WP(C) 4534/2006 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA. JUDGMENT AND ORDER (CAV) Both the writ petitions involving same set of facts and the same cause of action, have been heard analogously and are being disposed of by this common judgment and order. 2. While the petitioners have contended that they have been evicted from th eir patta land at the behest of district and police administration, it is the ca se of the private respondents, who are the beneficiaries of such eviction of the petitioners, that the petitioners should pursue their remedy elsewhere other th an the writ jurisdiction. 3. Each one of the petitioners had purchased land measuring 1katha-10Lecha s covered by Dag No.317(c) and 317(Sl. No.4) of K.P. Patta No.88 of village Borsojai under Beltola mouza of Kamrup district, Assam from Pragjyotish Housing Co-operative Society by registered deed bearing No.1978 and 1979 respectively. The respective land of the petitioners had been mutated by orders dated 22.8.198 8. The petitioners have annexed to the writ petition the copies of Jamabandi, land revenue paying receipts, municipal tax receipts, electricity bill receipts etc. to show that the respective plots of their land were under their occupation till they were forcefully evicted. The municipal tax receipt (Annexure-6) and electricity bill receipts are dated 17.4.2006 and 15.6.2006. 4. In the year 1999, one Sri Gunua Maji filed Title Suit No.250/1999 agains t the aforementioned Pragjyotish Housing Co-operative Society from whom the pet itioners had purchased the land, challenging the sale deed and other documents . Be it stated here that the society had purchased the land of Sri Gunua Maji f rom his attorney by sale deed No.1454 dated 7.7.1987. The said attorney was one Sri Dhananjoy Singh, whom Sri Gunua Maji had appointed by registered power of at torney bearing No.183 of 1987. In the title suit, said Sri Gunua Maji challenge d the power of attorney and other documents made on the strength of the said po wer of attorney. 5. The title suit filed by Sri Gunua Maji was decreed ex parte on 13.9.200 0 and thereafter, he filed WP(C) No.6687/2001 seeking a direction to execute t he ex parte order dated 13.9.2000. The writ petition was disposed of by order d ated 24.9.2001 issuing direction to execute the ex parte order dated 13.9.2000 passed by the learned Civil Judge (Junior Division) No.4 in Title Suit No.40/200 0. 6. The petitioners having come to know about the aforesaid order passed by this Court filed Review Application No.8/2002 seeking review of the order date d 24.9.2001 passed in WP(C) No.6687/2001. The review application was disposed of by order dated 27.1.2003 reviewing the earlier order dated 24.9.2001 and a cos t was imposed on Sri Gunua Maji for suppression of material fact. Further, mut ations in respect of the land earlier granted in favour of the petitioners were also restored. 7. Learned Civil Judge (Junior Division) vacated the ex parte order earlier passed in Title Suit No.40/2000. The order to that effect was passed on 18.9 .2003 in Misc. Case No.73/2003. Thereafter, the petitioners initiated the proc eedings under Section 144 CrPC against the Respondent No.5 and others before the Respondent No.2 i.e. the Deputy Commissioner, Kamrup (Metro), Guwahati. On the basis of such proceedings, the Respondent No.5 was restrained from entering in to the land of the petitioners. The order to that effect was passed on 1.4.200 6. Being aggrieved, it was the turn of the Respondent No.5 to file Criminal Re vision Petition No.28/2006 before the learned Sessions Judge challenging the or der passed in the said proceeding. The learned Sessions Judge by his order dated 12.4.2006 suspended the order dated 1.4.2006. 8. After the aforesaid developments, the Respondent No.5 filed Title Suit N o.206/2006 and 224/2006 respectively against the petitioners before the learned Civil Judge (Junior Division) No.1 and 2, Kamrup, Guwahati respectively for decl aration of right, title and interest over the land in question and declaration of the sale deeds through which the land was purchased by the petitioners as v oid, illegal and not binding. 9. On the basis of the aforesaid title suits filed by the Respondent No.5, the learned Civil Judge issued direction to maintain status quo by the parties. While in Title Suit No.206/2006, involving the Respondent No.5 and the petitione r in WP(C) No.4301/2006, the order to maintain status quo was passed on 18.4.200 6 in Misc.(J) Case No.139/2006, such order was passed in Title Suit No.224/2006 involving the Respondent No.5 and the petitioner in WP(C) No.4534/2006 on 18.7 .2006 in Misc.(J) Case No.145/2006. 10. It is the case of both the petitioners that they have been evicted by the district and police administration at the behest of the Respondent No.5 in b oth the writ petitions after the aforesaid orders of the learned Civil Judge dir ecting to maintain status quo by the parties were passed. The facts brought on record to that effect are as follows. 11. That on 25.7.2006, the Respondent No.3 i.e. the Additional Deputy Commis sioner, Kamrup (Metro), Guwahati informed the Superintendent of Police, Kamrup, Guwahati by his Annexure11 letter dated 24.7.2006 (Annexure-10 in WP(C) No.4534 /2006) that the petitioners involved in the writ petitions took forcible occupat ion of the land in question on 19.3.2006, although the land actually belonged t o the respective Respondent No.5 in the writ petitions. In the letter, it was also stated that the parties i.e. the Respondent No.5 had approached the Basis tha Police Station (the Respondent No.4) on the basis of which one Shri P.K. Nat h, S.I. of Police took some initiative and warned the forcible occupiers to vaca te the land. The letter also reveals that as per the report of the Circle Offi cer, the forcible occupiers had raised tin/bamboo sheds on the land and some un known persons had been kept in the sheds. By the letter, direction was issued to enquire into the matter and thereafter, to take necessary action. Interesti ngly, the letter also enclosed the land documents concerning each of the Respond ent No.5. They are 1) copy/photocopy of the petition, 2) Xerox copy of sale dee d, 3) Xerox copy of Jamabandi, 4) revenue paying receipts, 5) Xerox copy of T race Map and 6) Katcha Patta (Xerox copy). 12. On 29.7.2006, the caretaker of the petitioners’ land Sri Bahar Ali infor med the petitioners over phone that the police personnel of Basistha Police Sta tion forcibly evicted him that day from the petitioners’ land and also destroyed their houses. It was also informed that the Respondent No.4 took forcible unde rtaking from the caretaker that he had voluntarily vacated the land. 13. After the eviction of the petitioners in the above manner, the respectiv e Respondent No.5 immediately started construction of bamboo house in the respe ctive plots of land. The petitioners having no other alternative, filed the app eal petition dated 31.7.2006 before the Respondent No.2 i.e. the Deputy Commissi oner, Kamrup (Metro), Guwahati informing him about the illegal eviction and dem olition of houses and requesting him to restore possession of the land to the p etitioners. There being no action on the part of the district as well as the p olice administration, the petitioners invoked the writ jurisdiction of this Cour t by filing the instant writ petitions. 14. While the Deputy Commissioner and the Addl. Deputy Commissioner i.e. the Respondents No.2 and 3 have filed individual affidavits in WP(C) No.4301/2006, a single affidavit has been filed on behalf of the Respondents No.1, 2 and 3 in W.P(C) No.4534/2006. While the Respondent No.4 in WP(C) No.4301/2006 has not f iled any affidavit, but he has filed counter affidavit in WP(C) No.4534/2006. Th e private respondents i.e. the Respondent No.5 in both the writ petitions have filed their individual affidavits in the writ petitions. 15. In the affidavits filed by the official respondents No.1, 2 and 3 which include individual affidavits filed by the Respondents No.2 and 3, they have n ot dealt with the specific plea of the petitioners that they have been evicted from their respective plot of land forcefully and unauthorizedly by the Respo ndent No.4. Their affidavits are cryptic and do not deal with the basic contenti on raised in the writ petitions that in spite of the status quo order passed by the civil Court, they have been evicted from the land by the district and polic e administration at the behest of the Respondent No.5. 16. In the counter affidavits filed by the respective Respondent(s) No.5, it is their stand that the two plots of land belong to them, which they had pur chased from Sri Gunua Maji in the year 2003. According to them, they were in o ccupation of the land by erecting boundary walls. However, in March 2006, they came to know that the petitioners tried to encroach upon the land and that wh en they tried to dissuade the petitioners from trespassing into the land, the Respondent No.5 was informed by the petitioners that they had already purchased the land and were in possession of the same. In such a situation, both the res pondents approached said Sri Gunua Maji, the landlord from whom they could gathe r about the aforesaid fact of fraudulent execution of power of attorney and fi ling of Title Suit etc. In their affidavits, they have also stated about the fi ling of Title Suit No.40/2000 by Sri Gunua Maji, about which mention has been m ade above. According to the Respondent No.5, eventually, the said title suit was decided in favour of the plaintiff declaring the particular power of attorne y to be illegal. Thus, according to both the respondents, the petitioners can not claim possession over the land on the strength of sale deed executed in 19 87. Be it stated here that in the said Title Suit, the petitioners are not party defendants. 17. In paragraph 11 of the counter affidavit, it is the specific case of the Respondent(s) No.5 that taking advantage of their absence from Guwahati, the p etitioners encroached upon the respective plots of land and when they came to kn ow about the same, brought the matter to the notice of the Deputy Commissioner, Kamrup (Metro) (the Respondent No.2) vide their application dated 5.6.2006, cop y of which was also forwarded to the Revenue Department. On the basis of such a pplication, the Circle Officer, Dispur Revenue Circle conducted a local enquiry into the matter during which he also examined the sale deeds, revenue receipts etc. of the Respondent(s) No.5. Thereafter, he submitted his report dated 30.6. 2006 informing the Deputy Commissioner that both the respondents had purchased t he plots of land in question, but the petitioners encroached upon the land and k ept some persons there. 18. According to the Respondent(s) No.5, on the basis of the aforesaid repor t, the Addl. Deputy Commissioner, Kamrup i.e. the Respondent No.3 addressed a l etter dated 25.7.2006 to the Superintendent of Police, Kamrup, Guwahati requesti ng him to enquire into the matter and take necessary action. It is the stand of the private respondents that the district administration found it to be a cle ar case of forceful occupation of patta land and the Respondent No.3 issued the aforesaid instruction by his letter dated 25.7.2006 after conducting all the nec essary enquiries. 19. In paragraph 12 of the counter affidavit, it has been stated that the S uperintendent of Police, Kamrup, Guwahati after receipt of the aforesaid letter dated 25.7.2006 from the Respondent No.3, instructed the Respondent No.4 i.e. th e Officer-in-Charge, Basistha Police Station vide his letter dated 26.7.2006 to take necessary action in the matter against the persons involved in forceful occ upation of patta land. Copy of the letter dated 26.7.2006 was also forwarded t o the Deputy Superintendent of Police, Dispur division to supervise the matter. According to the private respondents, no eviction was carried out and the caret aker of the petitioners’ land namely, Bahar Ali vacated the land on being asked to do so by the Respondent No.4. 20. Dealing with the aforesaid two title suits, in which the learned Civil J udge has passed the order of status quo, it is the stand of the private responde nts that the petitioners should have pursued their remedy in the said proceeding instead of invoking the writ jurisdiction. It has also been brought on record that the petitioners have also filed Title Suit No.136/2007 and Title Suit No.1 37/2007 respectively against the private respondents before the learned Civil J udge (Junior Division), Kamrup, Guwahati for appropriate relief in the matter. Thus, according to the private respondents, the writ petition is not maintaina ble. 21. The Respondent No.4 in his counter affidavit filed in WP(C) No.4534/2006 has generally dealt with the aforesaid factual aspects of the matter. He has admitted that on enquiry, it was found that the respective plots of land were occupied by the petitioners about 3 months before and that they also constructe d boundaries and small sheds. It has also been admitted that the caretaker of the land was one Shri Baharul Islam alias Bahar Ali, who was staying there with his family. According to the Respondent No.4, no force was applied to Shri Ba har Ali and that he having come to know about the real state of affairs from th e police, vacated the land willingly. 22. In the aforesaid affidavit of the Respondent No.4, he has also mentioned about non-F.I.R. proceedings No.09/2006 (Part-I) under Section 145 CrPC dated 22.3.2006 initiated on the basis of a complaint lodged by the private responden ts along with others. He has also enclosed the enquiry report dated 30.6.2006. 23. In paragraph 12 of the counter affidavit, the Respondent No.4 has stated thus :- 12. That with regard to the statements made in paragraph No.13 of the writ petition, the deponent begs to state that the then O/C Basistha Police Station m ade an enquiry as per the direction dated 25.7.06 and found that the present pet itioner and his associate occupied the land in question on 19.03.2006 and starte d activities thereon. The Respondent No.5 and others filed a petition before the then Officer-in-Charge, Basistha P.S. against the forcible occupation. The ma tter was enquired locally by the O/C Basistha P.S. and apprehending further co mplicacy, submitted a non-F.I.R. proceeding u/s 145 CrPC before the competent Co urt of taking legal action against the 2nd party i.e. the present petitioner a nd others. Therefore, the allegation of dispossession from the land in question by the police of Basistha P.S. as stated in this paragraph is not true. 24. Mr. B.C. Das, learned counsel for the petitioners along with Mr. H.K. Sa rma, learned advocate, referring to the aforesaid facts, submitted that it is a clear case of exercising jurisdiction by the district and police administration not vested in it by law. It is a clear case of aiding and abetting illegal ac tion of the Respondent(s) No.5 by the police administration on extraneous consid eration. As regards the plea of the Respondent No.5 that since the civil suits by and between the parties are pending, the writ petitions are not maintainable, Mr. Das, learned counsel for the petitioners submitted that while the said ci vil proceedings are pending between the private parties, the instant writ petit ions are against the illegal action on the part of the district and police admi nistration. 25. Mr. S.P. Deka, learned counsel representing the Respondent No.5 in both the writ petitions, while admitting the basic facts submitted that the dispute d questions of fact will not be gone into by the writ Court. According to him, it is not a case of any illegal eviction at the behest of the police adminis tration. He has placed reliance on certain decisions, which are reported in 1) 1995 Supp (4) SCC 397 (Noor Ali Abdulla Modi v. Suresh Motilal Taleja; 2) (2007) 2 GLR (NOC) 30 (Tripura Truck Owners Syndicate v. State of Tripura and 3) the u nreported judgment dated 9.4.2009 in writ appeal passed in Writ Appeal No.73/200 9 (Md. Moin Uddin Ahmed v. State of Assam & Ors.) The decisions have been press ed to buttress his argument that when the disputed questions of fact are involve d, the writ Court will be reluctant to exercise its jurisdiction. 26. While there is no quarrel with the aforesaid proposition of law in res pect of the writ jurisdiction, but the said proposition will have to be tested in the touchstone of facts and circumstances involved in each case. When the fac ts speak for itself and no in-depth study of the facts to arrive at a conclusion is involved, the writ Court cannot absolve itself from the responsibility to d ecide the issue raised on the ground of disputed questions of fact being involve d. Further, as has been held by the Apex Court in AIR 2002 SC 33 (Roshan Deen v . Preeti Lal), the power conferred on the High Court under Article 226 and 227 o f the Constitution is to advance justice and not to thwart it. In paragraph 12 o f the judgment, it has been observed thus:- 12. We are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned Single Judge in a case where judicial mind woul d be tempted to utilize all possible legal measures to impart justice to a man m utilated so outrageously by his cruel destiny. The High Court non-suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under Arti cle 227 of the Constitution. Time and again this Court has reminded that the po wer conferred on the High Court under Articles 226 and 227 of the Constitution i s to advance justice and not to thwart it (vide State of U.P v. District Judge, Unnao). The very purpose of such constitutional powers being conferred on th e High Courts is that no man should be subjected to injustice by violating the law. The lookout of the High Court is, therefore, not merely to pick out any err or of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-pro duct of an erroneous view of law the High Court is not expected to erase such j ustice in the name of correcting the error of law. 27. In Secy, ONGC Ltd. v. V.U. Warrier, reported in (2005) 5 SCC 245, the Apex Court reiterated the well settled legal position that the jurisdiction of t he High Court under Article 226 of the Constitution is equitable and discretiona ry. The power under that Article can be exercised by the High Court - to reach injustice wherever it is found . In Veerappa Pillai v. Raman & Raman Limited, reported in AIR 1951 SC 192, the Constitution Bench of the Apex Court observed that the writs referred to in Article 226 of the Constitution are obviously inte nded to enable the High Court to issue them in grave cases where the subordinat e tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exerci se a jurisdiction vested in them, or there is an error apparent on the face of t he record, and such act, omission, error, or excess has resulted in manifest inj ustice. (emphasis supplied). 28. I now proceed to deal with the factual aspect of the matter which is so glaring and staring on the face of it. In this proceeding, we are not concerned with the right, title and interest over the two plots of land in question. The question involved is as to whether the district and police administration exceed ed in its jurisdiction or acted beyond its jurisdiction in evicting the petitio ners from the land in question. Even if there was no order of injunction direc ting the parties to maintain status quo, it was not within the competence and ju risdiction of the police administration to evict the petitioners from the land, a task which is vested to be carried out only by following due procedure establi shed by law. 29. In the instant case, the learned Civil Judge issued the order of injunc tion dated 18.4.2006 in Title Suit No.206/2006 filed by the Respondent No.5 in W P(C) No.4301/2006. By the said order, direction was issued to maintain status q uo. If the status quo was to be maintained, there was no question of evicting t he petitioner who was already in occupation of the land. Same is the case in r espect of the petitioner in the 2nd writ petition i.e. WP(C) No.4534/2006 in whi ch case also, in the title suit filed by the Respondent No.5 being Title Suit No .224/2006, the injunction order was passed on 18.7.2006 directing the parties to maintain status quo. It has been brought to my notice that the said orders of s tatus quo are still holding the field. 30. After the aforesaid orders of status quo, things moved in quick successi on. It was on 25.7.2006, the Addl. Deputy Commissioner, Kamrup i.e. the Responde nt No.3 informed the Superintendent of Police, Kamrup, Guwahati about the purpor ted illegal possession of the plots of land belonging to the Respondent No.5 by the petitioners. In the letter, the date of such encroachment and/or illegal o ccupation of the land was indicated as 19.03.2006. It was stated in the letter t hat the approach being made by the private respondents to the Basistha Police S tation, one Shri P.K. Nath, S.I. of Police had warned the forcible occupiers i.e . the petitioners to vacate the land. Thereafter, the report etc. was called fo r from the Circle Officer. By the said letter, the district administration i.e. the Addl. Deputy Commissioner, Kamrup (the Respondent No.3) directed the Superi ntendent of Police, Kamrup, Guwahati to take appropriate action in the matter. As noted above, along with the letter, certain documents (photocopies) pertainin g to alleged title of the private respondents were also enclosed, as if the Add l. Deputy Commissioner was entrusted with the jurisdiction and power to decide t he right, title and interest of the private respondents over the two plots of la nd. 31. After the aforesaid letter dated 25.7.2006, the police personnel of Basi stha Police Station (the Respondent No.4) evicted the petitioners from their re spective land which they had been possessing through their caretaker Shri Baha r Ali. Not only they were evicted but their houses were also demolished. The appeal filed by the petitioners before the Deputy Commissioner, Kamrup on 31.7. 2006 did not yield any result which forced the petitioners to approach this Cour t. 32. Although a feeble plea has been made by the private respondents as well as the Respondent No.4 that there was no forcible eviction, but such a plea is w holly untenable as the facts including the documents available on records speak for itself and otherwise. Coupled with this, other official respondents i.e. th e Respondents No.1, 2 and 3 have not even dealt with the fact of forcible evicti on of the petitioners at the behest of the police administration so vividly stat ed in both the writ petitions. 33. The stand in the affidavits has been referred to above. In the counter affidavit filed by the Respondent No.4, it is his stand that the caretaker of t he petitioners Shri Bahar Ali voluntarily vacated the land. A little discussio n about the stand in the affidavit of the Respondent No.4 will bring out the re al story behind. This affidavit has also been referred to above. In paragraph 3 of the affidavit, the Respondent No.4 admitted of having received the aforesai d letter dated 25.7.2006