MUSHIR AHMAD LARI Vs. STATE OF U P

JUDGEMENT

(1.) Heard the learned counsel for the petitioner Sri O. P. Srivastava and Sri Navneet Agarwal learned counsel appearing for respondents. The dispute appears to be a private dispute between the petitioner and opposite party no. 6 and may be against some other persons including Sri Khabar Mahmood Lari, Nihal Rizvi and Mohd. Sazid who are the subsequent purchasers. The petitioner has already filed a suit for declaration against Khabar Mohdmood Lari, Nihal Rizvi and certain other persons which suit has been dismissed for want of Court fee and second appeal is pending in the High Court. An application for initiating proceedings under Section 145 of the Code of Criminal Procedure with respect to the property in question appears also to have been moved by the petitioner wherein the Additional City Magistrate V, is proceeding with the matter but the grievance of the petitioner is that nothing has been made till date despite approaches being done to the concerned authority by the petitioner. A plea has been taken by the petitioner that in fact the police is assisting some persons to make construction but the petitioner allegedly does not know the names of those persons for whose benefit the police is assisting. Under the circumstances we feel that the petitioner should be relegated to the remedy in the appropriate forum where the parties may lead the evidence and also seek injunction against the persons who are allegedly forcibly raising construction over the land in question, in case any such case is established before the Court concerned. We find force in the arguments of the State that such disputed facts cannot be decided in writ jurisdiction and the petitioner be relegated to the appropriate forum. The learned counsel of the State also says that it is not clear that whether the police allegedly has taken possession forcibly or is raising construction for its own benefit, and if the plea of the petitioner is taken as correct even for argument sake, it would mean that the police is helping and assisting the private persons but in absence of such private persons being impleaded, the petition can neither be entertained nor any direction against such persons can be issued. We under the circumstances, dismiss the writ petition at this stage but give liberty to the petitioner to approach the appropriate forum, may be Civil Court or Criminal court. He is also at liberty to pursue the application under Section 145 of the Code of Criminal Procedure by moving application for expeditious proceedings in that regard. We do not find any reason that if such an application is moved, the Court concerned would not take cognizance of the matter in question without any unreasonable delay. This order has been passed without prejudice the rights of either parties with liberty to the petitioner to take recourse to any proceeding as may be permitted under law and in case the petitioner feels that the local police is interfering without any authority, the petitioner would also be at liberty to approach the higher authorities in the Police Department and if such approach is made, we again expect that the Superior Officers would act in accordance with law. Subject to aforesaid directions, the petition is dismissed. .