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

- **Citation:** (2024) 11 ILRA 487
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-11
- **Case number:** Writ C No. 14257 of 2024
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phoolmati-v-state-of-u-p-ors-51082
- **Pages:** 22

## Headnote

C.S.C., Karuna Srivastava, Santosh Kumar
Srivastava

Dispossession-impugned
notice
issued
mentioning that the petitioner is illegally occupying
the house and to hand over the possession to the
owner
of
the
house-Petitioner
has
been
dispossessed -from the possession memo, it is
apparent that the possession was taken by the
joint revenue and police team-Respondent No. 3Sub-Divisional Magistrate has no authority in law
to interfere with the possession of the petitioner at
the behest of private respondents- admittedly a
civil dispute pending - Respondent No. 3 acted
against the settled law of the land -prohibiting the
executive authorities from interfering with the
private disputes between the parties, especially,
where the suits are pending before the competent
court-respondents are directed to restore the
possession of the petitioner. (E-9)
List of Cases cited:

## Text

_Characters 0–39,844 of 75,098. This is a partial read: ask again with offset=39844 for what follows._

11 All. Phoolmati Vs. State of U.P. & Ors.
487
of U.P. Vs. Sher Singh and others), arising
out of Case Crime No.297 of 2012, Police
Station Tundla, District Firozabad against
the accused appellants is hereby set aside.

26.

The
accused-appellants,
namely, Sher Singh, Arjun Singh and Sanju
would be released, forthwith, unless they
are wanted in any other case, subject to
compliance of Section 437-A Cr.P.C./481
BNSS-2023.
----------
(2024) 11 ILRA 487
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2024
BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Writ C No. 14257 of 2024

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

Counsel for the Petitioner:
Azaz Ahmad

Counsel for the Respondents:
C.S.C., Karuna Srivastava, Santosh Kumar
Srivastava

Dispossession-impugned
notice
issued
mentioning that the petitioner is illegally occupying
the house and to hand over the possession to the
owner
of
the
house-Petitioner
has
been
dispossessed -from the possession memo, it is
apparent that the possession was taken by the
joint revenue and police team-Respondent No. 3Sub-Divisional Magistrate has no authority in law
to interfere with the possession of the petitioner at
the behest of private respondents- admittedly a
civil dispute pending - Respondent No. 3 acted
against the settled law of the land -prohibiting the
executive authorities from interfering with the
private disputes between the parties, especially,
where the suits are pending before the competent
court-respondents are directed to restore the
possession of the petitioner. (E-9)
List of Cases cited:

1. Jitendra Bahadur Singh Vs St. of U.P. & ors.-
Writ C No. 50033 of 2015

2. Devmani Vs St. of U.P. & ors. in Writ C No.
17017 of 2018 decided on 06.12.2018

3. Vijai Vs St. of U.P. & ors. in Writ C No. 20102
of 2022 decided on 11.08.2022

4. Mohammad Aijaz Vs St. of U.P. & ors. in Writ
C No. 19053 of 2022 on 27.07.2022

5. Rame Gowda (Dead) By Lrs. Vs M. Varadappa
Naidu (Dead) By Lrs. & anr.reported in (2004) 1
SCC 769

6. Gulab Devi Vs St. of U.P. (Allahabad; reported
in 2007 (2) All LJ 220

7. Bishan Das & ors. Vs The St. of U.P. & ors.;
AIR 1961 SC 1570

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Heard learned counsel for the
petitioner, learned Standing Counsel for the
State-respondents and perused the records.

2. This petition has been filed for
the following reliefs:-

 "(I) A writ order or direction in
the nature of certiorari to quash the
impugned order dated 25.03.2024 passed
by respondent No. 3.

(II) Issue a writ, order or
direction in the nature of Mandamus
directed the Respondent no.3 not to
dispossess to the petitioner from the house
In dispute."

3. By means of this writ petition,
the petitioner has challenged a notice dated
25.03.2024
issued
by
Sub-Divisional
Magistrate, Nizamabad, District Azamgarh-
488 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent No. 3 mentioning therein that
the petitioner is illegally occupying the
house situated at Gata No. 860 situated at
Village- Tahbarpur, District- Azamgarh. In
this regard earlier also oral and written
directions have been issued to petitioner to
vacate the premises and hand over the
possession to the owner but the same has
not been complied with. As a last warning
you are directed to vacate the premises in
dispute within one week and hand over the
possession to the owner of the house
otherwise, the premises will be vacated by
force and damages for the same be also
recovered.
Notice
dated
25.03.2024
impugned in the writ petition is quoted as
under:-

"कायाटलय उपखजलाखधकारी-खनजामािाद, आजमगढ़।
संख्या 145/ एस०िी० खदनांक 25 माचट, 2024
नोखिस

श्रीमती फूलमती पत्नी गोखिन्द खनिासी ग्राम निापुर
पर० ि तहसील खनजामािाद जनपद आजमगढ़।

श्री साधू पुत्र सुखचत ग्राम महूिार पर० ि तहसील
खनजामािाद आजमगढ़ द्वारा इस आशय का प्राथटना-पत्र प्रस्तुत खकया
गया है खक आपके द्वारा ग्राम तहिरपुर तहसील खनजामािाद में खस्थत
भूखमधरी गािा सं० 860 में िने मकान पर अिैध कब्जा खकया गया
है। उक्त प्रकरण में पूिट में आपको खलखित ि मौखिक रूप से कब्जा
िाली कर भिन स्िामी को सौपने हेतु कई िार खनदेखशत खकया गया
खकया जा चुका है। खकन्तु आपके द्वारा ऐसा नहीं खकया गया।

उक्त के िम में आपको अखन्तम रूप से सचेत खकया
जाता है खक, पत्र प्राखप्त के एक सप्ताह के अन्दर खििाखदत स्थल को
छोड़कर भिन स्िामी को सुपुदट कर दे अन्यथा की खस्थखत में िाली
कराया जायेगा और िाली कराने का हजाटना िसूल खकया जायेगा।
ह० अपठनीय
(सन्त रंजन)
उपखजलाखधकारी,

धिजामाबाद- आजमगढ़।"

4. Brief facts of the case as
mentioned in the writ petition are that Plot
No. 860 area 14 kari was recorded in the
name of one Chandarbali, who had two
daughters. In the year 1988, the father-inlaw of the petitioner paid Rs. 3500/- to
Chandarbali, the recorded tenure holder/
owner of the land for purchase of Plot No.
860, came in possession over the disputed
land and has constructed a house on the
said plot. The sale deed however, could not
be executed as Chandarbali died. After the
death of Chandarbali, name of respondent
Nos. 4 to 6 was mutated in the revenue
records over the plot in dispute as legal
heirs. Respondent Nos. 4 to 6 wanted to
dispossess the petitioner from the house in
question. The petitioner, therefore, filed
Original Suit No. 313 of 2024 (Phoolmati
Vs. Ramchander and others) for permanent
injunction in the court of Civil Judge
(Junior Division) Azamgarh on 15.03.2024
and the said suit is pending between the
parties. Respondent Nos. 4 to 6 moved
application
before
the
Commissioner
Azamgarh, Mandal Azamgarh with the
prayer that petitioner be directed to vacate
the house in dispute. Thereafter, the
respondent moved an application before
respondent No. 3 that petitioner be directed
to vacate the house in question situated at
Gata No. 860 and thereafter, the order
dated 25.03.2024 was passed by respondent
No. 3.

5. This Court by its previous order
dated 01.05.2024 stayed the order passed by the
respondent No. 3 dated 25.03.2024 and directed
the Sub Divisional Magistrate, Nizamabad,
District Azamgarh to file his personal affidavit
within a period of three weeks explaining that
how such an order has been passed by Sub
Divisional Magistrate, Nizamabad, DistrictAzamgarh and under which provision of law.
Order dated 01.05.2024 passed by this Court is
quoted as under:-

 "1. Heard learned Counsel for
the parties and perused the record.
11 All. Phoolmati Vs. State of U.P. & Ors.
489

2. The present writ petition has
been filed challenging the order dated
25.3.2024
passed
by
the
S.D.M.,
Nizamabad, District-Azamgarh. By the
order impugned, the S.D.M., Nizamabad,
District-Azamgarh
has
directed
the
petitioner to vacate the house in question
on a complaint made by one Sadhu.

3. Let the S.D.M., Nizamabad,
District-Azamgarh
filed
his
personal
affidavit within a period of three weeks
explaining that how such an order has been
passed by the S.D.M., Nizamabad, DistrictAzamgarh and under which provision of
law.

4. List this case after three weeks,
as fresh.

5. Until further order of this case, the
effect and operation of the order dated
25.3.2024
passed
by
the
S.D.M.,
Nizamabad,
District-Azamgarh
shall
remain stayed."

6. Thereafter, the personal affidavit
has been filed by respondent No. 3 on
20.05.2024. The petitioner has also filed a
reply to the personal affidavit filed by
respondent No. 3. In his personal affidavit,
respondent No. 3 has stated that petitioner
is neither a recorded owner of Plot No. 860
area 14 kari, situated in Village-Tahbarpur,
District- Azamgarh as per the revenue
records nor the petitioner has submitted any
documentary evidence as to the sale deed
executed in her favour. It has also been
stated by respondent No. 3 that respondent
Nos. 5 and 6 are recorded as bhumidhar
over Gata No. 860 area 0.044 hectares and
are co-owners of the property in dispute
and their share is 14 kari and on the said
area, they have constructed two rooms
house and the writ petitioner has occupied
one room illegally and is running her shop.
In this regard, the respondents moved
applications
dated
01.04.2021
and
03.02.2022
before
the
Additional
Commissioner,
Azamgarh
Division,
Azamgarh with the prayer that Sub
Divisional Magistrate, Nizamabad and the
Circle Officer, Tahbarpur be directed to get
the premises vacated in illegal possession
of the husband of the petitioner with
immediate effect and an F.I.R. may also be
lodged against the persons in illegal
possession. On the aforesaid applications,
the Additional Commissioner passed orders
on 01.04.2021 and 03.02.2022 which are
annexed as Annexure Nos. P.A.3 to the
personal affidavit filed by respondent No.
3. The order dated 01.04.2021 is quoted as
under:-
"अकतआवश्यक/
 समयिद्ध
कायाटलय आयुक्त आजमढ मडिल आजमगढ।

संख्या 1176 / जनसुनिाई 2021 खदनांक 01 अप्रैल
2021

1- उप खजलाखधकारी,

खनजामािाद, आजमगढ।

2- िेत्राखधकारी,

िूढनपुर, आजमगढ।

कृपया श्री साधु पुत्र सूखचत ग्राम महुिार थाना
तहिरपुर तहसील- खनजामािाद जनपद आजमगढ के प्रस्तुत
खशकायती प्राथटना पत्र खदनांक 01.04.2021 का आिलोकन
करें, खजसमें खशकायत द्वारा यह अिगत कराया गया है खक पुस्तैनी
मकान में खिपिी गोखिन्द पुत्र होरी आखद के अिैध कब्जा मकान को
िाली कराने का अनुरोध की गयी है।

अतः प्रश्नगत प्रकरण में स्थलीय जााँच करा लें यखद
जााँच में तथ्य सही पाये जाते है तो अखभलेिों के आधार पर
खनयमानुसार िाली कराते हुये कृत कायटिाही से इस कायाटलय को
खदनांक 25.01.2021 तक अिगत कराने का कष्ट करें।

संललन- यथोपरर।
ह० अपठनीय
(अखनल कुमार खमश्र)
अपर आयुक्त (प्रशासन)
आजमगढ मडिल,आजमगढ़"

Thereafter, another order dated
03.02.2022 was passed by Additional
Commissioner
(Judicial)
Azamgarh,
490 INDIAN LAW REPORTS ALLAHABAD SERIES
Mandal Azamgarh which is also quoted as
under:-

"अनुस्मारक पत्र-1
कार्ाालर् आर्ुक्त, आजमगढ़ मण्डल, आजमगढ़।

संख्या में मों/ खश०खल०-2022

 खदनांक 03 फरिरी,2022
1-उप खजलाखधकारी, खनजामािाद, आजमगढ़।
2- िेत्राखधकारी,
िूढ़नपुर, आजमगढ़।

----------------

कृपया इस कायाटलय के पत्र संख्या-1176/क०स०2020 खदनांक 01.04.2021 का सन्दभट ग्रहण करने का कष्ट
करें, खजसके द्वारा श्री साधू पुत्र सूखचत ग्राम-महुिार थाना-तहिरपुर
तहसील-खनजामािाद जनपदं-आजमगढ़ के प्राथटना पत्र खदनांक
05.12.2020 के सन्दभट में उखल्लखित तथ्यों की स्थलीय जॉच
करा लें, अखभलेिों के आधार पर आिश्यक कायटिाही कराने का
अपेिा की गयी थीं, परन्तु प्रश्नगत प्रकरण में िांखछत आख्या अनी
तक आपके स्तर से प्राप्त नहीं हुई है।

अतः आपसे पुनः अपेिा खकया जाता है खक इस
कायाटलय के पत्र संख्या-1176/ क०स० 2020 खदनांक
01.04.2021 द्वारा की गयी अपेिानुसार प्रकरण में कृत
कायटिाही से खदनांक 21-02-2022 तक इस कायाटलय को
अिगत कराने का कष्ट करें।
(हंसराज)
अपर आयुक्त (न्याखयक)
आजमगढ़ मडिल, आजमगढ़"

7. It has been further stated in the
personal affidavit that in view of directions
issued by the Additional Commissioner,
Azamgarh Mandal, Azamgarh, respondent
No. 3 has no option but to comply with the
order passed by the higher authority i.e.
Additional
Commissioner,
Azamgarh
Mandal, Azamgarh. It has been further
stated that after the spot inspection made by
respondent No. 3 along with Circle Officer
of the house in dispute, respondent No. 3
found illegal possession of the petitioner's
husband, namely, Govind Singh s/o Hori
and neither the petitioner's husband nor the
petitioner had submitted any documentary
evidence regarding purchase of the plot in
dispute from respondent Nos. 4 and 5 or
from
their
forefathers,
namely,
Chandarbali, though, they alleged that they
had purchased 14 kari of land in the year
1988 from Chandarbali. It has also been
stated in personal affidavit that after the
spot inspection by the revenue team, it was
found as Chandarbali was issueless, the
property devolved upon his real brother
Suchit and after the death of Suchit, his
share came to his sons namely, Sadhu,
respondent No. 5 and Dadhibal, successor
in interest of Dadhibal respondent No. 6
and their name were also recorded in the
revenue records. It is also stated that in
view of these facts, respondent No. 3 has
no option and in compliance of the order
passed by the Additional Commissioner,
has issued notice dated 25.03.2024 to the
petitioner. It has been further stated that in
view of these facts on 03.04.2024 the
property in dispute was got vacated from
the petitioner with consent of the petitioner
in presence of joint team of revenue as well
as police force in presence of the villagers.
Copy of the spot memo dated 03.04.2024 is
annexed as Annexure No. P.A. 4 to the
personal affidavit and the same is quoted as
under:-

"स्पाि मेमो

आज खदनांक 03/04/2024 को ग्राम- तहिरपुर
परगना ि तहसील-खनजामािाद जनपद-आजमगढ़ के खनिासी साधु
पुत्ल सूखचत द्वारा खदये गये खशकायती प्राथटना-पल के खनस्तारण में
पि-खिपि को श्रीमान् उपखजलाखधकारी महोदय द्वारा नोखिस जारी
कर उभय पिों को सुना गया। खजसके िम में खिपिी फूलमती पली
गोखिन्द द्वारा आिेदक की दुकान खस्थत गाता से०-860 खम
रकिा14 कड़ी पर अिैध रूप से कब्ज़ा पाया गया। कब्जे के
सम्िन्ध में कब्जेधारी कोई साक्ष्य प्रस्तुत नहीं कर पाई। उक्त के िांित्
फूलमती पत्नी गोखिन्द को मकान दुकान िाली करने हेतु एक सप्ताह
का समय खदया गया। खकन्तु समय सीमा िीत जाने के उपरात्त भी
कब्जा नहीं िाली खकया गया। अतएि आज खदनांक
11 All. Phoolmati Vs. State of U.P. & Ors.
491
03/04/2024 को राजस्ि ि पुखलस िल की संयुक्त िीम के
सहयोग से श्रीमान् नायि तहसीलदार की अध्यिता में िाली
कराकर अखिदक को दे खदया गया। मौके पर अगल िगल ि ग्राम के
उपखस्थत संम््ांत व्यखक्तयों के हस्तािर / खन० अ० कराया गया।
03-04-2024.
ले o म o - खिकापुर"

8. It has also been stated that
because of illegal possession of the
petitioner on the plot in dispute there was
an apprehension of riot and for avoiding the
same and to maintain law and order, with
the peaceful consent of the petitioner her
illegal possession was vacated by the
revenue team in pursuance of the notice
issued by respondent No. 3 in compliance
of
orders
passed
by
Additional
Commissioner.
The
stand
taken
by
respondent No. 3 is in paragraph Nos. 4 to
14 of the personal affidavit and the
aforesaid paragraphs are quoted as under:-

 "4.That, the petitioner is not
recorded owner of the plot no. 860 area 14
Kari situated in Village Tahbarpur, District
Azamgarh as per revenue record of fasli
year 1426-1431 nor she has submitted any
documentary
evidence
regarding
the
registered deed of the plot in dispute before
the respondent as alleged. In pursuance of
the
orders
dated
01.04.2021
and
03.02.2022 passed by the Additional
Commissioner,
(Judicial),
Azamgarh
Division, Azamgarh. For kind perusal of
this Hon'ble Court a true photocopy of the
katauni of fasli year 1426-1431 is being
filed herewith and marked as Annexure
No.P.A.-01 to this affidavit.
 5. That, it is noteworthy that the
respondent nos. 5 and 6 having the
transferable rights of gata no. 860 area
0.044 hect. wherein, they are co owner of
the property in dispute and their shares is
14 Kari and on that area they have
constructed 2 rooms house wherein, the
writ petitioner has occupied one illegally
and running her shop as alleged by the
respondent nos. 5 and 6 and regarding its
respondent no. 5 have made the application
on 01.04.2021 and 03.02.2022 before the
Additional
Commissioner,
Azamgarh
Division, Azamgarh for vacating the house
illegally occupied by the husband of the
petitioner namely Govind son of Hori. For
kind perusal of this Hon'ble Court a true
photocopy
of
the
application
dated
01.04.2021 and 03.02.2022 are being
collectively filed herewith and marked
ANNEXURE NO.P.A. 02 to this affidavit.

6. That, in pursuance of the
aforesaid
applications
made
by
the
respondent no. 5 the Commissioner, had
passed the order on 01.04.2021 and
03.02.2022 respectively in Jan Sunwai and
passed the order and directing to the
deponent/respondent no.3 Sub Divisional
Magistrate, Nizamabad, District Azamgarh
as well as Circle officer, Tahbpur, District
Azamgarh to make an enquiry regarding
the illegal possession of one Govind son of
Hori of the house of the applicant/
respondent no. 5 and after the spot
inspection with the fact as alleged by the
respondent no. 5 was found to be correct
and on consent and Vancestor of petitioner
the proceeding for vacating of the house in
dispute was to be initiated according with
the law. For kind perusal of this Hon'ble
Court a true photocopy of the orders dated
01.04.2021
03.02.2022
are
being
collectively and filed herewith and marked
as ANNEXURE NO.P.A. 03 to this
affidavit.

7. That, in pursuance of the
aforesaid
direction
passed
by
the
Commissioner,
Azamgarh
Division,
Azamgarh the deponent/ respondent no. 3
had no option except to comply the order of
his
higher
authority
Commissioner,
Azamgarh Division, Azamgarh.
492 INDIAN LAW REPORTS ALLAHABAD SERIES

8. That, the deponent after spot
inspection alongwith circle officer on the
house in dispute situated at gata no. 860
area
14
Kari
was
found
illegally
encroached by the petitioner husband
namely Govind son of Hori as neither the
petitioner husband had submitted any
documentary
evidence
regarding
purchasing of the plot in dispute from the
respondent nos. 4 and 5 of Rs. 3500/- from
the fore father of the respondents namely
Chandrabali nor any registered deed were
produced by the husband of the petitioner
or by the petitioner as alleged and as per
record the respondent nos. 5 and 6 were
owner of honorarium dispute.

9. That,it is allged by the
petitioner that her husband namely Govind
had purchased 14 Kari area of the plot no.
860 in year 1988 from the owner of the plot
in dispute namely Chandrabali by paying
Rs.
3500/-
but
unfortunately
the
Chandrabali was died and registry could
not be executed which is not based on
record.

10. That, after the spot inspection
by the revenue SIO team it was found that
Chandrabali had one real brother namely
Suchit and Chandrabali was issue less and
after
his
death,
the
share
of
the
Chandrabali of plot in dispute was came in
favour of his brother Suchit and after death
of Suchit his son namely Sadhu and
Dadhivar name were record in revenue
record without any objection of the
petitioner husband. As such from the
record the respondent nos. 5 and 6 were
found to be owner of the plot in dispute
which is evident from the record.

11. That, on account of the above
aforesaid
facts
the
respondent
no.
3/deponent had no option except in
compliance
of
the
order
of
the
Commissioner,
Azamgarh
Division,
Azamgarh had issued the notice dated
25.03.2024 in good faith without any
intention of any law and jurisdiction vested
in him.

12.
That,
03.04.2024
on
consequence of the order dated 01.04.2021
and
03.02.2022
passed
by
the
Commissioner,
Azamgarh
Division,
Azamgarh
having
found
the
illegal
possession of the husband of the petitioner
on the gata no. 860 of area 14 Kari which
was illegally encroached by him without
having any documentary evidence of her
ownership/title of the plot in dispute, same
was vacated by the petitioner/husband of
the petitioner with their own consent in
presence of the joint team of the revenue as
well as police force in presence of the
aforesaid Gram Sabha villagers. For kind
perusal of this Hon'ble Court a true
photocopy of the Spot memo dated
03.04.2024 is being filed herewith and
marked as Annexure No.P.A.-4 to this
affidavit.

13. That, since the aforesaid area
was vacated by the petitioner herself on
03.04.2024 with her consent as admitted
that she is in illegal possession in house in
dispute in presence of the villagers and
same was handed over by her to the
respondent nos. 5 and 6 but the petitioner
canceling this facts after vacating the plot
in dispute. The petitioner has been filed
Civil Suit No. 313 of 2024 (Phoolmati Vs.
Ramchandra and others), on 15.03.2024
before the Civil judge (J.D.) Azamgarh
raising aforesaid grievances as raised in
the writ petition which is still pending as
admitted by the petitioner herself in writ
petition. As such the grievances of the
petitioner
is
sub
judice
before
the
competent court hence the writ petition was
not maintainable in eyes of law.

14. That, it is noteworthy that
since on account of the illegal possession of
the petitioner on the plot in dispute there
11 All. Phoolmati Vs. State of U.P. & Ors.
493
was an apprehension to commit the riot
between the parties. On account of which
avoiding the apprehension and maintaining
the law and order as remain peaceful on
the consent of the petitioner her illegal
encroachment vacated by was the revenue
team in pursuance rsuance of the aforesaid
notice issued by the deponent/respondent
no. 3. In good faith of compliance of the
order of Commissioner. However, if any
error or omission is found to be committed
without due process of law by the deponent
as found by this Hon'ble Court that was
done in the good faith and in compliance of
the order of the his higher authority as
stated above without any mela fide
intention against the petitioner as alleged
and in obedience of the order passed by the
higher authority Commissioner, Azamgarh
Division, Azamgarh."

9. In response to the personal
affidavit filed by respondent No. 3, a
counter affidavit has been filed by the
petitioner wherein she has reiterated the
averments made in the writ petition and has
categorically denied that the petitioner has
vacated the house in dispute by herself on
03.04.2024.

10. In the meantime, a counter
affidavit has been filed on behalf of
respondent Nos. 4, 5 and 6 along with stay
vacation application to which a rejoinder
affidavit has been filed by counsel for the
petitioner. Apart from denying the claim of
the petitioner in the counter affidavit and
claiming their right to the property in
dispute, the answering respondents have
stated in paragraph No. 5 of the counter
affidavit that respondent No. 5 Sadhu has
given one room to the petitioner for
running shop of green vegetables in the
year 2014. In paragraph No. 6, it has also
been stated by the answering respondents
that the petitioner is in unauthorized
occupant of the shop in dispute without
paying rent to respondent No. 5. In the
counter affidavit, the respondents have
admitted the pendency of the civil suit filed
by the petitioner. In paragraph No. 12 of
the counter affidavit, it has been stated
"petitioner not vacated the room/ shop in
dispute
therefore,
the
petitioner
was
dispossessed by the Revenue Authorities on
03.04.2024."
In
paragraph
No.
12,
"dispossessed by the revenue authority" has
been scored off and in its place "vacated
the room herself" has been written by pen
and initials has also been put over the same.

11. In the rejoinder affidavit, the
petitioner reiterated its claim and has
denied
the
claim
of
the
answering
respondents. She has also denied that she
has vacated the premises on own and rather
it has been stated that the petitioner was
dispossessed by the revenue authorities.

12. From the perusal of the case as
has been brought before this Court by
means of the affidavits, it is admitted
position that petitioner is in possession over
the property in dispute and a civil suit is
pending between the rival parties. As per
the petitioner, the petitioner is in possession
since 1988 whereas as per the respondents,
the petitioner has been put in possession as
tenant by respondent No. 5 in the year
2014.

13. Be that as it may, this fact is
crystal clear that the petitioner is in settled
possession over the property in dispute and
a civil litigation is also pending before the
Civil Judge, Junior Division, which is
admitted to both the parties.

14.
Learned
counsel
for
the
petitioners submitted that once there is title
494 INDIAN LAW REPORTS ALLAHABAD SERIES
dispute as to the property in dispute and the
matter is pending before the civil court,
respondent No. 3 has no jurisdiction to
interfere with the possession of the
petitioner by means of a administrative
order without having any force of law. In
this regard the petitioner has relied upon
judgment of this Court dated 04.09.2015
passed in Writ C No. 50033 of 2015
(Jitendra Bahadur Singh Vs. State of
U.P. and 5 others), wherein Division
Bench of this Court has passed the
following order:-

 "Heard learned counsel for the
parties and perused the record.

This Court has repeatedly held
that the police and administrative authority
must not interfere in inter se dispute
between the two private parties in respect
of immovable properties.

We have been informed that a
Government Order has also been issued for
the same purpose. It appears that the SubDivisional Magistrate, Mariahu, District
Jaunpur has no respect to the orders of the
Court or to the Government Order. He has
issued the order for delivery of possession
under the order impugned and thereafter
he has issued another order for possession
to be delivered and a report be submitted
for compliance thereof.

We, therefore, direct that the
Principal Secretary, Revenue to take
disciplinary action against the officer
concerned and to ensure that in future, no
such order are issued. No leniency is to be
shown.

A copy of this order may be
forwarded to the respondent no.1 by the
Standing Counsel. within a week from
today and the action taken report be
submitted before this Court positively by
18.9.2015.

Put up on 18.9.2015."
15.
Learned
counsel
for
the
petitioner further relied upon judgment of
this Court in case of Devmani Vs. State of
U.P. and 6 others in Writ C No. 17017 of
2018 decided on 06.12.2018 wherein this
Court has held as under:-

 "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."

16. In case of Vijai Vs. State of
U.P. and 6 others in Writ C No. 20102 of
2022 decided on 11.08.2022, this Court
has held as under in paragraph Nos. 26, 27,
28, 29, 30:-
11 All. Phoolmati Vs. State of U.P. & Ors.
495
 "26. In our Constitution, there is
clear separation of judicial and executive
powers. The civil disputes are to be decided
by the Civil Court and unsuccessful litigant
has a right to file an appeal. The
Administrative Officials cannot enter into
any such dispute in exercise of the power
conferred on them under the provisions of
Cr.P.C. and the Revenue Code to fill in the
gap and pass executive orders which
explicitly belongs to the realms of Civil
Court or the revenue court respectively.
The due process of law has to be followed
in all respect and the executive authorities
are not supposed to usurp the the power
bestowed on the civil / revenue courts as it
would not only be exercise of excessive
jurisdiction not permissible under law but
would also lead to overlapping jurisdiction
which is against the tenets of the basic
structure of our Constitution.

27. The present case is a glaring
example of encroaching and over reaching
the realm of the Civil Court on the part of
the respondent-authorities. Although the
respondent no. 2 has taken a stand that he
was not aware of the pendency of the civil
appeal, but the action of the respondent no.
2 even after submission of the reports by
the revenue officials does not seem
convincing to this Court from any angle.
The authorities concerned ought not to
have exercised administrative power for
entering into the disputed property and
issue order for delivery of possession etc
against one or the other party. This
primarily should be left to the competent
court of civil jurisdiction.

28. The very issuance of advisory
by the Government of UP dated 3.8.2022
vide No. 1291/EK-2022/9-RA-9 pursuant to
the Government order dated 16.10.2015 is
evident
of
the
fact
that
even
the
Government of UP is not oblivious to the
exercise of excessive administrative powers
by the execution in civil dispute relating to
immovable properties between private
individuals. It is high time that the said
advisory acts like yet another reminder to
all the executive authorities to desist from
taking any action in a dispute relating to
immovable properties of private persons
and especially when the matter is pending
in a civil court as in the present case.

29. Having noted the effort of the
Government of UP in issuing the aforesaid
advisory, this Court further expects that the
Government
should
also
prescribe
consequential effect against the erring
officers and provide for remedial steps by
framing high level committee of senior
officers at the Government level, which
should include the Revenue Secretary so
that not only accountability can be fixed
but a redressal forum be available to the
victims and this Court is not flooded with
similar kinds of litigations in future.

30. For all above reasons, we are
inclined to allow this writ petition. This
court without expressing any view on the
merits of the dispute pending before the
competent courts and in the peculiar facts
and circumstances of the present case
directs the District Magistrate, Ghazipur
and the SDM, Tehsil - Kasimabad, District
- Ghazipur to ensure that the parties are
restored possession as was existed prior to
11.6.2022 in order to bring them to their
original position. Needless to say that such
arrangement shall be subject to the out
come of the civil appeal and other
litigations pending between the petitioner
and respondent no. 7. We clarify that we
have not expressed anything on the merit of
the contention of the parties, which may be
permissible to the parties as per law and as
such we did not find any reason to issue
notice to respondent no. 7 before passing
this order."
496 INDIAN LAW REPORTS ALLAHABAD SERIES
17. In case of Mohammad Aijaz
Vs. State of U.P. and 3 others in Writ C
No. 19053 of
2022 on 27.07.2022
following order was passed:-

 "Sri Ashwani Kumar Pathak,
learned Advocate has put in appearance on
behalf of the respondent no.4.

The petitioner herein is aggrieved
by the order dated 25.06.2022 passed by
the Additional District Magistrate (City),
Gorakhpur whereby on an application
moved by the respondent no.4, direction
has been issued to the Lekhpal to make
inquiry so that no illegal construction
would be raised by the petitioner herein.
The order impugned also noted that the
matter is pending before the court.

It is argued by Sri Anoop Trivedi,
learned Senior Counsel assisted by Sri
Nitin Chandra Mishra, learned counsel for
the petitioner that the petitioner herein is
raising construction after getting a map
sanctioned
from
the
concerned
development authority. Moreover, from the
application moved by the respondent no.4
on 25.06.2022 itself, it was clear that the
matter related to the property in question
was pending before the Civil Court.

In the said scenario, there was no
occasion for the respondent no.3 i.e. the
Additional District Magistrate, Gorakhpur,
District Gorakhpur to enter into the
dispute. The proper course of action for the
respondent no.3 was to relegate the
applicant i.e. the respondent no.4 herein to
approach the Civil Court.

Considering these submissions,
having perused the application moved by
the respondent no.4 and the order passed
by the Additional District Magistrate
(City),
Gorakhpur
thereon,
we
find
substance in the submissions of the learned
Senior Counsel for the petitioner.

We are facing influx of such writ
petitions in this Court adding to our docket,
where the administrative authorities are
passing orders casually in private disputes
relating to immovable properties and
passing orders in favour of one or the other
parties even where the disputes are
pending before the competent court of law.

By the orders dated 30.06.2022 in
Writ-C No.-17951 of 2022 (Shree Energy
Developers Pvt. Ltd. Vs. State of U.P. and 6
others) and 20.07.2022 in Writ-C No.-
20102 of 2022 (Vijai Vs. State Of U.P. And
6 Others), we had directed the Principal
Secretary, Government of U.P., Lucknow
and the Principal Secretary (Revenue),
Government
of
U.P.,
Lucknow;
respectively, to issue necessary instructions
to the administrative authorities and to take
remedial measures to curb this tendency.
We have also directed the Principal
Secretary (Revenue), Government of U.P.,
Lucknow to initiate disciplinary action
against the erring officials.

Noticing the aforesaid orders, we
direct the learned Standing Counsel to seek
instructions from the Principal Secretary
(Revenue), Government of U.P., Lucknow
to intimate as to whether any remedial
steps have been by him to curb such an
approach of the administrative officials
working under his administration and
jurisdiction. Written instruction be placed
before the Court on the next date fixed.

Let
the
Principal
Secretary,
Government of U.P., Lucknow shall also
file his response to bring before the Court
the steps taken by him to restrain the
administrative authorities from causally
entering into any private dispute relating to
the immoveable property on the application
of one or the other warring faction on one
or other pretext.

This order be intimated to the
Principal Secretary, Government of U.P.,
11 All. Phoolmati Vs. State of U.P. & Ors.
497
Lucknow, by the learned Chief Standing
Counsel within 24 hours.

Let this matter be posted in the
additional cause list on 11.08.2022.

On the next date, the affidavit of
the Principal Secretary, Government of
U.P., Lucknow shall be filed in compliance
of this order.

By the next date fixed, the
administrative authorities are restrained
from entering into the property-in-question
in any manner."

18.
Learned
counsel
for
the
petitioner further relied upon a Government
order dated 01.12.2014 issued by the Chief
Secretary, Government of Uttar Pradesh,
which is quoted as under:-

"संख्या-491ररट / छिः-पु-3-2014-2(94)पी /2014
प्रेषक,
आलोक रंजन,
मुख्य सकचव,
उत्तर प्रिेश शासन
सेवा में,
समस्त कजला मैकजस्रेट, उ०प्र०,
समस्त वररष्ठ पुकलस अधीक्षक / पुकलस अधीक्षक,
उ०प्र० ।
गृह (पुकलस) अनुभाग-3

लखनऊ : किनांक : 01 किसम्बर, 2014
कवषय :- कनजी पक्षों (private parties) के मध्य
अचल सम्पकत्त कववाि से संबंकधत प्रकरणों पर प्रशासकनक
अकधकाररयों द्वारा कवकध अनुसार काययवाही ककये जाने के सम्बन्ध में।
महोिय,
यह संज्ञान में आया है कक कनजी पक्षों (private
parties) के मध्य अंचल सम्पकत्त के कववािों के ककतपय प्रकरणों,
जो सम्बकन्धत न्यायालय में लकम्बत हैं / कवचाराधीन थे तथा कजनमें
न्यायालय द्वारा अंतररम आिेश पाररत है, में प्रशासकनक एवं पुकलस
अकधकाररयों द्वारा अपने क्षेत्राकधकार के परे जाकर आिेश पाररत कर
किया गया है तथा कब्जा हस्तान्तरण भी कर किया गया है। इस प्रकार
से कनणय कलये जाने पर मा० उच्च न्यायालय द्वारा अत्यन्त रोष व्यक्त
ककया गया है। इस सम्बन्ध में मा० न्यायालय ने ररट याकचका संख्या
- 43827 / 2014 सईि खान बनाम् उ०प्र० राज्य व 03 अन्य
(जनपि बरेली) के प्रकरण. में किनांक 3-11-2014 को कनम्नवत्
आवेश पाररत ककया है :

Additional City Magistrate in his
Affidavit has referred to the Government
Orders dated 15.5.2012, 30.4.2013 and
7.6.2014 as the source of power for
entering into the dispute between two
private. persons in respect of immovable
property and in interpreting the interim
order passed by the Civil Court.

Prima facie, we are of the
opinion
that
such
reading
of
the
Government Order by the Additional City
Magistrate
is
wholly
perverse.
A
Government Order deals with the removal
of difficulties of citizens of this country,
which they face in the matter of getting
their work done in various government
Organizations/Departments
of
Uttar
Pradesh. These Government Orders do not
authorize any authority of the state to enter
into any private dispute of two persons.

Learned Standing Counsel is
directed to obtain instructions from Chief
Secretary, Government of U.P., as to
whether the Additional City Magistrate in
the garb of Government Orders referred to
above is permitted to enter into private
disputes during the "Janata Darshan" etc.
or not."

2- इसके अकतररक्त एक अन्य ररट याकचका संख्या-
55049 / 2014 गौरव यािव बनाम् ककमश्नर, कानपुर भडडल
एवं 04 अन्य के प्रकरण में भी मा० न्यायालय द्वारा किनांक 1410-2014 को इसी प्रकार रोष प्रकट ककया गया है।

3- जन समस्याओं का कनराकरण शासन की सवोच्च
प्राथकमकता है, कजसके कलए समय-समय पर किशा-कनिेश भी कनगयत
ककये गये हैं। इस सम्बन्ध में यह स्पि ककया जाता है कक कनजी
व्यकक्तयों के मध्य अचल सम्पकत्त के कववाि सम्बन्धी प्रकरण, जो
िीवानी न्यायालय मा० उच्च न्यायालय अथवा अन्य न्यायालयों में
लकम्बत हैं या कजनमें मा० न्यायालय द्वारा अंतररम आिेश पाररत हैं,
में प्रशासकनक एवं पुकलस अकधकाररयों द्वारा कवकध अनुसार ही
काययवाही की जायेगी और क्षेत्राकधकार से परे कोई आवेश नहीं किया
498 INDIAN LAW REPORTS ALLAHABAD SERIES
जायेगा । िीवानी प्रकृकत के प्रकरणों में अकधकाररता युक्त न्यायालय
ही आिेश पाररत करने में सक्षम है।

4- स्पि ककया जाता है कक ऐसे प्रकरणों में शांकत
व्यवस्था बनाये रखने का िाकयत्व प्रशासकनक एवं पुकलस
अकधकाररयों पर ही है। यह भी स्पि ककया जाता है कक न्यायालय के
आिेशों का सम्यक् अनुपालन कराना सुकनकश्चत ककया जाय, ककन्तु
सरकारी / सावयजकनक सम्पकत्त पर अवैध कब्जा, अकतिमण या
उसका िुरूपयोग किाकप नहीं होने किया जायेगा । यह सुकनकश्चत करने
का िाकयत्व प्रशासकनक एवं पुकलस अकधकाररयों व अन्य कवभागीय
अकधकाररयों का होगा।

5- उक्त आिेशों का कडाई से अनुपालन सुकनकश्चत
ककया जाय।"

Learned counsel for the petitioner
further relied upon another order dated
16.09.2015 has been issued by the Chief
Secretary, Government of Uttar Pradesh in
this regard and the same is quoted as
under:-

"प्रेषक,
सुरेश चन्रा,
प्रमुि सखचि,
उ०प्र०शासन।
सेिा में,
1. समस्त मडिलायुक्त,
उत्तर प्रदेश।
2. समस्त खजला मखजस्रेि / कलेविर,
उत्तर प्रदेश।
राजस्ि अनुभाग-9

लिनऊः खदनांक 16 खसतम्िर, 2015

खिषयः ररि याखचका (सी) संख्या 50033 आफ 2015
खजतेन्र िहादुर खसंह िनाम उ०प्र० राज्य ि अन्य में मा० उच्च
न्यायालय, उ०प्र० इलाहािाद द्वारा पाररत आदेश खदनांक
04.09.2015 के अनुपालन के संिंध में।

महोदय,

मा० उच्च न्यायालय द्वारा ररि याखचका संख्या- 50033
आफ 2015 खजतेन्र िहादुर खसंह िनाम राज्य ि अन्य में खदनांक
04.09.2015 को खनम्न आदेश पाररत खकये गये हैं:-

"Heard learned counsel for the
parties and perused the record. This Court
has repeatedly held that the police and
administrative authority must not interfere
in inter se dispute between the two private
parties in respect of immovable properties.

We have been informed that a
Government Order has also been issued for
the same purpose. It appears that the SubDivisional Magistrate, Mariahu, District
Jaunpur has no respect to the orders of the
Court or to the Government Order. He has
issued the order for delivery of possession
under the order impugned and thereafter
he has issued another order for possession
to be delivered and a report be submitted
for compliance thereof.

We, therefore, direct that the
Principal Secretary, Revenue to take
disciplinary action against the officer
concerned and to ensure that in future, no
such order are issued. No leniency is to be
shown.

A copy of this order may be
forwarded to the respondent no.1 by the
Standing Counsel. within a week from
today and the action taken report be
submitted before this Court positively by
18.9.2015."