Surender Singh Lochav vs Nalinee Varma And Anr.
2012 Latest Caselaw 1974 Del

          *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

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;

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.

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

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

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

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'