# Indrakali v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 712
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-27
- **Case number:** Criminal Misc. Recall Application No. 9 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indrakali-v-state-of-u-p-ors-46788
- **Pages:** 6

## Headnote

Civil Law-Petition to direct respondent to
hand
over
possession
of
land
-to
Petitioner-in compliance to order of SDM
u/s 145 Cr.P.C.-property was attached
and delivered into joint supardagi-when
case
came
for
determination
-S.H.O.
directed by SDM to ensure delivery of
possession
of
attached
property
to
Petitioner
-Court's
commissioner
appointed for delivering of possession.

W.P. disposed. (E-7)

## Text

712 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

31. The computer generated copy of
such order shall be self attested by the
counsel of the party concerned.

32. The concerned Court /Authority
/Official shall verify the authenticity of
such computerized copy of the order from
the
official
website
of
High
Court
Allahabad and shall make a declaration of
such verification in writing.

Court No. - 68

Case :- CRIMINAL REVISION No. -
2156 of 2016

Revisionist :- Mahboob And 3 Others

Opposite Party :- State of U.P. and
Another

Counsel for Revisionist :- Chandra
Prakash Singh

Counsel
for
Opposite
Party
:-
G.A.,Gaurav Kakkar

Hon'ble Samit Gopal,J.

In
Ref:
Criminal
Misc.
Recall
Application No. 9 of 2021

Recall Application is allowed.

For order, see order of date 29.01.2021
passed in separate sheet.
----------
(2021)02ILR A712
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2021

BEFORE

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

Crl. Misc. W.P. No. 14647 of 2020

Indrakali ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri D.K. Ojha

Counsel for the Respondents:
A.G.A.

Civil Law-Petition to direct respondent to
hand
over
possession
of
land
-to
Petitioner-in compliance to order of SDM
u/s 145 Cr.P.C.-property was attached
and delivered into joint supardagi-when
case
came
for
determination
-S.H.O.
directed by SDM to ensure delivery of
possession
of
attached
property
to
Petitioner
-Court's
commissioner
appointed for delivering of possession.

W.P. disposed. (E-7)

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

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 201011, 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
2 All. Indrakali Vs. State of U.P. & Ors.
713
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.
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 SubDivisional 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 SubDivisional
Magistrate's
order
dated
December
the
29th,
2015
that
his
predecessors too had passed several orders
to the same effect. A copy of the SubDivisional
Magistrate's
order
dated
29.12.2015 is on record as Annexure no.5
to the writ petition. This order of the SubDivisional 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
714 INDIAN LAW REPORTS ALLAHABAD SERIES
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 SubDivisional 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 SubDivisional 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 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
2 All. Indrakali Vs. State of U.P. & Ors.
715
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. 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. All Concerned persons including
the petitioner Indrakali, O.P. No. 1 S.D.M.
Meja Mrs. Renu Singh, Tahasildar Mrs.
716 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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 SubDivisional
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.
2 All. Yogeshwar Tyagi & Anr. Vs. State of U.P. & Ors.
717

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 SubDivisional 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 SubDivisional 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.
----------
(2021)02ILR A717
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2021

BEFORE

THE HON'BLE VIPIN CHANDRA DIXIT, J.

Crl. Misc. W.P. No. 17692 of 2020

Yogeshwar Tyagi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Santosh Kumar Shukla, Sri Amul Kumar
Tyagi
Counsel for the Respondents:
A.G.A.

Criminal Law-Order of externment passed
by the District Magistrate-only on the
basis of one criminal case-grounds in
appeal and affidavits of several village
pradhans
not
considered-impugned
quashed.

W.P. allowed. (E-7)

List of Cases cited:-

1. Imran alias Abdul Quddus Khan Vs St. of U.P.
& ors., Criminal Misc. Writ Petition No.7111 of
1999.

(Delivered by Hon'ble Vipin Chandra Dixit, J.)

1. The instant writ petition has been
filed by the petitioners challenging the
order dated 30.9.2020 passed by District
Magistrate, Hapur in Case No.796 of 2019
by which externment order has been passed
under Section 3/4 of Uttar Pradesh Control
of Goondas Act, 1970 (hereinafter referred
to as 'Act') against the petitioner no.1 and
the order dated 30.9.2020 passed by
District Magistrate, Hapur in Case No.795
of 2019 by which externment order has
been passed against petitioner no.2 as well
as order dated 21.10.2020 passed by
Commissioner, Meerut Division, Meerut in
Case No.938 of 2020 by which appeal filed
by petitioner no.1 was rejected and order
dated 21.10.2020 passed by Commissioner,
Meerut Division, Meerut in Case No.939 of
2020 by which appeal preferred by
petitioner no.2 was rejected.

2. The brief facts of the case are that
District Magistrate, Hapur had issued
notices dated 16.10.2019 under Section 3/4
of the Act to the petitioner no.1 in Case
No.796 of 2019 and to the petitioner no.2
in Case No.795 of 2019, calling upon them