Unknown vs State Of Uttarakhand And Others. ...
2023 Latest Caselaw 338 UK

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                                      SPA No.26 of 2023
                                      Hon'ble Sharad Kumar Sharma, J.

Mr. Mohd. Shafy, Advocate for the appellant. Mr. J.C. Pandey, Brief Holder for the State of Uttarakhand.

Mr. Devesh Bishnoi, Advocate for respondent no.4.

The challenge in the present Special Appeal is to the judgment dated 24.01.2023 as it has been rendered by the learned Single Judge in Writ Petition (M/S) No.265 of 2023 Mohammad Yusuf vs. State of Uttarakhand and others. In the said writ petition preferred under Article 226 of the Constitution of India, the petitioner has sought the following reliefs:-

I. To issue a writ order or direction in the nature of mandamus directing the respondents no.1 to 6 not to permit the respondents no.7 to 12 to construct any building or road or drains on the lands bearing khasra 18 min, 23, min and 25 min total measuring about 0.226 hectare of village Lakshmipur Patti, Tehsil Kashipur District Udham Singh Nagar. II. To issue a writ order or direction in the nature of mandamus commanding the respondents no.1 to 6 not to construct themselves or through contractor, any road or drains or any other development activity on the land bearing khasra 18 min, 23, min and 25 min total measuring about 0.226 hectare of village Lakshipur Patti, Tehsil Kashipur District Udham Singh Nagar.

III. To issue a writ order or direction in the nature of mandamus commanding the respondents no.13 to 15 to provide proper protection to the petitioner and to comply with the directions which may be issued by this Hon'ble Court in the present writ petition.

IV. Any other relief which this Hon'ble Court may deem fit and proper, may kindly be awarded in favour of the petitioner and against the respondents.

V. Award the cost of the petition in favour of the petitioner and against the respondents.

The said writ petition when it came for consideration before the learned Single Judge, the learned Single Judge vide its impugned judgment under challenge in the appeal, had dismissed the writ petition on the ground that the appropriate recourse for the redressal of civil grievances cannot be agitated by invoking Article 226 of the Constitution of India, particularly when it requires an appreciation of facts, evidence and law.

The learned Single Judge while rendering the judgment on 24.01.2023 had considered the aspect pertaining to the argument which were extended by the learned counsel for the appellant, that there is an infringement of his right under Article 300-A of the Constitution of India, first of all the provisions contained under Article 300-A of the Constitution of India is not an absolute right nor it falls within the ambit of Part III of the Constitution of India, to make it as a fundamental right. A right envisaged under Article 300-A of the Constitution of India, would obviously be circumscribed by the laws prevailing, governing the determination of rights in relation to landed property which was the subject matter in the writ petition decided by the learned Single Judge.

The learned Single Judge has rightly observed, that until and unless there is a statutory bar created by the provisions contained under Section 9 of the C.P.C. The institution of the civil suit for seeking a decree of an injunction would not be barred by Section 9 of C.P.C. even as against the State agencies unless there is any statutory bar, if they are at all provided under any provisions of law and are making a wrongful interference over the property which is allegedly claimed by the present appellant to be belonged to him.

This contention of the learned counsel for the appellant, that his case would be falling under para 27 of the judgment as rendered by the Hon'ble Apex Court in the matters of M/s Radha Krishna Industries vs. State of Himanchal Pradesh and others, and particularly he has made reference to para 27, where he has stressed upon the excerpt, which has been given therein "but for any other purposes as well". The purported interpretation given to the said clause it cannot be widened up to entail sustainability of proceedings under Article 226 of the Constitution of India, particularly when it entails a consideration of an inter-se private rights over a landed property, which has to be determined based upon the personal loss, which are governing administration or vesting of legal rights of the landed property and where an opportunity to lead evidence and its appreciation is required to be made by the regular civil courts.

This purported interpretation given to the excerpt made in para 27 of the judgment of the Hon'ble Apex Court will not be attracted under the circumstances of the present case.

It has been argued by the learned counsel for the State that the present Special Appeal or the earlier writ petition too itself was not tenable for the reason being, that according to the writ petition itself, there is already a pending proceedings under Section 176 of the U.P. Z.A & L.R. Act, which has been instituted by the present petitioner, who is a plaintiff therein as against as many as 25 private respondents and the State agency Nagar Nigam.

Since the proceedings under Section 176 of the U.P. Z.A. & L.R. Act, is under the special statute, which is contained under Schedule 9 as would be apparent from entry 11 of Constitution of India, in that eventuality where the regular proceedings are pending under special statute, which is protected by Schedule 9 to be read with Article 31-B of the Constitution of India. The appropriate recourse available to the present appellant would be to file an appropriate application either in the pending suit or resort to any other appropriate civil remedy available to him for seeking a decree of injunction as against the private respondents as such, the view taken by the learned Single Judge holding, that the appropriate recourse available to the present appellant would be by filing a regular civil proceedings is not bad in the eyes of law.

Hence, the Special Appeal lacks merit and the same is accordingly, dismissed.

(Sharad Kumar Sharma, J.) Vacation Judge 01.02.2023 Arti