Rajasthan High Court - Jaipur
Mohd. Yunus vs Urban Improvement Trust And Ors. on 19 May, 1999
Equivalent citations: 1999(3)WLC461, 1999(1)WLN523
Author: Bhagwati Prasad
Bench: Bhagwati Prasad
JUDGMENT Bhagwati Prasad, J.
1. Petitioner, in this writ petition, claims that a piece of land was allotted by the respondent-Urban Improvement Trust, Jodhpur (hereinafter referred to as 'the respondent-Trust') in favour of Secretary, Motilal Nehru Boarding House, Jodhpur vide, Annex. 1. Vide Annex.2 the said Boarding House was permitted to be constructed. Certain constructions were made on the land allotted. Subsequent thereto, respondent No. 3 decided to give a portion of this land on rent. A piece of land measuring 30 ft. x 10 ft. was given on a monthly rent of Rs. 1400/- to the petitioner.
2. Petitioner, after obtaining possession, raised certain constructions to run a scrap shop. Subsequently, petitioner obtained licence for running the shop from the Shops & Commercial Establishments Department in the year 1991. The licence issued to petitioner has been produced as Annex. 3. Petitioner also obtained telephone connection. A photostat copy of telephone bill has also been submitted by petitioner as Annex.4. By the aforesaid, petitioner claims that he was put in lawful possession.
3. The land was allotted by respondent-Trust to respondent No. 3, who had put in petitioner in possession and has received rent regularly. The respondent-Trust was aware of the facts and no objection whatsoever was taken regarding letting out of the portion of land by respondent No. 2 in favour of petitioner and other tenants.
4. A notice was issued by the respondent-Trust to respondent No. 3, a copy of the notice has been produced as Annex. 5. The notice was replied vide Annex. 7. In the reply, respondent No. 3 submitted that they have constructed eight rooms. However, when certain persons tried to encroach upon a part of the land, the same was rented out to certain persons. After this, petitioner received a notice Issued by the Authorised Officer vide Annex.8 dt. 26.9.1997. This notice was issued under Section 92-A of the Rajasthan Urban Improvement Trust Act, 1959 (hereinafter referred to as 'the Act of 1959'). A reply was submitted to the notice by petitioner and the same has been produced as Annex.9. Vide Annex. 10, Authorised Officer made an order against petitioner on 4.3.1998 whereby petitioner was asked to remove his possession over the land in question. Against the order Annex. 10 passed by the Authorised Officer, petitioner filed an appeal before the District Judge, Jodhpur, which was transferred to Addl. District Judge for disposal. The learned Addl. District Judge, Jodhpur vide its order dt. 7.9.1998 (Annex. 11) dismissed the appeals not maintainable.
5. Petitioner, after decision of the said appeal, approached the Officers of the respondent-Trust including Chairman and pleaded that he is carrying on business as tenant. Section 92-A of the Act of 1959 is not meant for evicting a person having lawful possession on the land. Petitioner has not made any encroachment on the public land. In tact, petitioner was put in possession by respondent No. 3, who was lawful owner of the land and, thus, Authorised Officer was not competent to invoke provisions of Section 92A of the Act of 1959.
6. Petitioner was assured by the Officers of the Respondent- Trust that action for evicting the petitioner from the land in question shall be taken strictly in accordance with law. Petitioner felt assured that no action would be taken against the petitioner by the Trust because Section 92A of the Act of 1959 does not provide for any action against a person who is in peaceful possession of the land as a tenant of the erstwhile allottee.
7. Petitioner, further averred that to his surprise, he received a notice dt. 22.4.1999 to the effect that he should remove his encr6achment within three days. A copy of notice has been produced as Annex. 12. A reply was submitted by petitioner vide Annex. 13. It was further averred by petitioner that Court of Addl. Civil Judge (Jr. Division) No.l, Jodhpur has passed an order that petitioner will not be evicted by use of force. He can only be evicted by following due procedure established by law. The action taken by the respondent-Trust is not in consonance with the established principles of law. The only course available to the respondent-Trust was to take proceedings under the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter referred to as 'the Act of 1964'). No proceedings under the Act of 1964 have been taken and therefore, action taken by the respondent-Trust tantamounts to non- compliance of the order passed by the Addl. Civil Judge (Jr. Division) No. 1 Jodhpur.
8. Petitioner disputed the right of the respondent-Trust to dispossess the petitioner by taking proceedings under Section 92A of the Act of 1959. Petitioner claims that order passed by the respondent-Trust dated 4.3.1998 is not legal. The petitioner was put in possession of the land by respondent No. 3, who was holding valid title from the year 1967. The respondent-Trust has failed to take into account the reply filed by the petitioner and has mechanically passed the order dt. 4.3.1998.
9. It has been contended on behalf of petitioner that Adddl. Civil Judge (Jr. Division) No. 1 Jodhpur has granted interim order to the effect that petitioner shall not be dispossessed by use of force and he can only be evicted by following the procedure established by law. In utter ignorance of the said order, respondents are taking recourse of use of force.
10. No eviction has been ordered against petitioner by following the procedure established by law. Section 92-A of the Act of 1959 does not prescribe any procedure for evicting a tenant from the disputed land. In this back ground, initiation of proceedings under Section 92-A of the Act of 1959 are wholly erroneous and without jurisdiction.
11. It has further been contended by petitioner that petitioner is not an encroacher on the land nor he is a trespasser. To attract the provisions of Section 92-A of the Act of 1959, it is required that petitioner has to be either a trespasser or an encroacher.
12. Petitioner was inducted as a tenant by the title holder of the land. At the time when the petitioner was inducted as tenant by respondent No. 3, there was valid title in favour of respondent No. 3, given by the respondent-Trust. Thus, it cannot, by any stretch of imagination, be said that at the time when petitioner entered on the land, he had made any encroachment. If the allotment in favour of respondent No. 3 had been subsequently cancelled, that does not-make petitioner as an encroacher.
13. Petitioner filed an appeal against the order dt. 4.3.1998 passed by the Authorised Officer under Section 92A of the Act of 1959. The same was held not maintainable and, therefore, petitioner has filed the present writ petition. Petitioner is carrying his trade and business on the disputed land as a person holding lawful possession. There is difference in a lawfully inducted tenant and an encroacher and unauthorised occupant. The only course available to the respondent is to take proceedings 'under the Act of 1964.
14. After filing this writ petition, this Court issued notices. On service of notices, respondents have put in appearance. Respondent-Trust though has not filed any detailed reply but has filed an application under Article 226(3) of the Constitution of India because at the time of issuing notice, this Court had granted inter-locutory order in favour of petitioner for not dispossessing petitioner.
15. Respondents have stated in their application that writ petition is not maintainable because the same is grossly belated and by this writ petition the petitioner has sought to challenge the order passed on 4.3.1998. An appeal against the order dt. 4.3.1998 was also dismissed by the learned Addl. District Judge, Jodhpur on 7.9.1998. The present writ petition has been filed on 30th April, 1999. This writ petition is grossly belated and, therefore, it should be dismissed on the ground of delay alone.
16. Respondents have further averred that petitioner has cooked up a story of an assurance being given by the Officers of respondent-Trust. No assurance whatsoever was given by any of the Officers and it is preposterous to allege that any such kind of assurance could be given when admittedly litigations after litigations were going on. Respondents have further averred that the entire basis of the present writ petition is that the petitioner has alleged existence of an interim stay order by the Civil Court whereby petitioner claims that only such proceedings can be taken against petitioner which tantamounts to due process of law.
17. Petitioner has sought temporary injunction by filing of a civil suit to the effect that he should be dispossessed only by due process of law. If he has taken recourse to the Civil Court, then maintaing of this writ petition to enforce injunction granted by the Civil Court mask this Court an Executing Court and, therefore, this writ petition cannot become execution proceedings for enforcing an injunction passed by the Civil Court. For this, the remedy available to the petitioner was to approach the trial court by filing an application under Order 39 Rule 2A CPC or in any case, an application under Section 151 CPC, which confers inherent powers on the court to grant relief in such circumstances. The present writ petition in this perspective is not maintainable.
18. Respondents have further averred in the application that in fact, petitioner had filed an application under Order 39 Rule 2A CPC after passing of the order dt. 4.3.1998. Thus, the petitioner was aware of the kind of remedy which he can pursue. A copy of the application has been produced as Annex. R/1. What is startling is that the petitioner has got the said application dismissed as not pressed on 10.9.1998 and, thus, the only remedy available to him has been rendered infructuous by himself, he cannot, in this perspective, maintain the writ petition.
19. In his writ petition, he has not disclosed the fact of filing of the application under Order 39 Rule 2A CPC and this tantamounts to concealment of material facts. It has further been contended by the respondents that petitioner has tried to twist the meaning of encroachment. The original allottee, who has a licence in the shape of Annex. 1 was allotted the land on the conditions that land will not be sub-divided and would be used only for constructing a residential Boarding House with one dwelling unit. An embargo was put on the licensee that he will not transfer or assign this licence to anyone. In case of violation of conditions of licence, a right was reserved by the respondent-Trust that licence is liable to be revoked and licensor can re-enter the land. In this case, licence was cancelled and cancellation of licence has become final after Respondent No. 3 unsuccessfully challenged the cancellation. Today, no licence subsists. Petitioner is claiming title through respondent No. 3. When respondent No. 3 itself has lost its title, the petitioner has become an encroacher and respondent-Trust has right under Section 92-A of the Act of 1959 to remove petitioner from the possession.
20. The civil suit filed by petitioner is still pending. Petitioner has obtained an injunction in that civil suit. If any violation is alleged, then it was for that Forum alone to deal with the question. Petitioner was required to pursue his remedy in the civil court. Rushing to this Court in the background that a subsequent order dt. 4.3.1998 has been passed, cannot give any liberty to the petitioner to maintain the present writ petition.
21. Supporting the averments of the writ petition, learned Counsel for the petitioner has canvassed before this Court that civil suit and civil court's injunction are still in existence but the respondent-Trust had passed a subsequent order dt. 4.3.1998 (Annex10). This order, being a subsequent order can be independently challenged by the petitioner. There is nothing wrong in maintaining the writ petition in this regard. The petitioner has placed reliance on a Supreme Court decision in the matter of J.S. Parihar v. Ganpat Duggar and Ors. and has canvassed that notwithstanding filing of an application under Order 39 Rule 2A CPC, in civil court, petitioner had an independent right to challenge the order dt. 4.3.1998 by a separate writ petition because in contempt proceedings, i.e. proceedings intitiated by petitioner under Order 39 Rule 2A CPC, the court was not competent to adjudge the validity of the order dt. 4.3.1998 and thus, on the basis of the decision of the Hon'ble Supreme Court in the case of J.S. Parihar's (supra), petitioner contends that he has right to maintain the present writ petition.
22. Petitioner has further contended that powers contained in Section 92-A of the Act of 1959 are parimeteria with the powers contained in Section 203 of the Rajasthan Municipalities Act, 1959. Petitioner has further contended that this Court in the matter of Municipal Council, Barmer v. Gautam Chand reported in 1995 (1) WLC 461, has held that a reading of Section 203 shows that when somebody encroaches on public street or public amenities, which are for public use, a notice can be given to the defaulter whereafter he can be prosecuted before a Magistrate and penalty can be imposed and recover the expenses from the person, who caused the obstruction or enroachment. Thus, learned Counsel for petitioner alleges that petitioner, being a tenant of the erstwhile licensee, as was the case of Gautam Chand, could not be dispossessed under Section 92-A of the Act of 1959 as has been held by this Court in the case of Gutam Chand (supra). This case related to Rajasthan Municipalities Act, 1959.
23. Learned Counsel has further submitted that there is a specific power available to the respondents under the Act of 1964. To take recourse to that Act was the only remedy available to the respondents. In the definition clause, under Section 2(b) of the Act of 1964 "Public Premises" has been defined and in Section (ii) of Sub-section (b) of the Act of 1964 the lands belonging to respondent-Trust has been included. Thus, the respondent-Trust should have proceeded in accordance with the provisions of the Act of 1964 and not under Section 92-A of the Act of 1959. Learned Counsel for the petitioner has further contended that removal of an encroachment under Section 92-A of the Act of 1959 cannot be synonymous with dispossession or eviction under the Act of 1964. Under Section 92-A of the Act of 1959, only encroachments can be removed, whereas the petitioner being tenant of an erstwhile licensee was required to be proceeded against under the Act of 1964. Petitioner has further tried to impress upon that since eviction and dispossession has not been contemplated by this Section, therefore, no appeal has been envisaged in Section 92A of the Act of 1959 against any action taken. As and when any such action is proposed, appeal is also provided in law.
24. Learned Counsel for the respondent-Trust replying to the arguments raised by the learned Counsel for the petitioner has challenged the right of the petitioner to maintain the present writ petition. The respondent-Trust has contended that by concealing the fact of dismissal of the application under Order 39 Rule 2A CPC, the petitioner has disentitled himself from any right to maintain a writ petition. In fact, an application under Order 39 Rule 2A CPC was a correct remedy available to the petitioner. There was any injunction passed in his favour to the effect that the petitioner can be evicted by due process of law. If at all there was any violation of that injunction, for enforcement of his right under the injunction, he had remedy of making an application under Order 39 Rule 2A CPC or an application under Section 151 CPC.
25. Supporting the case of respondent-Trust, learned Counsel for the respondent-Trust places reliance on the observations of this Court in the case of Hulas Chand Jain v. Sunmoon Printers Pvt. Ltd. reported in 1999 WLC (Raj.) UC 138 wherein this Court has observed that when defendant petitioner did not stop raising construction, the petitioner filed an application under Order 39 Rule 2A CPC and thereafter, an application under Section 151 CPC. This Court held that civil court can exercise powers in such circumstances under Section 151 CPC for providing police help in order to ensure compliance of the order.
26. Civil court had already passed an injunction which is still existing. The petitioner had filed an application under Order 39 Rule 2A CPC. He could pursue his remedy in pursuance of that application. It could be established in civil court that the course adopted by the respondent Trust under Section 92A is not the course as contemplated by the civil court while passing injunction and, therefore, petitioner could have obtained orders. But, in getting that application dismissed, the petitioner has given up his right, which he elected to pursue in that particular forum. Now, it is not open to the petitioner to pursue his remedy in yet another forum. Thus, the conduct of the petitioner disentitles him to maintain the, present writ petition.
27. Another aspect of the matter, as canvassed by the learned Counsel for the respondents is that petitioner has not mentioned these material facts in the writ petition. These material facts have been withheld by petitioner, which disentitles petitioner from pursuing remedy in this Court.
28. It has further been averred by the respondent-Trust that petitioner is not entitled to maintain the present writ petition on the ground of delay as well. The order impugned was passed on 4.3.1998. Against this order, the appeal was dismissed in September, 1998 and yet, petitioner has chosen to file present writ petition in April, 1999, which is much belated and, therefore, no relief can be claimed by petitioner.
29. The present writ petition is also contested by the respondent-Trust on the ground that petitioner has no legally enforcible right in his favour. The licence granted to respondent No. 3 was cancelled. The cancellation was unsuccessfully challenged. In the licence, conditions No. 1, 2, 9 and 10 were there. In these conditions, there was an express bar against the respondent No. 3 to let out or divide the holdings. Since, respondent No. 3 had no right to divide the holdings, any action taken in this regard was unauthorised. An unauthorised act cannot be protected by this Court. Thus, there is no legally enforcible right available to the petitioner.
30. As and when, petitioner wants to enforce a right of lease obtained from respondent No. 3, he has to establish that right exists. Today, there is no relationship existing in between respondent No. 3 and respondent-Trust. Further, in terms of conditions in lease Ex. 1, there was no power with respondent No. 3 create a lease in favour of the petitioner. Such transfer was void ab initio. The transfer by respondent No. 3 in favour of petitioner was bad in light of a decision of this Court, reported in 1997 WLC 443 Shri Paresar v. Municipal Board, Mount Abu.
31. Learned Counsel for the respondent has further emphasized that after having elected to litigate in civil court and thereafter coming to the writ court is an abuse of process of the court. The Civil Court has granted injunction in favour of the petitioner that he can only be evicted by due process of law. For the encroachers, the Hon'ble Supreme Court in the case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, held that notice of 21 days is sufficient notice for removing the encroachment. In the instant case, a notice under Section 92-A of the Act of 1959 was served and, therefore, there was sufficient compliance of the principles of natural justice.
32. Learned Counsel for the respondent has further canvassed that relief in exercise of jurisdiction under Article 226 is not granted as a matter of right. For being entitled to invoke extra ordinary jurisdiction of the High Court under Article 226, a party is required to establish a legal right. The person like the petitioner, who has elected to first go to the civil court and then abandoned the application filed by him, cannot be at such a belated stage permitted to approach this Court. Petitioner has failed to show that right created in him was a lawful right and, thus, cannot be favoured with writ of mandamus in view of the decision of this Court reported in 1995 WLC 59 Ram Narain Kumawat v. State of Rajasthan and Ors. This has also been canvassed by the learned Counsel for the petitioner that in view of the observations of the Supreme Court in the case reported in 1994 SC 853, S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagan Nath(dead) by L.Rs., the litigants like the present petitioner are liable to be refused any indulgence by the Court under Article 226 of the Constitution of India.
33. I have considered the rival submissions and perused the record.
34. Respondent No. 3 was allotted the land vide Annex. 1 (lease deed) which incorporated into it inter alia following conditions --
1. The said land shall be used by the Licence for the purpose of constructing a residential boarding house for private dwelling and no other purpose.
2. The licensee will not sub-divide the site or contruct more than one dwelling house on it.
9. The licensee shall not transfer or assign this licence, or the benefit thereof or execute any instrument purporting to do so.
10. In the event of the breach non-performance or non-observance of any of the foregoing conditions the licenser shall be entitled to revoke and determine the licence hereby granted and re-enter upon the said land and then upon the licencer or any officer authorised in this behalf quiet and peaceful possession of the said law and of all the buildings erected thereon.
35. The respondent-Trust, considering the impact of conditions contained in Annex. 1, had come to the conclusion that respondent No. 3 violated the conditions of lease (Annex.1) and issued notice Annex.5. Respondent No. 30 submitted the reply vide Annex.7. It is admitted position that after issuance of notice Annex.5, lease was determined and the respondent No. 3 was held not to be entitled for the grant/sanction. Such determination of lease, as challenged by respondent No. 3, had also failed. The determination had become final. In this perspective, the position of facts emerge out that whatever rights respondent No. 3 had acquired vide Annex. 1 had come to an end. Petitioner claims himself to be a tenant inducted by respondent No. 3. Once right and title of respondent No. 3 has been extinguished, any assignment of such right cannot be saved.
36. The Hon'ble Supreme Court in the case of Mithoo Shahani and Ors. v. Union of India and Ors. has held as under.-
That where an order making an allotment is set aside the title which is obtained on the basis of the continuance of that order also falls with it. The relevant provisions of the Act and the Rules do not contain any provison which militates against the position which is consistent with principle and logic. It is manifest that a sanad can be lawfully issued only on the basis of a valid order of allotment. If an order of allotment which is the basis upon which a grant is made is set aside it would follow, and the conclusion is inescapable that the grant cannot survive, because in order that grant should be valid it should have been effected by a competent officer under a valid order.
37. The principle laid down in the aforesaid case is based on legal maxim; "Debile fundamentum fallit onus", meaning thereby that when the foundation fails, every thing falls. In fact after determination of lease, none of the rights of respondent No. 3 survived and any consequential alienation also, therefore, cannot be lawfully recognised. With the lease of respondent No. 3 coming to an end, petitioners, who were inducted by respondent No. 3 as tenants, are liable to be evicted as, there being no legal sanction to protect their possession. In this background, respondent-Trust issued notice Annex. 8 under Section 92-A the Act of 1959. The notice is impugned by the petitioner on the ground that under Section 92-A of the Act of 1959, no such action could be taken by respondent-Trust because this Court in Gautam Chand's case (supra) has held that provision of Section 203 of the Rajasthan Municipalities Act is only applicable when somebody encroaches on public street or public amenities. According to the argument of learned Counsel for petitioner, Section 92-A of the Act of 1959 is parimeteria with Section 203 of the Rajasthan Municipalities Act.
38. This Court in the case of Laxmi Chand Bajaj v. State of Rajasthan, reported in 1996 (1) WLC (Raj.) 125, has held that Municipal Corporation has a right to act under Section 203 of the Municipalities Act for removing illegal constructions because under Section 98(g) of the Municipalities Act, it is a duty cast upon it. This Court in the case of State of Rajasthan v. Ram Singh, 1978 WLN (UC) 295, has further recognised right of Municipality to act as and when there is an encroachment on Khalsa land under Section 203 of the Municipalities Act. This Court has also held in the case of Vijay Raj v. Sooraj Roop 1966 RLW 310, that Section 203 deals with encroachments on municipal land. This Court in Municipal Council Ganganagar v. Rawat Ram , recognised the powers of Municipal Officers under Section 203 of the Municipalities Act to remove the encroachments where an encroachment was made and a compound wall and a room was constructed, in Harijan Colony, Thus, this Court has consistently held that powers under Section 203 of the Municipalities Act can be used to remove encroachments from municipal land, Khalsa land and any other land.
39. The ratio of the judgment in Gautam Chand's case (supra) has been only to the extent that it is only in cases of encroachment upon public road and public amenities, provision of Section 203 of the Rajasthan Municipalities Act can be resorted to.
40. Section 203(1) of the Rajasthan Municipalities Act for ready reference reads as under.-
203(1) Encroachment or obstruction upon public land-(1) Whoever makes any encroachment in any land or space not being private property, whether such land or space belongs to or vests in the Board or not except steps over drain in any public street shall on conviction be punished with simple imprisonment which shall not be less than one month but which may extent to three years and with fine which may extend to twenty thousand rupees:
Provided that the court may for any adequate or special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than one month.
41. The said provisions make a mention about the land and space in addition to public street and drain and in Sub-section 3, the Board or Authorised Officer is authorised to remove any such obstruction or encroachment. Thus, it would be seen that scope of Section 203 is much wider than what has been assigned to it by the decision of this Court in Gautam Chand's (supra). Encroachment and obstruction as defined in the dictionary meaning reads as under.-
Encroachment: "Intrude usurpingly (on other's territory, rights etc.) - make gradual inroads on"
"Obstruction : "Blocking or being locked, making or becoming more or less impassable, hindering...."
Thus, "encroachment" means entering on public land without authority and "Obstruction" means blocking the public place by putting some property upon such land.
42. In Gauttam Chand's case, this Court recognised the power of Municipality under this Section in the matter of encroachment of public way and public amenities only. Language of Section speaks in much wider terms. It can be seen that in Gautam Chand's case, the purport of Section 203 was not considered in right perspective. Moreover, judgment of this Court dealing with Section 203 of the Rajasthan Municipalities Act referred to above, had not been brought to the notice of the Court while deciding Gautam Chand's case as certainly some of those cases had been decided prior to Gautam Chand's case.
43. The Hon'ble Supreme Court in the case of Ahmedabd Municipal Corporation v. Nawab Khan Gulab Khan , has considered that encroachments can be ordered to be removed even with a notice of 21 days and, therefore, in the light of the discussions made hereinabove, it cannot be held that on the strength of Gautam Chand's case, respondent-Trust had no powers under Section 92-A of the Act of 1959 to proceed against the petitioner.
44. Once, it is held that respondent-Trust has power to proceed under Section 92-A of the Act of 1959, then argument of the learned Counsel for the petitioner that UIT could proceed only under the provisions of the Act of 1964, loses its relevance because then there are two co-existing provisions of evicting a person in unauthorised possession. Section 92-A of the Act of 1959 is special law and to the exclusion of general law, respondent-Trust was authorised to act under Section 92-A of the Act of 1959. This results in natural consequences that respondent-Trust correctly issued notices to the petitioner to remove encroachments vide Annex.8. Pursuant to notice, respondent-Trust had passed Annex. 10 order dt. 4.3.1998. This order was challenged by the petitioner before the Civil Court which has held that the appeal of the petitioner was not maintainable and rightly so. That being the position, the order dt. 4.3.1998 became subject matter of challenge before this Court in this writ petition.
45. Here, it is important to mention that respondent-Trust has brought on record an application filed by the petitioner under Order 39 Rule 2A CPC which was filed before the civil court. A civil suit of the petitioner is pending and an injunction has been granted in favour of the petitioner. The injunction is to the effect that petitioner can only be dispossessed through due process of law. The petitioner had not mentioned about the application under Order 39 Rule 2A CPC in his writ petition and, thus, has ignored to mention an important fact.
46. Whether proceedings under Section 92-A of the Act of 1959 were under due process of law or not could be appropriately adjudicated by the civil court. In dealing with that application order enforcing injunction could be made under Order 39 Rule 2A CPC. The civil court could have appropriately dealt with this aspect. But the petitioner has withdrawn that application and, thus, has abandoned his first challenge before the civil court. In such circumstances, can this writ petition be entertained on behalf of the petitioner is a question of vital importance?
47. The petitioner had elected to impugn the order dt. 4.3.1998 in the civil court. The domain of the civil court under Order 39 Rule 2A CPC is well recognised. Under Order 39 Rule 2A CPC, the court can enforce the obedience of the order. The order of civil court in favour of the petitioner to the effect that he can only be dispossessed by due process of law could rightfully be enforced in those proceedings. As petitioner had withdrawn his application under Order 39 Rule 2A CPC, he cannot maintain the writ petition as it would amount to abuse of process of the Court, as has been held by this Court in the case of Sumermal v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 1747/1994 decided on 22.4.1999 which reads as under.-
From the aforesaid discussion, it is clear that the petitioner had, in moving this Court, misused the process of the court. The petitioner's Act has also been held to be not bona fide. In this background, his writ petition is not liable to be considered....
48. The case relied upon by the learned Counsel for the petitioner in the matter of J.S. Parihar v. Ganpat Duggar reported in AIR 1997 SC 113 is of no assistance as the Hon'ble Supreme Court, in that case, was concerned with the proceedings under the Contempt of Courts Act and investigation of facts. Here, the civil court is seized of the civil suit in which injunction has been passed holding that petitioner can only be dispossessed by due process of law. It is that court alone which can rightfully determine as to what it meant by due process of law when this doctrine was mentioned in its injunction order. It was a competent forum to go into these questions. The writ petition in this regard is a remedy which appears to be a method by virtue of which, the petitioner is seeking enforcement of an injunction of the trial court and in all fairness, this cannot be appreciated because extraordinary jurisdiction of the High Court cannot be used for the purpose of enforcing the injunction of the trial court.
49. The order dt. 4.3.1998, according to the petitioner, was challenged before the District Court, which dismissed the appeal in September, 1998, yet the petitioner has not chosen to challenge the same immediately and, thus, has made a belated challenge before this Court, which goes against the petitioner. The petitioner cannot make the notice dt. 22.4.1999, giving cause of action to the petitioner for maintaing this petition. Thus, the writ petition has been filed at a belated stage.
50. Another aspect, which deserves notice in this case, is that writ petition can be entertained to enforce a legal right. What legal right, petitioner has, to remain in possession, has to be investigated Admittedly, petitioner was inducted as tenant by respondent No. 3. Respondent No. 3 has been stripped of his right to claim any title over the land in question. Once, the authority of respondent No. 3 has been lost, petitioner's right to remain in possession cannot be recognised and thus, there appears to be no legal right vested in petitioner to maintain the present writ petition vide Mithoo Shahani's case (supra).
51. The right of petitioner to maintain the present writ petition can be seen from another point of view as well Petitioner only claims that he has to be ejected by due process of law. Apart from this, petitioner has not been able to show that he has any other right to protect his possession. Petitioner's claim only is to go through or deal of the Act of 1964. Can such a right be protected under Article 226, is to be seen. A guidance is available in this regard from a case reported in 1989 S.C. 38 (Municipal Corporation of Delhi v. Gurnam Kaur). Such a right has been refused to be adjudicated under Article 226. In para 8. of the judgment, Hon'ble Supreme Court has held as under.-
Presumably because of the direction made by this Court in Jamna Das' case, the respondent Gurnam Kaur moved the High Court under Article 226 of the Constitution in April, 1986 for the issuance of an appropriate writ or direction restraining the Municipal Corporation from evicting her without the due process of law.
52. Further, in para 9 Hon'ble Supreme Court held as under -
9. We find it rather difficult to sustain the judgment of the High Court. The learned Judges failed to appreciate that this Court in Jamna Das' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to Section 320 of the Act, as a condition precedent to the exercise of its powers under Section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That, apart, the High Court could not have made the impugned direction contrary to the provisions contained in Sections 320 and 322 of the Act. Section 320(1) in terms creates a statutory bar against illegal encroachment on any portion of a public street. It provides that "No person shall, except with the permission of the Commissioner granted in this behalf, erect or set up any booth or other structure whether fixed or movable or whether of a permanent or temporary nature or any fixture in or upon any street etc." Having regard to this express provision, the High Court failed to see that the respondent Gurnam Kaur had no legally enforceable right to the grant of a writ or direction in the nature of mandamus. The High Court could not obviously issue any such direction which would be tantamount to a breach of the law. Furthermore, the High Court could not also make the impugned direction in view of the provision contained Section 322(a) of the Act, which expressly confers power on the Commissioner to cause the removal of any structure which constitutes an enroachment on a public place like a street which is meant for the use of the pedestrians.
53. From the aforesaid discussion, the indulgence is refused to the petitioner under Article 226 of the Constitution of India.
54. Taking over all view of the circumstances delineated hereinabove. I am of the opinion that in proceeding against the petitioner under Section 92-A of the Act of 1959, the respondent- Trust has committed no illegality. The petitioner has no legal right which can be enforced through the present writ petition. Not only that the petitioner has no legal right but his conduct also disentitles him because he had already approached a civil court and there is an injunction passed by the civil court which is operative. The attempt on the part of the petitioner to convert this Court in executing Court of the injunction of the trial court, is nothing but an abuse of the process of the court. Consequently, the present writ petition has no force and the same is therefore, dismissed. There will be no order as to costs.
S.B. Civil Writ Petition No. 1484 of 1999 Decided on 19.5.1999 Since the writ petition is dismissed on the ground of maintainability and there was an interlocutory order in favour of the petitioner, the petitioner apprehends that his construction will be demolished. Since the petitioner apprehends that his construction will be demolished forthwith, he prays to this Court that breathing time should be given to him to file an appeal against the judgment to seek indulgence of this Court against the order passed against him.
Learned Counsel for the respondents contend this submission and submits that since this writ petition has been dismissed on the question of maintainability, no indulgence would be made by this Court because the writ petition has been held to be not maintainable.
I have heard the learned Counsel for the parties. No doubt, the writ petition has been dismissed on the ground of maintainability, yet it would be in the interest of justice that the operation of the judgment be kept in abeyance till 29.5.1999. Meanwhile, the petitioner may take steps as advised to him.