Kharak Singh vs State of Punjab

K.S. Kumaran, J.

PetitionerKharak Singh lodged a complainnt with the S.H.O., Police Station, Zira (annexure P1 dated 3.2.1997) wherein among other things, he has stated as follows :

The complainant is in possession of some custodian land since 1947 and is residing there by putting up a house. The complainant is in continuous, uninterrupted adverse possession and has become owner of this land. Some time back, the house had fallen down due to heavy rain. About two months back, the complainant constructed a house spending Rs. 30,000/. Somehow the mutation has been illegally sanctioned in the name of gram panchayat.

The petitioner had opposed SarpanchDidar Singh (4th respondent) in the panchayat elections and since then he is inimical towards the complainant and has started asserting the ownership of the gram panchayat over the said land. Dider Singh is mixed with the B.D.O., Makhu and both of them are harassing the complainant for getting the plot vacated by the complainant.

On 14.11.1996, at about 7 a.m., respondents 3 to 15 along with the officials of the B.D.O. ''s office, armed with Kassis and other deadly weapons came in a jeep and tractorstrolley to the house and demolished the same in spite of the fact that the complainant demanded as to on whose orders they were doing so. Though they said that had written orders from the D.C., Ferozepur, they did not show the same to the complainant. After forcibly demolishing the complainant''s house, they took away the bricks, girders, pillars (ballis) and windows etc. in the tractor trolley.

The complainant had informed the S.H.O. on the same date which the S.H.O. reduced to writing and had obtained the thumbimpression of the complainant thereon. In spite of the promise, the S.H.O. did not take action.

The complainant had also given an application dated 5.2.1997 (annexure P2) to the Senior Superintendent of Police, Ferozepur about this incident and also stating that the S.H.O. had not taken any action.

The petitioner has therefore approached this Court under Section 482 Cr. P.C. for directing respondents 1 and 2 namely, the State of Punjab and S.H.O., Police Station, Zira to register the criminal case against the respondent 3 to 15 and also directing respondents 3 to 15 to pay compensation for the pecuniary loss and the mental agony.

The petitionercomplainant claims that since no action has been taken on his written complaint, he has to approach this Court with this petition.

The Deputy Superintendent of Police, Zira filed a reply on behalf of respondents 1 and 2 alleging that 40 families have made their houses on the gram panchayat land and eviction proceedings under Sections 4, 5 and 7 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act are pending against these persons before the D.D.P.O., Ferozepur exercising the powers of the Collector. He has also alleged that on 14.10.1996, a resolution has been passed by the gram panchayat unanimously to the effect that the present petitioner is trying to take forcible possession of the land belonging to the gram panchayat, and authorising SarpanchDidar Singh to take necessary action for restraining the petitioner from taking possession. According to the D.S.P., a copy of the resolution was sent to the B.D.P.O. (3rd respondent), while an application was also moved before the D.S.P., Zira by Didar Singh for taking action against the petitioner, and preventive action was taken against the petitioner and his son.

He has further alleged that on 13.11.1996, S.D.M., Zira along with the D.S.P., Zira came to the police station and left police station along with police force, and that the disputed land was vacated amicably by the petitioner and handed over to gram panchayat of Behak Fattu. According to the D.S.P., possession of the disputed land belonging to the gram panchayat was thus restored to the gram panchayat. He has denied that respondent 3 to 15 made efforts to take possession of the disputed land or that the house of the petitioner was forcibly demolished or that the bricks, girders, windows etc. were taken away, causing loss of Rs. 30,000/ to the petitioner.

The D.S.P., of course, admitted receipt of the application dated 3.2.1997 addressed to the S.H.O., Police Station, Zira and also the application dated 5.2.1997 received in the office of the S.S.P., Ferozepur which was marked to the S.H.O., Police Station, Zira. But the D.S.P. has alleged that S.H.O., Police Station, Zira enquired into the matter and found it to be false.

I have heard the counsel for both the sides and perused the records. Admittedly, a complaint has been given to S.H.O., Police Station, Zira (annexure P1 dated 3.2.1997) and and application to the S.S.P., Ferozepur (annexure P2 dated 5.2.1997). The petitioner has complained that the private respondents 3 to 15 arming themselves with deadly weapons had come to his house, demolished the same forcibly an had taken away girders, windows etc. He has also alleged that they have caused loss to him to the extent of Rs. 30,000/. According to him, he has been in occupation of this land continuously and uninterruptedly and thereby to have acquired title by an adverse possession.

On the other hand, it is contended on behalf of the State that the gram panchayat of Behak Fattu has passed a resolution for restraining the petitioner from taking forcible possession of the disputed land and that the SarpanchDidar Singh was authorised to take action to prevent him from doing so. The State also claims that the copy of this resolution was sent to the B.D.P.O. (thirdrespondent) while Didar Singh had made an application before the D.S.P., Zira for taking action against the respondents. According to the State, on 13.11.1996 itself, the police force went to Behak Fattu along with the S.D.M. and the D.S.P., Zira for the purpose of taking possession of the panchayat land from the unauthorised occupants. The State claims that the petitioner vacated the disputed land and handed over possession to the gram panchayat amicably, but denies that there was any forcible demolition or removal of the materials as alleged by the petitioner. But in these proceedings, it is not only unnecessary but is also not permissible for this Court to analyse the rival contentions of the parties to find out the truth, and this Court has only to see whether the allegations in the complaint prima facie establish the commission of cognizable offence/offences. The allegation in the complaintannexure P1 is that the private respondent 3 to 15 and other officials came to his house, arming themselves, and forcibly demolished his house. These allegations prima facie disclose the commission of an offence under Section 148 IPC, which is cognizable. The petitioner complainant has also alleged that they had removed the materials as mentioned above, which discloses the commission of an offence under Section 379 IPC which is also cognizable. It can also be stated that they committed criminal trespass and also mischief by causing loss to the petitioner. Therefore, a reading by causing prima facie shows the commission of cognizable and non cognizable offences.

In such circumstances, the duty of the S.H.O. is to register the F.I.R. at the first instance and then to enquire into the complaint. The mere fact that the panchayat, claiming the property to be its own, had passed a resolution, does not clothe anybody with the right to take law in his own hands. Even if the petitioner is in unauthorised occupation, possession will have to be taken from him by lawful means and in accordance with law, but not by using force. This is the position of law, and I should not be taken to have expressed any opinion on the merits of the present case with regard to the rival contentions put forward by the parties. Suffice it to say that the reading of the complaint prima facie shows the commission of cognizable as well as non cognizable offences. The learned counsel appearing for the State contended that notice may be issued to the private respondents, who may be in a position to state whether any order has been passed against the petitioner for evicting him from the disputed land by a competent authority. But it has been alleged in the reply filed by the D.S.P. on behalf of the State that the S.H.O. concerned had enquired into the matter and found the complaint to be false. If really, the S.H.O. had enquired into the complaint, he would have certainly found from the other respondents, especially from the 3rd and 4th respondents who are the B.D.P.O. and the Sarpanch respectively, as to whether any order for evicting the petitioner from the disputed land has been passed by a competent authority. If he had come to know of it, the S.H.O. would have made a record of it and the D.S.P., who has filed the reply, would have stated about it specifically in his reply, which he has not done. Therefore, in these circumstances, I am of the view that it is not necessary at this stage to issue notice to the private respondents 3 to 15. They will have the time and opportunity to put forth their contentions if and when they are called upon to meet these allegations in the complaint.

As has been repeatedly held, it is not an answer to these proceedings to say that the matter had already been enquired into and found to be false. Firstly, the F.I.R. has to be registered on the basis of the complaint as ordained by Section 154 Cr. P.C. in view of the fact that the complaint prima facie discloses the commission of cognizable offences also. It is only thereafter the Investigating Agency has to proceed with it in accordance with law. Therefore, I and of the view that the second respondentS.H.O., Police Station, Zira has to register the F.I.R., then and proceed with it in accordance with law.

So far as the claim for compensation is concerned the petitioner is yet to establish the claim. This Court will not in these proceedings adjudicate this claim. Therefore, the petitioner is left free to initiate appropriate proceedings regarding this claim for compensation in accordance with law.

Resultantly, this petition is allowed in part directing the second respondentS.H.O., Police Station, Zira to register the F.I.R. on the basis of the complaint annexure P1 and then proceed with it in accordance with law.