BABU LAL v. COLLECTOR VARANASI — 1995 DIGILAW 1102 (ALL)

R. A. SHARMA, J. Five persons have filed this writ petition for writ of mandamus directing the respondents not to demolish the premises on plot No. 179/2 area 10 decimals of village Churampur, pargana Dehat Amanat, Tahsil and District Varanasi and not to evict them therefrom. Respondents No. 1, 2 and 3 are Collector, Additional Collector and Deputy Collector (South) Varanasi respectively. Senior Superintendent of Police, Circle Officer Cantt and Station Officer Incharge Police Station Maduwadeeh, Varanasi are respondents No. 4, 5, and 6. Sri Sewa Lal has been impleaded as respondent No. 7. 2. . Respondent No. 7 has filed a Civil Suit No. 652 of 1993 in the Court of Civil Judge, Varanasi for declaration that he is the owner of premises on plot No. 179/2 of the village mentioned hereinabove (hereinafter referred to as the premises ). Further prayer for injunction restraining the defendant from interfering with his possession over the said plot, has also been made. In this suit only Gaon Sabha of the said village has been impleaded as defendant. Petitioners No. 1 and 2 moved an application for impleadment in that suit which was rejected by the trial Court. They, therefore, filed a civil revision No. 190 of 1994 before this Court, challenging the order rejecting their application for impleadment. In the revision an interim order was passed by this Court staying the further proceeding in civil suit. However, this revision was dismissed in default on 18. 7. 1995. Both the petitioners claim to have made application for recall of the aforesaid order, which has not been decided so far. 3. In the civil suit respondent No. 7 moved applications for permission to repair the premises in dispute and for police help in that connection. Both these prayers were granted by the Civil Court and the orders for police help for repair of the premises were accordingly passed. Deputy Collector (South) Varanasi, respondent No. 3, wrote a letter dated 22. 4. 1995 (Annexure-11 to the writ petition) to the Superintendent (City) Varanasi asking for police help to the respondent No. 7, so as to enable him to demolish the premises and construct a new one in its place. It appears that no action was taken on the above letter. Respondent No. 3, therefore, passed an order dated 15. 6. 4. 1995 (Annexure-11 to the writ petition) to the Superintendent (City) Varanasi asking for police help to the respondent No. 7, so as to enable him to demolish the premises and construct a new one in its place. It appears that no action was taken on the above letter. Respondent No. 3, therefore, passed an order dated 15. 6. 1995 (Annexure-10 to the writ petition) directing the Naib Tahsildar (City) Varanasi to be personally present with the police help on the spot, so as to enable respondent No. 7 to demolish the premises and construct a new one in its place. 4. Apprehending immediate demolition of the premises in view of the above order of the respondent No. 3 petitioners have filed this writ petition for the reliefs mentioned before. On 17. 8. 1995 we passed an interim order directing the respondents not to demolish the premises and not to interfere with the possession of the petitioners, in case they are found in its possession except in accordance with law. 5. Respondent No. 7 has moved an application for recall of the above interim order. Further prayer for dismissing the writ petition has also been made therein. As the application contains prayer for recall of interim order dated 17. 8. 1995 learned Single Judge, before whom the said application was moved, was of the view that the above order can be recalled by the same Bench which has passed it and has accordingly directed the application to be listed before us. 6. An interim order passed by a Division Bench can be recalled by a learned Single Judge and it is not necessary that such matter be placed before the same Bench which has passed that order. But when an interim order has been confirmed/made absolute, it can be recalled by the same Bench which has confirmed it. We are, however, not sending back the case to the learned Single Judge because of the request made by learned counsel for both the parties, for deciding the petition finally, because pendency of the writ petition in this Court may cause embarrassment to the Civil Court where suits relating to the premises are pending. We are, therefore, deciding this petition. 7. Learned counsel for the respondent No. 7 has raised the following preliminary objections regarding maintainability of the writ petition, viz. We are, therefore, deciding this petition. 7. Learned counsel for the respondent No. 7 has raised the following preliminary objections regarding maintainability of the writ petition, viz. (i) the petitioner No. 4 has fifed a civil suit alongwith an application for interim injunction, for similar relief which is claimed in the writ petition and has also obtained interim order from civil court before filing of this writ petition ; (ii) petitioner No. 3 has also filed a civil suit regarding the same property; and (iii) petitioners are guilty of concealment of facts. 8. In para 27 of the counter-affidavit filed by respondent No. 7 it has been stated that petitioner No. 4 has filed a civil suit against respondent No. 7 for injunction restraining him from evicting him from the premises. Further prayer against the demolition of the premises has also been made. On 16. 8. 1995 the Civil Court granted interim order in favour of the petitioner No. 4, who filed the suit. These facts are not disputed. This writ petition was filed before this Court on 16. 8. 1995. It came up before us on 17. 8. 1995, on which date we passed the interim order. It is true that if a person has availed of alternative remedy for redressal of his/her grievance it is not open to him/her to file a writ petition under Article 226 of the Constitution for the same relief. In this connection reference may be made to Bombay Metropolitan Region Development Authority, v. Gokak Patel Volkart Ltd. 1995 ACJ 71 (SC ). It is also true that the fact of filing of the above suit by petitioner No. 4 has not been disclosed in the writ petition. The explanation of the petitioners to the effect that the affidavit filed in support of the writ petition has been sworn by petitioner No. 2 who had no knowledge of the filing of the civil suit, is not of much importance. Because the fact remains that the suit has been filed by petitioner No. 4. In that suit respondent No. 7 is the sole defendant. There is no relief claimed against the respondents No. 1 to 6. In para 19 of the writ petition it has been stated that petitioner No. 3 has also filed a civil suit for declaration and injunction regarding the premises in the Civil Court. In that suit respondent No. 7 is the sole defendant. There is no relief claimed against the respondents No. 1 to 6. In para 19 of the writ petition it has been stated that petitioner No. 3 has also filed a civil suit for declaration and injunction regarding the premises in the Civil Court. In that suit only the Gaon Sabha and the State are the defendants. 9. The question of ownership and the possession of the premises cannot be decided by this Court under Article 226 of the Constitution. Civil Court is the proper forum for deciding such issues. Petitioners No. 3 and 4 and respondent No. 7 have already filed such suits, which are pending before the Civil Court. This Court, therefore, cannot go into the question of ownership and possession. It is open to the petitioners 1, 2 and 5 also to file civil suit before appropriate Civil Court, for adjudication of their claim to the premises. 10. But the real grievance of the petitioners in this writ petition is not about the ownership and possession of the premises. Their grievance is against the orders dated 22. 4. 1995 (Annexure-11 to the writ petition) and 15. 6. 1995 (Annexure-10 to the writ petition), passed by the Deputy Collector (South) Varanasi, whereby Naib Tahsildar has been directed to be personally present with the police help on the spot, so as to enable respondent No. 7 to demolish the premises and construct a new one in its place. Respondent No. 3 could not have passed the order for demolition of the premises and construction of a new one in its place by respondent No. 7 with police help, when claim regarding the same property is pending before the Civil Court, at the instance of respondent No. 7 himself. When the dispute relating to any property is pending before Civil Court the administration and the police of the district are supposed to remain impartial. and unless there is some order from the Court for their help, they should not interfere till the dispute is decided. In the instant case Civil Court merely passed an order for police help for repair of the premises. There was no order for their help for demolition of the premises or construction of a new one in its place. and unless there is some order from the Court for their help, they should not interfere till the dispute is decided. In the instant case Civil Court merely passed an order for police help for repair of the premises. There was no order for their help for demolition of the premises or construction of a new one in its place. Apprehension of the petitioners about conclusion of the district administration and the police officials with the respondent No. 7 cannot be said to be without basis. 11. In view of the latter order of respondent No. 3 asking the Naib Tahsildar to get the premises demolished with the police help so as to enable respondent No. 7 to construct a new building in its place, the threat of demolition was imminent. In such a case relegating the petitioners to civil suit against the orders of respondent No. 3 would have frustrated the whole purpose, because during this period the possibility of demolition of the premises could not be excluded As the orders of the respondent No. 3 are without jurisdiction and they have not been challenged before Civil Court in the pending suits, we are of the opinion that in view of the facts and circumstances of the case we should interfere in this case to a limited extent only. The preliminary objections to a limited extent only. The preliminary objections raised by learned counsel for the respondents are accordingly rejected. 12. For the reasons given above, this writ petition is partly allowed and partly dismissed. It is allowed as against the orders dated 22. 4. 1995 and 15. 6. 1995 (Annexures 11 and 10 respectively to the writ petition) passed by the respondent No. 3. The respondents No. 1 to 6 are directed not to enforce those orders and not to demolish the premises unless there is order from the Civil Court to that effect. The writ petition as against respondent No. 7 and for other reliefs is dismissed. In view of the facts and circumstances of the case there shall be no order as to costs. Petition partly allowed. .