Neutral Citation No. - 2025:AHC-LKO:38686 Court No. - 15 Case :- APPLICATION U/S 528 BNSS No. - 670 of 2025 Applicant :- Dayashankar Ojha Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Anand Mani Tripathi,Udai Bhan Pandey Counsel for Opposite Party :- G.A.,Vinay Kumar Tiwari,Vivek Pandey Hon'ble Subhash Vidyarthi J. 1. Heard Shri Anand Mani Tripathi, the learned counsel for the applicant, Sri Satyendra Srivastava, the learned AGA for the State, and well as Vivek Pandey, the learned counsel for the opposite party no. 2, and perused the record. 2. With the consent of the learned Counsel for the parties, the petition is being decided finally at this stage. 3. By means of the instant application filed under Section 528 BNSS, the applicant has challenged validity of an order dated 10.12.2024 passed by the Sub-District Magistrate, Tarabganj, Gonda (hereinafter referred to as 'the S.D.M.') in Case No.91 of 2024 attaching the property in dispute under Section 165 BNSS. The applicant had filed an application for recall of the order dated 10.12.2024, which was rejected by means of an order passed on the same date. The applicant filed Criminal Revision No.691 of 2024 against the aforesaid orders and the revision has been dismissed by means of a judgment and order dated 04.06.2025 passed by the learned Additional District and Sessions Judge, Court No.03, Gonda and the applicant has challenged validity of all the aforesaid three orders by means of the instant application under Section 528 BNSS. 4. The matter was instituted on the basis of an application dated 26.07.2024 filed by the opposite party no.2 before the S.D.M. stating that the land bearing Gata No.234 situated in village Madhopur, Pargana Gwarich, Tehsil Tarabganj, District Gonda falls within category 6(2) and a proposal for construction of Panchayat Bhavan on this land has been passed. The applicant and Ravi Shanker Ojha are trying to raise illegal construction on the land on the strength of a sale-deed procured through illegal means and the opposite party no. 2 requested the S.D.M. to restrain the applicant and Ravi Shanker Ojha from raising any construction on the said land. The S.D.M. made an endorsement on 26.07.2024 to keep the application on file. On the same day i.e. on 26.07.2024, the S.D.M. passed another order stating that the Station House Officer, Police Station Kotwali Dehat, District Gonda has submitted a report dated 26.07.2024 that tension was prevailing between the parties regarding possession in respect of the land bearing Gata No. 234 and there was a strong probability of breach of peace. The S.D.M. directed the parties to place evidence regarding their possession in respect of the property in dispute. 5. On the same day i.e. on 26.07.2024, the S.D.M. passed a judgment stating that the proceedings of the case were instituted on the basis of a report dated 26.07.2024 submitted by the Inspector In-charge of Kotwali Dehat, Gonda on his own, stating that the land in question has been allotted for construction of Panchayat Bhavan whereas the applicant is raising construction on the said land. There is an apprehension of breach of peace as the parties can commit any serious offence due to dispute regarding possession over the land in question. 6. The S.D.M. has stated in the order that when the matter was taken up, the learned counsel for the first party was present but no one put in appearance on behalf of the second party. It is relevant to note that the second party in the decision dated 26.07.2024 is described as Dayashankar Ojha (applicant) to whom a notice was ordered to be issued on 26.07.2024 itself asking him to appear before the S.D.M. on 12.08.2024. In these circumstances, there was no occasion for the second party- applicant to have put in appearance through his counsel before the S.D.M. on 26.07.2024 itself. 7. The S.D.M. stated in the order that an application under Section 165(1) Bhartiya Nagrik Suraksha Sanhita (BNSS) has been submitted under the signatures of the first party-Anand Prakash Ojha the village pradhan (opposite party no. 2 to this petition) and some other respectable persons. The Application under Section 165(1) BNSS, a copy of which has been annexed with the present application under Section 528 BNSS as Annexure-19, has been signed by the opposite party no.2 only and no other person has put his signatures on this application. It is apparent on the face of record that the S.D.M. has made a false statement in the judgment dated 26.07.2024 that the application has been filed by the several respectable persons, besides the opposite party no. 2. 8. The S.D.M. ordered that keeping in view the emergent situation as was evident from the report submitted by the police, the application under Section 165(1) BNSS filed by the opposite party no. 2 deserves to be allowed and the property deserves to be attached. Accordingly, the S.D.M., directed the Inspector In-charge to attach the property in question and submit an attachment report within one week. The order further states that in case any suit regarding the same subject matter is pending in any higher court, the order would be subject to the judgment to be passed in that other matter. 9. The applicant challenged the aforesaid order by filing a Criminal Revision No.329 of 2024 under Section 438/440 BNSS before the District and Session Judge, Gonda, which was allowed by means of a judgment and order dated 16.08.2024, setting-aside the order dated 26.07.2024 passed by the S.D.M. and the matter was remanded to the for being decided afresh after giving opportunity to the parties. 10. After remand, the S.D.M. passed another order dated 19.08.2024, reiterating the averments made in his previous order dated 26.07.2024 which had been set-aside in revision. In the judgment dated 19.08.2024 the S.D.M. again stated that the opposite party no. 2 has submitted an application under Section 165 BNSS which has been signed by numerous persons and stating that the applicant wants to raise construction on the land in dispute. The S.D.M. held that unless the construction is stopped, some untoward incident may take place. Accordingly, he restrained raising of any illegal construction on the land in question and directed the parties to place their version. 11. The applicant challenged the aforesaid order by filing an application under Section 528 BNSS No. 24 of 2024 before this Court, which was disposed by means of an order dated 04.09.2024, leaving it open to the applicant to submit his reply in furtherance of the order dated 19.08.2024 before the S.D.M. itself. Thereafter, the applicant filed an application for recall of the order dated 19.08.2024 before the S.D.M. stating that the order dated 19.08.2024 was passed on a holiday. The applicant also stated that the land in question is recorded as 'abadi land'. Since before abolition of zamindari, it was in possession of Dwarika. Dwarika had perfected his title in respect of the land in question as per the provisions contained under Section 9 of the U.P. Z.A. & L.R. Act. Dwarika had executed a sale-deed in favour of the applicant. The applicant further stated in the application that the opposite party no.2 is village pradhan and he is creating undue interference in possession of the applicant in respect of the property purchased by him from its previous owner. This recall application was rejected by means of an order dated 10.12.2024. 12. Learned counsel for the applicant has submitted that the opposite party no. 2 had previously filed Writ C No.273 of 2023 before this Court, seeking a Writ of Mandamus restraining the applicant from creating any hurdle in construction of Panchayat Bhavan upon the land bearing Gata No.234 in village Madhopur, Pargana Gwarich, Tehsil Tarabganj, District Gonda, stating that an approval had been granted for construction of Panchayat Bhavan over the aforesaid land which is recorded as 'abadi'. It was contended in the aforesaid writ petition that the applicant had stopped construction of the Panchayat Bhavan on the ground that a civil suit pertaining to the land in question was pending in the Court of Civil Judge (Junior Division), Gonda and an order to maintain status-quo had been passed in that suit. The aforesaid writ petition was dismissed by means of an order dated 16.01.2023, wherein this Court recorded that the Court had perused the order dated 03.11.2011 passed by the Additional Civil Judge (Junior Division), Gonda wherein the parties had been directed to maintain status-quo over the land in question. This Court has recorded the statement given by the learned Standing Counsel for the State that the District Magistrate has taken cognizance of the said dispute and has directed the S.D.M. to take appropriate steps, become a party in the said matter and get the stay order vacated. This Court expressed the view that as a suit was regarding the land in question was pending and an injunction order had been passed by the trial Court, no direction can be issued for proceeding with the construction of Panchayat Bhavan till vacation of the injunction order. This Court also took into consideration the fact that the Collector, Gonda has already directed the S.D.M. to take appropriate steps in this regard in the pending suit. At this stage, the learned counsel for the opposite party no.2 (petitioner in the aforesaid writ petition), sought an opportunity to move appropriate application before the trial Court in the pending suit for placing his version. This Court observed that it is always open for any necessary or proper party to move an application and lead his case before the trial Court. This Court found no ground to interfere in the petition under Article 226 of the Constitution of India, which was dismissed accordingly. 13. After passing of the aforesaid order on 16.01.2023, neither the opposite party no. 2 nor the S.D.M. has filed any application in the pending suit. It has been informed that the plaintiff in the suit had filed an application for withdrawal of the suit on 19.04.2023, but the said application has not been allowed till date and the suit still continues to be pending and it is next fixed for 25.07.2025. 14. Having failed to achieve his goal through Writ C No.273 of 2023 which was filed by the opposite party no. 2 in his personal capacity, he has approached the S.D.M. and has obtained the order under Section 165 BNSS. The first application was filed by opposite party no. 2 on 26.07.2024. Initially, the S.D.M. made an endorsement on 26.07.2024 to keep the application on file. Strangely, after this order, although no report was called from the police, the police submitted a report on the same day stating that there was an apprehension of breach of peace. On the same day, the S.D.M. passed another order issuing notice to the parties to appear on 12.08.2024. Thereafter, on the same day, the S.D.M. passed a judgment falsely stating that the application under Section 165(1) BNSS has been filed by the opposite party no. 2 and several other respectable persons, though the application was filed by the opposite party no, 2 only. Although the S.D.M. had issued a notice on the application on 26.07.2024 asking the parties to put appearance on 12.08.2024, he passed a judgment allowing the application on 26.07.2024 itself. 15. After the aforesaid order dated 26.07.2024 was set-aside in revision, the S.D.M. has passed a fresh order on 19.08.2024 reiterating his version contained in the previous order dated 26.07.2024 which has been set-aside in revision. In this order dated 19.08.2024, the S.D.M. again stated that the application under section 165(1) BNSS had been filed by the several persons, though the application has been signed by the opposite party no. 2 only. 16. When the learned Standing Counsel had made a statement before this Court in Writ C No.273 of 2023 that the District Magistrate has taken cognizance of the dispute and has directed the S.D.M. to take appropriate steps and become a party in Suit No. 618 of 2011, in which an interim order was passed by the Civil Judge (Senior Division), Gonda on 03.11.2024, the course adopted by the S.D.M. by disobeying the direction of the District Magistrate by not filing any application in suit pending before the Civil Judge and by passing an order for attachment of the property under Section 165(1) BNSS himself, speaks volumes about the intention of the S.D.M. and it indicate that the S.D.M. has committed a patent error in passing the impugned order during pendency of the civil suit, without filing any application in the pending suit. 17. In view of the aforesaid discussions, the instant application is allowed and the impugned orders dated 04.06.2025, 10.12.2024 and 10.12.2024, copies of which are contained in Annexures Nos. 1, 2 and 3 to the application, are hereby quashed. 18. It will open for the parties to take recourse to the appropriate proceedings before the competent Civil Court for adjudication of their respective rights in respects of the property in dispute. Order Date: 08.07.2025 MVS/- Digitally signed by :- MANOJ VIKRAM SINGH CHAUHAN High Court of Judicature at Allahabad, Lucknow Bench