Uttarakhand High Court
WPMS/265/2022 on 30 March, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
Office Notes,
reports, orders or
proceedings or
Sl. No Date COURT'S OR JUDGES'S ORDERS
directions and
Registrar's order
with Signatures
WPMS No.265 of 2022
With
WPMS No.1548 of 2018
Hon'ble Sharad Kumar Sharma, J.
Mr. Nagesh Agarwal, Advocate, for the petitioner.
Mr. N.S. Pundir, Deputy Advocate General, for the State of Uttarakhand.
Mr. Atul Bahuguna, Advocate, for the respondent.
Mr. Niranjan Bhatt, Advocate, for the respondent.
Mr. Ramji Srivastava, Advocate, for the respondent.
Mr. Mahavir Singh Tyagi, Senior Advocate, for the respondent.
In the pending proceedings under Article 227 of the Constitution of India, filed by the petitioner, which was emanating from the proceedings under Section 176 of the UPZA & LR Act, it had been pending consideration before this Court.
On the pretext of alleged act of the construction which was alleged to have been carried by the respondent Nos.1 to 3, for raising the construction of the shop, though on the disputed land, which is now a subject matter of the Suit No.57 of 2014 under Section 176 of UPZA & LR Act, and because of the petitioner inability to file any appropriate application in the pending writ petition under Article 227 of the Constitution of India, the petitioner has rather invoked the writ jurisdiction under Article 226 of the Constitution of India by way of filing a Writ Petition (M/S) No.265 of 2022.
This Court is of the view, that when the parties are already under litigation for an enforcement of their civil rights which was arising out of the proceedings under Section 176 of the UPZA & LR Act, which is pending consideration, there ought not to have been an another writ petition filed independently for getting an order of restraint of raising the construction against the private person by invoking Article 226 of the Constitution of India.
In that eventuality, the Writ Petition no.265 of 2022, as per the opinion of this Court, would not be maintainable, the same is accordingly dismissed. However, with the clarification that the Registry, will register this writ petition as a miscellaneous application in the pending writ petition being WPMS No.1548 of 2018, in which, if so advised, the petitioner may file a replication to the application/counter affidavit filed by the respondent Nos.4 and 5.
(Sharad Kumar Sharma, J.) 30.03.2022 NR/