Allahabad High Court
Smt. Chanda Begum & Others vs State Of U.P.Thr.Secy.Deptt.Of ... on 22 June, 2018
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved A.F.R. Court No. - 2 Case :- MISC. BENCH No. - 9796 of 2013 Petitioner :- Smt. Chanda Begum & Others Respondent :- State Of U.P.Thr.Secy.Deptt.Of Revenue,Civil Sectt.Lko.& Ors Counsel for Petitioner :- Santosh Yadav 'Warsi',Jitendra Kr. Singh Counsel for Respondent :- C.S.C.,Anuj Kumar Srivastava,B.Q.Siddiqui,Mohd.Babar Khan Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Virendra Kumar-II, J.)
1. Heard Mr. S.K. Yadav 'Warsi', learned counsel for petitioners, Sri Mahendra Kumar Mishra, learned Standing Counsel for opposite parties has 1 to 5 and 7 and Sri Prabhakar Srivastava holding brief of Mohd. Babar Khan, learned counsel for opposite party no. 6.
2. The petitioners have instituted this writ petition against respondent nos. 1 to 5 (State of U.P., Administrative and Police Officers), Executive Officer, Nagar Palika Panchayat, Shahabad, Hardoi-respondent no. 7 and Mr. Sazid Khan-respondent no. 6.
3. It is pleaded in the grounds of writ petition that respondent no. 5 in collusion with respondent no. 6 is making unnecessary interference in the legal construction, which was being made by the petitioners over their purchased land belonging to Gata No. 2205-A ad-measuring 0.0380 hectare whereas respondent no. 4 has issued clear and straight direction in this regard. It is contended that Sri Faheem Khan executed a sale deed dated 25.10.2012 in favour of the petitioners and the disputed property has been recorded in favour of the petitioners in revenue record.
4. It is further pleaded that a commercial building was to be constructed on the disputed land, of which, map was approved on 10.10.2006 by the Executive Officer of Nagar Palika Shahabad, Hardoi. The respondents raised objection over the land in question that the same is secured for graveyard and recorded as such in revenue record, only to create hinderance over the proposed construction of the building by the petitioners. The petitioners moved an application before the Sub Divisional Magistrate, Shahabad, who sought report from the concerned Lekhpal. In turn the Lekhpal in its report dated 9.11.2012 disclosed that the disputed land was earlier recorded in the name of Sri Fahim Khan S/o Moveen Khan. The petitioners have purchased this land vide registered sale deed executed by him and there was no ambiguity or illegality about the lawful title of the petitioners and there was no legal lacuna towards the construction that has been made over the land in question.
5. It is further mentioned by the petitioners that the Sub Divisional Magistrate after considering inquiry report submitted by the Lekhpal directed executive Engineer Nagar Palika Parishad Shahabad that the construction which was being done by the petitioners be proceeded. The S.D.M. also referred his earlier letter dated 24.01.2005, in which, it was disclosed that land in question had not belonged to land reserved for graveyard. The petitioners have brought on record the inquiry report dated 9.11.2012 submitted by Lekhpal and order dated 20.11.2012 passed by the Sub Divisional Magistrate, Shahabad.
6. It is contended by the petitioners that respondent no. 6 was consistently making hinderance in the construction being made by the petitioners. The petitioners, having left no other alternative, approached the Sub Divisional Magistrate, Shahabad by moving various applications. The Sub Divisional Magistrate, Shahabad directed the Station House Officer, Shahabad for restraining respondent no. 6 from interfering in the construction being done by the petitioners and to provide assistance with the help of the police force to the petitioners regarding construction which was going on over the disputed property. It was also directed to the police personnel to maintain peace at the spot. The petitioners have brought on record copies of the applications moved by them.
7. The petitioners, due to collusion between police authorities and respondent no. 6, had approached the District Magistrate and Superintendent of Police, Hardoi on 16.4.2013 and 25.4.2013 respectively, but no heed was paid. The copies of letter dated 16.4.2013 and 25.4.2013 (Annexure No. 5) have been brought on record by the petitioners. It is further submitted that the respondent no. 6 has no right to create any hinderance in construction work of the petitioners over the land in question. The action of the police personnel by not restraining the respondent no. 6 from creating hinderance in construction of petitioners, despite the aforesaid specific direction issued by Sub Divisional Magistrate, Shahabad is per se illegal, arbitrary, improper and against the principles of natural justice.
8. On the basis of above-mentioned facts and circumstances, following reliefs have been sought by the petitioners:-
"(i) issue a writ, order or direction in the nature of mandamus commanding the authorities concerned to take appropriate action towards the construction of building duly approved by the authorities concerned being made by the petitioners in light of reports submitted by revenue authorities over the land in question.
(ii) issue a writ, order or direction in the nature of mandamus commanding the police authorities to provide assistance and peaceful environment to the petitioners towards construction of building over the land in question as has been directed by the Sub Divisional Magistrate, Shahabad vide its order dated 20.11.2012, 24.12.2012 and 29.8.2013 respectively.
(iii) issue a writ, order or direction in any nature which this Hon'ble Court may deem fit and proper under the circumstances of the case.
(iv) award the cost of the writ petition in favour of the petitioners."
9. In reply, respondent no. 5 has filed counter affidavit wherein it is pleaded that it is wrong to allege that he is in collusion with respondent no. 6. He has not caused any interference regarding constructions being raised over plot no. 2205-A ad-measuring 0.0380 hectare situated at Shahabad District Hardoi. It is contended that the direction, which were given by the Sub Divisional Magistrate, Shahabad, were duly complied with by him, keeping in view the breach of peace on the spot, he took necessary steps. It is further submitted that on 20.11.2013 at 2:00 p.m. the police force reached at the spot, taking in view the serious dispute between both the parties and their companions. The police force made every efforts to maintain the peace amongst the persons collected on the spot and they tried to continue construction work at that time also. The petitioners and their companions started firing and consequently, an F.I.R. was lodged by respondent no. 6 vide case crime no. 786 of 2013, under Sections 147, 148, 149, 307, 504 & 506 I.P.C. and Section 27/30 of the Arms Act.
10. It is further mentioned that the petitioners also moved an application under Section 156 (3) Cr.P.C. before the Additional Chief Judicial Magistrate-V, Hardoi and on the basis of this complaint, case crime no. 786-A of 2013 under Sections 147, 148, 149, 307, 504, 506 and 395 I.P.C. was registered against respondent no. 6 and other persons. Thus by both sides, reports have got registered and investigation was under progress and matter is pending before the concerned court for trial. Both the F.I.R.s have been brought on record as CA-1 and CA-2 by respondent no. 5. He has also submitted that he had never stopped construction work over the plot no. 2205-A of the petitioners.
11. Counter affidavit has been filed on behalf of respondent nos. 1 to 4 wherein it has been submitted that petitioners moved applications on 24.12.2012 and 20.8.2013 before the Sub Divisional Magistrate, Shahabad, District Hardoi making a request that the construction works may be allowed to be done in direct supervision of the Lekhpal, Kanoongo and the Police force. On the said application the Sub Divisional Magistrate directed to S.H.O. of concerned Police Station to look into the matter with reference to interference being made by the respondent no. 6 and also to maintain peace, law and order on the spot.
12. Mr. Anuj Kumar Srivastava, Advocate has filed Vakalatnama on behalf of respondent no. 7, but no counter affidavit was filed.
13. Respondent no. 6 has pleaded in his counter affidavit that plot no. 2205-Sa situated at Village Shahabad Andar, Pargana and Tehsil-Shahabad, District Hardoi is recorded in the name of Inta Khan s/o Kifayat Khan, r/o Mata Ka Talab, Tehsil Shahabad, district Hardoi. Respondent no. 6 has brought on record Khatauni of plot no. 2205-Sa as Annexure No. CA-1. It is contended by him that the sale deed dated 22.5.2000 of land ad-measuring area 3 X 15 meter i.e. 45 sq meters of the plot was executed by Ashraf Khan, successor in interest of late Inta Khan in his favour and also in favour of Mohd Sharif son of Shafique Husain, resident of Mohalla Gigiyani and Shakil Khan son of Shakir Khan resident of Mohalla Mahmand. They got peaceful possession over the land in question. This plot is allegedly situated adjacent to the Hardoi-Shahabad Road. The mutation of the said plot was also made by Nagar Palika Shahabad in his favour.
14. The respondent no. 6 has brought on record, the assessment of house no. 449 as Annexure-CA2 and sanction of map under Section 180 of the U.P. Municipalities Act, 1916 as Annexure No. CA-3. It is further pleaded that plot no. 2205-A is situated at a considerable distance from plot no. 2205-sa, which was recorded in favour of Fahim Khan. Respondent no. 6 has admitted that Fahim Khan executed sale deed dated 25.10.2012 in favour of the petitioners.
15. It is further pleaded that he had filed application for recall of mutation order passed by Tehsildar (Judicial), which was dismissed by the Tehsildar, Shahabad, District Hardoi vide order dated 8.7.2013, against which, he has filed appeal under Section 210 of U.P. Z.A. & L.R. Act before the Sub Divisional Magistrate, which is pending for consideration. Photo copy of the questionnaire has been brought on record as Annexure-CA4.
16. Respondent no. 6 has also mentioned that Fahim Khan has also filed injunction suit being Regular Suit No. 390 of 2000 (Fahim Khan Vs. Mohd. Sharif and others), which was dismissed on 10.4.2007. Order dated 10.4.2007 has been brought on record as Annexure No. CA-5.
17. It is further pleaded that when Fahim Khan could not succeeded in taking forcible possession of the land in question, then he executed sale deed in favour of the petitioners. He also tried to interfere in peaceful possession of respondent no. 6 over the land in question, therefore, he filed suit bearing O.S. No. 379 of 2012 (Mohd. Sharif and others Vs. Fahim Khan) for restraining the opposite party to interfere in his peaceful possession. The said suit is pending for consideration before the Civil Judge (Sr. Div.), Hardoi. The Advocate-Commission was issued in the aforesaid suit by the court, who filed his report dated 21/22.12.2012 in which the land in question has been shown to be situated adjacent to Hardoi Shahabad Road. The report dated 21/22.12.2012 has been brought on record as Annexure-CA-5 by respondent no. 6.
18. It is further pleaded that he moved an application for impleadment, which is pending before the trial court for consideration. Fahim Khan moved an application for sanction of map on 10.10.2006 and the same was issued on 24.1.2008 for a period of one year as per bye-laws of Municipality. The construction work of Fahim Khan was not commenced, hence sanction of work accorded by Municipality under Section 180 of the Municipality Act has been expired. Therefore, the fresh sanction is required to be obtained before initiation of work, which was neither done by Fahim Khan nor by the petitioners. The map annexed with the copy of the writ petition lost its significance.
19. It is also pleaded that the petitioners had tried to dispossess the land in question from him on the basis of order dated 23.10.2013 passed by this Court. The ruckus was created by the muscle men of the petitioners and in this regard first information report was lodged. Respondent no. 6 has brought on record FIR and inquiry report as Annexure Nos. CA-9 and CA-10.
20. Respondent no. 6 has mentioned that plot no. 2205-A and 2205-sa are two different plots. It is further submitted that the report has been forwarded by the concerned Lekhpal with regard to the plot no. 2205-Minzumla, whereas the petitioners are claiming the land of plot no. 2205-A. The plot no. 2205 Minzumla includes plot no. 2205-A as well a plot no. 2205-sa. The learned Sub Divisional Officer by misreading the said report has issued the direction to raise the construction over the land of plot no. 2205-A, whereas the report was with regard to plot no. 2205 Minzumla. Unless and until the report is clear and unambiguous, such direction cannot be issued by an administrative authority, so as to circumvent the rights of other share holders of the land of plot no. 2205 Minzumla.
21. On the basis of aforesaid facts and circumstances, it is contended by respondent no. 6 that writ petition filed by petitioners is wholly misconceived, having no legs to stand. Thus present writ petition is devoid of any merits and is liable to be dismissed in the interest of justice.
22. In reply, the petitioners have filed rejoinder affidavit reiterating their earlier contentions.
23. We have heard learned counsel for parties and perused the record.
24. Learned counsel for petitioners relied upon a decision of this Court dated 08.10.2009 delivered in Special Appeal No. 1519 of 2009 (Roshan Lal Vs. State of U.P. and others). The Division Bench of this Court considered the exposition of case law of Hon'ble Supreme Court propounded in L. Hirday Narain Vs. Income-Tax Officer, Bareilly, AIR 1971 SC 33; Durga Enterprises (P) Ltd. & Anr. Vs. Principal Secretary, Govt. of U.P. & Ors, (2004) 13 SCC 665 and decision of Division Bench of this Court delivered in Diwakar Dutt Bhatt Vs. Life Insurance Corporation of India & Anr. (19998) 2 UPLBEC 1154 and the observations made in paragraphs-5 and 6 of learned Single Judge in Indra Narain Tripathi Vs. Union of India & Ors (2006) 1 UPLBEC 1012, which reads as under:-
........... In the present case, we proceed on an assumption that the petitioner has alternative remedy, but the question which falls for determination is as to whether in the facts of the present case, wherein the writ petition filed on 27.11.2001 was entertained and respondents and petitioner granted time to file counter affidavit and rejoinder and they having exchanged the pleadings, the learned Judge was right in dismissing the writ petition on 24.07.2009 on the ground of alternative remedy.
Having given our anxious consideration to the question involved, we are of the opinion that the learned Judge erred in dismissing the writ petition on the ground of existence of alternative remedy at such a distance of time. The point in issue is no more res integra, as the Supreme Court had the occasion to consider the same in the case of L. Hirday Narain Vs. Income-Tax Officer, Bareilly, AIR 1971 SC 33, in which it has been held as follows:-
"12. An order under Section 35 of the Income-tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income-tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by Section 33-A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits."
... ... (Underlining ours) The Division Bench of this Court at page no. 10 has further observed as under:-
"Learned Judge, after having entertained the writ petition, directed the parties to file counter and rejoinder affidavits and that having already been done, at such a distance of time, ought not to have dismissed the writ petition on the ground of alternative remedy."
25. Learned counsel for petitioners has also relied upon the decision dated 22.5.2013 passed by Division Bench of this Court delivered in Special Appeal No. 1301 of 2012 Dhani Ram Vs. Chief Engineer, Raj Ghat Project Betwa River Board, Nandanpura, Jhansi and others and argued that on the basis of alternative remedy writ petition should not be dismissed, if the writ petition was entertained and pending for a long period before this Court.
26. It is further argued that all the case laws were considered by this Hon'ble Court in Roshan Lal (supra) and exposition of law mentioned in the aforesaid case law has also been considered by the Division Bench and at page no. 8 and 9 exposition of law propounded by Hon'ble Supreme Court is quoted below:-
10. The Supreme Court had also considered this issue in the case of Durga Enterprises (P) Ltd. & Anr. Vs. Principal Secretary, Govt. of U.P. & Ors., (2004) 13 SCC 665 in which, in categorical terms, it has been held that the High Court having entertained the writ petition in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit. Relevant portion of the judgment of the Supreme Court in this regard, reads as follows:-
"2. By the impugned order the writ petition, which was pending for a long period of thirteen years, has been summarily dismissed on the ground that there is remedy of civil suit. The dispute between the parties was concerning exercise of the respondents' alleged right of re-entry on the disputed property in accordance with sub-rules (2) and (3) of Rule 5 of the Land Acquisition (Companies) Rules, 1963. The aforesaid Rules contain a mechanism for adjudication of a dispute relating to the alleged breach of terms of the agreement and the manner in which it is to be resolved.
3. The High Court, having entertained the writ petition, in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit.
4.We, therefore, set aside the impugned order of the High Court and remit the matter to it for taking a decision on merits, after hearing the parties, within the earliest possible period."
(Underlining ours).
27. Therefore, it is argued that the petitioners should not be relegated to civil court for redressal of their grievance. It is pertinent to mention here that in this case there was dispute between parties concerning exercise of the respondents' alleged right of re-entry on the disputed property. In the present case, the petitioners have to prove prima facie their right title and interest on disputed property on the basis of sale deed dated 25.10.2012. There is also a dispute that land in question relates to Khasra No. 2205-A or 2205-sa
28. Learned counsel for petitioners has also relied upon a decision dated 19.12.2013 of this Court in the case of Dr. Kailash Singh and others Vs. State of U.P. and others reported in [2014 (32) LCD 374] in which Division Bench of this Court has also observed in paragraph nos. 12 and 13, which reads as under:-
"12. Now, coming to first limb of argument of learned counsel for the petitioners that lawful allottees have been prevented by Members of a certain union/association or person to raise constructions over the land allotted to them is concerned, is a matter of deep concern for this Court. In case, the lawful allottees are prevented by some persons by use of muscle power or mobism, then, it shall be antithesis of the rules of law.
13. The report sent by the Senior Superintendent of Police, Lucknow also reveals that at different places, Members of Bhartiya Kissan Union have tried to prevent the construction of lawful allottees. Identical writ petitions have also been filed in this Court from time to time, where the lawful allottees have been prevented to raise constructions on the basis of sanctioned plan by a group of persons or by some anti-social elements or by politically associated persons. Right to peaceful enjoyment of property is a fundamental right conferred to a citizen subject to statutory and constitutional limitation as held by the Division Bench of this Court in the case in Shree Narayan Singh v. State of U.P. and others, 2013 LCD 2048. Accordingly, once a plot or land is allotted by Development Authority to a citizen and he/she wants to raise constructions over it in pursuance of the sanctioned plan and statutory limitation, then no person has right to interfere with such construction. It appears that in the district of Lucknow, it is a routine feature where the constructions are stopped by a group of private persons or associations/ union interfering with the rights to enjoyment of the property of lawful allottees. The Government must deal strictly with such anti social elements. The Senior Superintendent of Police, Lucknow must ensure that the lawful allottees are permitted to raise constructions in pursuance of the sanctioned plan and appropriate task force must be constituted by the district administration to deal with such situation for ensuring that the citizens may enjoy their properties which have been allotted to them in accordance to law."
29. Learned counsel for petitioner has further relied upon a decision of The President Vs. The Chief Engineer reported in 2012 SCC Online Mad 2127, decided on 19.6.2012, and argued that exposition of law of Hon'ble Supreme Court judgment in the case of Shalini Shyam Shetti and another Vs. Rajendra Shankar Patil reported in 2011 (1) CTC 854 while deciding the present controversy in paragraph 64 has held as under:-
"64. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Government agencies or a State instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State of instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform."
Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. and Another Vs. Dolly Das :(1999) 4 SCC 450 (decided on 13.4.1999) has observed as follows:
7. In the absence of constitutional or statutory rights being involved a writ proceeding would not lie to enforce contractual obligations even if it is sought to be enforced against the State or to avoid contractual liability arising thereto. In the absence of any statutory right Article 226 cannot be availed to claim any money in respect of breach of contract or tort or otherwise.
Hon'ble Supreme Court in the case of Kerala State Electricity Board & Anr. vs. Kurien E. Kalathil & Ors. : (2000) 6 SCC 293 (decided on 19.7.2000) has observed as follows:
10. ..... The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract? If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature.
11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge Its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not of itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law......
....... The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil Court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition.
The Full Bench of this court in the case of Indian Sugar Mills Association through its President Shri Hari Raj Swarup Vs. Secretary to Government, Uttar Pradesh, Labour Department and Others : AIR 1951 All 1 (decided on 14.8.1950) has observed as follows:
11. Those remarks are with reference to a suit. They are much more applicable to proceedings under Article 226 which are of a summary and of a coercive nature without providing for a normal trial or a right of appeal except in those cases where a substantial question of interpretation of the constitution arises. This Court is being flooded with applications under Article 226 of the Constitution which is seriously, affecting the normal work of the Court. We feel that the time has come when we may point out that Article 226 of the Constitution was not intended to provide an alternative method of redress to the normal process of a decision in an action brought in the usual courts established by law. The powers under this article should be sparingly used and only in those clear cases where the rights of a person have been seriously infringed and he has no other adequate and specific remedy available to him.
The Division Bench of this Court in the case of WRIT - C No. - 42697 of 2002 M/S Jai Goswami Electric Works Alld. Vs. Union Of India Thru' D.R.M. & Others (decided on 19.5.2016) has observed as follows:
3. Petitioner is Railway Contractor and pursuant to an agreement for work, he has performed some work but his payment has not been made. Since payment has been approved by competent authority, therefore, prayer has been made that respondents be directed to make payment.
........ Hon'ble division Bench after considering the above mentioned proposition of law propounded by Hon'ble Supreme Court and various precedents / decision of Division Benches of this court has observed in para 12 as follows:
12. In view thereof, we are clearly of the view that mandamus sought by petitioner is nothing but grant of a money decree in extraordinary equitable jurisdiction under Article 226 which ought not to have been granted.
The Division Bench of Hon'ble Allahabad High Court in the case of Kaka Advertising Agency vs. U.P. Technical University and Ors. (ALLHC) 2014 (11)ADJ 227 has observed as follows:
7. In the present case, once a serious matter relating to the evasion of service tax is alleged and drawn to the notice of the first respondent by the revenue authorities and the first respondent has been informed both of the pending investigation as well as to disclose documentary material, it cannot be held that the claim falls within that category where it can be ascertained that there is absolutely no defence or that a mandamus would be warranted. Even in the present case, we may reiterate that while exercising the discretion on whether or not to entertain a writ petition under Article 226 in a contractual matter where a mandamus is sought which would have the effect of decreeing a money claim, the Court must also deal with the issue as to whether a writ petition would be an appropriate remedy when other remedies under the ordinary civil law are available. For instance, a summary remedy in accordance with the procedure established under Order 37 of the Code of Civil Procedure, 1908 is available even where the claim is founded inter alia on a written contract for a liquidated sum. If such a claim is filed, the recipient is required to make a suitable defence for being granted leave to defend and the plaintiff is not relegated to the remedy of pursuing a long drawn trial, if the defence is frivolous. Exercising the jurisdiction under Article 226 evidently forecloses a defence of this nature, which would have to be evaluated on the facts of each case. This can more appropriately be carried out when a suit is filed. In the light of the facts which have been brought to the notice of the Court, we are of the view that this is not a fit and proper case for exercising the discretion by the Court under Article 226 to entertain a petition seeking a mandamus for the payment of bills and the petitioner ought to be relegated to the ordinary civil remedy.
We clarify that we have not made any finding on the merits of the case since we have declined to exercise the extraordinary jurisdiction under Article 226.
The petition is, accordingly, dismissed. There shall be no order as to costs.
The Division Bench of Hon'ble Allahabad High Court in the case of Budh Gramin Sansthan vs. State of U.P. (ALLHC) 2014 (7)ADJ 29 (decided on 30.4.2014) has observed as follows-:
3. In view of the defence which has been set up by the State, it would not be appropriate, in our view, to entertain the petition under Article 226 of the Constitution and pass an order, that would essentially be a money decree. At the least, the defence would raise issues on which evidence would have to be adduced before a Civil Court. Quite independently of that, in a matter of this nature, remedies are available either in the form of a suit under Order XXXVII of the Code of Civil Procedure, 1908 or in the form a complaint under section 138 of the Negotiable Instruments Act, 1888. The High Court must exercise a great deal of circumspection in granting relief of the nature sought, particularly when facts are brought to the notice of the Court which indicate that the State seeks to establish a defence on facts.
4. In a judgment of this Court dated 24 February, 2014 in M/s. R.S. Associate v. State of U.P. and others, (Writ-C No. 11544 of 2014), this Court declined to entertain a similar petition. The Court, inter alia, held as follows:
"2. These are purely contractual matters and we are not inclined to entertain a petition under Article 226 of the Constitution in this regard. Whether the work under the contract has been satisfactorily carried out; whether the rates quoted are in accordance with the terms of the agreement and the applicable schedule of rates; whether the work has been carried out properly are issues which have to be addressed, among other questions, by the competent authority before an appropriate decision is taken. The jurisdiction of the Court under Article 226 of the Constitution cannot appropriately be exercised in such matters. The remedy of the contractor, if he is aggrieved by non-payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement.
3......
4. On the other hand, we have heard this petition for final disposal and we are firmly of the view that it will not be appropriate for this Court to exercise jurisdiction in the matter. It is true that there is no absolute bar in entertaining a petition in a contractual matter. However, in cases such as the present, several issues on facts which have been noted in the earlier part of this judgment have to be determined by the competent authority. The exercise of jurisdiction under Article 226 is not warranted for what the petitioner seeks in essence is a decree in a civil suit which cannot be granted in this proceeding, particularly having regard to the nature of the issues involved. The Court, therefore, declines to entertain this petition."
The Division Bench of Hon'ble Allahabad High Court in the case of Alaska Tech vs. State of U.P. ( ALLHC) 2014 (6)ADJ 591 (decided on 8.5.2014) has observed as follows:
6. For convenience of reference, it would be appropriate to extract the relevant part of the order of the Division Bench which reads as follows:
Instant writ petition under Article 226 of the Constitution of India has been preferred by the petitioner for issuance of writ in the nature of mandamus commanding the respondents to pay an amount of ` 1,34,71,670/- alongwith interest @ 18 per cent as outstanding dues for contractual work.
According to Shri H.G.S. Parihar learned Senior Counsel, petitioner had supplied spare parts but in spite of satisfactory supply, payment to the tune of ` 1,34,71,670/- has not been paid to the petitioner.
Attention has been invited towards para 8 of the counter-affidavit in which it has been stated that outstanding dues is to the tune of ` 1,20,00,000/-.
However, Shri S.S. Chauhan learned Counsel for the Nagar Nigam while defending the action of Nagar Nigam invited attention towards para 14 of the counter-affidavit wherein it has been specifically pleaded that enquiry is pending with the Economic Offence Wing and Dinesh Kumar Foreman has been charged for the fabrication of bill. Submission is that Economic Offence Wing is investigating the matter with regard to liability of Nagar Nigam.
According to Shri S.S. Chauhan learned Counsel for the Nagar Nigam that manipulation has been done with regard to preparation of bill and Economic Offense Wing has been directed to hold an inquiry. It is submitted that amount in question is also subject-matter of inquiry by the Economic Offence Wing.
Keeping in view the arguments advanced and the averments contained in counter-affidavit, no case for issuance of writ in the nature of mandamus is made out. Mandamus may be issued by this Court in case, there is some violation of statutory duty followed by statutory rights. Disputed question of fact can be adjudicated only through competent Court in a regular suit or before other statutory forum. It is not for this Court to interfere under Article 226 of the Constitution of India where a disputed question of fact is raised. High Court in exercise of jurisdiction under Art. 226 of constitution, would ordinarily not adjudicate a matter where the foundational facts are disputed vide Sughashree Das v. State of Orissa 2012(9) SCC 729.
In view of above, no case for interference is made out. Dismissed.
However, order passed by this Court shall not preclude the petitioner to approach appropriate forum or authority concerned.
The Division Bench of Hon'ble Allahabad High Court in the case of MISC. BENCH No. - 3898 of 2015 on 13.5.2015 Uttaranchal Paper Converters & Publishers Thru. Prop. Vs. The State Of U.P. Thru. Secy. Basic Education & 10 Ors. (decided on 13.5.2015) has observed as follows:
....... In our view, granting the relief which is sought in these proceedings, would virtually amount to a money decree. Since there is an arbitration agreement between the parties, the petitioner will have to invoke the terms of the agreement.
In a similar case, M/s R.S. Associate Vs. State of U.P. & Ors.1, a Division Bench of this Court had declined to entertain a prayer for similar reliefs with the following observations:
"These are purely contractual matters and we are not inclined to entertain a petition under Article 226 of the Constitution in this regard. Whether the work under the contract has been satisfactorily carried out; whether the rates quoted are in accordance with the terms of the agreement and the applicable schedule of rates; whether the work has been carried out properly are issues which have to be addressed, among other questions, by the competent authority before an appropriate decision is taken. The jurisdiction of the Court under Article 226 of the Constitution cannot appropriately be exercised in such matters. The remedy of the contractor, if he is aggrieved by non payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement.
............It is true that there is no absolute bar in entertaining a petition in a contractual matter. However, in cases such as the present, several issues on facts which have been noted in the earlier part of this judgement have to be determined by the competent authority. The exercise of jurisdiction under Article 226 is not warranted for what the petitioner seeks in essence is a decree in a civil suit which cannot be granted in this proceeding, particularly having regard to the nature of the issues involved.
The Court, therefore, declines to entertain this petition."
Following the earlier view of the Division Bench and for the reasons indicated above, we decline to entertain the petition and relegate the petitioner to invoke the terms of the arbitration agreement.
The petition is, accordingly, dismissed. There shall be no order as to costs.
The Division Bench of Hon'ble Allahabad High Court in the case of MISC. BENCH No. - 3472 of 2014 Major Travels Thru. Prop. Mujtaba Ali Khan Vs. State Of U.P. Thru Princ. Secy. Minorities Welfare Waqf And others (decided on 25.4.2014) has observed as follows:
......The reliefs which are claimed are purely in terms of money decree for the payment of work allegedly due in respect of bills submitted for execution of certain work orders. Such reliefs cannot be granted in exercise of a writ jurisdiction under Article 226 of the Constitution. Significantly, the contract in the present case is not a statutory contract where a limited exception has been made by the Supreme Court. The petitioner would have to take recourse to the ordinary civil remedy for espousing the claim.
The petition is, accordingly, dismissed. There shall be no order as to costs.
The Division Bench of Hon'ble Allahabad High Court in the case of MISC. BENCH No. - 1909 of 2014 M/S A.K. Constructions Through Its Partner A. K. Chaturvedi Vs. State Of U.P. Thr. Prin. Secy. Deptt. of Forests, Lucknow & Others (decided on 7.3.2014) has observed as follows:
......In the event, the contract contains an arbitration agreement, the petitioner would have an ordinary remedy of invoking arbitration and if there is no arbitration clause, then the petitioner would have an ordinary civil remedy for claiming money decree by way of filing a civil suit. The petitioner may either invoke the arbitration clause (if it exists) and if there is no arbitration clause, may file a money claim before the competent civil court but the relief sought in this petition cannot be granted in exercise of the writ jurisdiction under Article 226 of the Constitution, as this Court cannot entertain a claim of this nature seeking essentially a money decree in a contractual matter.
The writ petition is, accordingly, dismissed. We leave it open to the petitioner to take recourse to the remedies available to him in law.
The Division Bench of Hon'ble Allahabad High Court in the case of MISC. BENCH No. - 10971 of 2015 M/S Goyal Stationary Mart Thru Its Prop. Ajay Kr. Goyal Vs. State Of U.P. Thru Prin. Secy. Medical And Health Lko.& Ors. (decided on 27.11.2015) has observed as follows:
.......We may observe that while exercising the discretion as to whether a writ petition under Article 226 of the Constitution of India, in a contractual matter, where a writ in the nature of mandamus is sought for payment of money (which would have the effect of passing a money decree) may be entertained, the Court has also to deal with the issue as to whether the writ petition would be an appropriate remedy when other remedies are available under ordinary civil law.
Admittedly, the claim of the petitioner is that the payment in respect of the work done pursuant to the award of a contract for carrying out certain construction work has not been made. This Court in a judgment dated 07.03.2014 in Writ Petition No. 1942 (MB) of 2014 has declined to entertain such a writ petition raising an issue similar to the issue raised in this writ petition. The relevant observations made by the Division Bench in its judgment dated 07.03.2014 in Writ Petition No. 1942 (MB) of 2014 are as follows:-
"The claim of the petitioner is that the final payment in respect of the work done pursuant to the award of a contract for carrying out certain civil work has not been effected.
In our view, it will not either be appropriate or proper for the Court under Article 226 of the Constitution to entertain a petition of this nature. The grant of relief of this nature would virtually amount to a money decree. The petitioner is at liberty to take recourse to the remedies available by raising such a claim either invoking an arbitration clause (if it exists in the contract between the parties) or if there is no provision for arbitration, to move the competent civil court with a money claim.
We, accordingly, dismiss the petition, however, reserving liberty to the petitioner to pursue appropriate remedy available in law."
In view of the above settled position of law, we are not inclined to interfere in this writ petition.
The Division Bench of Hon'ble Allahabad High Court in the case of WRIT - C No. - 25075 of 2014 M/S Prabhu Construction Company Through Its Proprietor Vs. State Of U.P. And Another (decided on 05-05-2014) has observed as follows:
......This is a purely contractual matter and we are not inclined to entertain a petition under Article 226 of the Constitution in this regard. Whether the work under the contract has been satisfactorily carried out and whether the rates quoted are in accordance with the terms of the agreement and the applicable schedule of rates are issues which have to be addressed, among other questions, by the competent authority before an appropriate decision is taken. The jurisdiction of the Court under Article 226 of the Constitution cannot appropriately be exercised in such matters.
This court after considering precedents of Hon'ble Supreme Court in Kerala State Electricity Board & Anr. Vs. Kurien E.Kalathil & Ors.(2000)6SCC293 and In Hindustan Petroleum Corporation Limited & Anr. Vs. Dolly Das (1994)4SCC450 , also observed as follows -
......In the present case, there is nothing on the record which may persuade us to hold that the contract is a statutory contract. The remedy of the contractor, if he is aggrieved by non-payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement.
Recently, this Bench in M/s R.S. Associate Vs. State of U.P. & Ors.3 declined to entertain a petition which had been filed for making payment of bills under a contract.
Following the aforesaid decisions, we decline to entertain this petition. It is, accordingly, dismissed.
The Division Bench of Hon'ble Allahabad High Court in the case of WRIT - C No. - 11544 of 2014 M/S R.S. Associate Thru' Prop. Reeta Singh Vs. State Of U.P. & 3 Others (decided on 24-2-2014) has observed as follows:
The petitioner entered into a contract on 23 September 2010 with the Irrigation Department inter alia for the supply of bolders, ropes for labourers and sand bags. The grievance is in regard to non payment of the bills. The petitioner seeks a mandamus to the State, the Chief Engineer and the Executive Engineer in the Irrigation Department to pay the bills together with interest.
2. These are purely contractual matters and we are not inclined to entertain a petition under Article 226 of the Constitution in this regard. Whether the work under the contract has been satisfactorily carried out; whether the rates quoted are in accordance with the terms of the agreement and the applicable schedule of rates; whether the work has been carried out properly are issues which have to be addressed, among other questions, by the competent authority before an appropriate decision is taken. The jurisdiction of the Court under Article 226 of the Constitution cannot appropriately be exercised in such matters. The remedy of the contractor, if he is aggrieved by non payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement.
......4. On the other hand, we have heard this petition for final disposal and we are firmly of the view that it will not be appropriate for this Court to exercise jurisdiction in the matter. It is true that there is no absolute bar in entertaining a petition in a contractual matter. However, in cases such as the present, several issues on facts which have been noted in the earlier part of this judgement have to be determined by the competent authority. The exercise of jurisdiction under Article 226 is not warranted for what the petitioner seeks in essence is a decree in a civil suit which cannot be granted in this proceeding, particularly having regard to the nature of the issues involved. The Court, therefore, declines to entertain this petition.
5. The petition is, accordingly, dismissed. There shall be no order as to costs.
30. The following case laws of Hon'ble Apex Court on the point when powers under Article 226 of the Constitution of India can be invoked by the writ Court and in which circumstances these powers should not be invoked.
31. Seven Judges Constitutional Bench judgment in L. Chandra Kumar Vs. Union of India and others (supra) has been considered in T.K. Rangarajan Vs. Govt. of T.N. and others: AIR 2003 SC 3032 and it observed in paras-5 and 6 has observed as follows:
78. The legitimacy of the power of courts within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. [ See Chapter VII, "The Judiciary and the Social Revolution" in Granville Austin, The Indian Constitution : Cornerstone of a Nation, Oxford University Press, 1972; the chapter includes exhaustive references to the relevant preparatory works and debates in the Constituent Assembly.] These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.
80. However, it is important to emphasise that though the subordinate judiciary or Tribunals created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of the High Courts and the Supreme Court, there is no constitutional prohibition against their performing a supplemental -- as opposed to a substitutional -- role in this respect. That such a situation is contemplated within the constitutional scheme becomes evident when one analyses clause (3) of Article 32 of the Constitution which reads as under:
"32. Remedies for enforcement of rights conferred by this Part.--
(1) *** (2) *** (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)."
(emphasis supplied)
99. ............... The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.
32. Although the Hon'ble Apex Court has dealt with function of Tribunals constituted under Article 323A and 323B of the Constitution of India but functions of subordinate courts have also been discussed by Hon'ble the Apex Court and ratio-decidendi is that litigants cannot straightway approach this Court under Article 226 and Hon'ble Supreme Court under Article 32 of the Constitution of India. The litigants must approach Courts of first instance in respect of the areas of law for which they have been constituted.
The Hon'ble Supreme Court in the cast of Satwati Deswal Vs. State of Haryana : 2010 (1) SCC 126, while dealing with a Service matter, in paras-5 and 6, inter alia, observed as follows:-
Para 5. In our view, the High Court had fallen in grave error in rejecting the writ petition on the aforesaid ground. First, such an order of termination was passed without issuing any show-cause notice to the appellant and without initiating any disciplinary proceedings by the authorities and without affording any opportunity of hearing. It is well settled that a writ petition can be held to be maintainable even if an alternative remedy is available to an aggrieved party where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the Act were in question.
Para 6. The aforesaid exceptions recognised by this Court were taken note of by this Court in Collector of Customs v. Ramchand Sobhraj Wadhwani [AIR 1961 SC 1506] in which the Constitution Bench laid down the principles of the above exceptions when writ application could be entertained even if an alternative remedy was available to an aggrieved party. The same view was expressed by this Court in L.K. Verma v. HMT Ltd. [(2006) 2 SCC 269 : 2006 SCC (L&S) 278 : AIR 2006 SC 975] and M.P. State Agro Industries Development Corpn. Ltd. v. Jahan Khan [(2007) 10 SCC 88 : (2008) 1 SCC (L&S) 9 : AIR 2007 SC 3153].
In the case of S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors. : (2004) 7 SCC 166, the Hon'ble Supreme Court held as follows:-
14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable (sic), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court.
In the case of Ritesh Tewari Vs. State of U.P. : AIR 2010 SC 3823, the Apex Court found the occasion to consider the scope of exercise of Writ jurisdiction by High Courts under Article 226 of the Constitution as under:-
Para 20. The power under Article 226 of the Constitution is discretionary and supervisory in nature. The extraordinary power in the writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ can be issued only in case of a grave miscarriage of justice or where there has been a flagrant violation of law.
The writ court has to protect a person from being subjected to a flagrant violation of law by the acts and omissions of the administrative/ executive authorities/ officers.
The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the judicious discretion of the court.
A court of equity, when exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity.
24. This Court in State of Maharashtra & Ors. V/s. Prabhu (1994) 2 SCC 481 considered the scope of equity jurisdiction of the High Court under Article 226 of the Constitution and pointed out as follows:
"It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good."
The Hon'ble Supreme Court in the case of Sanjana M. Wig Vs. Hindustan Petro Corporation Ltd. : 2005 (8) SCC 242, while dealing with the scope of Article 226 of the Constitution of India, in para-14 has observed as follows:-
(14). A Division Bench of this Court in ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. [(2004) 3 SCC 553 : JT (2003) 10 SC 300] observed that in certain cases even a disputed question of fact can be gone into by the court entertaining a petition under Article 226 of the Constitution, holding:
"28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] .) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."
The Hon'ble Supreme Court in the case of M.P. State Agro Industries Development Corporation Ltd. Vs. Jahan Khan) : 2007 (10) SCC 88, inter alia, has observed as under:-
Para 10. ......In a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] , Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] , State of H.P. v. Gujarat Ambuja Cement Ltd. [(2005) 6 SCC 499] and Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd. [(2005) 8 SCC 242]) In the case of Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill : (2012) 2 SCC 108, the Hon'ble Apex Court in paras-80 and 81 has observed as follows:
Para 80. It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific law, would impliedly oust the jurisdiction of the civil courts. The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can entertain writ or appropriate proceedings despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged. This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in our opinion, is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the courts. It will normally depend upon the facts and circumstances of a given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what extent the jurisdiction has to be exercised.
Para 81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act. However, it should only be for the specialised tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case.
A Division Bench of this Court in Special Appeal No. 73 of 2012, Rajendra Prasad Upadhyaya Vs. State of U.P. and others, decided on 29.03.2012, has observed on page-4, 5 and 6 after considering the case law Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others : (1998) 8 SCC, as follows:-
"The existence of alternative remedy is not an absolute bar, is a legal proposition, which does not require any detailed reasons. It is also not open to debate that in case an alternative efficacious remedy is available, the High Court normally would not interfere straight-way under Article 226 of the Constitution of India. It is also established principle of law that self restraint is exercised by the High Court in dealing with such matters, which otherwise can be looked into by the Special Forum or Statutory Authorities. Merely the bar in granting any interim relief by a Special Forum or Tribunal created for the purpose of adjudicating such disputes would also not be a ground in itself to permit the aggrieved person to by-pass the alternative remedy and to entertain the petition straight-way in writ jurisdiction unless there are some cogent reasons for permitting such a challenge straight-way in writ jurisdiction. The exceptions, however, have been well defined by the Apex Court as well as this Court in a number of judgements.
In the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others, [(1998) 8 SCC], the Supreme Court has laid down the principles for the guidance for the High Court in determining the forum in a matter where efficacious alternative remedy is available and has observed that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus; Mandamus; Prohibition, Quo Warranto and Certiorari, for the enforcement of any of the fundamental rights contained in Part-III of the Constitution but also for "any other purpose".
The Supreme Court further held that under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition but the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least following contingencies, namely,-
(i) where the writ petition has been filed for the enforcement of any of the Fundamental Rights; or
(ii) where there has been a violation of principle of natural justice; or
(iii) where the, order or proceedings are wholly without jurisdiction; or
(iv) the vires of an Act is challenged.
Division Bench of this Court in the aforesaid case has observed in page-21 that, "the Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors.
Division Bench on page-23 and 24 has summarized the legal position of law laid down by the Hon'ble Supreme Court as well as by this Hon'ble High Court regarding exercise of jurisdiction under Article 226 of the Constitution of India, which are as follows:-
(i) Statutory alternative remedy is not an absolute bar for the High Court to entertain a writ petition under Article 226 of the Constitution.
(ii) Refusal to entertain a writ petition on existence of statutory alternative remedy is a self imposed restriction broadly based on following considerations, namely;
(a) alternative remedy is adequate, efficacious and speedy.
(b) writ petitions involving complex and disputed question of facts may be relegated to statutory alternative forum;
(iv) If a writ petition has been entertained despite there being a statutory remedy, which may be adequate, and the said petition has remained pending for considerable long time then there would be little justification for relegating the petitioner to the alternative remedy, unless there are valid and cogent reasons for doing so.
(v) Even if there exists an adequate alternative, efficacious speedy remedy in the alternative forum, the High Court may entertain the writ petition in the following circumstances.
(a) for enforcement of any of the fundamental rights,
(b) where there has been a violation of principle of natural justice,
(c) where the order or proceedings are wholly without jurisdiction, or
(d) the vires of the Act is challenged.
33. The petitioners have contended that they purchased land in question of Gata No. 2205-A/0.0380 from Sri Fahim Khan vide sale deed executed on 25.10.2012 and their names were recorded in the revenue records. They have relied upon Khatauni Annexure-1.
34. We have perused Annexure-1 Khatauni of Fasli year 1419 - Fasli year 1424 of Village Shahabad Ander. Sri Fahim Khan son of Muveen Khan has been recorded as tenure holder with transferrable rights. The petitioners were recorded on 12.2.2013 as co-tenure holder along with Sri Fahim Khan vide order dated 4.2.2013 passed by the Naib Tehsildar, Shahabad in Case No. 449 under Section 34 of the Land Revenue Act. Afterwards another entry was made in this Khatauni on 8.7.2013 by the Naib Tehsildar Shahabad pertaining to the fact that order dated 8.7.2013 was passed in Case No. 449 under Section 34 (Chanda Begum Vs. Fahim) and it was found that the petitioners had no right, title and interest on the land in question. Therefore, their applications for mutation was rejected and stay order dated 25.2.2013 was recalled.
35. It is pertinent to mention here that sale deed dated 25.10.2012 relied upon by the petitioners has not been brought on record to substantiate their contentions. Although in paragraph no. (F) of counter affidavit of respondent no. 6, in brief facts of the case, it has been pleaded that Fahim Khan instituted regular suit no. 390 of 2000 (Fahim Khan Vs. Mohd. Sharif and others) for obtaining injunction regarding Khasra No. 2205 regarding land in question. The aforesaid suit was dismissed on 10.4.2007.
36. We have perused Annexure No. CA-5. Order dated 10.4.2007 passed in Regular Suit No. 390 of 2000 (Fahim Khan Vs. Mohd. Sharif and others), which was dismissed for non-prosecution by the plaintiff. Copy of the plaint of Regular Suit No. 390 of 2000 has not been brought on record, therefore, it is not clear whether Khasra No. 2205-A was the disputed property of the suit or Khasra No. 2205-sa was the disputed property.
37. Respondent no. 6 has pleaded in clause-G of counter affidavit that when Fahim Khan could not succeed in taking forcible possession of land in question, then he executed sale deed in favour of petitioners. In paragraph-H of counter affidavit, respondent no. 6 has contended that Sri Fahim Khan had tried to interfere in peaceful possession over the land in dispute of respondent no. 6, then he filed suit no. 379 of 2012 (Mohd. Sharif Vs. Mohd. Fahim Khan) This suit is pending for consideration before the Court of Civil Judge (Sr. Div.), Hardoi. Respondent no. 6, has also contended that land in question relates to Plot no. 2205-sa. This plot, ad-measuring 3 x 15 meters i.e. 45 square meters, was transferred by Ashraf Khan successor in interest of late Inta Khan in favour of him and Mohd. Sharif and Shakil Khan. They are in possession of this property. Assessment made by Nagar Palika Shahabad relating to House No. 449 (claimed that it relates to Khasra No. 2205-sa) has also been relied upon by respondent no. 6.
38. We have also perused sale deed dated 22.5.2000 executed by Mohd. Ashraf Khan son of Asgar Khan. It is mentioned in the sale deed that Sri Inta Khan son of Kifayat Khan was tenure holder of Khasra No. 2205-sa ad-measuring 0.0380 hectare, out of which, 45 square meter land was transferred by Ashraf Khan on behalf of Sri Wahid, who was successor of Inta Khan in favour of Mohd. Sharif son of Mohd. Shafiq, Shakil son of Shakir, Sazid son of Chhanga Khan. It is mentioned in the sale deed that Wahid son of Inta Khan was in possession of Khasra No. 2205-sa from 40 years as heir of Sri Inta Khan and Wahid Khan authorized him to sell out land in question of plot No. 2205-sa. It is relevant to mention here that alleged power of attorney executed by Wahid son of Inta Khan in favour of Ashraf Khan has not been brought on record.
39. Impleadment application no. 106378 (w) of 2013 moved by Arif Khan, Sazid Khan and Khalid Khan son of Javed Khan on 19.11.2013 and Annexure No. 1 Khasra of Village Shahabad Ander of 1419 fasli year was brought on record to substantiate their claim of impleadment.
40. We have perused this Khasra of 1419 Fasli year, in which, Khasra No. 2205 ad-measuring 0.139 hectare has been shown to be recorded in favour of Inta Khan son of Riyasat Khan in the area of 0.0380 hectare entry of 'Kabristan' has been mentioned in this Khasra. Therefore, this is also a fact to be looked into by the civil court that under which circumstances, Khasra No. 2205 ad-measuring 0.139 was split up in Khasra No. 2205-A ad-measuring 0.0380 and Khasra No. 2205-sa ad-measuring 0.0380. This factual aspect cannot be evaluated and appreciated by this Court during proceedings under Article 226 of the Constitution of India.
41. We have also perused questionnaire. The respondent no. 6 has contended that he had moved application for recall of mutation order passed by the Tehsildar (Judicial) in favour of petitioners, which was dismissed on 8.7.2013. He preferred an appeal under Section 210 of U.P. Land Revenue Act, which is pending before the Sub Divisional Officer, Shahabad. Annexure No. CA-4 questionnaire has been relied upon by respondent no. 6. This appeal is pending before the Sub Divisional Magistrate, Shahabad.
42. The respondent no. 6 has specifically contended in paragraph-E of brief facts of the case that plot no. 2205-A is situated away from plot no. 2205-sa, because plot no. 2205-sa is situated adjacent to the Hardoi Shahabad Road. Therefore, these two plots are different and civil suit is pending before the civil court.
43. Since the petitioners have claimed their rights on the basis of alleged sale deed dated 25.10.2012 relating to Gata No. 2205-A ad-measuring 0.0380 hectare, and sought relief to restrain the respondent no. 6 from making unnecessary interference in construction which was being made by the petitioners over the land in question. The above-mentioned facts have been contended by both the parties, cannot be appreciated and evaluated by invoking equitable writ jurisdiction under Article 226 of the Constitution. The disputed land has been claimed by both the parties. Whether it relates to Khasra No. 2205-A or 2205-sa? This fact can effectively and efficaciously be appreciated and evaluated by the competent civil court.
44. On perusal of Khatauni (Annexure No. 1) relied upon by the petitioners, it revealed that rights of petitioners could not be substantiated before the Tehsildar (Judicial) Shahabad in Case No. 449 under Section 34 of the Land Revenue Act (Chanda Begum Vs. Fahim Khan) and vide order dated 8.7.2013 their applications for mutation has been rejected.
45. As mentioned by us, alleged sale deed dated 25.10.2012 executed by Fahim Khan has not been brought on record. It is not pleaded by petitioners in the grounds of writ petition as to how predecessor in title Fahim Khan got rights, interest and title of land KhasraNo. 2205-A ad-measuring 0.0380 hectare, whereas according to Khasra Khatauni 2205 ad-measuring 0.139 hectare was recorded in favour of Inta Khan.
46. Therefore, facts and circumstances in which Fahim Khan executed this sale deed cannot be evaluated and appreciated by this Court in writ jurisdiction. This fact can be appreciated and evaluated effectively by civil court only. Since Khasra No. 2205-A and 2205-sa are situated at a considerable distance as contended by respondent no. 6, therefore, without survey of these two Khasra numbers, on the basis of sazra of village Shahabad Ander, this fact cannot be established by any party, whether sale deed dated 25.10.2012 relied upon by petitioners or sale deed dated 22.5.2000 executed by Ashraf Khan relates to disputed property claimed by respondent no. 6.
47. It is also pertinent to mention here that Khasra No. 2205-A ad-measuring 0.0380 hectare is recorded in Khatauni of Falsi year 1419 to 1424 as land with transferable rights in favour of Fahim Khan and declaration of this land, as non-agricultural land, has not been made by competent revenue authority under Section 143 of Z.A. Act. Therefore, land use could not be changed by the petitioners and map passed by Nagar Nigam Shahabad relied upon by the petitioners could not be passed, without this declaration.
48. We have perused report dated 12.11.2012 submitted by the concerned Lekhpal. It is mentioned in this report that land of Khasra No. 2205-Minzumla ad-measuring 0.0380 of Khata no. 658 is recorded in favour of Fahim Khan as tenure holder with transferable rights. Therefore, upto 12.11.2012, this land was agricultural land and its land use was not changed by declaring it as non-agricultural land under Section 143 of the U.P. Z.A. Act or Section 80 of U.P. Revenue Code, 2006. Therefore, Sub Divisional Magistrate, Shahabad could not pass orders dated 12.11.2012, 20.11.2012 and 20.8.2013 without declaring disputed land as non-agricultural land. The petitioners never moved on application for change of land use and declaration of disputed land as non-agricultural land.
49. As mentioned by Lekhpal, in this report that Sub Divisional Magistrate, Shahabad directed Municipality Shahabad on 21.10.2005 regarding constructions by the petitioners, this order could not have been passed by Sub Divisional Magistrate.
50. Likewise we have also perused applications dated 12.11.2012 and 20.11.2012 and orders passed by Sub Divisional Magistrate, Shahabad. The Sub Divisional Magistrate, Shahabad has directed Station House Officer and Lekhpal to look into the matter and with help of police force the construction should go on, on the disputed land of Khasra No. 2205-A (land of petitioners).
51. It is also mentioned in this order that opposite parties are making hinderance in construction work. This order could not be legally passed by Sub Divisional Magistrate. He could only pass an order to maintain peace, law and order. Another order dated 24.12.2012 was also passed by Sub Divisional Magistrate directing Station House Officer Shahabad that opposite parties be restrained from making interference and maintain peace, law and order on the spot.
52. Order dated 20.8.2013 was also passed by Sub Divisional Magistrate to the same effect. These orders are administrative orders only to maintain peace, law and order on the spot. In case of dispute of civil nature, Sub Divisional Magistrate has no legal authority to pass such orders.
53. The respondent no. 5 Station House Officer, Shahabad and respondent nos. 1 to 4 have pleaded that the petitioners had moved applications on 24.12.2012 and 20.8.2013 before the Sub Divisional Magistrate, Shahabad making a request that the construction work may be allowed to be done in direct supervision with Lekhpal, Kanoongo and police team. The Sub Divisional Magistrate, Shahabad directed to S.H.O. of police station to look into the matter with reference to interference being made by respondent no. 6 and also to maintain peace, law and order on the spot.
54. The respondent no. 5 has denied this fact that he was in collusion with respondent no. 6. No interference has been made by him in respect of construction being raised over plot no. 2205-A ad-measuring 0.0380 hectare. He has further submitted that he had complied with orders passed by Sub Divisional Magistrate, Shahabad and reached on the spot on 20.11.2013 at 2:00 p.m. along with police force. Both the parties indulged in serious dispute. The petitioners and their companion opened fire on respondent no. 6 and his companions. He made all efforts to maintain peace amongst the persons collected on the spot, but construction work was tried to be continued at that time also.
55. The respondent no. 5 has further submitted that an F.I.R. of Case Crime No. 786 of 2013, under Sections 147, 148, 149, 307, 504 and 506 I.P.C. and Section 27/30 of the Arms Act was lodged by respondent no. 6 against the petitioners. The petitioners had also moved application under Section 156 (3) Cr.P.C. before the Additional Chief Judicial Magistrate-V, Hardoi and on the basis of which, Case Crime No. 786A of 2013, under Sections 147, 148, 149, 307, 504, 506 and 395 I.P.C. against respondent no. 6 and other persons was also lodged. Copy of both the F.I.Rs. have been brought on record by respondent no. 5.
56. It is relevant to mention here that S.I. Ram Asrey Ram on 5.8.2014 provided information that investigation was going on of Case Crime No. 786 of 2013 and on side of petitioners some accused person could not be arrested by Investigating Officer. The petitioners lodged F.I.R. in Peshbandi, therefore, on 12.6.2014 final report no. 47 of 2014 was submitted by the Investigating Officer on the basis of deficient evidence. Therefore, investigation of Case Crime No. 786-A of 2013 registered on the basis of complaint under Section 156 (3) Cr.P.C. lodged by the petitioners, has been concluded on the basis of final report submitted by the Investigating Officer.
57. On the basis of these facts and circumstances contended by respondent no. 5 and respondent nos. 1 to 4, it reveal that there is dispute between petitioners and respondent no. 6 regarding the same property. The petitioners are claiming this disputed land relating to Khasra No. 2205-A. On the other hand, respondent no. 6 is claiming this land relating to Khasra No. 2205-sa. This factual aspect of dispute is of purely civil nature, of which, cognizance can only be taken by the competent civil court. The petitioners are unable to establish even their prima facie case for invoking jurisdiction under Article 226 of the Constitution of India. The petitioners may seek effective and efficacious relief of perpetual or mandatory injunction under Section 38 and 39 of the Specific Relief Act, 1963 and order 39 Rule 1 and 2 of the C.P.C. from competent civil court against the respondent no. 6 and his companions. The exposition of law relied upon by the petitioners does not help the petitioners in any way because these are not applicable in facts and circumstances of this case.
58. We have perused prayer clause of the writ petition. The dispute between the petitioner and respondent no. 6 is purely of civil nature. The factual aspects of dispute between the parties cannot be appreciated and evaluated by writ Court regarding construction of building over the land in question by the petitioner. They have to establish first their right, title and interest in the land in question before the competent court of law. Therefore, no mandamus can be issued legally by this Court regarding reliefs claimed by the petitioners.
59. In view of the discussion made above, we do not find any merits in the writ petition. The writ petition is liable to be dismissed and is hereby dismissed. However, it is open for the petitioners to approach before the civil court for redressal of their grievance.
Order Date :- 22.06.2018 Virendra