Mithai Lal vs State Of U.P. Thru. Secy. Home ...

This writ petition under Article 226 of the Constitution of India has been filed with the following main prayer :-

"(i) to issue writ, order or direction in nature of writ of mandamus commanding the Station House Officer, P.S. Kotwali Dehat, Bahraich not to interfere in peaceful possession of the petitioner and not to demolish the construction in dispute in furtherance of the order dated 19.07.2019 passed by Sub Divisional magistrate, Bahraich in Case No. 4539 of 2017 Shafeeq Ahmad Vs. Insanul Haq pending revision No. 147 of 2019 arising out of the aforesaid order before the learned Sessions Judge, Bahraich in the interest of justice."

It is stated by learned counsel for the petitioner that infact against the petitioner proceedings under Section 133 Cr.P.C. were pending in the Court of Sub-Divisional Magistrate, Bahraich being Case No. 4539 of 2017 under Section 133 (Shafeeq Ahmad Vs. Insanul Haq and others). Allegation was that the opposite parties encroached the public pathway being Plot No.297, area 0.158 Hectare, situated in Village Shekhdahir, Pargana Fakharpur, Tehsi and District Bahraich and they have constructed shops on the said property. It is submitted by learned counsel for the petitioner that after hearing the parties the Sub Divisional Magistrate has allowed the application under Section 133 Cr.P.C. and has directed the S.H.O., Police Statioin Kotwali Dehat, Bahraich that the encroachment over the said pathway may be removed within 15 days.

It is submitted that infact the petitioner was granted a Patta of Plot No.270 which is adjacent to Plot No.297 and the shop of the petitioner are infact constructed on Plot No. 270 and not on Plot No. 297. The trial court on the wrong premise has concluded that the shops are constructed on Plot No. 297. It is further submitted by learned counsel for the petitioner that aggrieved by the order of Sub Divisional Magistrate dated 19.07.2019, petitioner preferred a revision being Criminal Revision No.148 of 2019 (Mithai Lal Vs. Shafiq Ahmad and others). The said revision has been admitted by the revisional court, i.e. Session Judge, Bahraich and 27.08.2019 is the date fixed for hearing on the revision. Along with the revision, the petitioner has moved an application for interim relief, i.e. 6B but the revisional court inspite of admitting the revision has refused to grant any interim relief and has fixed a further date for hearing on the interim relief application. On the other hand the police authorities are adamant to demolish the construction and in case the said construction is demolished the very purpose of filing the revision would be frustrated and the petitioner would suffer irreparable loss. It is a settled principle of law that in case appeal or revision is admitted the interim protection should be granted regarding the property in dispute.

In view of the aforementioned facts and circumstances of the case, this petition is finally disposed of with an assertion that till 27.08.2019 or till disposal of the interim relief application filed by the petitioner, status quo shall be maintained pertaining to the property in dispute. However, it is made clear that in case the petitioner lingers the hearing of revision, the trial court will be at liberty to vacate the interim order.

Disposed of.

Order Date :- 13.8.2019 ML/-