Allahabad High Court
Hemant Dhingra vs Union Of India And 2 Others on 21 December, 2023
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:242991
Court No. - 6
Case :- WRIT - C No. - 37825 of 2023
Petitioner :- Hemant Dhingra
Respondent :- Union Of India And 2 Others
Counsel for Petitioner :- Shalini Goel,Rama Goel Bansal
Counsel for Respondent :- A.S.G.I.,Subodh Kumar,Udit Chandra
Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Ms. Rama Goel, learned counsel for the petitioner and Mr. Udit Chandra, learned counsel for respondents.
2. With the consent of learned counsel for the parties, this writ petition is being finally disposed off at this stage without calling for a counter affidavit.
3. The present writ petition has been filed by the petitioner with the following prayer :-
"(i) issue a writ, order or direction in the nature of certiorari quashing the proceedings of Case No.Agra/E.O./Mathura-B.D.B./L.C 7-1, Senior Divisional Engineer/Estate Officer North Central Railway Agra Vs. Hemant Dhingra under Section 4 (1)/7 of Public Premises Act, pending in the Court of Senior Divisional Engineer North Central Railway, Agra/Estate Officer North Central Railway Agra.
(ii) issue a writ, order or direction in the nature of certiorari quashing the notice dated 13.06.2023 (Annexure no.1 to the writ petition) issued by the Estate Officer, North Central Railway, Agra.
.............."
4. Brief facts of the case are that the petitioner's father filed Original Suit No.1207 of 1990 before court of Civil Judge Mathura, seeking a decree for permanent injunction, wherein the respondents were impleaded as defendants. In the plaint, it was stated that the plaintiff is the owner of the property bearing Municipal No.1240 Maha Vidya Mathura which is near to Masani Mathura. It has also been stated that they have mentioned that they have constructed a go-down for running a transport business. They also have an electricity connection and were in actual possession of the property since long. The respondents have no right, title or interest in the said property. The respondents are having a railway line and an open piece of land towards western side of the petitioner's property. The aforesaid suit was ex-party decreed in favour of the petitioner on 05.09.1991 as the respondents did not appear in the said proceedings. The respondents filed an application under Order 9 Rule 13 of C.P.C. on 17.09.1996 requesting to recall the ex-parte order dated 05.09.1991. The recall application of the respondent/defendant was allowed and further opportunity was given to place the case. Hence they filed a written statement. The plaintiff filed replica and the aforesaid suit was dismissed on 09.09.2010 on the ground that the petitioner has failed to prove the ownership. The petitioner filed civil appeal against the judgment dated 09.09.2010 before District Judge Mathura, wherein order dated 18.02.2015 was passed, after hearing both the parties and the respondent/defendants were restrained from interfering in peaceful possession of the property of the petitioner's in question and further directed not to demolish any construction of the petitioner over the property in question. The aforesaid order has not been challenged by the respondents in any court of law. Surprisingly a notice dated 24.04.2023 was issued to the petitioner under Public Premises Act, 1971 (herein after referred to as "the Act"), directing the petitioner to remove the unauthorized construction within 21 days. The petitioner submitted a reply to the aforesaid notice on 09.06.2023. Without considering the reply of the petitioner, the respondent no.3 has issued notice dated 13.06.2023, under Section 4(1)/7 under the Act, alleging therein that near Masani Station Railway line of Section Mathura Vrindavan petitioner has raised an unauthorized construction over an area of 3275.27 sq. meters and has called for reply. Hence the present petition has been filed challenging the proceedings initiated under the Act.
5. Learned counsel for the petitioner submits that after a judgment passed in the appeal filed at the behest of the petitioner's, wherein the respondents were heard, the court was pleased to restrain the respondents from dispossessing the petitioner from the property in question and had also directed then not to demolish the same on the ground of adverse possession by the petitioner on the land in question. The respondents also could not prove that they were owners or had title over the land in dispute. Thus, initiations of the proceedings under the Act is nothing but harassment being caused to the petitioner. She further submits that once by order dated 18.02.2015, the civil court has held that the property in dispute having Municipal No.1240 Maha Vidya, Mathura near to Masani belongs to the petitioner, there was no occasion of issuing a notice under the said Act to frustrate the decree dated 18.02.2015. It has been further submitted that once the controversy between the parties has been settled by the civil court by order dated 18.02.2015 which is the competent court having jurisdiction and the same has attained finality as it has not been challenged by the respondents, initiations of proceedings under the Act on the same ground is the abuse of process of law. Learned counsel for the petitioner has further submitted that after the judgment of competent civil court, wherein it has been held that the property in question belongs to the petitioner on the basis of documents as well as possession of the petitioner's since long proceedings under Section 4 of U.P. Public Premises Act could not be initiated. Hence, the entire proceedings are liable to be quashed. She has relied upon the interim order passed in Writ-C No.29186 of 2021, which is still pending.
6. Learned counsel for respondents on the other hand submits that it is simply a notice wherein the petitioner has been called to submit a reply, therefore, the writ petition against the notice is not maintainable. He further submits that the impugned notice dated 13.06.2023 is under Section 4(1)/7 of the Act, mentioning the description of property as 3275.27 varg meter railway line property near Mathura Vrindavan Section, Masani Station/LC No.-07 (KM3/7-9) Railway Line, whereas the order dated 08.02.2015 has been passed with respect to property bearing Municipal No.1240 Maha Vidya Mathura which is near Masani Mathura, hence it does not relate to the property as described in the plaint wherein the order dated 18.02.2015 has been passed. He further submits that all the objections as taken by learned counsel for the petitioner can be placed by means of filling a reply, which she has already filed and the same shall be considered. As regards the interim order on which reliance has been placed, the property description is clearly mentioned but in the present case the property of the petitioner is different from that as mentioned in the notice. All these things can be seen by the authorities in the objections as raised by learned counsel for the petitioner. Even otherwise, the Court is not bound by the interim order. He further submits that the court below has not decided the ownership or title and has only restrained the respondents from interfering in peaceful possession of the petitioner as described on the plaint on the basis of adverse possession of the petitioner over the said property.
7. No useful purpose would be served by keeping this petition pending in view of the order, which the Court proposes to pass hereunder.
8. Considering the facts and circumstance of the case and without entering into merits of the case, it is directed that the petitioner shall file a detailed objection against the notice, ventilating all his grievances, before the respondent no.2-Estate Officer/Senior Divisional Engineer, North Central Railway, Agra, within four weeks from today along with a certified copy of this order. In case, such an objection is being moved, the respondent no.2 shall make all endeavours to consider and decide the same, in accordance with law, by means of a reasoned and speaking order, preferably within a period of one month, from the date of production of certified copy of this order, if there is no legal impediment.
9. With the aforesaid observations, the writ petition is disposed off.
10. For a period of two month, no coercive action shall be taken against the petitioner.
Order Date :- 21.12.2023
Kalp Nath Singh
