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Jyoti Shankar Pandey & Others v/s State of U.P. & Others

    C.M.W.P. No. 6603 of 2014

    Decided On, 21 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE TARUN AGARWALA & THE HONOURABLE MR. JUSTICE RAJAN ROY

    For the Appellants: Anil Tiwari, Advocate. For the Respondents: Tarun Verma, Vishwa Pratap Singh, Advocates.



Judgment Text

Tarun Agarwala, J.

1. The petitioners' have filed the present writ petition praying for a writ of mandamus commanding the respondents not to take any action against the petitioners with regard to their peaceful living and possession in their residential house being House No. 581/1, Ramanand Nagar, Allahpur, Allahabad except in accordance with law. The petitioners have also prayed for a writ of mandamus commanding the respondents to provide police protection, especially against the Sub-Inspector and In-charge Police Chowki. The facts leading to the filing of the writ petition is, that the petitioner No. 1 purchased House No. 581/1 measuring 252 sq. metres at Allahpur in the name of his daughter from Sangam Lal by means of a registered sale-deed dated 13th December, 2013, pursuant to which, the petitioners were put in possession and are residing therein. It is alleged that on 26th January, 2014 two persons along with armed persons came to their house and threatened the occupants to vacate the premises. These two persons alleged themselves to be the true owners of the house in question. The petitioners lodged an FIR on the same date being Case

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Crime No. 31 of 2014. In the night of 27th January, 2014 around 10.00 pm, the same persons along with armed persons again came at their residence and started throwing out the household articles from the house. The neighbours interfered and intimated the police. The incident was also reported to the Senior Superintendent of Police. On account of the intervention of the neighbours, these unknown persons made a retreat only to come again on the night of 28th January, 2014 and, this time, these persons were accompanied by Sri S.K. Sharma, Sub-Inspector. It is alleged that these persons dragged the ladies out of the house and also indulged in beating some of the occupants. It is alleged that the house was locked by the Sub-Inspector but upon intervention of certain Advocates who are the friends of the petitioner No. 1 and other officials of the administration, the possession was given back to the petitioner after midnight. It is alleged that for the incident, which occurred on 28th January, 2014, an application was filed before the police station but no first information report was lodged.

2. The petitioner, thereafter, filed the present writ petition, which came up for admission on 31st January, 2014. This Court appointed an Advocate Commissioner and directed him to visit the spot and submit a report. The Advocate Commissioner submitted a report indicating that the petitioners. were occupying the premises and their household articles were found inside the house. The Court Commissioner also reported that an attempt was made to demolish the boundary wall at the rear portion of the house. In the light of the aforesaid report, notice was issued to respondent No. 7 and to the state authorities to file a counter-affidavit. The Court also directed the Senior Superintendent of Police and the Station House Officer to ensure that no unforeseen incident takes place at the premises in question and to provide adequate security to the petitioners in the event, the need arose.

3. A counter-affidavit has been filed on behalf of the Senior Superintendent of Police. The respondent admits that a first information report was lodged on 26th January, 2014 and action was taken and that S.K. Sharma, Sub-Inspector was appointed as the Investigating Officer. The respondent also admits the incident, which took place on 27th January, 2014 and submitted that pursuant to receiving a telephonic call received at 100, the police reached the spot and interfered and tried to resolve the matter. The respondent further admits the incident of 28th January, 2014 and submitted that Chowki In-Charge was sent to resolve the matter. The respondents further admitted that the petitioner's application dated 28th January, 2014 was received and the Station House Officer was directed to maintain law and order. The respondents further submit that on 29th January, 2014 an order was passed taking away the investigation from S.K. Sharma, Sub-Inspector, who was transferred to police line.

4. Upon a direction from the Court, the learned Standing Counsel has submitted that the police is still investigating the matter.

5. Respondent No. 7, the alleged person, who was involved in the incident, which occurred on 26, 27th and 28th January, 2014 was impleaded under the orders of the Court. The said respondent has filed a counter-affidavit contending that he had purchased Araji No. 39, 41, 50, 51 and 52 measuring 378 sq. meters by means of a registered sale-deed dated 19th October, 2012, pursuant to which, respondent No. 7 was given possession and his name was mutated in the municipal records. It is alleged that a portion of the house in question was also part of the sale-deed of respondent No. 7. Respondent No. 7 however, contends that on 1st March, 2013 certain antisocial elements had taken illegal possession of his property. In this regard, he had filed an application before the Sub-Divisional Magistrate praying that possession be given back and had also filed another application for demarcation of the plot. Since nothing happened, respondent No. 7 filed another application before the District Magistrate, who by an order dated 15th July, 2013 directed the Sub-Divisional Magistrate to look into the matter. It transpires that the Kanoongo submitted a report dated 26th July, 2013 indicating that since the plot was in an abadi area, it was not possible to demarcate the plot and that no possession could be given to respondent No. 7 and that he should be advised to file a civil suit. In spite of the aforesaid report, it transpires that respondent No. 7 filed a fresh application dated 8th October, 2013 before the Sub-Divisional Magistrate praying that possession of the plot should be given by police force. The respondent No. 7 contended that at this stage Sangam Lal, who eventually sold the property to the petitioners started claiming himself that he was the owner and, subsequently, sold the house to the petitioners vide sale-deed dated 13th December, 2013. Respondent No. 7 filed a first information report against Sangam Lal on 11th January, 2014 indicating therein that he has been dispossessed by Sangam Lal and that possession should be given back to him. Respondent No. 7 further contends that when he returned from his village on 29th January, 2014 he found that he had been dispossessed by the petitioner from the house in question. The respondents submitted that the petitioner has misused the process of the Court and have forcibly entered into the house through police force, which is owned by them.

6. The Sub-Inspector has also filed a counter-affidavit. The said respondent admits his presence at the spot on the night of 28th January, 2014 and also admits that the investigation was taken away from him.

7. In the light of the rival stand of the parties, the Court has heard Sri Anil Tiwari, the learned Counsel for the petitioners and Sri Tarun Verma, Advocate assisted by Sri Vishwa Pratap. Singh, the learned Counsel for respondent No. 7 as well as the learned Standing Counsel for the State-respondents.

8. The learned Counsel for the petitioners submitted that the sale-deed of the petitioners is different and distinct from the sale-deed of respondent No. 7. The boundaries are different, the house number is different and the area is different. Further, the sale-deed of respondent No. 7 does not indicate that there exists any structure, namely, a house and only indicates that a small portion of open land from 5 plots have been purchased. The learned Counsel contended that in the garb of the sale-deed, the respondents was using police force and armed persons to grab the house of the petitioners illegally without any authority of law. It was also alleged that the brother of respondent No. 7 is a sitting MLA of the ruling party.

9. Upon hearing the learned Counsel for the parties, the Court finds that the incident of house grabbing, which occurred on 26th, 27th and 28th January, 2014 has been admitted by the police in their counter-affidavit. On the other hand, the counter-affidavit of respondent No. 7 reveals a vague stand with regard to his possession of the property in question. Respondent No. 7 contends in paragraph 9 of the counter-affidavit that he was dispossessed on 1st March, 2013 by unknown antisocial elements. In paragraph 11 of the counter-affidavit, respondent No. 7 contends that he was again dispossessed in July, 2013. The Kanoongo in his report dated 26th July, 2013 categorically states that possession cannot be given to respondent No. 7. In paragraph 13 of the counter-affidavit, respondent No. 7 contends that he moved an application in August, 2013 praying for delivery of possession. In paragraph 15 of the counter-affidavit, respondent No. 7 contends that he was dispossessed on 26th January, 2014. Finally, in paragraph 17, the respondent No. 7 contends that when he came back from his village he found that the petitioners had taken possession of the house on 29th January, 2014.

10. The fact that the petitioners are in possession of the house in question is borne out by the counter-affidavit filed by the police as well as by the Advocate Commissioner's report. The possession of the petitioners is further fortified by the counter-affidavit of respondent No. 7 indicating that he was not in possession since March, 2013.

11. The Court further finds from a perusal of the sale-deeds of the petitioners and respondent No. 7 that the areas of the plot are different and the boundaries are different. Whereas the sale-deed of the petitioners indicate the purchase of land and house, the sale-deed of respondent No. 7 does not indicate the existence of any structure such as house in question.

12. House grabbing is a serious matter. Taking illegal and forcible possession without any authority of law on the basis of an alleged sale-deed is wholly illegal. The country is governed by a rule of law and no one could be allowed to break the law. This Court in Smt. Chetan Alma Govil v. Rent Control and Eviction Officer and others 1995 (26) ALR 114 and Sanjay Singh v. State of U.P. and others 2001 (42) ALR 817 has condemned the practice of house grabbing.

13. In the light of the aforesaid, we find that apparently on the basis of the affidavits that has been filed before the Court, the petitioners are in possession and they cannot be dispossessed except in accordance with law. An attempt to grab the house forcefully was made. It is alleged that a Sub-Inspector and Chowki In-charge were also involved. The rule of law is required to be maintained. It is the duty of the administration, especially the police to maintain law and order and ensure that no such incident of house grabbing takes place. The practice of house grabbing is deprecated. We accordingly, dispose of the writ petition by issuing a writ of mandamus to respondent Nos. 2, 3, 4 and 5 to ensure that no unforeseen incident takes place at the premises in question, such as house grabbing and that adequate security is provided to the petitioners in the event, such a need arises. We also direct the police authorities to complete the investigation as early as possible preferably within six weeks from today. The investigation will also include the role of the Sub-Inspector and other police personnel and, in the event, their role is affirmed, disciplinary action would be initiated against them. It would be open to the parties to file a suit in a Court of law to establish their title on the property in question.
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