Dismissed

Durgvijay @ Durgesh v. State of U.P. and 3 Others

Allahabad HC3 Mar 2022A227/1310/2021

Case brief

AI extract

What is this about?

The High Court in civil revision dismissed a writ petition challenging the dismissal of a criminal private complaint under Section 203 Cr.P.C. The court held that the lower courts were not perverse in rejecting the complaint, as the petitioner failed to prove legal ownership of the land or disclose that the alleged demolition occurred on his own property rather than public land.

What did the court decide?

The writ petition seeking to set aside the orders dated 19.12.2020 and 3.10.2019 is dismissed.

Durgvijay @ Durgesh Vs State of U.P. and 3… — Civil Procedure and Limitation | Allahabad HC (2022)

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Court No. - 90

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Case :- MATTERS UNDER ARTICLE 227 No. - 1310 of 2021

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Petitioner :- Durgvijay @ Durgesh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Himanshu Srivastava Counsel for Respondent :- G.A.,Ashok Kumar Tiwari

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Hon'ble Mrs. Sadhna Rani (Thakur),J.

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Heard the learned counsel for the petitioner, the learned A.G.A. for the State and perused the record.

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Despite filing vakalatnama on behalf of the opp.party nos. 2,3 and 4, their learned counsel did not apear to argue the case.

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By filing of this writ petition, the petitioner has sought to set aside the order dated 19.12.2020 passed by the Additional District & Sessions Judge / F.T.C.-1, Kushinagar, placePadrauna in Criminal Revision No. 4/2020, Durgvijay @ Durgesh Vs. State of U.P. and others, and order dated 3.10.2019 passed by the Chief Judicial Magistrate, Padrauna in complaint case no. 224 of 2018, Durgvijay @ Durgesh Vs. Shiv Prasad Gpta and others, under sections 323, 504, 506, 427 I.P.C. police station Nebua Naurangiya District Kushinagar.

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Vide impugned order dated 3.10.2019, the learned Chief Judicial Magistrate, Padrauna dismissed the complaint of the petitioner under section 203 Cr.P.C. The learned Additional District & Sessions Judge / F.T.C.-1, Kushinagar at Padrauna has also dismissed the revision of the petitioner on 19.12.2020 against the order dated 3.10.2019 passed by learned Chief Judicial Magistrate, Kushinagar at Padrauna.

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As per the facts of he case, the petitioner filed a complaint on 12.4.2018 before the Chief Judicial Magistrate, Kushinagar at Padrauna under section 323, 504, 506, 427 I.P.C. against the opp. party nos. 2, 3 and 4 with the allegation that the complainant is the resident of Kotwa Kala police station Nebua Naurangiya District Kushinagar. On 18.1.2018 at about 2.30 p.m., the local Revenue Inspector Shiv Prasad Gupta, Lekhpal Kotwa Kala Anil Chauhan and Naib Tehsildar Radhey Shyam Upadhyay came along with their companions at the house of the complainant and abused him badly and contended that the complainant had illegally encroached upon the land. They had demolition order of Sub Divisional Magistrate concerned. When the complainant and his family members resisted and told that their suit under Section 67 U.P.R.C. 2006 is pending

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before Naib Tehsildar, Khadda and there is no such order for demolition but these officers with the help of JCB brought along with them demolished the house of the complainant. The complainant has become homeless and has suffered great loss. On the resistance, he was beaten up by these persons with kicks, fists and was also extended threat of life. When he supplied the Question- Answer obtained from the court that paper was also torn and thrown by the accused persons. The complainant got himself medically examined. His report was not written in the police station. Later on, he came to know that the accused persons themselves have registered a case crime no. 19 of 2018, State Vs. Durgesh, under sections 332, 352, 336, 504, 506 I.P.C. against the complainant. The complainant filed a writ petition in this regard and got the order of staying his arrest. As his report has not been written, so he has filed the present complaint.

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In support of his complaint, his statement under section 200 Cr.P.C. and his father's statement as p.w.-1 and the statement of Jitai son of Puran were recorded under section 202 Cr.P.C. and thereafter on hearing the submissions of the learned counsel for the complainant and perusing the record, the impugned order dated 3.10.2019 was passed by the Chief Judicial Magistrate Padrauna and the complaint of the complainant was dismissed under section 203 C.P.C. and the revision against the same is also dismissed on 19.12.2020 by the revisional court.

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The present petition has been filed with the submission that the opp. party nos. 2 to 4 on 18.1.2018 at 2.30 p.m. demolished his house situated at plot no. 1358 area 0.057 hect. They have also assaulted the petitioner, consequently, the petitioner suffered several injuries but the trial court by the impugned order has rejected his complaint under section 203 Cr.p.C. only on the ground that he has not brought on record the order of interim protection granted by this court in his favour in case crime no. 19 of 2018. This order is being filed in this court. The courts below by passing the impugned orders did not consider the dispute regarding plot no.1351 which is recorded as road in revenue record. The house of the petitioner is built on plot no. 1358 adjacent to this road. In the grab of the order passed by this court in Cr. Misc. Writ Petition No. 34354 of 2017, Jagdish Vs. State of U.P. and others, the opp. party nos. 2 to 4 along with police force have illegally demolished the house of the petitioner. In this writ petition, the petitioner was not a party and the order of this court dated 3.8.2017 was related to the order dated 2.4.2014 passed by Tehsildar Padrauna regarding plot no. 1351 above. His house has been illegally demolished. His first information report has not been registered and the application under section 156(3) Cr.P.C. was registered as

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complaint and that complaint too has been rejected under section 203 Cr.P.C. and the revision against the same has also been dismissed. Both the impugned orders are cryptic and not just and have been passed without using proper judicial mind. So prayer is made to set aside these orders.

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If we go through the complaint, the allegation is that the opp. parties have demolished the house of the complainant, but it is not mentioned in the complaint that over which plot number the complainant is in possession. Whether it is plot no. 1351 as is mentioned in case crime no. 19 of 2018 or it is over the plot no. 1358 area 0.057 hectare as is mentioned in the present writ petition and the ground of revision of the present petitioner. The number of the plot has not been disclosed by the complainant in complaint and it is nowhere mentioned by him in his complaint that he was in possession over his own property and not on the public pathway. The order dated 3.8.2017 passed by this High Court is mentioned in the first information report which is appended at page '59' of the paper book. It shows that the respondents in the petition no. 34354 of 2017 were directed to remove the illegal encroachment by respondent nos. 5 to 9 over the plot no. 1351 area 0.002 hectare. Though it is claimed by the petitioner that he was neither the party in the writ petition no. 34354 of 2017 nor in the proceedings under section 122-B Z.A.& L.R. Act, regarding the illegal encroachment over the land no. 1351 area 0.002 hectare. His name does not appear as a person illegally encroaching upon the same. The persons who are said to be illegally encroached are mentioned as Ibrahim, Habibullah, Jakir and Firoz all sons of Ishu. So according to the petitioner, he was not in illegal possession over the land in dispute. He was in possession of his own land no. 1358 measuring 0.057 hectare. Firstly, this fact that he had not illegally encroached upon the plot no. 1351 and he was in possession over his own property no. 1358 Miljumila has not been mentioned in the complaint. At the same time, no documents regarding the ownership of Araji No. 1358 Miljumila measuring 0.057 hectare have been filed by the petitioner to show his ownership or construction over that land.

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In the complaint there is no whisper of the fact that the complainant has not encroached the public land / pathway rather he is in possession over his own land Araji no. 1358 Miljumila. If we go through the statement of complainant and witness under section 200 and 202 Cr.P.C., there also it is not mentioned that the house of the complainant is constructed over his own land and not on public way. So if this fact is not mentioned in the complaint or the statements of the complainant and the witnesses then there was no chance before the court below to reach at the conclusion at his own that the

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complainant had not illegally encroached upon the land in dispute. So far as the fact that the complaint has been rejected on the sole ground that the order of this court was not filed before the court below is concerned though one of the reasons of dismissing the complaint under section 203 Cr.P.C. is that the order of this court was not filed there but at the same time it is also mentioned in the order of the lower court dated 3.10.2019 that there was no evidence before the court below that the complainant was in possession over his own land from which he has been forcefully dispossessed.

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Thus, from perusal of the complaint, it is clear that it is not mentioned therein that the complainant was in legal possession of his own land and he was not in illegal possession over the land in dispute. Nor this fact was mentioned in the statements of complainant or witnesses, so in absence of this plea, the order of the lower court cannot be said to be perverse or cryptic or unjust. If the person wants to seek relief, he has to certainly prove his ownership or the basis of his right over the property in dispute, but the same has not been done by the complainant, hence, the order of the lower court dated 3.10.2019 and 19.12.2020 cannot be said to be perverse.

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I find not reason to interfere with these orders passed by the courts below. The writ petition is liable to be dismissed and is hereby dismissed.

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Order Date :- 3.3.2022 Gss

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Digitally signed by GIRAJA SHANKER SHARMA Date: 2022.03.08 17:12:31 IST Reason: Location: High Court of Judicature at Allahabad

Durgvijay @ Durgesh v. State of U.P. and 3 Others

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Durgvijay @ Durgesh v. State of U.P. and 3 Others

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