Allahabad High Court
Devmani vs State Of U.P. And 6 Others on 6 December, 2018
Equivalent citations: AIRONLINE 2018 ALL 5284
Bench: Pradeep Kumar Singh Baghel, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 21
Case :- WRIT - C No. - 17017 of 2018
Petitioner :- Devmani
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Shailendra Nath Tiwari
Counsel for Respondent :- C.S.C.,Chandra Bhan Gupta,Sushil Kumar Rao
Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Prakash Padia,J.
The petitioner has preferred this writ petition for issuance of a mandamus commanding the second and fifth respondents to ensure the compliance of the order dated 10th April, 2018 passed by the respondent No.4 Sub Divisional Magistrate Salempur, Tehsil Salempur, District Deoria. The private respondents have been represented by Sri C.V. Gupta, who has put his appearance on behalf of respondent No.5 Briefly stated the facts of the case are that the petitioner claims that she is the owner of the house which is situated in Khata No.615 having area 0.0340 hectare and she is a co-sharer with the other persons and her family is living in their house peacefully since very long and same is in possession of the petitioner which also covers some part of Khata No.618 which is a land under Section 6 (2) of the Land Revenue Act, 1901.
Her grievance was that respondent Nos. 6 and 7 who are private the respondents raised an objection on 9th April 2018 when the petitioner was carrying out certain construction and repair work of her house. The objection of the private respondents are that the land on which the petitioner is trying to raise construction, is a Banjar land and the said construction is on Khata No.613 and 614, a copy of their objection is on record as annexure 2 to the writ petition. The petitioner thereafter approached the fourth respondent Sub-Divisional Magistrate. On the said application, the Sub-Divisional Magistrate, the respondent No.4 directed the Station House Officer "Incharge Inspector Police" respondent No.5 to submit a report to make an inspection and he passed an order to stop the construction of the petitioner which was going on on her land. Being aggrieved by the said order, the petitioner's husband moved an application before the fourth respondent and requested to call a report from Lekhpal or the Revenue Inspector. On the direction of respondent No.4, the Revenue Inspector submitted a spot inspection report dated 12th April, 2018 and reported that there is no new construction on Khata No.613 and 614. Upon the said application, the fourth respondent directed the fifth respondent to ensure that the repair work/"Construction work" of the petitioner be permitted to continue and in case of any hindrance, the same may be prevented. A copy of the order dated 16th April, 2018 passed by the Sub Divisional Magistrate is annexure 4 to the writ petition. Thereafter, the petitioner has preferred this writ petition for issuance of writ of mandamus for compliance of the order passed by the S.D.M. Sri C.V. Gupta, learned counsel has put in appearance on behalf of respondent No.5. Sri Gupta submits that the dispute relates to a property dispute and no writ of mandamus can be issued. He further submits that the Sub Divisional Magistrate has no authority to pass interim injunction order against the private respondents as a Magistrate. Lastly he urges that the S.D.M. is not a Revenue Court and being a Magistrate he cannot pass such order.
We have heard the learned counsel for the parties and perused the record.
Admittedly, the dispute relates to the private property. The Sub Divisional Magistrate has issued an order in favour of the petitioner and has directed the Station House Officer that he should ensure that no hindrance be caused by other party in the construction of the petitioner. The petitioner claims that she is a Bhumidhar of the land whereas the claim of the respondents are that the land belongs to Gaon Sabha and it is a Banjar land. It is trite law that writ of mandamus cannot be issued in respect of property dispute, where contesting parties are claiming their title. The Supreme Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 has considered a large number of its earlier judgements and held that writ petition is not the proper remedy in respect of the property dispute and the party should be relegated to seek appropriate remedy before the Civil or Revenue Court. Paragraph nos. 64, 65, 66 and 67 of the judgment in Shalini Shyam Shetty (supra) are extracted hereinbelow-:
"64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.
65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.
66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly."
In addition to above, we find that the Sub Divisional Magistrate being an administrative Officer has no power to issue any injunction order against any private person to interfere in the possession of the other person. In case an application was filed before the Sub Divisional Magistrate in respect of the property dispute, the appropriate course open to him was ask to the parties to approach the appropriate Court to resolve their dispute. The Sub Divisional Magistrate has assumed the jurisdiction of a Civil/Revenue Court and has passed the restrain order. To our repeated query to the learned counsel for the petitioner to point out the authority of law under which the Sub Divisional Magistrate has passed the order but he failed to point out any provision of the law which cloth the administrative officer to pass the injunction order.
The experience reveals that the Sub Divisional Magistrates are passing such type of order in a large number of cases. We find that the orders passed by the Administrative Officer interfering in the matter of property dispute where title dispute is involved are wholly without jurisdiction. An administrative officer cannot direct the Police to help a party in title dispute.
In view of the above, the writ petition fails and without expressing any opinion on merits of the case we leave it open to the parties to take recourse of such remedy which is available under the law.
The writ petition stands disposed of with the aforesaid observations.
No order as to costs.
Order Date :- 6.12.2018 saqlain