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2010 DIGILAW 2425 (ALL)

RAM PRAKASH v. DISTRICT JUDGE, FAIZABAD

2010-08-10

ANIL KUMAR

body2010
JUDGMENT ANIL KUMAR, J.--Heard Sri Radhey Shyam Tiwari, learned Counsel for the petitioner and Sri C.B. Pandey, learned Standing Counsel who put in appearance on behalf of the respondents. 2. In brief the facts of the present case are to the effect that a civil suit for permanent injunction was filed on 28.4.2009 by the petitioner Nos. 2 and 3 in the Court of Civil Judge (Senior Division) 1st, Faizabad alongwith the application for temporary injunction under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C. The said application for temporary injunction was not decided. In the meantime, on 15.4.2010, the respondent No.3 wrote a letter to the District Administration Authority/Police authorities and the respondent No.4 thereafter proceeded to dispossess him, hence he approached this Court for redressal of his grievances challenging the order dated 15.4.2010 by filing Writ Petition No. 3711 (M.B.) of 2010 (Satya Prakash v. District Magistrate/Collector, Faizabad and others). 3. On 26.4.2010, this Court has passed an order, operative portion of the same is quoted as under :- "At the first sight, it appears that it is a case where under some scheme of the State Government, the land is required to be used, but there appears to be some constructions over some portion of the said land, which are taken as encroachment on the said land by the respondents and therefore, direction has been issued for demarcation of the land which belongs to Rehabilitation Department. Though the petitioner does dispute the aforesaid factual position, but dispute of this nature cannot be decided in writ jurisdiction. If the petitioner is aggrieved by the aforesaid action of the respondents, he can approach the appropriate forum, may be by filing a civil suit in which interim injunction can also be claimed. We also expect that if any such suit is filed alongwith an application for temporary injunction, the said application shall be considered, forthwith, in accordance with law." 4. We also expect that if any such suit is filed alongwith an application for temporary injunction, the said application shall be considered, forthwith, in accordance with law." 4. From the perusal of the record, it transpires that again as respondent No. 5 had started the constructions on the land in question on 24.5.2010, so the petitioner moved an application before the Court below on 9.6.2010 under section 151 for temporary injunction, registered 37-G-2 but grievance of the petitioner was not considered, as such, again he approached this Court by filing the Writ Petition No. 5943 (M.B.) of 2010 (Om Prakash and another v. District Magistrate/Collector Faizabad and others). On 18.6.2010, this Court has passed an order, operative portion of the same is quoted as under :- "However, it is provided that in case the petitioners move application before the Trial Court, the same shall be adjudicated by the Trial Court during the summer vacation. In cue, the Court concerned is not available, the District Judge shall nominate the same to the link Court who shall pass appropriate order expeditiously, on the application of the petitioners. For a period of one month, no demolition shall take place over the land in question." 5. As submitted by the learned Counsel for the petitioner that in view of the above said facts, the respondent had stopped the construction and demolition over the land in dispute. Thereafter, by means of the order dated 19.7.2010, the Trial Court had rejected the petitioners' application for grant of temporary injunction. 6. Aggrieved by the same, the petitioner filed the misc. civil appeal before the District Judge, Faizabad/respondent No.1 and the same is pending for admission/disposal along with the same he has also filed an application for temporary injunction and the next dated fixed is 31st August, 2010. 7. On 9.8.2010, the opposite parties had started the construction and demolition, work over the land in question. So, the petitioner again moved an application for hearing the appeal as well as for disposal of the application for temporary injunction before respondent No. 1. On the said application date is fixed on 31.8.2010. 8. 7. On 9.8.2010, the opposite parties had started the construction and demolition, work over the land in question. So, the petitioner again moved an application for hearing the appeal as well as for disposal of the application for temporary injunction before respondent No. 1. On the said application date is fixed on 31.8.2010. 8. In view of the above said factual matrix, the present writ petition has been filed by the petitioner before this Court with the following main reliefs :- (I) Issue a writ, order or direction in the nature of mandamus commanding the opposite party No.1, the District Judge, Faizabad to decide the Misc. Civil Appeal No. Nil of 2010 "Ram Prakash and others v. Executive Engineer and others" within a stipulated period as to be fixed by this Hon'ble Court. (II) Issue a writ, order or direction in the nature of mandamus commanding opposite parties to stop the construction and demolition work over the land in question." 9. I have heard learned Counsel for the petitioners and gone through the record. 10. So far as the controversy which is involved in the present case, it is not disputed by the learned Counsel for the parties who are present today that the next date fixed for disposal of the application for temporary injunction before the District Judge, Faizabad filed by the petitioner against the order dated 19.7.2010 passed by the Trial Court thereby rejecting the application for temporary injunction under Order XXXIX, Rules 1 and 2, c.P.c. read with 151, C.P.C. is 31.8.2010. 11. Needless to mention herein that when the matter is filed before the competent Court of law in a particular statute or provision whether a suit or appeal, the Court concerned has to decide the same within the framework and aims and objets as provided in the particular statute or provision under which the same is filed. While deciding the same court has also to kept in mind the length and pendency of the matterss which are pending before it and has also to take into consideration the factum that under what circumstances the matter/relief as claimed by the parties is to be:onsidered ilnd decided. While deciding the same court has also to kept in mind the length and pendency of the matterss which are pending before it and has also to take into consideration the factum that under what circumstances the matter/relief as claimed by the parties is to be:onsidered ilnd decided. It is sole prerogative of Court concerned to proceed and adjudicate the matter in question which has come for his consideration in a marmer as the proceedings should not be lingered on in the matter in question on one pretext or other or with oblique motive. Further, the Court should not modify the matter in question without any reasonable justification or reasons. 12. So far as the present case is concerned, from the documents on record, it is clearly established that in the appeal which has been filed by the petitioner before the respondent No.1 aggrieved by the order dated 19.7.2010 by which the Trial Court rejected the application of the petitioners' for grant of temporary injunction. So, an application moved by the petitioner on 10.8.2010 before the appellate authority for early disposal of the appeal as well as the application for temporary injunction, the Court fixed 31.8.2010 as next date. 13. In view of the development which took place on 9.8.2010, the petitioner for redressal of his grievances moved an application on 10.8.2010. After considering the same, the respondent No. 1 has fixed the date on 31.8.2010. Accordingly, I do not find any infirmity or irregularity in the said action on the part of the respondent No.1 in fixing the said date as 31.8.2010 as it is the sole prerogative and domain of the authority concerned to se the matter and decide the matter and for the said purpose, if it fixes a particular date keeping in view the facts and circumstances of the case then the same cannot be termed as illegal and arbitrary exercise of power unless and until the same has been exercised contrary to law or with oblique motive or purpose. The said conditions do not exists in this case. 14. No other point is argued or pressed before me. 15. For the foregoing reasons, present writ petition lacks merit and liable to be dismissed. The said conditions do not exists in this case. 14. No other point is argued or pressed before me. 15. For the foregoing reasons, present writ petition lacks merit and liable to be dismissed. It is hope and trust that respondent No.1 shall make all endeavour to dispose of the application for temporary injunction moved by the petitioner before him on 31.8.2010, the next date fixed in the matter or within one month thereafter, after giving due opportunity of hearing to the parties concerned. 16. Accordingly, writ petition is dismissed. 17. No order as to costs. Petition Dismissed.