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Uttarakhand High Court

Shubhavna Singh vs Dilip Jawalkar on 21 June, 2024

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL
                       Writ Petition (MS) No. 1651 of 2024

Shubhavna Singh
and another.                                                 ................Petitioners.

                                              Versus

Dilip Jawalkar.                                                   .........Respondent.
Present:
Mr. Siddharath Singh, learned counsel for the Petitioners.

Hon'ble Mr. Rakesh Thapliyal, J.

1. By the instant writ petition, preferred under Article 227 of the Constitution of India, petitioners are challenging the order dated 26.03.2024 passed by Assistant Collector, 1st Class, Vikas Nagar, in Case No. 15 of 2023 - 24 (Dilip Jawalkar Vs. Shubhava Singh and others) whereby ex parte temporary injunction has been granted in favour of the plaintiff - respondent, herein. In addition to this, petitioners are also challenging the entire proceedings of Case No. 15 of 2023 - 24 (Dilip Jawalkar Vs. Shubhava Singh and others) pending in the court of Assistant Collector, 1st Class, Vikas Nagar, Dehradun on the ground that the same is without jurisdiction.

2. The moot questions, as raised in the present petition, are: (i) Whether any person can be permitted to file suit for perpetual prohibitory injunction in the Revenue Court duly governed by the provisions of UPZA and LR Act, instead of approaching the competent civil court which alone has jurisdiction to grant injunction under Specific Relief Act? (ii) Whether Assistant Collector 1st Class, Vikas Nagar had erred in law in absence of any jurisdiction to grant ex parte interim injunction to the plaintiff when Schedule II of UPZA and LR Act specifies as to what suits can be filed under UPZA and LR Act and before which Revenue Court?

3. Learned counsel for the petitioners submits that the suit preferred by the respondent before the Assistant Collector is completely without jurisdiction and in fact, is not maintainable. In reference to this, he has referred Section 331 (1) of the U.P.Z.A. & L. R. Act, 1950, which is being extracted hereinbelow:

"331. Cognizance of suits, etc. under this Act. - (1) Except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof, or of a suit, application or proceedings based on a cause of action in respect of which any relief could he obtained by means of any such suit or application Provided that where a declaration has been made under Section 143 in respect or any holding or part thereof the provisions of Schedule II insofar as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.

Explanation - If the cause of action is one in respect of which relief may be granted by the revenue court. it is immaterial that the for from the civil court may not be identical to that which the revenue court would have granted."

4. Section 331 clearly provides that no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), can take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof, or of a suit, application or proceedings based on a cause of action in respect of which any relief could he obtained by means of any such suit or application.

5. Learned counsel for the petitioner submits that column 3 of Schedule II prescribes "description of proceedings" and column 4 of pertains to "court of original jurisdiction". He further submits that in 3 column 3 of Schedule II, there is no description of any suit pertaining to permanent injunction, therefore, by virtue of Section 331 (1) read with Schedule II of the U.P.Z.A. & L.R., 1950, the Assistant Collector has no jurisdiction to entertain the suit filed by the respondent seeking the relief of permanent injunction.

6. Apart from this, learned counsel for the petitioners submits that even otherwise, on the first date when the suit was filed before the Assistant Collector, 1st Class, on the same day, ex parte temporary injunction was granted by the Assistant Collector on 26.03.2024.

7. Mr. C.S. Rawat, learned Chief Standing Counsel with Mr. Yogesh Chandra Tiwari, learned Standing Counsel for the State, who are here to assist the Court, submit that before assisting the Court, they have to examine the entire record. Since record is not available, he requests that matter be posted for 26.06.2024 as a first case.

8. Chief Standing Counsel for the State is directed to furnish entire record of Case No. 15 of 2023 - 24 (Dilip Jawalkar Vs. Shubhavna Singh and others) on the next date fixed.

9. Let a copy of the writ petition be supplied by the learned counsel for the petitioner to the learned Chief Standing Counsel for the State during to the course of the day.

10. List on 26.06.2024 as a first case.

11. On the date fixed, learned counsel for the petitioner may press for the interim relief.

__________________ Rakesh Thapliyal, J.

21.06.2024 SKS