KISHORI LAL Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) Petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India seeking writ of mandamus directing/commanding the District Magistrate, Senior Superintendent of Police and Sub Divisional Magistrate, Udham Singh Nagar to hand over the possession of Tin-shed residence No. 27-28, Transit Camp, Rudrapur, District Udham Singh Nagar to the petitioner after dis-possessing the respondent No. 5 therefrom. Perusal of application dated 07.07.2014, annexure No. 6 to the writ petition, would reveal that petitioner has moved one application before the Collector/District Magistrate, Udham Singh Nagar to the effect that petitioner is allottee of Tin-shed residence, in question, and when he was away to Delhi in connection with his service, respondent No. 5 has illegally occupied residential Tin-shed No. 27-28, Transit Camp, Rudrapur, District Udham Singh Nagar, therefore, request was made to the Collector to deliver the possession of the residential Tin-shed No. 27-28, Transit Camp, Rudrapur, District Udham Singh Nagar to the petitioner after dis-possessing the respondent No. 5 therefrom. Perusal of annexure No. 5 to the writ petition would reveal that on the application of the petitioner, learned Collector was pleased to direct the Deputy Collector to hold inquiry and in the inquiry it was found that respondent No. 5 is in illegal possession thereof.

(2.) In my considered opinion, none of the Executive Magistrate in administrative capacity is competent to evict unauthorised occupants from the allotted house and to hand over the house to the allottee. Ordinarily, oustee/allottee should approach the Civil Court for redressal of grievance or for asking the possession from the unauthorized occupant.

(3.) Executive Magistrate can direct restoration of the possession only if he initiates the proceedings under Section 145 Cr.P.C. finding apprehension of breach of peace and having found that other party has occupied the property, in question, illegally within six months prior to the issuance of the preliminary order by dispossessing the another party therefrom. Except this, Executive Magistrate has absolutely no other power to enter into the inter se dispute between two rival parties and to restore the possession in favour of one of the party.