, Police Station Mutthiganj, Allahabad.
No objection has been filed by the petitioner in reply thereto. Thus, in such undisputed facts mentioned in the compliance affidavit (as aforesaid), it cannot be said that the disputed property had been sealed by the police authorities on 5.3.2017 or that the petitioners had been forcibly evicted therefrom on 5.3.2017. In the facts and circumstances discussed above, the allegations made by the petitioners in the writ petition are held to be unsubstantiated and are therefore rejected.
It appears that allegations had been made against the police authorities only to get over the hurdle of maintainability of the writ petition and/or limitation/laches in approaching the writ court after more than ten years, when according to the petitioners own case they were first deprived of possession.
Clearly, there is a private civil dispute between the petitioners and respondent no. 6. It raises questions of fact that require evidence to be led by the parties to establish their respective claims and the writ jurisdiction cannot be lightly invoked to claim adjudication of such rights and disputes. Only rare cases may commend to a writ court to make an exception and entertain a writ petition of this nature. Such is not the case here. It appears to be a usual civil dispute for possession over an immovable property. There does not exist any documentary or other clinching evidence in support of the petitioners claim that they had been in possession over the disputed property.
The other evidence that has been relied upon by the petitioners to establish their possession are the mutation entries made in their favour. Assuming those entries exist, the settled position in law remains that such entries do not establish either title or actual physical possession over a residential accommodation.
Then, the petitioners have relied on certain electricity bills. The electricity connection and/or bills again do not establish actual physical possession over the disputed property. The facts and circumstances in which such connection may have been transferred in favour of the petitioners are not known and the same cannot be gone into in the present proceedings.
In any case, the mutation entries and the electricity bills may have been relevant if it had been the petitioners case that they had been in continuous actual physical possession over the disputed property till their dispossession on 5.3.2017. However, the petitioners were admittedly not in possession (at least) since 12.6.2007 till 5.3.2017.
Last, the disputed property was opened by the police authorities and seventeen items were inventoried upon inspection. Learned counsel for the petitioner fairly states item nos. 1 to 7, are not relevant to the dispute as to possession. Item nos. 8 to 17 have been described as plastic chairs, few light bulbs, tube lights, old unused sound-box, iron scrap, iron rod, iron frames etc. As to items of daily use, one metal bucket, one or two utensils etc. had been found. No item of clothing, food items etc. were found. Also, a gas burner had been found kept inside the toilet. Few photographs of items found have also been annexed with the compliance report. However, learned counsel on either side candidly admit that neither party has filed any documentary evidence to establish ownership over those items, in these proceedings.
According to us, the items inventoried do not, in any way, indicate that the premises had been in use and occupation of any person, let alone the petitioners. No personal effects such as clothes or items of food etc. or other item of daily use have been found inside the disputed property. In absence of any denial/objection or affidavit to allege that any of the personal effects of the petitioner had either been removed by the private respondents or the police, the inventory list stands admitted to both parties. It does not establish the allegation made by the petitioners that they had been in possession on 5.3.2017.
Thus, at present we find: the petitioners have a registered sale deed in their favour over the disputed property; the police authorities had not intervened to deprive the petitioners of possession over the disputed property or of having sealed the disputed property and there is no documentary evidence of petitioners having been in possession over the property in dispute on 5.3.2017.
In that view of the matter, the allegations made in the writ petition that the petitioners had been forcibly evicted from the disputed property on 5.3.2017 and disputed property had been sealed by the police authorities, are disbelieved, at this stage.
As to the civil dispute between the parties and their respective rights over the disputed property, they have adequate remedies available to them by instituting appropriate suit proceedings before competent court of civil jurisdiction, subject to existing limitation. Leaving all remedies open to the parties as may exist in law, we do not find this to be a fit case to offer interference in the extra ordinary jurisdiction under of Article 226 of the Constitution of India.
The writ petition is accordingly dismissed. No order as to costs.
Order Date :- 16.1.2018 Lbm/-
(Saumitra Dayal Singh, J.) (Tarun Agarwala, J.)