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

- **Citation:** (2022) 10 ILRA 141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-11
- **Case number:** Writ-C No. 20102 of 2022
- **Bench:** Mrs. Sunita Agarwal, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-v-state-of-u-p-ors-47696
- **Pages:** 7

## Headnote

A. Civil law - Dispute between two private
parties - Separation of judicial and
executive power - Duty of administrative
authorities - First appeal before the Court
of District Judge was pending - During the
course, the District Magistrate directed for
inspection of the property, in question -
Revenue authority forcibly disposed the
petitioner - Legality challenged - Held,
although the District Magistrate was fully
well aware about the dispute relating to
the boundary issue and pendency of the
civil proceedings between the parties
relating to the disputed land before the
civil
court,
he
has
overreached
his
jurisdiction by entering into the disputes
to be adjudicated by the revenue court or
the civil court - Held further, in our
Constitution, there is clear separation of
judicial
and
executive
powers
-
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.
(Para 20 and 26)
Writ petition disposed off. (E-1)

## Text

10 All. Vijay Vs. State of U.P. & Ors.
141
considering
the
observations
made
hereinabove.
----------
(2022) 10 ILRA 141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-C No. 20102 of 2022

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

Counsel for the Petitioner:
Sri Kamlesh Sharma

Counsel for the Respondents:
C.S.C., Sri Rahul Kumar Singh, Ms. Shreya
Gupta

A. Civil law - Dispute between two private
parties - Separation of judicial and
executive power - Duty of administrative
authorities - First appeal before the Court
of District Judge was pending - During the
course, the District Magistrate directed for
inspection of the property, in question -
Revenue authority forcibly disposed the
petitioner - Legality challenged - Held,
although the District Magistrate was fully
well aware about the dispute relating to
the boundary issue and pendency of the
civil proceedings between the parties
relating to the disputed land before the
civil
court,
he
has
overreached
his
jurisdiction by entering into the disputes
to be adjudicated by the revenue court or
the civil court - Held further, in our
Constitution, there is clear separation of
judicial
and
executive
powers
-
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.
(Para 20 and 26)
Writ petition disposed off. (E-1)
(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Sri Kamlesh Sharma,
learned counsel for the petitioner, Sri K.R.
Singh, learned Chief Standing Counsel
appearing for the State and Ms. Shreya
Gupta, learned counsel for the respondent
no. 7.

2. The petitioner has knocked the
doors of this Court under Article 226 of the
Constitution of India being aggrieved by
the action on the part of the Sub-Divisional
Magistrate, Tehsil - Kasimabad, District -
Ghazipur in foraying into the dispute
relating
to
private
property
on
the
application filed by the respondent no. 7
before the District Magistrate, Ghazipur
and as such has prayed, inter alia, for the
following reliefs:

(I) Issue a writ, order or direction
in the nature of mandamus directing the
respondent no. 3 to restore the land of the
petitioner in its previous position which
was dispossessed by he respondents during
pendency of the Appeal No. 11 of 2022
(Natthe & anothr Vs. Vikrama) pending
before the learned District Judge, Ghazipur.

(II) Issue a writ, order or
direction in the nature of mandamus
directing the respondent no. 1 to take
disciplinary action against the respondent
nos. 2 to 6 who have illegally dispossessed
the petitioner from his land without
adopting any legal procedure.

3. This Court while issuing notice in
the present writ petition vide interim order
dated
20.7.2022
has
expressed
its
142 INDIAN LAW REPORTS ALLAHABAD SERIES
reservation to the manner in which the
authorities got indulged in a private dispute
and knowingly or unknowingly side with
one of the contesting parties to the
litigation, resulting in filing of similar kinds
of writ petitions in the past. In the said
background, this Court had called upon the
District Magistrate, Ghazipur, and SubDivisional Magistrate, Tehsil - Kasimabad,
Ghazipur to file their respective personal
affidavits explaining as to how they had
entered into the dispute between private
parties relating to the immovable property
and that too during the pendency of the
proceedings between parties before the
Civil Court. This Court has also directed
the
Principal
Secretary
(Revenue),
Government of UP, Lucknow to take action
against the erring officers by initiating
disciplinary proceedings.

4. The personal affidavits of DM,
Ghazipur and SDM, Kasimabad, Ghazipur
have been filed and the same were taken on
record. Vide order dated 4.8.2022, the
explanation received by the Chief Standing
Counsel from the office of the Principal
Secretary, Government of UP, Lucknow
was also taken on record on the same date.

5. The facts of the present case lie
within a narrow compass. It is the
contention of the petitioner that he is
Bhumidhar of Araji No. 932 measuring
area 0.0900 hectare and respondent no. 7 is
Bhumidhar of Arjai No. 933-A situated at
village Kodari, Pargana - Pachotar, Tehsil -
Kasimadabad, District - Ghazipur. Since
both the Arajis are continguous, there is
ensuing dispute lead to filing of Original
Suit No. 679 of 2008 for permanent
injunction by respondent no. 7 before the
learned Additional Civil Judge (Junior
Division), Ghazipur against the petitioner.

6. It is the case of the petitioner that
the aforesaid suit was decided in favour of
respondent no. 7 on 4.1.2022 and aggrieved
therefrom the petitioner has preferred an
appeal bearing No. 11 of 2022 before the
District Judge, Ghazipur on 15.3.2022
which is still pending and, as such,
according to him the matter is sub judice.

7. It is further the case of the
petitioner that although the respondent no.
7 has neither filed execution of the
judgment / order dated 4.2.2022 of the
Additional Civil Judge (Junior Division),
Ghazipur, nor has filed any demarcation
proceedings under Section 24 of the UP
Revenue Code, 2006 during the pendency
of the civil appeal, but in order to short
circuit the entire civil proceedings, has filed
an application on 18.4.2022 before the
District
Magistrate,
Ghazipur
for
demarcation and possession of the land in
dispute.

8. It seems that on the said
application, the DM, Ghazipur had issued
direction to the SDM, Tehsil - Kasimabad,
District - Ghazipur, to make inquiry on the
spot. The spot inspection and measurement
of the plot in question then followed under
the instruction of the DM, Gahzipur
whereafter
reports
dated
26.4.2022,
3.5.2022 and 18.5.2022 were submitted by
the Revenue Inspector. Pursuant to the said
reports the petitioner contends that the
SDM, Kasimabad, Ghazipur alongwith
revenue authorities visited the spot on
26.5.2022 and directed both the contesting
parties to maintain status quo. However,
subsequently,
revenue
authorities
alongwith local police again visited the
spot on 11.6.2022 and allegedly put on
pressure upon the petitioner and after
obtaining his signatures had forcibly
10 All. Vijay Vs. State of U.P. & Ors.
143
dispossessed him and gave possession of
the disputed land to respondent no. 7.

9. After the said dispossession, the
petitioner has moved a representation to the
Superintendent of Police, Ghazipur on
13.6.2022 and the DM, Ghazipur on
14.6.2022, disputing his signatures on the
alleged spot memo dated 11.6.2022 and
complaining about the action on the part of
the local police and the revenue authorities.

10. This Court has taken pain in
narrating the facts in details to convince
itself and yet again this is the case wherein
the respondent-authorities have embarked
on the path of interjecting into the dispute
relating to the immovable property between
private person during the pendency of the
civil litigation, which has been deprecated
by this Court on several occasions.

11. This Court in the case of Jitendra
Bahadur Singh Vs. State of UP and
others in Civil Misc. Writ Petition No.
50033 of 2015 has directed the Principal
Secretary (Revenue) to take disciplinary
action against officers concerned, who
entered into the dispute between two
private parties in respect of immovable
property. Pursuant thereto, the Government
Order was issued on 16.10.2015 as
reminder to the District Magistrates in the
State of UP to desist from taking any action
in a dispute of immovable properties of
private persons and especially those where
matter is pending in the Civil Court. It
means that the orders issued by the State
Government are being ignored by the
Administrative Officers as the Court is
receiving petitions against such orders
almost on daily basis.

12. In a recent decision on 13.6.2022
in Civil Misc. Writ Petition No. 17951 of
2022 Shree Energy Developers Pvt Ltd.
Vs. State of UP ans 6 others), the
Principal Secretary, Government of UP,
Lucknow was directed to look into the
matter and to issue direction to the District
Magistrates of all the Districts in the State
of UP not to interfere into any kind of
private dispute relating to immovable
property.
The
Principal
Secretary,
Government of UP was directed to submit
action taken report to this Court through the
Registrar General of this Court. No such
report had been brought before us and,
moreover, this Court is flooded with this
kind of litigations where the District
Magistrate, Sub-Divisional Magistrates and
the police authorities on the complaint of
private parties are passing administrative
orders to deal with their disputes relating to
immovable property.

13. In the aforesaid compelling
circumstances,
this
Court
found
its
bounden
duty
to
call
upon
the
administrative authorities for explanation.
The respondent no. 2 in the affidavit filed
in his personal capacity has justified his act
by stating that before 14.6.2022 neither the
petitioner nor the respondent no. 7 ever
informed in writing or orally about the
pendency of any civil suit or appeal in Civil
Court.

14. He states that he came to know
about the civil suit / appeal when he
received the order dated 20.7.2022 passed
by this Court in the present writ petition. In
the first blush the justification seems to be
bonafide and this Court expected restitution
in the light of its earlier judgment and
Government Order as stated herein above.
However, it seems that the respondent no. 2
has taken deep inquiry into the matter,
wherein he has not only taken pain to
justify his stand but has also went a step
144 INDIAN LAW REPORTS ALLAHABAD SERIES
further in entering an arena shadowed with
dispute
essentially
belonging
to
the
competent civil or criminal courts.

15. Apparently, the respondent no. 7
had filed representation dated 18.4.2022 to
the respondent no. 2, wherein he claimed
seeking resolution of the boundary disputes
with the petitioner and as such had prayed
for intervention of the District Magistrate.
It is this representation which formed the
basis of the whole gamut of actions and
highhandedness of the respondent no. 2 to
dispossess the petitioner. This Court find
absolutely absurd as to how the respondent
no. 2 can claim to justify in his affidavit
that action under Section 129 of the UP
Revenue Code, 2006 can be initiated
against the petitioner, whereas foundation
seems to be essentially the boundary
dispute covered under Section 24 of UP
Revenue Code. Further this Court find it
unable to understand as to how the
respondent no. 2 has shown such teary
hurry in calling for a report on the said
representation given in 'Janata Darshan'.
Although the procedure for initiating
process under Section 24 or Section 29 of
the UP Revenue Code is altogether
different and governed under the UP
Revenue Code and the Rules framed
thereunder.

16. This Court is also convinced that
the respondent no. 2 has deliberately either
ignored the reports dated 26.4.2022 and
3.5.2022 of the revenue authorities or
proposal, remained silent about the same in
his affidavit, which sufficiently indicates
that the issue was relating to boundary
dispute and could be resolved in an
appropriate proceeding under Section 24 of
the UP Revenue Code and, in any case, the
reports in clear terms indicated that the
same
was
made
on
the
basis
of
consideration of the court cases pending
between the parties and as such the parties
were required to maintain status quo and all
further action in the matter was subject to
the resolution of the boundary dispute and
the decision of the competent court of law.

17. Although the respondent no. 2 has
mentioned
in
the
affidavit
that
the
application
dated
25.5.2022
of
the
respondent no. 7 also did not indicate about
any civil suit or order passed by the civil
court, but this Court find the said stand to
be meaningless in the presence of the
reports dated 26.4.2022 and 3.5.2022 of the
revenue authorities. There was no occasion
for the respondent no. 2 to claim that no
action was taken by the SDM concerned
and call for another report dated 31.5.2022
issuing fresh direction to take action, which
has led to the revenue officials going on the
spot
on
26.5.2022
and
ultimately
dispossessing the petitioner on 11.6.2022.
The explanation offered by respondent no.
2 is an effort to misguide this Court. The
appropriate cause of action for the District
Magistrate
was
to
direct
the
applicant/respondent no. 7 to approach the
competent revenue / civil court to seek
appropriate
remedy,
soon
after
the
presentation
of
the
application
on
18.4.2022 in 'Janta Darshan' as the dispute
was about an immovable property between
private persons. No explanation could be
given by him about this digression from the
settled legal principle at the first instance.

18. Secondly, even after the reports
were submitted by the revenue officials
dated 26.4.2022 and 3.5.2022 giving clear
opinion that the applicant/respondent no. 7
has to wait for the outcome of the litigation
pending in the Court, the respondent no. 2/
District Magistrate, Ghazipur entertained
another application on 25.5.2022 of the
10 All. Vijay Vs. State of U.P. & Ors.
145
respondent no. 7 and issued direction to
take action against a private person, the
petitioner herein.

19. We are afraid to accept that the
reports dated 26.4.2022 & 3.5.2022, which
were forwarded to the higher authorities,
did not come to the knowledge of the
District Magistrate. Had it been otherwise,
the District Magistrate/respondent no. 2,
instead of issuing fresh direction on the
application dated 25.5.2022, ought to have
sought reports from the SDM about the
action taken on his previous directions. In
any case, the justification of the respondent
no. 2/ District Magistrate of his action is
not convincing.

20. Thus, this Court finds that the
respondent no. 2 has proceeded in a
reckless
manner
resulting
in
the
dispossession of the petitioner in the first
instance and later seeking to take shelter
under Section 129 of the UP Revenue Code
in his personal affidavit filed in this Court.
In any case, this Court is unable to
appreciate the manner in which the
respondent no. 2 has conducted himself and
the proceedings in the present case as he
has sought to justify his highhandedness
under Section 129 of the UP Revenue
Code. Although he was fully well aware
about the dispute relating to the boundary
issue and pendency of the civil proceedings
between the parties relating to the disputed
land before the civil court. The respondent
no. 2 has overreached his jurisdiction by
entering into the disputes to be adjudicated
by the revenue court or the civil court.

21. There is another aspect of the
matter, the respondent no. 2 has after
receipt of the order dated 20.7.2022 passed
by this Court, promptly directed the SDM
concerned to make an inquiry and submit a
report relating to the allegations made by
the petitioner in his letter dated 14.6.2022.
The SDM concerned gave the report dated
30.7.2022 that the petitioner was not only
present on the spot on 11.6.2022 and the
demarcation was done in his presence but
also reported that respondent no. 7 was
given possession of the disputed land in the
presence of the petitioner and he had also
appended his signatures on the said alleged
spot memo. This Court find it difficult to
appreciate the teary hurry of the SDM and
especially when he was made aware about
the pendency of the Civil case between the
parties in the reports dated 26.4.2022 and
3.5.2022
submitted
by
the
revenue
officials. It was expected that once the
respondent no. 3 was made aware of the
pendency of the case in the Civil Court, he
ideally would have submitted his report to
the
District
Magistrate
instead
of
proceeding to dispossess the petitioner on
11.6.2022, despite having knowledge of the
private dispute relating to immovable
property between two private individuals
rather
than
justify
his
actions
and
highhandedness in his action on 11.6.2022.

22. Further, the respondent no 2 in his
affidavit has also tried to justify his action
by stating that the patta in the name of the
petitioner's mother was canceled vide order
dated 30.7.2014 and although the revision
filed by the petitioner before the Additional
Commissioner, Varanasi was allowed by
virtue of the order dated 2.11.2018 by
which the patta cancellation order was set
aside and the matter was remanded back to
the concerned authority for deciding afresh,
but as a Writ-C No. 5086 of 2019 has been
filed against the said revisional order
wherein an interim order staying the order
passed by the Additional Commissioner has
been passed on 20.2.2019, the patta
cancellation order stood revived. The said
146 INDIAN LAW REPORTS ALLAHABAD SERIES
petition is still pending consideration
before this Court and hence the action
taken by him under the shield of Section
129 of the Revenue Code is justified. Be
that as it may, this Court does not intend to
dwell into the merits of the claim in the
writ petition, which obviously would be
decided on its own merit, but the factum of
there being proceedings pending relating to
the immovable property before the Civil
Court
and
the
court
of
competent
jurisdiction cannot be negated.

23. The respondent no. 3 further
stated in his affidavit that after he joined as
SDM, Kasimabad only on 29.6.2022, an
order dated 14.7.20122 has been issued by
him to the effect that as the case is pending
before the Civil Court and further that with
respect to the map correction is pending
before the Additional District Magistrate
(LR), both the contesting parties should
maintain the status quo on the spot and may
not raise any new constructions on the spot.
Both
the
parties,
however,
started
quarreling on the spot and as such a
challani report under section 151, 107, 116
Cr.P.C. has been submitted. Both of the
parties also lodged NCR on 17.7.2022
against each other. The officer now posted
as the sub-division officer, however,
showed his ignorance about the previous
action taken in the matter.

24. The specific query of this Court in
the
order
dated
20.7.2022
seeking
explanation from the DM and SDM as to
how they entered into private dispute
relating to immovable property remained
unanswered in the affidavit of both the
officers.

25. From the aforesaid conspectus of
the fact, it is evident that the situation of
law and order that has arisen on the spot
due to the dispute involving immovable
property belonging to private individuals
could have been easily avoided, had the
respondent authorities observed restrained
and guided themselves by the orders passed
by this Court as well as the Government
Orders.

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
10 All. Kiran Pal & Ors. Vs. State of U.P. & Ors.
147
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.

31. Further, before parting with this
judgment, this Court issues strict warning to
the respondent no. 2 the officer posted as the
District Magistrate, Ghazipur for trying to
mislead this Court, to refrain from repeating
any such mistake in future. We call upon the
departmental head to issue a Warning to the
District Magistrate, Ghazipur to be kept in his
service record. A Warning be also issued to all
such erring officials, to be circulated widely,
so that they shall desist from repeating such
acts in future and that any such repetitive act
must entail disciplinary action against them as
per the Rules.

32. With the aforesaid observations and
directions, the writ petition stands disposed of.

33. No order as to cost.
----------
(2022) 10 ILRA 147
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Writ-C No. 20156 of 2022

Kiran Pal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners: