RAFIQ, J. - (1.) THIS writ petition has been filed with the prayer that the Commissioner, Jaipur Development Authority be directed to take immediate steps to flush out the trespassers who have been unlawfully retaining possession of the land belonging to Krishna Nagar Extension Scheme and restore possession thereof to 26 allottees of Krishna Nagar Extension Scheme and make provision for roads, parks and other facilities on 34% area of Krishna Nagar Extension Scheme which vests in the Jaipur Development Authority. A further prayer has been made that Director General of Police, Rajasthan be required to evict the trespassers by use of the police force.
(2.) THE factual matrix of the case is that the petitioner entered into an agreement to sale with one Colonel Rajendra Singh some time in the year 1975 with regard to land measuring approximately 3. 33 acres. According to the petitioner, possession of the said land was handed over by the said Colonel Rajendra Singh to the petitioner. THE petitioner entered into agreement with Jai Chamunda Grah Nirman Sahakari Samiti Ltd. (for short `chamunda Samiti') for development of such land into a colony. Colonel Rajendra Singh however had a change of mind later and wanted to back out from the agreement. When he delayed execution of the sale deed, the petitioner had to file a Civil Suit for specific performance which eventually culminated into passing of a compromise decree and execution of the sale deed in favour of the petitioner by him on 24. 9. 79. It was thereafter that an agreement was entered into petitioner and the said Chamunda Samiti who later approached the Jaipur Development Authority with the proposed lay out plan of 26 residential plots with the name of Krishna Nagar Extension Scheme. THE lay out plan was approved by the JDA on 11. 7. 84. THE Samiti has given these 26 plots to the persons named by the petitioner who were all her family members, close relatives and friends. In course of time, the conversion charges were also deposited on behalf of the 26 allottees. THE Samiti submitted a scheme sponsored by it before the JDA and the JDA later published a list of various schemes in the shape of booklet sponsored by the said Samiti. At page 7 of such booklet, reference has been made to 26 allottees in Krishna Nagar Extension Scheme. THE petitioner deputed one Sanwar Mal Agarwal to look after such plots because she generally resides in Calcutta. But then, Colonel Rajendra Singh again prompted by sheer greed sponsored Madhav Nagar Grah Nigam Sahakari Samiti Ltd. (in short `madhav Samiti') and executed another agreement to sale in their favour. Further case of the petitioner is that subsequent events revealed that Madhav Samiti forged some documents in order to create an illusion that a scheme in the name of Rajendra Nagar Extension has been sponsored in relation to the same land which was already unde Krishna Nagar Extension Scheme. A fake list of 26 plots holders with fictitious names was proclaimed by Madhav Samiti but no such scheme was ever approved by the JDA. The JDA in early 90'es initiated a derive against the land-grabbers. Number of criminal cases were registered in such matters. The caretaker of petitioner Shri Sanwar Mal Agarwal received an information on 12. 9. 92 that some unruly mob had trespassed into the land of Krishna Nagar Extension Scheme and these armed persons threatened him with dire consequences. They were claiming that this land belonged to Madhav Samiti and they did so in connivance with the local police. When Shri Sanwar Mal Agarwal went to Police Station Vaishali Nagar and reported the incidence to Ashok Kumar Trivedi the then SHO, he turned a deaf ear. He then went to Superintendent of Police, Jaipur who summoned the SHO and it was only thereafter that the SHO accompanied Sanwar Mal Agarwal to Police Station, Vaishali Nagar. No police party was dispatched to the site by him. It later transpired that SHO had the direction of Shri J. P. Mishra the then DIG of Police, Jaipur Range who had assured the land- grabbers of protection for raising the boundary wall. Sanwar Mal Agarwal also reported the incident to Commissioner JDA, Jaipur and submitted number of written representations to various government functionaries. The petitioner was then advised to proceed u/s. 145 Cr. P. C. Accordingly she filed an application on 11. 11. 92 before Additional District Magistrate, Jaipur City who on 19. 4. 93 passed a preliminary order. One of the allottees of the Madhav Samiti challenged the said preliminary order by filing the revision petition which was allowed by the Additional Sessions Judge on 7. 5. 94 holding that Section 145/146 Cr. P. C. could not be invoked. The petitioner and other allottees had filed Civil Suits for declaration, permanent injunction and delivery of possession in the civil Courts. These suits were dismissed in 1997 on the basis of objections taken by the defendants in general and Madhav Samiti in particular under Order 7 Rule 11 (D) on the premise that dispute was covered under the provisions of Section 75/137 of the Rajasthan Co-operative Societies Act, 1965. They then filed Regular First Appeals. The appeals are still pending. It is against the back drop of these facts that the present petition has been filed by the petitioner seeking a writ of mandamus on the lines referred to above. The writ petition has been contested by the respondent no. 1 and 2, respondent no. 4-JDA and respondent nos. 6 and 7 Madhav Samiti and one of its allottees. The Government in the reply while opposing the writ petition has submitted that the FIR lodged by Sanwar Mal Agarwal on 12. 9. 92 in regard to alleged trespass of the disputed land on investigation was found baseless which culminated into giving of final report by the police. Documents submitted by the complainant in that FIR were contradictory to each other. During investigation it transpired that the possession of the land had already been handedover by Colonel Rajendra Kumar to Madhav Samiti way back in the year 1974 whereas agreement allegedly entered into between the petitioner and Colonel Rajendra Singh was dated 18. 4. 1975. The said Samiti sold the land by dividing it into plots of various sizes to its members. Colonel Rajendra Singh has also in his statement admitted having entered into agreement with Madhav Samiti. According to such agreement, the JDA approved the lay out plan of Rajendra Nagar Extension Scheme, therefore, there was no case for offence under Section 447 of the IPC and FR No. 303/92 was rightly given on 30. 9. 92 because the dispute was purely of civil nature. The JDA in its reply has denied having approved either Krishna Nagar Extension Scheme or even Rajendra Nagar Extension Scheme. It has been stated that when the petitioner has filed suit and thereafter Regular First Appeal before this Court, the writ petition is not maintainable. The Madhav Samiti has also raised same objection and has stated that S. B. Civil First Appeal No. 87/97 and S. B. Civil First Appeal No. 100/97 both titled Harsh Vardhan Kejriwal Vs. Madhav Nagar Grah Nirman Sahakari Samiti Ltd. & Ors. are already pending before this Court and therefore this writ petition is not maintainable. Harsh Vardhan Kejriwal, it may be, is the son of the petitioner Smt. Krishna Kejriwal. It is stated that neither the Civil Court in the Civil Suit filed by the petitioner nor the criminal court under section 146 and 147 Cr. P. C. proceedings has found any case in favour of the petitioner. While the petitioner has alleged that she was dispossessed from the property on 12. 2. 92 but the present writ petition has been filed after inordinate delay of 10 years in 2002. It has been alleged that the agreement dated 28. 4. 1975 produced by the petitioner is false and concocted. Besides, she having transferred the said land to the Chamunda Samiti under an agreement to sale cannot maintain the present writ petition. Even otherwise, it is not maintainable because none of the 26 plots stand in the name of the petitioner. The alleged sale deed executed on 16. 12. 78 and supplementary agreement dated 20. 10. 79 are also based on concocted story. It was therefore prayed that the writ petition be dismissed.
(3.) I have heard Shri S. R. Bajwa, learned counsel for the petitioner, Shri B. S. Chhaba, learned Dy. Government Advocate, Shri Anant Bhandari, learned counsel for respondent no. 4, Shri Amit Singh Shekhawat, learned counsel for respondent no. 5 and Shri S. N. Kumawat, learned counsel for respondent no. 6 and 7 and scanned the material on record. Shri S. R. Bajwa, the learned counsel for the petitioner has argued that the allottees of Chamunda Samiti were illegally dispossessed on 12. 9. 92 with the help of the local police. In fact the then SHO Shri Ashok Kumar Trivedi and then with Dy Inspector General of Police Shri J. P. Mishra were actively protecting the land-grabbers. The respondents nos. 2, 3, 6, 7 & 8 have no semblance of right to remain in possession of the land. He argued that when a person who has been enjoying peaceful possession is dispossessed by act of criminal trespass, the statutory authorities are duty bound to restore back the possession. Regardless of title or otherwise, when such glaring acts appears to the notice of this Court, the Court should rather feel obliged to direct restoration of possession particularly when the facts are so glaring that the Court ought to come to the rescue of those who are oppressed and are in a disadvantageous position. Shri Bajwa submitted that alternative remedy should not be used as a weapon of defence by criminals who thrive on blatant aggression and forceful dispossession. It should be treated as sacrosanct duty of Court to come to the aid of a litigant who has been victim of continued oppression. He argued that neither the remedy u/s. 145 Cr. P. C. nor the remedy in the form of Civil Suits nor the filing of First Information Report could grant the desired relief to allottees of Krishna Nagar Extension Scheme. Whenever the Court confronts itself with naked aggression spreading reign terror where rule of law becomes first casualty, it should not wait for the civil proceedings to culminate into judicial decree or for the criminal prosecution to take its natural course. The court should instantly grant relief to the victim of naked operation of restoring his possession. Shri Bajwa in support of his arguments relied on the judgment of Co-ordinate Bench of this Court in M/s. Chandra & Co. Vs. State of Raj. & Ors. , AIR 1981 (Raj.) 217, the Division Bench Judgment of Delhi High Court and Smt. Anju Devi Vs. Commissioner of Police & Ors. , 1994 (2) Crimes 691 and another unreported judgment of Division Bench of the same High Court in Civil Writ Petition No. 779/94 Vijay Khanna and Anr. Vs. Union of India & Ors. decided on 5. 11. 1998. On the other hand Shri S. N. Kumawat, the learned counsel for respondent nos. 6 and 7 argued that the dispute raised in the present case is purely of civil nature and already the petitioner has approached not only the Civil Court but also the Criminal Court. He submitted that the FIR about the alleged criminal trespass made by the petitioner over the land in dispute was on thorough investigation found to be false and eventually the police has given the final report therein. He also referred to the judgment of the Additional District Judge No. 4, Jaipur City, Jaipur in which the suits filed by the allottees of the Chamunda Samiti including that of the son and other relatives of the petitioners were dismissed by the said Court under its judgment and decree dated 20. 1. 97. Shri Kumawat also referred to the judgment dated 7. 5. 94 passed by Additional Sessions Judge, Jaipur in revision petition filed by one Ratan Singh Singh Chandawat, one of the allottees of the Madhav Samiti against the order dated 19. 4. 93 passed by the Additional District Magistrate under Section 145 and 146 of the Code of Criminal Procedure and submitted that the said order was set aside by the Court with liberty to the allottees of the Chamunda Samiti to approach the Civil Court. They later approached the Civil Court and when such suit were dismissed, they have filed first appeals before this Court. He therefore submitted that the present writ petition would be simply not maintainable, more particularly when the first appeals against the aforesaid judgment / decree passed by the Civil Court are also pending consideration with this Court. Shri Kumawat also argued that the writ petitions at the instance of the petitioner would not be maintainable also because none of the 26 plots has been allotted in her favour even as per the booklet published by the JDA. Shri Kumawat argued that the matter involves disputed questions of fact and the suits for the same relief having already been filed and dismissed and the appeals thereagainst are presently pending before this Court, therefore, the writ petition in view of these facts is liable to be dismissed being not maintainable. ;