Uttarakhand High Court
Suresh Chand Mathur vs Assistant Collector 1St Class/ S.D.M. ... on 22 November, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. (M/S) 1736 of 2021
Suresh Chand Mathur ..........Petitioner
-Versus-
Assistant Collector 1st Class/ S.D.M. Sadar Dehradun
& Ors.
.......Respondents
Present:
Mr. Ashutosh Thakral, the learned counsel for the petitioner.
Mr. Suyash Pant, the learned Standing Counsel for the
State.
Mr. Lokendra Dobhal, the learned counsl for the private
respondents.
With
Writ Petition No. (M/S) 1754 of 2019
Dhokham Tibetan Foundation ..........Petitioner
-Versus-
State of Uttarakhand & Ors. .......Respondents
Present:
Mr. Lokendra Dobhal, the learned counsel for the petitioner.
Mr. Suyash Pant, the learned Standing Counsel for the
State.
Mr. Ashutosh Thakral, the learned counsel for the petitioner
Sri S.K. Mishra, J.
Date of hearing and order 22.11.2021
1. Since, both the writ petitions arise out of same cause of action, therefore, same are being decided by a common order for sake of brevity. WPMS No. 1754 of 2019 shall be considered as the leading case.
Page No. 1 of 72. Heard Mr. Ashutosh Thakral, the learned counsel for the petitioner, Mr. Suyash Pant, the learned Standing Counsel for the State and Mr. Lokendra Dobhal, the learned counsel for the respondent.
3. The petitioner i.e. Dhokham Tibetan Foundation, claiming to be in possession of a piece of land, filed a suit bearing O.S. No. 212 of 2003 against the State of Uttarakhand before the Additional District Judge/ Fast Track Court II, Dehradun. After hearing of the suit, the learned Addl. District Judge granted perpetual injunction against the State of Uttarakhand.
4. The State of Uttarakhand filed a first appeal bearing FA No. 64 of 2003 before this Court which set aside the order passed by the learned Addl. District Judge/Fast Track Court, Dehradun.
5. The petitioner, thereafter, assailed the order, passed by this Court setting aside the decree of perpetual injunction, in Civil Appeal No. 1332 of 2009 which was disposed of by the Hon'ble Apex Court on 18.04.2018 wherein the Hon'ble Apex Court has held that the petitioner- Dokham Tibbat Foundation is in possession of the land having been granted under the provisions of U.P. Bhoodan Yagana Act, 1952, and, therefore, the State of Uttarakhand was injuncted from dispossessing the petitioner from the land without following the procedure established by law. Thereafter, respondent i.e. Shri S.C. Mathur filed O.S. No. 568 of 2005 before the Civil Judge (Sr. Div.), Dehradun for perpetual injunction against the Page No. 2 of 7 opposite party. He also filed an application for temporary injunction which is still pending. When the matter is pending before the Court below, the private respondent again initiated the proceeding under Section 229B of the Uttar Pradesh Zamindari Abolition & Land Reforms Act (hereinafter referred as to the UPZA&LR Act) before the Assistant Collector 1st Class, Dehradun in dispute no. 11 of 2017-18.
6. It is brought to the notice of the Court by the learned counsel for the private respondent that in O.S. No. 568 of 2005, the respondent specifically pleaded that he is in possession of the land since 15.05.1999 by virtue of an agreement to sale dated 03.03.1998, however, in the suit before the Revenue Authorities he claimed that out of those lands involved in this suit, he has acquired title by way of adverse possession under 14 acres of land, since, being in possession having a hostile animus to the title to the present petitioner since 15.05.1999. The respondent also applied for temporary injunction under Section 229D of the UPZA&LR Act. The temporary injunction was granted in favour of the private respondents. Such order was challenged before the Member, Board of Revenue, Garhwal, Dehradun bearing Revision No. 163 of 2018-19. The learned Member, Board of Revenue modified the order and asked both the parties to maintain status quo.
7. Mr. Lokendra Dobhal, the learned counsel for the Chokham Tibbetan Foundation in this case would argue that the plea of adverse possession has not Page No. 3 of 7 been taken by the respondent in the original suit before the Civil Judge (Sr. Div) Dehradun in O.S. No. 568 of 2005 and will not make out a prima facie case of adverse possession in later application filed under Section 229 of UPZA&LR Act. He also contended that the order passed by the Assistant Collector 1st Class, Dehradun is illegal, as under Order 39 Rule 1 and 2 of the Code, the Revenue Court has no jurisdiction to pass the order of injunction.
8. Mr. Ashutosh Thakral, the learned counsel for the private respondent would argue that the property is different hence the plea taken by the respondent is different in two cases but he also contends that as per the provision of Section 229D of the UPZA&LR Act, the Revenue Authority has a jurisdiction to pass a temporary injunction. He would also argue that the Board of Revenue had no jurisdiction to decide a revision under Section 333 of the UPZA&LR Act, as the order passed by the Assistant Collector 1st Class, Dehradun was a interim order and not a final order.
9. Having considered this entire matter, this Court is of the opinion that in order to issue a order of temporary injunction be it under Order 39 Rule 1 and 2 of the CPC or under Section 229 D of the UPZA&LR Act three conditions has to be satisfied, those are, the existence of prima facie case, findings that balance of convenience lies in favour issuing temporary injunction and thirdly irreparable injury shall be caused to the petitioner praying for injunction, if injunction is not granted, which cannot be Page No. 4 of 7 compensated by any amount or cost. Coming to the case in hand, this Court is of the opinion that the respondent is taking prevaricating stance in the sense that he has claimed 32 acres by virtue of ikrarnama (agreement to sell) executed on 03.03.1998, at the same time, he claimed title by way of adverse possession on a portion i.e. 14 acres of land thereof in the later proceeding initiated under the UPZA&LR Act. So this Court is of the opinion that prima facie case do not exists in favour of the respondent to grant an order of injunction. Moreover, it is not shown that the balance of convenience lies in favour to the issuance of injunction in view of the fact that there was order of the Hon'ble Apex Court injuncting the State of Uttarakhand from dispossessing the petitioner without following procedures established by law and obviously there is no finding to that effect by the learned Assistant Collector, 1st Class, Dehradun. There is also no finding by the Assistant Collector, 1st Class, Dehradun unless a temporary injunction is granted, the respondent shall suffer irreparable loss which cannot be compensated by award and cost.
10. In that view of the matter, this Court is of the view that the order passed by the Assistant Collector, 1st Class, Dehradun in Case No. 11 of 2017-18, granting temporary injunction restraining the petitioner from creating any kind of disturbance in peaceful possession of the respondent, for not changing the character of the land and for alienating the land is totally irregular exercise of jurisdiction conferred upon by law on the learned Assistant Page No. 5 of 7 Collector Dehradun, therefore, the order cannot stand and deserves to be set aside.
11. It is correct that a revision application is not maintainable before the Member, board of Revenue under Section 333 of the UPZA&LR Act, as the order passed is not a case decided but is an interim order, and, therefore, this Court is of the opinion that the revisional court has no jurisdiction to decide the matter. Be that as it may, since we have come to the conclusion that Assistant Collector, 1st Class, Dehradun issued injunction in total disregard of the principle guiding the grant of temporary injunction and in fact there is no discussion regarding the same point wise, there is no impediment in allowing the application.
12. In that view of the mater the writ application is allowed. The order passed by the Assistant Collector, 1st Class/S.D.M. (Sadar) Dehradun on dated 28.12.2018 and the order dated 27.03.2019 passed by the Member, Board of Revenue, Dehradun are hereby set aside.
13. The other writ application i.e. WPMS No. 1736 of 2021 filed by Mr. Ashutosh Thakral for early disposal of the application for temporary injunction is also without merit as the petitioner has been approaching different courts on different and prevaricating pleas. Hence, we also not inclined to give any direction to the learned Assistant Collector, 1st Class, Dehradun for expeditious disposal of the interim application, in Page No. 6 of 7 view of the fact that Mr. Ashutosh Thakral, the learned counsel for the petitioner in WPMS No. 1736 of 2021 and WPMS No. 1754 of 2019 has made deliberate attempt of misleading the Court. Hence, this Court is not inclined to pass any order directing the Assistant Collector 1st Class, Dehradun to dispose of the application pending before it as expeditiously as possible. In addition to that this application has been filed for giving effect to the order passed by the learned Assistant Collector, 1st Class, Dehradun. Since original order passed by the learned Assistant Collector, 1st Class, Dehradun is set aside, in related application there is no scope for giving formal direction to implement the order which we have set aside today.
14. Hence, the writ petition no. 1754 of 2019 is allowed and writ petition No. 1736 of 2021 is dismissed being devoid of merit.
15. There shall be no order as to costs.
16. Urgent certified copies of this order be provided as per rules.
(S.K. Mishra) Judge PV Page No. 7 of 7