# Dr. B.K. Gupta v. Judge Small Cause Court, Agra & Anr

- **Citation:** (2023) 9 ILRA 431
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-15
- **Case number:** Writ-A No. 36773 of 2011
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-b-k-gupta-v-judge-small-cause-court-agra-anr-50808
- **Pages:** 40

## Headnote

Law
-
Constitution
of
India,1950
-
Article
226
-
Writ
-
Mandamus
-
Scope
-
Can
writ
of
mandamus be issued to execute a decree
- Explained - Eviction - Landlord's suit for
evicting the Government-tenant u/s 20 of
UP Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 was decreed
ex parte - Delivery of possession sought -
Application under O. IX R. 13 CPC was
rejected, which was confirmed by the
revisional court - Objection u/s 47 CPC of
the St. was also rejected, which was
confirmed upto High Court - Effect - In
Execution case, writ of possession was
issued, against which the SCC Revision of
St. was also dismissed - The learned
Judge has mentioned the fact that the
police personnel have refused to comply
with the writ of possession, saying that
they would vacate only if the higher
officials of the Police order them to do so
- Non-delivery of possession compelled
the petitioner to file writ petition - Held,
respondents are bent upon obstructing
the decree, utilizing the brute force of the
St. at their command to flout it -
Execution is a self-sufficient and effective
process to implement a decree and a writ
of mandamus invariably to execute it
ought not issue - In a rare situation to
abate injustice, writ of mandamus can be
issued to execute a decree of the Civil
Court - A mandamus can be viewed as a
panacea to undo all wrongs, where there
is a right, but no mode of redress or one
that is effectual. (Para 5, 16, 70, 71, 72,
73, 77, 87, 90 and 96)

B. Constitution of India - Article 300-A -
Right
to
property
-
Depriving
the
property's right without authority of law -
Misuse of St. machinery - Held, the St. of
U.P. or the police officers, who are
occupying the suit property on behalf of
the St., are prima facie not the owners, as
they say they are, and which, so far they
432 INDIAN LAW REPORTS ALLAHABAD SERIES
have not been able to prove or establish in
any proceeding. What they are doing by
forcibly holding on to possession of the
suit property is nothing short of depriving
the petitioner of his right under Article
300-A of the Constitution. (Para 95)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,888 of 138,971. This is a partial read: ask again with offset=39888 for what follows._

9 All. Dr. B.K. Gupta Vs. Judge Small Cause Court, Agra & Anr.
431

19. Seen in that light, there is
absolutely no pleading or allegation that the
petitioner, who was recovering from his
medical condition, had played any role in
obtaining such excess payment. Therefore,
only this much may be concluded in the
present facts that excess payment came to
be made to the applicant-respondent owing
to the mistake committed by the employer.

20. Then it may also not lost sight, the
employee is not claiming any payment
from this Court. That relief was claimed
before the Tribunal. It has been granted.
The total amount paid to the applicantrespondent is not more than Rs. 2,16,947/-.
It is too small and not deserving to warrant
any interference by this Court, in exercise
of its extraordinary jurisdiction under
Article 226 of the Constitution of India. No
patent error of law shown to have been
committed by the Tribunal as may require
that interference to be made.

21. For the reasons given above and
the order of Tribunal being based on facts
and law, we decline to exercise our
jurisdiction.

22. In view of above, the present
petition is dismissed. No order as to cost.
----------
(2023) 9 ILRA 431
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 36773 of 2011

Dr. B.K. Gupta ...Petitioner
Versus
Judge Small Cause Court, Agra & Anr.
 ...Respondents
Counsel for the Petitioner:
Mr. Swapnil Kumar

Counsel for the Respondents:
C.S.C., Sri Manoj Goswami

A.
Tenancy
Law
-
Constitution
of
India,1950
-
Article
226
-
Writ
-
Mandamus
-
Scope
-
Can
writ
of
mandamus be issued to execute a decree
- Explained - Eviction - Landlord's suit for
evicting the Government-tenant u/s 20 of
UP Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 was decreed
ex parte - Delivery of possession sought -
Application under O. IX R. 13 CPC was
rejected, which was confirmed by the
revisional court - Objection u/s 47 CPC of
the St. was also rejected, which was
confirmed upto High Court - Effect - In
Execution case, writ of possession was
issued, against which the SCC Revision of
St. was also dismissed - The learned
Judge has mentioned the fact that the
police personnel have refused to comply
with the writ of possession, saying that
they would vacate only if the higher
officials of the Police order them to do so
- Non-delivery of possession compelled
the petitioner to file writ petition - Held,
respondents are bent upon obstructing
the decree, utilizing the brute force of the
St. at their command to flout it -
Execution is a self-sufficient and effective
process to implement a decree and a writ
of mandamus invariably to execute it
ought not issue - In a rare situation to
abate injustice, writ of mandamus can be
issued to execute a decree of the Civil
Court - A mandamus can be viewed as a
panacea to undo all wrongs, where there
is a right, but no mode of redress or one
that is effectual. (Para 5, 16, 70, 71, 72,
73, 77, 87, 90 and 96)

B. Constitution of India - Article 300-A -
Right
to
property
-
Depriving
the
property's right without authority of law -
Misuse of St. machinery - Held, the St. of
U.P. or the police officers, who are
occupying the suit property on behalf of
the St., are prima facie not the owners, as
they say they are, and which, so far they
432 INDIAN LAW REPORTS ALLAHABAD SERIES
have not been able to prove or establish in
any proceeding. What they are doing by
forcibly holding on to possession of the
suit property is nothing short of depriving
the petitioner of his right under Article
300-A of the Constitution. (Para 95)

Writ petition allowed. (E-1)

List of Cases cited:

1.
Secretary,
Cannanore
District
Muslim
Educational Association, Karimbam Vs St. of
Kerala & ors.; (2010) 6 SCC 373

2. K. Seetharama Dass Vs Sikile Moses & ors.;
1999 (1) A.P.L.J. 406

3. Kasani Subbamma Vs The Government of
A.P. & ors.; 1994 (1) A.P.L.J. 117

(Delivered by Hon'ble J.J. Munir, J.)

1. Heard Mr. Swapnil Kumar, learned
Counsel for the petitioner and Mr. Neeraj
Tripathi, learned Additional Advocate
General assisted by Sri A.K. Trivedi,
learned Standing Counsel appearing on
behalf of the State.

2. This writ petition under Article 226
of the Constitution has engaged the
attention of this Court regularly during the
past twelve years. The transaction, out of
which this writ petition has arisen, the
cause of action involved and the relief
claimed,
are
all
very
unusual
and
unconventional; but not without good
reason.

3. The petitioner, who has prayed for
the issue of a writ of mandamus, directing
the Judge, Small Cause Court to ensure
handing over of actual physical possession
of the suit property, subject matter of the
decree dated 14.11.1991 passed by the said
Judge in SCC Suit No.108 of 1989, has not
chosen this very unusual course without a
most astounding situation he is confronted
with. He has further prayed that a
mandamus be issued to the respondents, by
which apparently he means respondent
No.2, the State of Uttar Pradesh through the
Collector, Agra, directing them to pay
damages to the petitioner @ Rs.10,000/-
per month, with effect from the date of the
decree dated 14.11.1991 up to the date of
delivery of actual possession. It may sound
like an ill-advised relief to be asked by a
decree-holder in a writ petition, but that too
has some background to it, as the facts of
the case here would show.

4. The petitioner is the plaintiff of
SCC Suit No.108 of 1989, instituted in the
Court of the Judge, Small Causes, Agra on
14th March, 1989. The suit aforesaid was
instituted by the present petitioner's father,
Mr. R.B.L. Gupta, Advocate. Pending
proceedings at the stage of execution, the
plaintiff-decree-holder, R.B.L. Gupta died
and his son, the petitioner, Dr. B.K. Gupta
was substituted. Thus, for all intents and
purposes, now Dr. B.K. Gupta son of the
late R.B.L. Gupta, the original plaintiff,
shall be called 'the petitioner'.

5. Reverting in time, when the suit
was instituted, it was the petitioner's case
that the State Government of Uttar Pradesh
was a tenant of the petitioner in the
property bearing Municipal No.6/336,
situate at Khandari Road, Hari Parwat
Ward, Agra, with details mentioned at the
foot of the plaint and shown in red colour
in the map annexed to the plaint. The State
Government were his tenants, who are
respondent No.2 here, at a monthly rent of
Rs.15/-
per
month,
the
tenancy
commencing on the 1st day of every
English calendar month. The aforesaid
premises, let out by the petitioner to the
State Government, shall hereinafter be
9 All. Dr. B.K. Gupta Vs. Judge Small Cause Court, Agra & Anr.
433
called 'the suit property'. It comprised two
pucca rooms with a door between them,
oriented towards Khandari Road in the
north and behind the said room, there was a
gate and a tin shed, attached to it towards
the south. Thereafter, there was an open
land further to the south. The suit property,
as already said, is detailed in the plaint
map. The suit property is said to be bound
on
all
sides
by
a
boundary
wall,
approximately 10 feet high on the east and
12 feet in the south.

6. It is the petitioner's case, pleaded in
the plaint giving rise to the suit, that the
State have not paid rent since 1st March,
1988, despite repeated requests. It is the
petitioner's case further pleaded in the
plaint that the then S.H.O., Hari Parwat,
one
Albel
Singh,
Chowki
In-charge
Chowki Khandari, Omveer Singh Pundir
and Constables Vansraj Singh and Nawab
Singh, within knowledge of the Senior
Superintendent
of
Police,
Agra
and
conspiring amongst themselves, without the
petitioner's
consent
or
permission,
completely damaged the rooms, gate, tin
shed and boundary wall standing on the
land comprising the suit property and
misappropriated the materials.

7. It is asserted that the State
Government had full knowledge of the
aforesaid
act.
The
petitioner,
upon
receiving information that the suit property
is being demolished, reached the spot along
with Mr. Surendra Kumar Gupta, Advocate
on 17.03.1988 at about 8:00 p.m. and found
the Station House Officer, Hari Parwat, the
Chowki In-charge, Khandari, besides some
constables, present at the suit property
along with 15-20 labourers, who were
demolishing the existing building. The
petitioner asked the policemen present not
to cause further damage to the property.
The men present there are said to have
threatened the petitioner with death and
detention in police custody. The petitioner
along
with
Surendra
Kumar
Gupta,
Advocate went to Police Station Hari
Parwat to lodge an FIR, where he was
mistreated and asked to go away. Mr.
Surendra Kumar Gupta then sent a
telegraphic report of the incident to the
defendant.

8. It is then pleaded that the defendant
illegally, unauthorizedly and forcefully,
without
the
petitioner's
consent,
constructed one room and a verandah in
front of it, on the open land towards the
south of the original premises, let out to the
State
Government.
There
existed
no
construction at the spot, where it has been
erected. The said act, according to the
petitioner, constitutes, structural alteration
that has led to diminishment in the utility
and value of the suit property and further
disfigured it.

9. In face of these facts, the plaintiff
served
a
notice
upon
the
defendant,
determining the tenancy of the State of Uttar
Pradesh and requiring them to vacate the
property, delivering its vacant possession,
after removing the unauthorized construction
put up, within 30 days of receipt of the notice.
The defendant was also called upon to pay
arrears of rent. The petitioner also claimed in
damages a sum of Rs.50,000/- from the date
of receipt of notice towards costs of the
demolished constructions as per details
averred in paragraph No.10 of the plaint. It
was mentioned in the notice that it be treated
also as one under Section 80 of the Code of
Civil Procedure, 1908 (for short, 'the Code').

10. It was also averred that the
plaintiff would file a suit separately for
damages, as the learned Judge, Small
434 INDIAN LAW REPORTS ALLAHABAD SERIES
Cause Court may not have jurisdiction to
grant that relief. The composite notice
under Section 106 of the Transfer of
Property Act, 1882 and Section 80 of the
Code was duly served.

11.

The
petitioner,
therefore,
instituted the suit for eviction, arrears of
rent and mesne profits, including future
mesne profits till delivery of possession as
per particulars mentioned in relief clauses
A, B and C to the plaint. The suit was
apparently
instituted
on
ground
of
actionable default and structural alteration
leading
to
substantial
damage,
in
consequence of which the suit property
suffered a diminishment in its value and
disfigurment. These grounds were pleaded
to make out a case for eviction under
Section 20 of the Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (U.P. Act No.13 of
1972) (for short, 'the Act of 1972').

12. The plaint as originally framed
carried the following array of defendants:

(1) U.P. State summons to be served
upon the Collector, Agra

(2) Senior Superintendent of Police,
Agra,

(3) Sri R.K. Singh Rathore, serving as
Circle Officer, Hari Parwat, Agra,

(4) Sri Albel Singh, serving as Station
Officer, P.S. Hari Parwat, Agra,

(5) Sri Omveer Singh Pundir, Incharge Police Outpost Khandari, Agra

(6) Sri Vansraj Singh / both serving as
Constables

(7) Sri Nawab Singh / Police Outpost
Khandari,

P.S. Hari Parwat, Agra.

13. Later on, it appears that the
petitioner moved an application to delete
defendant Nos.2 to 7 from the array, that is
to say, the Police Authorities, who were in
occupation of the suit property. The
application was allowed by the Court vide
an order dated 08.08.1991. The police
functionaries, who were in occupation of
the suit, were, therefore, asserted by the
petitioner to be holding the suit property on
behalf of the State of U.P. represented by
the Collector as the petitioner's tenant.

14. Summons of the suit was issued to
the defendant, that is to say, State of U.P.
through the Collector, Agra arrayed as
respondent No.2 to the writ petition. The
defendant-respondent No.2 was duly served
and the Trial Court held service sufficient. The
suit proceeded ex parte, with the petitioner
filing his affidavit to prove the plaint case
being paper No. 15-Ga. Along with the list of
documents, a carbon copy of the notice, the
registered postal receipt and the AD card in
original were filed.

15. The Trial Court held that the suit,
being one for eviction from a building against
a tenant, whether an officer of the Government
or a private person, is maintainable before the
Judge, Small Cause Court. He looked into the
affidavit, the copy of the notice, the registered
postal receipt and the AD card. On the basis of
the evidence offered by the petitioner, the Trial
Court decreed the suit for eviction, besides
Rs.96/- towards arrears of rent, Rs.75/- in
mesne profits and Rs.200/- as costs of the
notice. The suit was decreed in the aforesaid
terms ex parte. It was also decreed that the
plaintiff would be entitled to recover pendente
lite and future mesne profits at the rate of
Rs.15/- per month, upon deposit of necessary
court-fee in the execution department. This
decree was passed on 14.11.1991.

16. Based on the aforesaid decree,
Execution Case No.20 of 1999 was
9 All. Dr. B.K. Gupta Vs. Judge Small Cause Court, Agra & Anr.
435
instituted in the Court of the Judge, Small
Cause on 06.12.1999. A writ of possession
was issued by the Executing Court to the
Amin ordering him to deliver possession of
the suit property to the petitioner. The
Amin, in order to enforce the writ, went
over to the suit property, where he found,
according to the petitioner, a police official,
who was informed about the Court's decree
and asked to vacate the suit property. The
police officer present refused to vacate and
handover possession 'unless a direction
came from the D.I.G. of Police'. The Court
Amin submitted his report on 20.12.2010
before the Executing Court, informing the
Court that he had proceeded to the suit
property to handover possession and
informed the Police official there to vacate
it, but the policeman said that he would not
deliver
possession
unless
the
D.I.G.
directed him to do so.

17. According to the petitioner, the
Executing Court took into consideration the
report of the Amin dated 20.12.2010, and
on 09.03.2011, again issued a writ of
possession. The Court further directed the
Amin to get the suit property vacated after
contacting the competent authorities. The
order dated 09.03.2011, that was passed by
the Executing Court, reads:

"कदिांि- 09-03-2011

वाद पुिारा र्या। किक्रीदार मय कवद्वाि अकधवक्ता हाकिर ह ।
कवपक्षी िी तरफ से िोई हाकिर िहीं ह । पूवग में दिि परवािा िारी
किया र्या था। अमीि िी आख्या कदिांकित 20.12.2010
पत्राविी पर उपिब्ध ह । किसिे अिुसार अमीि िे न्यायािय द्वारा
प्रश्नर्त भवि में मौिूद पुकिस िमगचाररयों िो न्यायािय िे आदेश
से अवर्त िराते हुए पुकिस चौिी भवि िो िािी िरिे िब्िा व
दिि किक्रीदार िो देिे िे किए िहा तो उन्होंिे िब्िा - दिि देिे
से इंिार िर कदया कि हमारे पास िी0आई0िी0 िा िोई आदेश
िहीं ह तथा भवि िािी िरिे से इंिार िर कदया। अतैः पुिैः
परवािा दिि िारी हो अमीि इस सम्बन्ध में सक्षम अकधिाररयों से
सम्पिग िर दिि िी िायगवाही सम्पन्ि िरें। आख्या कदिांि
22.3.2011 िो पेश हो।"

ह0/ अ0

िघुवाद न्यायाधीश,

आर्रा।"

18. The Amin again went to the suit
property to enforce the writ of possession
on 15.03.2011 after informing the D.I.G. of
Police and the Collector, Agra. However,
the policeman present there refused to
vacate the premises as he had not received
any orders either from the D.I.G. or the
Collector, Agra. The report was submitted
again by the Amin before the Executing
Court, informing the learned Judge of these
facts. A copy of the said report is on record
as Annexure No.4 to the writ petition. After
the aforesaid report was submitted by the
Amin, the Executing Court directed on
26.03.2011 that a letter be issued to the
Collector, Agra to vacate the suit property.
In pursuance of the Court's order, a letter
dated 02.04.2011 was addressed by the
Court to the Senior Superintendent of
Police and D.I.G., Agra Range, Agra
requesting
the
two
officers
that
in
execution of the decree dated 14.11.1991
passed in the SCC Suit, actual physical
possession of the suit property, mentioning
its details, be handed over to the petitioner
within a week and a compliance report
submitted in Court. Despite the aforesaid
demi-official letter issued by the Court, the
decree was not executed nor possession
handed over to the petitioner by the State or
the Police officials occupying it.

19. It is the petitioner's case that the
decree dated 14.11.1991 has become final
and there is no legal impediment to its
execution, but the Police are unlawfully
occupying the suit property. It is also urged
on behalf of the petitioner that in order to
436 INDIAN LAW REPORTS ALLAHABAD SERIES
circumvent the Court's decree, the State and
the
Police
Authorities
have
resisted
execution of the decree unlawfully. It is
pleaded
that
the
practice
has
been
deprecated by the Supreme Court in terms
that the decree-holder should reap the fruits
of the decree.

20. There is an assertion in paragraph
No.18 of the writ petition that the
Executing Court is unable to execute the
decree as the suit property is in possession
of the Police. The petitioner has asserted
that he is denied possession of the suit
property and no rent is being paid to him
since 1st March, 1988, whereas respondent
No.2 and the Police Authorities, who are
occupying the suit property on the said
respondent's behalf, have taken the law
into their hands, obstructing execution of
the decree. It is urged that on account of the
dishonest stand of respondent No.2, the
petitioner has not been able to secure
possession of the suit property despite a
decree in his favour. The petitioner says
that this a violation of his right under
Articles 21 and 300-A of the Constitution.
It is claimed by the petitioner that due to
continuing
illegal
possession
of
the
respondent, he is suffering loss by being
deprived of the enjoyment of his property.
The area of the suit property is said to be
quite large, and if let out, would fetch rent
in the sum of Rs.10,000/- per month. The
petitioner has, therefore, in the face of the
Executing Court turning helpless to execute
its own decree, taken resort to the
extraordinary jurisdiction of this Court
under Article 226 of the Constitution. In
substance, the petitioner seeks a direction
to the State, represented by the Collector,
and the Police Authorities holding the suit
property
on
behalf
of
the
second
respondent
to
vacate
the
same
in
compliance
with
the
decree
dated
14.11.1991 passed by the Judge, Small
Cause Court, Agra, which that Court is
unable to execute, owing to the brazen
abuse of public office by the Police
Authorities in occupation of the suit
property on behalf of the State.

21. As said earlier by this Court, the
relief sought in this petition is very unusual
and the circumstances necessitating it are
equally so. When this petition came up
before the Court the first time on
08.07.2011, the learned Counsel for the
respondents was granted three weeks' time
to file a counter affidavit. When the case
came up before the Court the next time, it
was 01.08.2011 and the following order
was passed by my esteemed Brother Shashi
Kant Gupta:

"This writ petition has been filed for
issuance of a direction in the nature of
mandamus to the respondent no. 1 Judge,
Small Cause Court, Agra to ensure the
handing over the actual physical possession
of the property in pursuance to eviction
decree dated 14.11.1991 passed by Judge,
Small Cause Court, Agra in S.C.C. Case
No. 108 of 1989. It has been further prayed
that the respondents be directed to pay
damages at the rate of Rs.10,000/- per
month w.e.f. the date of the decree i.e.
14.11.1991 up to the actual date of vacation
of the premises in dispute.

Learned counsel for the petitioner has
submitted that father of the petitioner filed
S.C.C. Case No. 108 of 1989 (R.B.L.
Gupta Vs. U.P. State) in the Court of
J.S.C.C. Agra for rent and eviction as rent
was not paid since 01.03.1988 as well as
without
permission
certain
illegal
construction was raised by the defendants.
Police Chowki is being run in the premises
in dispute. The aforesaid suit was decreed
by Additional J.S.C.C. Agra vide Order
9 All. Dr. B.K. Gupta Vs. Judge Small Cause Court, Agra & Anr.
437
dated 14.11.1991. The said order was not
challenged by the respondent no. 2, as
such, the Order dated 14.11.1991 attained
finality. Subsequent thereto an Execution
Case No. 20 of 1999 (R.B.L. Gupta Vs.
U.P. State) was filed for executing the
decree.

It was further submitted by the learned
counsel for the petitioner that a writ of
possession was issued by the executing
Court to the Amin for handing over the
possession of the premises to the petitioner
decree holder. The Amin in pursuance to
the writ of possession went to the disputed
premises for handing over the possession,
where he met police officials and informed
them about the order of the executing court
and requested them to vacate the premises
but they refused to vacate and give
possession unless a direction comes from
the D.I.G. Police.

The court Amin has submitted its
report
dated
20.12.2010
before
the
executing Court informing hat when he
went to hand over the possession of the
disputed premises to the petitioner and
informed the police officials to vacate the
disputed premises (police chowki) they
refused to vacate the disputed premises
(police chowki).

The Executing Court considering the
report of the Amin, on 09.03.2011 again
issued a writ of possession and further
directed to Amin to get the premises
vacated after contacting the appropriate
authorities. For ready reference, the order
dated 09.03.2011 passed by the Executing
court is quoted below:-

"कदिांि- 09.03.2011

वाद पुिारा र्या। किक्रीदार मय कवद्वाि अकधवक्ता हाकिर ह ।
कवपक्षी िी तरफ से िोई हाकिर िहीं ह । पूवग में दिि परवािा िारी
किया र्या था। अमीि िी आख्या कदिांकित 20.12.2010
पत्राविी पर उपिब्ध ह । किसिे अिुसार अमीि िे न्यायािय द्वारा
प्रश्नर्त भवि में मौिूद पुकिस िमगचाररयों िो न्यायािय िे आदेश
से अवर्त िराते हुए पुकिस चौिी भवि िो िािी िरिे िब्िा व
दिि किक्रीदार िो देिे िे किए िहा तो उन्होंिे िब्िा - दिि देिे
से इंिार िर कदया कि हमारे पास िी0आई0िी0 िा िोई आदेश
िहीं ह तथा भवि िािी िरिे से इंिार िर कदया। अतैः पुिैः
परवािा दिि िारी हो अमीि इस सम्बन्ध में सक्षम अकधिाररयों से
सम्पिग िर दिि िी िायगवाही सम्पन्ि िरें। आख्या कदिांि
22.3.2011 िो पेश हो।"

ह0/ अ0

िघुवाद न्यायाधीश,

आर्रा।"

Learned counsel for the petitioner has
further submitted that the Amin again went
to the disputed premises for handing over
the
possession
to
the
petitioner
on
25.03.2011 after giving information to the
D.I.G.
Police
and
Collector,
Agra.
However, again police officials refused to
vacate the premises on the pretext that they
have not received any orders either from
the D.I.G. Or Collector, Agra. A report
dated 25.03.2011 has again been submitted
by the Amin before the executing Court
informing about the aforesaid fact.

It is further submitted that despite the
best efforts, the petitioner has not been
handed over the possession of the property
in dispute and is unnecessarily being
harassed, therefore an appropriate direction
is required to be issued by this Court to the
concerned authorities.

From the bare perusal of the record, it
appears that the decree of eviction dated
14.11.1991 has become final, as such, there
is no legal impediment in execution of the
decree in its true spirit but because the
premises in dispute is occupied by the
police for the purpose of Police Chowki,
the petitioner is not able to get the
possession of the premises.

this Court by order dated 08.07.2011
had issued the notice to the respondents for
filing counter affidavit, but till date neither
438 INDIAN LAW REPORTS ALLAHABAD SERIES
counter affidavit has been filed nor the
disputed premises has been vacated.

In view of the above, let the matter be
listed on 23rd August, 2011.

On the said date i.e. 23.08.2011, the
District Magistrate, Agra and D.I.G. (Agra)
shall remain present in person before this
Court to explain as to why the said
premises No. 6/336 situated at Khadari
Road, Hari Parwat Ward, Agra has not
been vacated despite the decree passed by
the Court below.

The certified copy of this Order may
be given to the learned Standing Counsel
Sri R.K. Singh free of cost.

Office is directed to inform about this
Order to the District Magistrate, Agra and
D.I.G. Agra forthwith."

22. On 06.09.2011, when the matter
appeared again before his Lordship, the
following order was made:

"this Court by orders dated 1.8.2011
and 23.8.2011 had passed the following
orders:

1.8.2011

This writ petition has been filed for
issuance of a direction in the nature of
mandamus to the respondent no. 1 Judge,
Small Cause Court, Agra to ensure the
handing over the actual physical possession
of the property in pursuance to eviction
decree dated 14.11.1991 passed by Judge,
Small Cause Court, Agra in S.C.C. Case
No. 108 of 1989. It has been further prayed
that the respondents be directed to pay
damages at the rate of Rs.10,000/- per
month w.e.f. the date of the decree i.e.
14.11.1991 up to the actual date of vacation
of the premises in dispute. Learned counsel
for the petitioner has submitted that father
of the petitioner filed S.C.C. Case No. 108
of 1989 (R.B.L.Gupta Vs. U.P. State) in the
Court of J.S.C.C. Agra for rent and eviction
as rent was not paid since 01.03.1988 as
well as without permission certain illegal
construction was raised by the defendants.
Police Chowki is being run in the premises
in dispute. The aforesaid suit was decreed
by Additional J.S.C.C. Agra vide Order
dated 14.11.1991. The said order was not
challenged by the respondent no. 2, as
such, the Order dated 14.11.1991 attained
finality. Subsequent thereto an Execution
Case No. 20 of 1999 (R.B.L. Gupta Vs.
U.P. State) was filed for executing the
decree.

It was further submitted by the learned
counsel for the petitioner that a writ of
possession was issued by the executing
Court to the Amin for handing over the
possession of the premises to the petitioner
decree holder. The Amin in pursuance to
the writ of possession went to the disputed
premises for handing over the possession,
where he met police officials and informed
them about the order of the executing court
and requested them to vacate the premises
but they refused to vacate and give
possession unless a direction comes from
the D.I.G. Police.

The court Amin has submitted its
report
dated
20.12.2010
before
the
executing Court informing hat when he
went to hand over the possession of the
disputed premises to the petitioner and
informed the police officials to vacate the
disputed premises (police chowki) they
refused to vacate the disputed premises
(police chowki).

The Executing Court considering the
report of the Amin, on 09.03.2011 again
issued a writ of possession and further
directed to Amin to get the premises
vacated after contacting the appropriate
authorities. For ready reference, the order
dated 09.03.2011 passed by the Executing
court is quoted below:-

"कदिांि- 09.03.2011
9 All. Dr. B.K. Gupta Vs. Judge Small Cause Court, Agra & Anr.
439

वाद पुिारा र्या। किक्रीदार मय कवद्वाि अकधवक्ता हाकिर ह ।
कवपक्षी िी तरफ से िोई हाकिर िहीं ह । पूवग में दिि परवािा िारी
किया र्या था। अमीि िी आख्या कदिांकित 20.12.2010
पत्राविी पर उपिब्ध ह । किसिे अिुसार अमीि िे न्यायािय द्वारा
प्रश्नर्त भवि में मौिूद पुकिस िमगचाररयों िो न्यायािय िे आदेश
से अवर्त िराते हुए पुकिस चौिी भवि िो िािी िरिे िब्िा व
दिि किक्रीदार िो देिे िे किए िहा तो उन्होंिे िब्िा - दिि देिे
से इंिार िर कदया कि हमारे पास िी0आई0िी0 िा िोई आदेश
िहीं ह तथा भवि िािी िरिे से इंिार िर कदया। अतैः पुिैः
परवािा दिि िारी हो अमीि इस सम्बन्ध में सक्षम अकधिाररयों से
सम्पिग िर दिि िी िायगवाही सम्पन्ि िरें। आख्या कदिांि
22.3.2011 िो पेश हो।"

ह0/ अ0

िघुवाद न्यायाधीश,

आर्रा।"

Learned counsel for the petitioner has
further submitted that the Amin again went
to the disputed premises for handing over
the
possession
to
the
petitioner
on
25.03.2011 after giving information to the
D.I.G.
Police
and
Collector,
Agra.
However, again police officials refused to
vacate the premises on the pretext that they
have not received any orders either from
the D.I.G. Or Collector, Agra. A report
dated 25.03.2011 has again been submitted
by the Amin before the executing Court
informing about the aforesaid fact.

It is further submitted that despite the
best efforts, the petitioner has not been
handed over the possession of the property
in dispute and is unnecessarily being
harassed, therefore an appropriate direction
is required to be issued by this Court to the
concerned authorities.

From the bare perusal of the record, it
appears that the decree of eviction dated
14.11.1991 has become final, as such, there
is no legal impediment in execution of the
decree in its true spirit but because the
premises in dispute is occupied by the
police for the purpose of Police Chowki,
the petitioner is not able to get the
possession of the premises.

this Court by order dated 08.07.2011
had issued the notice to the respondents for
filing counter affidavit, but till date neither
counter affidavit has been filed nor the
disputed premises has been vacated.

In view of the above, let the matter be
listed on 23rd August, 2011.

On the said date i.e. 23.08.2011, the
District Magistrate, Agra and D.I.G. (Agra)
shall remain present in person before this
Court to explain as to why the said
premises No. 6/336 situated at Khadari
Road, Hari Parwat Ward, Agra has not
been vacated despite the decree passed by
the Court below.

The certified copy of this Order may
be given to the learned Standing Counsel
Sri R.K. Singh free of cost.

Office is directed to inform about this
Order to the District Magistrate, Agra and
D.I.G. Agra forthwith."

23.8.2011

Exemption applications have been
filed today on behalf of the District
Magistrate, Agra and D.I.G. Agra, wherein
it has been stated that on account of
Janmashtami Festival on 22nd August,
2011, it is very difficult to leave the station
because of the tense law and order situation
on 22nd/23rd night as there is mass
movement of pilgrims to the various
temples and fairs between Agra and
Mathura, the birth place of Lord Krishna. It
was requested that the personal appearance
of the aforesaid officials may be exempted
for today by this Court.

Cause shown is sufficient. Personal
appearance of the aforesaid officials is
exempted
for
today.
Exemption
applications are allowed.

List the matter peremptorily on 6th
September, 2011.
440 INDIAN LAW REPORTS ALLAHABAD SERIES

On the said date i.e. 6th September,
2011, the District Magistrate, Agra and
D.I.G. Agra shall remain present in person
before this Court to explain as to why the
disputed Premises No. 6/336 situated at
Khadari Road, Hari Parwat Ward, Agra
(wherein the Police Chowki has been
established) has not been vacated despite
the decree passed by the Court below way
back in November, 1991 and nearly 20
years have expired since then.

This order has been passed by this
Court in the presence of the Learned
Additional Government Advocate Sri Jafar
Nayyar.

Office is directed to inform about this
order to the District Magistrate, Agra and
D.I.G. Agra forthwith."

Pursuant to the above order Mr. Asim
Arun, Deputy Inspector General of Police,
Agra and Mr. Ajay Chauhan, District
Magistrate, Agra are present before the
court and three supplementary affidavits,
out of which, two on their behalf and one
on behalf of Mr. Aseem Chaudhary, Circle
Officer Hari Parvat, Agra have been filed
which are taken on record. Apart from the
said supplementary affidavit, an affidavit
and one short counter affidavit have also
been filed on behalf of the District
Magistrate, Agra which forms part of the
record.

As prayed by the learned counsel for
the petitioner, three weeks' time is granted
to file reply to the averments made in the
aforementioned
affidavits
and
supplementary counter affidavits.

List the matter for further hearing on
13.10.2011.

The District Magistrate, Agra, who is
present today, shall remain present in
person before this Court on that date.
However, until further orders of this Court,
the personal appearance of the D.I.G., Agra
, who is present today, shall remain
exempted."

23. On 13.10.2011, the matter again
appeared before his Lordship, when the
following order was passed:

"this Court by order dated 6.9.2011
had passed the following order:

"this Court by orders dated 1.8.2011
and 23.8.2011 had passed the following
orders:

1.8.2011

This writ petition has been filed for
issuance of a direction in the nature of
mandamus to the respondent no. 1 Judge,
Small Cause Court, Agra to ensure the
handing over the actual physical possession
of the property in pursuance to eviction
decree dated 14.11.1991 passed by Judge,
Small Cause Court, Agra in S.C.C. Case
No. 108 of 1989. It has been further prayed
that the respondents be directed to pay
damages at the rate of Rs.10,000/- per
month w.e.f. the date of the decree i.e.
14.11.1991 up to the actual date of vacation
of the premises in dispute. Learned counsel
for the petitioner has submitted that father
of the petitioner filed S.C.C. Case No. 108
of 1989 (R.B.L.Gupta Vs. U.P. State) in the
Court of J.S.C.C. Agra for rent and eviction
as rent was not paid since 01.03.1988 as
well as without permission certain illegal
construction was raised by the defendants.
Police Chowki is being run in the premises
in dispute. The aforesaid suit was decreed
by Additional J.S.C.C. Agra vide Order
dated 14.11.1991. The said order was not
challenged by the respondent no. 2, as
such, the Order dated 14.11.1991 attained
finality. Subsequent thereto an Execution
Case No. 20 of 1999 (R.B.L. Gupta Vs.
U.P. State) was filed for executing the
decree.
9 All. Dr. B.K. Gupta Vs. Judge Small Cause Court, Agra & Anr.
441

It was further submitted by the learned
counsel for the petitioner that a writ of
possession was issued by the executing
Court to the Amin for handing over the
possession of the premises to the petitioner
decree holder. The Amin in pursuance to
the writ of possession went to the disputed
premises for handing over the possession,
where he met police officials and informed
them about the order of the executing court
and requested them to vacate the premises
but they refused to vacate and give
possession unless a direction comes from
the D.I.G. Police.

The court Amin has submitted its
report
dated
20.12.2010
before
the
executing Court informing hat when he
went to hand over the possession of the
disputed premises to the petitioner and
informed the police officials to vacate the
disputed premises (police chowki) they
refused to vacate the disputed premises
(police chowki).

The Executing Court considering the
report of the Amin, on 09.03.2011 again
issued a writ of possession and further
directed to Amin to get the premises
vacated after contacting the appropriate
authorities. For ready reference, the order
dated 09.03.2011 passed by the Executing
court is quoted below:-

"कदिांि- 09.03.2011

वाद पुिारा र्या। किक्रीदार मय कवद्वाि अकधवक्ता हाकिर ह ।
कवपक्षी िी तरफ से िोई हाकिर िहीं ह । पूवग में दिि परवािा िारी
किया र्या था। अमीि िी आख्या कदिांकित 20.12.2010
पत्राविी पर उपिब्ध ह । किसिे अिुसार अमीि िे न्यायािय द्वारा
प्रश्नर्त भवि में मौिूद पुकिस िमगचाररयों िो न्यायािय िे आदेश
से अवर्त िराते हुए पुकिस चौिी भवि िो िािी िरिे िब्िा व
दिि किक्रीदार िो देिे िे किए िहा तो उन्होंिे िब्िा - दिि देिे
से इंिार िर कदया कि हमारे पास िी0आई0िी0 िा िोई आदेश
िहीं ह तथा भवि िािी िरिे से इंिार िर कदया। अतैः पुिैः
परवािा दिि िारी हो अमीि इस सम्बन्ध में सक्षम अकधिाररयों से
सम्पिग िर दिि िी िायगवाही सम्पन्ि िरें। आख्या कदिांि
22.3.2011 िो पेश हो।"

ह0/ अ0

िघुवाद न्यायाधीश,

आर्रा।"

Learned counsel for the petitioner has
further submitted that the Amin again went
to the disputed premises for handing over
the
possession
to
the
petitioner
on
25.03.2011 after giving information to the
D.I.G.
Police
and
Collector,
Agra.
However, again police officials refused to
vacate the premises on the pretext that they
have not received any orders either from
the D.I.G. Or Collector, Agra. A report
dated 25.03.2011 has again been submitted
by the Amin before the executing Court
informing about the aforesaid fact.

It is further submitted that despite the
best efforts, the petitioner has not been
handed over the possession of the property
in dispute and is unnecessarily being
harassed, therefore an appropriate direction
is required to be issued by this Court to the
concerned authorities.

From the bare perusal of the record, it
appears that the decree of eviction dated
14.11.1991 has become final, as such, there
is no legal impediment in execution of the
decree in its true spirit but because the
premises in dispute is occupied by the
police for the purpose of Police Chowki,
the petitioner is not able to get the
possession of the premises.

this Court by order dated 08.07.2011
had issued the notice to the respondents for
filing counter affidavit, but till date neither
counter affidavit has been filed nor the
disputed premises has been vacated.

In view of the above, let the matter be
listed on 23rd August, 2011.

On the said date i.e. 23.08.2011, the
District Magistrate, Agra and D.I.G. (Agra)
shall remain present in person before this
Court to explain as to why the said
442 INDIAN LAW REPORTS ALLAHABAD SERIES
premises No. 6/336 situated at Khadari
Road, Hari Parwat Ward, Agra has not
been vacated despite the decree passed by
the Court below.

The certified copy of this Order may
be given to the learned Standing Counsel
Sri R.K. Singh free of cost.

Office is directed to inform about this
Order to the District Magistrate, Agra and
D.I.G. Agra forthwith."

23.8.2011

Exemption applications have been
filed today on behalf of the District
Magistrate, Agra and D.I.G. Agra, wherein
it has been stated that on account of
Janmashtami Festival on 22nd August,
2011, it is very difficult to leave the station
because of the tense law and order situation
on 22nd/23rd night as there is mass
movement of pilgrims to the various
temples and fairs between Agra and
Mathura, the birth place of Lord Krishna. It
was requested that the personal appearance
of the aforesaid officials may be exempted
for today by this Court.

Cause shown is sufficient. Personal
appearance of the aforesaid officials is
exempted
for
today.
Exemption
applications are allowed.

List the matter peremptorily on 6th
September, 2011.

On the said date i.e. 6th September,
2011, the District Magistrate, Agra and
D.I.G. Agra shall remain present in person
before this Court to explain as to why the
disputed Premises No. 6/336 situated at
Khadari Road, Hari Parwat Ward, Agra
(wherein the Police Chowki has been
established) has not been vacated despite
the decree passed by the Court below way
back in November, 1991 and nearly 20
years have expired since then.

This order has been passed by this
Court in the presence of the Learned
Additional Government Advocate Sri Jafar
Nayyar.

Office is directed to inform about this
order to the District Magistrate, Agra and
D.I.G. Agra forthwith."

Pursuant to the above order Mr. Asim
Arun, Deputy Inspector General of Police,
Agra and Mr.