Uttarakhand High Court
WPMS/2965/2023 on 19 February, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
Office Notes,
reports, orders or
proceedings or
WSl. No Date COURT'S OR JUDGES'S ORDERS
directions and
Registrar's order
with Signatures
WPMS No.2965 of 2023
Hon'ble Rakesh Thapliyal, J.
1. Mr. V.K. Kohli, learned senior
counsel, assisted by Mr. Birendra Singh
Adhikari, learned counsel for the
petitioner.
2. Mr. Yogesh Tiwari, learned
Standing counsel for the State.
3. Mr. Rajendra Dobhal, learned
Senior counsel, assisted by Mr.
Siddhartha Sah and Mr. Shubhang
Dobhal, learned counsel for the
respondent.
3. The Coordinate Bench of this
Court, in the earlier round of litigation,
in a writ petition filed by the BHEL, i.e.
WPMS No.1309 of 2010, dismissed the
petition, which was arising out of a
proceeding initiated under Section 41 of
the L.R. Act by giving a liberty to the
petitioner to file a regular suit under
Section 40-A of the Land Revenue Act.
This judgment was rendered by the
Coordinate Bench on 22.08.2023.
Thereafter, the present writ petition was
filed on 17.10.2023, and
simultaneously, an application was also
filed on 28.07.2024 under Section 41 of
the Land Revenue Act before the
concerned Sub-Divisional Magistrate. As
it appears from the judgment passed by
the Coordinate Bench dated 22.08.2023
only this much liberty was given to the
petitioner BHEL to file a regular suit
under Section 40-A of the Land Revenue
Act, but surprisingly without availing
said liberty, this petition has been filed
with the following reliefs:-
"1. A writ order or direction in the nature of
Certiorari quashing the impugned order dated
05.10.2023 (Annexure-10) passed by the DM
Haridwar.
2. A writ order or direction in the nature of
Mandamus directing the District Magistrate
Haridwar to follow the demarcation done earlier on
14.09.2020 (Annexure-8) of the land of BHEL of
13.4 hectare in Khasra No.451.
2A-A writ order or direction in the nature of
mandamus directing the respondents to demolish
the construction raised by them in the land subject
matter of writ petition bearing Khasra no.451,
which has been shown in the plan (Annexure No.1
of supplementary affidavit dated 16.04.2024
attached with IA/8/2024)."
5. Not only this, there was another
litigation in between the BHEL and
THDC, and that was arising out of a civil
suit filed by the BHEL against the THDC
for seeking permanent injunction
bearing Civil Suit No. 196 of 2010,
which was dismissed on 21.11.2019,
and in that suit, the issue No.1 was very
vital and material, which was decided
against the BHEL.
6. Against the aforesaid judgment, a
regular civil appeal was filed by the
BHEL before the District Judge,
Haridwar, bearing Civil Appeal No.114 of
2019, which was also dismissed on
05.12.2022.
7. Being aggrieved with the order
passed in the civil suit as well as in the
appeal, the BHEL further filed a second
appeal, and it has been informed to this
Court that it is a time barred second
appeal, which has yet not been
admitted.
8. These are the two litigations. Now
it is very surprising that despite the
liberty given to the BHEL to file a
regular suit under Section 40-A of the
Land Revenue Act, the BHEL has
decided to avail the remedy to file a writ
petition under Article 226 of the
Constitution of India. It is very
surprising that instead of availing the
liberty, as given by the High Court for
filing a regular suit, the present writ
petition has been filed, wherein the
issue of title is being raised.
9. Now, as on today, neither the
regular suit has been filed, as per the
liberty given by the Coordinate Bench,
nor the second appeal has yet been
admitted. Now the question is as to
whether issue of title can be adjudicated
in the present writ petition, which has
been preferred under Article 226 of the
Constitution of India?
10. Mr. Yogesh Tiwari, learned
Standing Counsel for the State and Mr.
Rajendra Dobhal, learned Senior
counsel assisted by Mr. Siddhartha Sah,
Advocate, submits that the instant writ
petition has been filed without any
cause of action and, moreover, the
judgment passed by the Coordinate
Bench in WPMS No.1309 of 2010, was
also suppressed, and it appears that it
was a deliberate suppression of facts.
11. It has also been informed to this
Court that the second appeal was
preferred after filing the present writ
petition. What it reveals for one cause of
action as of now the BHEL availed three
remedies, i.e. one civil suit, application
moved under Section 41 of the LR Act,
which, in fact, was already decided and
the 3rd one is the instant present writ
petition preferred under Article 226 of
the Constitution of India.
12. Put up this matter for further
argument on 18.03.2025.
13. Interim order is extended till the
next date of listing.
(Rakesh Thapliyal, J.)
19.02.2025
R.Bisht
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