Maya Devi @ Mayawati & Another vs State Of Uttarakhand & Others

Manoj K. Tiwari, J

Heard learned counsel for the parties on the restoration application.

This writ petition was dismissed for want of prosecution vide order dated 23.04.2019. An application has been filed by the petitioners for restoration of the writ petition. Considering the submission of learned counsel for the petitioners/applicants as well as in the interest of justice restoration application is allowed. The writ petition is restored to its original number.

By means of this writ petition, petitioners have challenged the orders dated 06.06.2017 passed by Assistant Collector 1st Class, Bhavar, Haldwani in Revenue Case No. 22/411 of 2014-15 and also judgment and order dated 28.11.2017 passed by learned Additional Commissioner, Kumaon Division, Nainital in Revision No. 75/16-17/81/16-17.

4 Petitioners filed a suit under Section 229-B of U.P. Zamidari Abolition and Land Reforms Act (in short 'UPZA&LR Act') in the court of Assistant Collector First Class, Bhavar, Haldwani for declaration of their rights as Bhumidar in respect of land comprised in Khata Nos. 45 and 98 in Village Pandey Nawad, Tehsil Haldwani, District Nainital and also for recording their names as co-tenure holders along with respondent Nos. 3 to 7. Petitioners also filed an application for interim relief under Section 229-D of UPZA&LR Act with the prayer that defendants be restrained from alienating the land in question and also from creating any third party interest thereupon. The said application, filed by the petitioners under Section 229-D of UPZA&LR Act, was rejected by learned Assistant Collector 1st Class vide order dated 06.06.2017. Petitioner challenged the said order before Additional Commissioner, Kumaon Division, Nainital by filing Revision No. 75/16-17/81-16-17, which has been dismissed vide judgment and order dated 28.11.2017. Thus, feeling aggrieved, petitioners have approached this Court.

Heard learned counsel for the parties and perused the record.

The order passed by Assistant Collector 1st Class on 06.06.2017 is on record as annexure No. 1 to the writ petition. Learned Assistant Collector 1st Class has held that the plaintiffs/petitioners have failed to show that they have prima facie case. It has further been held that the defendant Nos. 3 to 7 are recorded as Bhumidar in the revenue record since long, while the plaintiffs/petitioners have admitted that they are not in possession over the land in question and further that their names are not recorded in the revenue record.

Learned revisional court has affirmed the order passed by Assistant Collector 1st Class by holding that there is no evidence on record to show that Narsingh (predecessor in interest of the petitioners) was a Bhumidar in respect of the land in question. Petitioners have sought interim injunction against the respondents which can be granted only when petitioners are able to show prima facie case. On the other hand, defendants/respondents are not only recorded tenure holders but they are also in cultivatory possession over the land in question since long.

It is settled position in law that no injunction can be issued against a lawful owner of the property. Although petitioners have claimed Bhumidari rights over the land in question, however, their rights are yet to be adjudicated.

Hon'ble Supreme Court in the case of Dalpat Kumar and another Vs. Prahlad Singh and others, reported in (1992) 1 SCC 719, has enumerated the principles, which are to be borne in mind, while considering an application for interim injunction. Para nos. 4 & 5 of the said judgment are extracted below:

"4. Order 39 Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing ... or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by Section 86(i)(b) of the Amending Act 104 of 1976 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under Section 151 CPC to grant ad interim injunction against dispossession. Rule 1 primarily concerned with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court, on exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.

Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."

Section 229-D of U.P.Z.A. & L.R. Act is extracted below for ready reference:

"229-D. Provision for injunction.-[(1) If in the course of a suit under the provisions of Sections 229-B and 229-C, it is proved by an affidavit or other-wise-

(a) that any property, trees or crops standing on the land in dispute is in danger of being wasted, damaged or alienated by any party to the suit; or

(b) that any party to the suit threatens or intends to remove or dispose of the said property, trees or crops in order to defeat the ends of justice, the Court may grant a temporary injunction and where necessary, also appoint a receiver.]

[(2) Nothing in sub-section (1) shall apply to a suit filed under sub-section (4-D) of Section 122-B.]"

Section 229-D of U.P.Z.A. & L.R. Act provides for grant of interim injunction and provisions contained in Section 229-D are supplemental to Order 39 C.P.C., therefore, the principles laid down by Hon'ble Apex Court in the aforesaid judgment are attracted to the present case. Thus, the plaintiffs/petitioners were required to establish prima facie case for grant of interim injunction. Both the learned Courts below have held that petitioners were not able to show prima facie case for grant of injunction, therefore, this Court does not find any reason to interfere with the judgment & orders passed by learned Courts below.

Even otherwise also, grant of injunction is discretionary and any interference with such discretionary relief can be made while exercising powers of supervision under Article 227 of the Constitution of India when it is found that the orders passed by learned Courts below suffer from some patent error or they result in miscarriage of justice. Since this is not the case here, therefore, this Court is not inclined to interfere with the impugned orders.

Accordingly, writ petition fails and is hereby dismissed. However, having regard to the facts and circumstances of the case, learned Assistant Collector 1st Class, Bhavar, Haldwani is requested to decide the Revenue Case No. 22/411 of 2014-15 as early as possible, without granting any unnecessary adjournment to any of the parties.