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Judgment
Ramesh Ranganathan, CJ
Heard Mr. Piyush Garg, learned Counsel for the appellants and Mr. Rakesh Thapliyal, learned Assistant Solicitor General along with Mr. Sanjay Bhatt, Standing Counsel for the Union of India.
The appellant herein invoked the jurisdiction of this Court filing WPMS No. 2921 of 2017 seeking a writ of certiorari to quash the order dated 20.09.2017, issued by the Deputy Director Q & C, Government of India, Ministry of Defence, whereby the appellants-writ petitioners were directed to quit and deliver possession of the subject land and structure to the Defence Estate Officer; and to quash the order dated 24.10.2017, issued by Defence Estate Officer in compliance of the aforesaid order.
The learned Single Judge dismissed the writ petition by the order under appeal, holding that the action of the appellants-writ petitioners, in filing a writ petition against proceedings whereby only a notice for resumption of the land was given for defence purposes, was misconceived; and the interest of an individual would not prevail over the sovereignty of the country. While several contentions have been put forth by Mr. Piyush Garg, learned counsel for the appellants-writ petitioners, in challenge to the order under appeal, we cannot lose sight of the fact that the petitioner has, by way of these writ proceedings, sought a direction to restrain the respondents from interfering with their possession over the subject property i.e. for an order of injunction against the respondents. The petitioner has the common law remedy of filing a Suit for grant of such a relief, and such matters are, ordinarily, not examined by the High Court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.
Mr. Piyush Garg, learned counsel for the appellant-writ petitioner, would submit that, while the appellants-writ petitioners are ready and willing to withdraw the writ petition and to file a suit before the competent civil court, the civil courts in Dehradun District are closed till 30th June 2019; in the light of Section 80(2) C.P.C, the Government is required to be heard before any order is passed by the competent Civil Court; and any delay in this regard may render the very Suit infructuous, if the subject property is demolished in the interregnum.
The findings, recorded in the order under appeal, may disable the appellants-writ petitioners from seeking appropriate reliefs in the Suit to be instituted against the respondents, as the opinion of the learned Single Judge would undoubtedly have a bearing thereupon. Suffice it, since the appellants-writ petitioners seek permission to withdraw the writ petition itself, to set aside the order under appeal, restore the writ petition to file, and dismiss the writ petition as withdrawn.
We are informed that, under Rule 13 of the General Rule (Civil), urgent applications can always be moved even during Court vacations. Section 80(2) of the C.P.C, would enable the petitioners to request the court to dispense with the requirements of Section 80(1) of the C.P.C. Section 80(2), which requires the Government to be heard before any order is passed in the Suit, may, however, necessitate compliance.
The writ petition is accordingly dismissed as withdrawn, granting liberty to the appellants-writ petitioners to avail the common law remedy of filing a suit before the competent civil court. Needless to state that the Suit, and the interlocutory application filed therein, shall be adjudicated on its merits uninfluenced by any observations made either in the order under appeal, or in the order now passed by us.
The special appeal is disposed of accordingly. No costs.