*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 22nd March, 2012
+ LPA 162/2012
SURENDER SINGH LOCHAV ..... Appellant
Through: Mr. Rajesh Kumar Gautam with Ms.
Anupama Dhurve, Advocates
Versus
NALINEE VARMA AND ANR. ..... Respondents
Through: Mr. Sanjay Mahajan, Adv for the respondent no.1 with respondent no.1 in person.
Mr. Rajeev Sharma, Adv for R-2.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE
1. This intra court appeal impugns the order dated 21 st February, 2012 of the learned Single Judge, though holding WP(C) No.4/2012 preferred by the respondents to be entailing questions of fact and relegating the parties to proceedings before the appropriate fora but nevertheless directing the LPA 162/2012 Page 1 of 7 appellant herein to remove the blockage in the form of a wall, to the entry gate of the farmhouse of the respondents.
2. Notice of this appeal was issued on the counsel for the appellant referring to the State of Orissa Vs. Madan Gopal Rungta 1952 1 SCR 28 laying down that the High Court cannot make a direction, under Article 226 of the Constitution, for the purpose of granting interim relief only and pending the institution of a suit. While issuing notice of this appeal, the operation of the order of the learned Single Judge was also stayed.
3. We have heard the counsel for the parties. The parties were also referred to mediation which has been unsuccessful. We have ourselves also attempted to find a permanent solution to avoid further litigation and called the parties in person before us but no amicable settlement could be arrived at.
4. It is the case of the respondents that their farmhouse in village Bijwasan, since the year 1985 had an entry gate opening on the main road and the small strip of land between the road and the said entry gate belonged to the Gaon Sabha; that the appellant is the owner of the adjoining farmland; LPA 162/2012 Page 2 of 7 that on the request of the respondents in the year 1996, the said kutcha raasta between the road and the entry gate to the farmhouse of the respondents was also demarcated; that, as learnt now, the appellant in the year 2005 using his clout got the said strip of land allotted to himself; that however no interference was caused in the passage of the respondents over the said kutcha raasta till August, 2011 when the appellant started illegally using his farmland for banquet hall and started causing interference to the respondents; that on 25th December, 2011 the appellant threatened to construct a wall blocking the entry gate to the farmhouse of the respondents and to prevent which the WP(C) 4/2012, from which the present appeal arises, was filed. It was further the case of the respondents before the learned single Judge that the appellant however in the interregnum constructed the boundary wall.
5. It was the plea of the appellant before the learned Single Judge that since the strip of land being used as kutcha raasta by the respondents to their farmhouse had been allotted to the appellant, the respondents could not have access to their farmhouse therefrom. A dispute was also raised as to whether the said strip of land fell in village Bijwasan or village Bamnoli. LPA 162/2012 Page 3 of 7
6. The learned Single Judge in his order dated 21 st February, 2012 impugned before us, has held that the dispute aforesaid falls within the jurisdiction of the Revenue Authorities or the Civil Court. However since it was the case of the respondents that they had no other access to their farmhouse, the learned Single Judge while so relegating the parties to alternative fora directed the appellant to leave an opening as wide as the respondents entry/exit gate and as seen in the photograph Annexure P6 at pages 62-63 of the record of the learned Single Judge and granted one week's time to the appellant to implement the order. It was further directed that the said arrangement shall continue to operate unless varied by the alternate appropriate fora on application of any of the parties.
7. As far as the judgment (supra) relied upon by the counsel for the appellant is concerned, on analysis thereof we find that in that case notice under Section 80 of the Code of Civil Procedure was a pre-requisite and the writ petition was filed prior to the expiry of the statutory period of notice and it was in this context that it was held that since even the suit could not have been instituted till the expiry of a period of 60 days, in writ petition even the interim relief could not have been granted before the expiry of the LPA 162/2012 Page 4 of 7 said time. Thus the facts of the said judgment are entirely different and not applicable in the present case.
8. Here, no such statutory notice is required. The parties in the present case have been relegated to the alternative fora in the exercise of the discretion inherent in exercise of power under Article 226. Else the law laid down by the Apex Court as in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. (2004) 3 SCC 553 is that even disputed questions of fact can be gone into in proceedings under Article 226 of the Constitution of India. The rule of refusing to exercise discretion under Article 226 owing to availability of alternative remedy is not an absolute rule. It thus cannot be said that the writ petition preferred by the respondents was not maintainable or barred, for it to be said that since the writ petition itself was not maintainable, the question of granting interim relief did not arise. In the present case the writ petition was maintainable but the learned Single Judge has exercised the discretion of relegating the parties to alternative remedy. No error or perversity can be found in the further discretion exercised by the learned Single Judge in directing the appellant to provide passage / kutcha raasta as existed for the last over 25 years and LPA 162/2012 Page 5 of 7 which has been blocked by the appellant recently in or about January, 2012 when the writ petition was filed. The photographs produced before us also clearly establish that the wall constructed by the respondent is new and blocks the access to the farmhouse of the respondents.
9. The appellant appearing in person before us has stated that he has in fact left a small aperture in the wall to enable human beings to have access to the entry gate aforesaid. We are however not impressed with the said plea. The appellant cannot be permitted to, by use of share brute force, deprive the respondents of the beneficial use and enjoyment of their property. The aperture left by the appellant in the wall, will merely enable a human being to wriggle in and out and we are unable to understand as to why access through the entry gate to a vehicle cannot be provided in the interregnum, specially when the respondents were enjoying the same for almost quarter of a century.
10. We therefore do not find the present to be a case requiring interference in intra court appeal in the discretion validly exercised by the learned Single Judge. The appeal is accordingly dismissed. The directions LPA 162/2012 Page 6 of 7 contained in the order of the learned Single Judge be positively complied with within a week from today. No order as to costs.
ACTING CHIEF JUSTICE RAJIV SAHAI ENDLAW, J nd MARCH 22 , 2012 'M' LPA 162/2012 Page 7 of 7