KAUSHALYA DEVI Vs. STATE OF HARYANA

JUDGEMENT

(1.) THROUGH this judgment, we would dispose of CWPs No. 5912 of 1996 and 19427 of 1996 as the relief claimed therein is similar. According to the averments made by Smt. Kaushlaya Devi (petitioner in CWP No. 19427/96), she was tenant in cultivating possession of agricultural land measuring 28 acres in village Kanina District Jind since the year 1973 under Daljit Singh, Gurjit Singh etc. who were the owners of the land. Shri M.S. Malik respondent was posted as Senior Superintendent of Police at Bhiwani. He was pinning his eyes on this land. He purchased benami the aforesaid land in her possession as tenant. In the sale deed executed in the year 1993, which was a benami transaction, 1/4th share was shown in the name of his father, 1/4th share was shown in the name of his mother and 1/2 share was shown in the name of one Prem. Prem died on 15.9.1986. Prem's widow Smt. Mukhtiari suffered decree in favour of Smt. Krishna wife of Sh. M.S. Malik on 4.11.1986. On 5.11.1987, minor son of Prem sold rest of the land in favour of Birkha Ram and Ram Niwas. Inheritance of Prem devolved upon Mukhtiari etc. Annexure P1 is the mutation of inheritance. They suffered decree dated 6.8.1988 in favour of Smt. Krishna wife of Sh. M.S. Malik respondent No. 2 and Smt. Santosh sister-in-law of respondent No. 2 i.e. brother's wife. Aforesaid transactions were given effect to in the revenue record and mutations were entered and sanctioned. As Sh. Malik was beneficiary of the aforesaid transactions relating to land measuring 28 acres of her tenancy, he started putting pressure upon her to vacate the land. She filed suit for possession through pre-emption on 4.4.1983 against Mr. Malik's father and mother. She also filed suit for permanent injunction against Smt. Rukmani on 5.3.1983 in the court of Senior Sub Judge in which temporary injunction was granted in her favour restraining Smt. Rukmani from interfering in her possession. On 22.4.1983, Mr. Malik sent one Hazari who entered her fields. He had altercation with her servant Parkasha and her husband. Hazari got case registered against Parkasha and her husband on 22.4.1983. On 30.4.1983, Mr. Malik respondent sent police personnel from Bhiwani for the removal of crops lying in her fields. Those police personnel removed the crops. She lodged FIR No. 70 at PS Sadar, Jind under sections 447/379 on 30.4.1983/1.5.1983 against Hazari. ASI Ghisa Ram of PS Sadar Jind came to the fields for investigation and found ASI Mohinder Singh of PS Bhiwani in the fields. She got photograph of ASI Mohinder Singh together with ASI Ghisa Ram. So as to create terror in her mind, ASI Mohinder Singh of PS Bhiwani fired ten rounds and the empties were recovered from the fields by ASI Ghisa Ram. This incident appeared in the Indian Express of 3.5.1983. Mr. Malik filed suit for defamation against Publisher and Editor of the Indian Express which was dismissed by Chief Judicial Magistrate, Bhiwani. Mr. Malik got her husband suspended from service on 10.3.1983 while he was working as ARC in the Irrigation Department at Bhiwani through the exercise of pressure. On 7.1.1986, the order of suspension was revoked. She sent representations to Chief Minister, Haryana alleging harassment at the hands of Mr. Malik and misuse of official power by him while he was posted as S.S.P., Bhiwani. DIG, Ambala Range, Ambala was appointed to hold an enquiry into the allegations made by her. One Surjit Singh who appeared against him in the inquiry was attacked by some gundas sent by Mr. Malik, and they gave injuries on his head. When her harassment at the hands of Mr. Malik did not abates, she staged dharna in front of Haryana MLAs Hostel at Chandigarh on 3.8.1983. News appeared in Punjab Kesri/Indian Express together with her photograph. Mr. Malik again filed complaint under Section 500/501 IPC against her and the editor of Punjab Kesri at Ambala. Since Mr. Malik was bent upon dispossessing her from the land of her tenancy, he was indulging in all sorts of nefarious designs. He sent GRP Police truck No. HRE 1451 with 10-15 persons in police uniform and got her servant Parkasha kidnapped and abducted on 10.11.1983. She informed telegraphically the higher authorities on 11.11.1983 in regard to the kidnaping and abduction of Parkasha. Parkasha was involved in an opium case on 10.11.1983 of PS GRP Hissar. He was involved in an Arms Act case on 10.11.1983 at GRP Hissar. Earlier also, he was involved in theft cases of PS GRP Hissar, Faridabad and Karnal on 22.3.1983, 26.7.1983 and 15.9.1983 respectively. Through the misuse of his official authority, he managed to keep farm labourer Parkasha in detention for over 5 months. While in detention, he was given inhuman treatment and was tortured. Parkasha was acquitted in four cases. In fifth case, he was sentenced to imprisonment already undergone. On 12.11.1983, Parkasha was to appear in a civil case before Sub Judge, Jind. He was a key witness. He was kidnapped/abducted on 10.11.1983 with a view to stall his appearance as a witness before the Sub Judge, Jind. She had to defend 17 cases in all in various courts all over Haryana at Hissar, Karnal, Palwal, Ambala, Jind and Rohtak involving huge expense and torture to her; both mental and physical. She had to look after the school going children and wife of Parkasha for 4-5 months when he was in jail. Mr. Malik was responsible for the birth of the aforesaid 17 cases, the object being to keep her awed so that she surrendered the possession of the land of her tenancy. He did not spare even one Sadha Singh who appeared in her favour in the court of Senior Sub Judge, Jind in a civil suit for permanent injunction. He was kidnapped from the court premises and booked in a case under section 399/402 IPC. He was kept in police custody. He was acquitted by Additional Sessions Judge, Ambala on 11.1.1985. News about the kidnapings of Sadha Singh appeared in Indian Express of 23.5.1984. In an enquiry with regard to the abduction of Parkasha, DIG, Railway and Traffic found Mr. Malik guilty vide report dated 24.4.1985 on four counts i.e. the abduction of Parkasha, registration of false criminal cases. Enquiry report was not implemented by the State of Haryana. Mr. Malik got the enquiry report shelved. It is further alleged that Mr. Malik got case filed under Section 420/342/506 IPC in the court of Chief Judicial Magistrate, Rohtak against her husband and their servant Parkasha in which they were acquitted on 5.1.1988. Mr. Malik got the khasra girdawri entries changed in connivance with D.C. She got stay from the Home Secretary against the change of khasra girdawri. Mr. Malik, however, managed the vacation of the stay through the instrumentality of his father-in-law Shri Lakhi Ram, S.P. and the then D.C., Jind. In nutshell, the grievance of Smt. Kaushlaya Devi is that she, her husband, her servant, her sons and her witnesses have been victims of the atrocities and reign of terror let loose by Mr. Malik and the misuse of official authority by him, the object being to force her to surrender possession of 28 acres of land and not to assert her right of pre-emption qua the aforesaid sales. Mr. Malik succeeded in getting all the cases/suit/appeals withdrawn under pressure on 17.2.1988 in the name of alleged compromise said to have been executed by her. Through this writ petition, Smt. Kaushlaya Devi has desired the issuance of writ of certiorari, mandamus or any other order or direction to the respondent State of Haryana for entrusting to an independent investigating agency, preferably the CBI, the enquiry into the incidents of harassment and torture involving violation of the fundamental rights guaranteed to the petitioner, her servant, etc. by the Constitution of India and set at naought by Mr. Malik by his atrocious and dictatorial behaviour towards them and the misuse of official authority by him. She has prayed for the grant of compensation to her for the injury and harassment caused to her and her family by thrusting on her and her family several cases and for complete ruination of her family. She has also prayed for the restoration of her rights to land through pre- emption as she was forced to withdraw pre-emption suit. She has also prayed for the restoration of possession to her which was wrested from her forcibly. She was forced to enter into compromise under pressure and threat. She has prayed for direction to the State of Haryana to initiate action on the inquiry report submitted against Mr. Malik. She has also prayed for an enquiry by an independent agency into the illegal and wrongful dispossession of her and the illegal acquisition of the property by Mr. Malik. She has also prayed for direction for necessary correction of the khasra girdawri and jamabandi in her name with effect from kharif 1980. She has also prayed for quashing the compromise decree got signed and executed under threat, coercion and pressure. She has also prayed for the issuance of direction for award of damages to the tune of Rs. 3 lacs per year since the year 1984 onwards. Parkasha servant of Smt. Kaushlaya Devi, has filed CWP 9512 on the same averments.

(2.) MR . M.S. Malik, respondent opposed this writ petition urging that there is no cause of action to Parkasha after the dismissal of his complaint under section 323 IPC. He has no cause of action during the pendency of complaint under sections 192, 193, 196, 330, 331, 500, 506 and 120-B IPC read with Section 25 Arms Act, Section 9 of Opium Act and Section 379 IPC of PS Sadar Jind in the court of Chief Judicial Magistrate, Jind. He has no cause of action during the pendency of whereby he has sought transfer of the complaint case outside the State of Haryana filed by him against Mr. Malik and others. Complaint filed by Smt. Kaushlaya Devi against Mr. Malik and others was dismissed by Sh. P.C. Gupta, CJM, Jind vide order Annexure R4/9 dated 17.2.1988 as compromised. Similarly, the complaint titled was ordered to be filed by the Government. It was denied that he was in any manner behind the purchase of the land. His father Choudhry Bharat Singh was a man of considerable means and sound financial position. He had been supporting him and his brother and their families in their daily expenses. So far as he (Mr. Malik) is concerned, he did not have the purse nor the capacity to purchase the land. Tenancy set up by Smt. Kaushlaya Devi was false and fictitious on the basis of forged revenue record in connivance with Mr. Lachhman Dass, IPS (since retired), Director General of Police, Haryana whose relations with him were inimical. At his instance, Smt. Kaushlaya Devi filed suit for injunction. She filed suit for pre-emption. She compromised the suits. Shri Lachhman Dass became inimical towards him because he was superseded for promotion to the rank of DIG when he (Mr. Malik) was posted as DIG-CID in the year 1977-78. He instigated Smt. Kaushlaya Devi to file false complaints against him before all the important functionaries of the State and the Central Government. On enquiry, those complaints were not substantiated and the Government passed orders dated 25.10.1986, 16.6.1987 and 14.7.1995 rejecting the complaints repeatedly. He was originally not a party to the pre-emption suit but on the death of his father, he was impleaded as one of the legal representatives. He never took forcible possession of the land nor was he concerned with the registration of cases against the husband of petitioner and other male members of her family. Her complaints in this behalf were enquired into and the Government rejected the complaints. He was not concerned with the torture and involvement of Parkasha in any case. Cases were registered and investigated by the independent agency and those were tried by the courts of competent jurisdiction. In no case was any adverse comment made against him. Parkasha was convicted in an opium case by Chief Judicial Magistrate, Hisar vide judgment Annexure R.4/11. He was convicted under section 411 IPC by Chief Judicial Magistrate, Karnal vide order Annexure R4/12. He was acquitted in appeal on appreciation of evidence by the appellate court. In re, averment that Parkasha had recently learnt about the enquiry conducted by the DIG, the plea of Mr. Malik is that this averment has been made to have fresh cause of action and on that basis to engineer the present writ petition. Enquiry pending with Vigilance Department had been finalised and adverse reports in the ACR had been expunged by the Cabinet Sub-Committee and promotion had been granted to him (Mr. Malik) to the rank of IGP with retrospective effect. He suffered acute mental agony due to false enquiry engineered against him by Shri Lachhman Dass, IPS (since retired), who used the name of Parkasha or Smt. Kaushalya Devi. He suffered physical and mental trauma caused by false enquiry and departmental and criminal proceedings and the death of his only son. Acquisition of any property by him was vehemently denied.

(3.) THE object of Article 226 of the Constitution of India is not to supplant the ordinary right of action or the remedy prescribed by the ordinary law of the land. Writ jurisdiction cannot be used when equally efficacious alternative remedy is available at ordinary law. In this case, Shri Parkasha, Smt. Kaushlaya Devi and others can pursue their remedy at ordinary law where facts can be ascertained.