Mukesh Kumar Sharma vs Union Of India And Others

Ramesh Ranganathan, CJ

This appeal is preferred against the order passed by the learned Single Judge in WPMS No.1863 of 2019 dated 28.06.2019. The appellant-writ petitioner claims to have purchased the subject property in an auction conducted by the PNB Bank under the provisions of the SARFAESI Act. It is his case that, since there was no ingress and egress to the adjoining government land, the concerned officials were seeking to lay a road over the appellant-writ petitioner's land, thereby violating the appellant-writ petitioner's constitutional right, under Article 300-A of the Constitution, not to be deprived of his property except in accordance with law.

In the order under appeal, the learned Single Judge, after taking note of the fact that no construction had yet taken place, but a passage had been demarcated which allegedly goes through the land of the present appellant-writ petitioner, dismissed the writ petition in limine, making it clear that dismissal of the present writ petition would not disable the petitioner from approaching the civil court or the revenue court, (as the case may be), for redressal of his grievance. Aggrieved thereby, the present appeal.

The order under appeal is subjected to challenge by Mr. Ramji Srivastava, learned counsel for the appellant, on two grounds. Firstly, the remedy of approaching the Civil Court is neither effective nor efficacious, since a notice is required to be effected, under Section 80(1) of the Civil Procedure Code, and till then no order of injunction can be passed; and secondly that the jurisdiction of this Court, under Article 226 of the Constitution of India, is not barred since there are no disputed questions of facts involved in the writ petition.

We must express our inability to agree. Section 80(1) CPC, no doubt, requires a notice of two months to be given before a suit is instituted against the Government or against a public officer. Section 80(2), however, enables a suit to be instituted, to obtain an urgent or immediate relief against the Government, with the leave of the Court without serving any notice as required under Section 80(1). The only restriction placed by sub-section (2) of Section 80 is that no relief shall be granted by the Court in the Suit, whether interim or otherwise, except after giving the Government or the public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the Suit. As it is always open to the appellant-writ petitioner to request the Court to waive the requirement of the notice under Section 80(1), the contention that the remedy of filing a Suit, is neither effective nor efficacious, does not merit acceptance.

With regards the contention that there are no disputed questions of fact involved in the writ petition, it must be borne in mind that the writ petition was dismissed at the stage of admission relegating the appellant-writ petitioner to avail the remedy of filing a civil suit. The question whether the land of the appellant-writ petitioner has been encroached upon, whether the land belongs to the appellant-writ petitioner, etc. involve adjudication of questions of fact, which the competent Civil Court is better equipped to do on the basis of the evidence adduced before it.

The appellant-writ petitioner, in effect, is seeking an order of injection restraining the respondent-State Government from interfering with their possession over the subject property. Such a relief can only be granted by a competent Civil Court. This Court would, ordinarily, not entertain such disputes in writ proceedings under Article 226 of the Constitution of India.

Yet another reason why we should exercise restraint is that the scope of interference in an intra-court appeal is extremely limited. It is only if the order under appeal suffers from a patent illegality would interference be justified. Exercise of discretion by the learned Single Judge, in relegating the appellant-writ petitioner to approach the competent civil court, does not suffer from any such infirmity. We see no reason, therefore, to interfere with the order under appeal.

Suffice it, while dismissing the appeal, to make it clear that, in case the appellant-writ petitioner invokes the remedy of a civil suit before the Civil Court of competent jurisdiction, the appellant-writ petitioner's claim in the Suit shall be examined on its merits uninfluenced by any observations made either in the order under appeal or in the order now passed by us.

Subject to the aforesaid observations, the Special Appeal fails and is, accordingly, dismissed. No costs.