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2014 DIGILAW 2018 (ALL)

Basawan v. State of U. P.

2014-07-10

D.Y.CHANDRACHUD, DILIP GUPTA

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JUDGMENT Hon'ble Dilip Gupta, J. The petitioners instituted a suit for injunctive reliefs against the third respondent and others (Civil Suit No. 955 of 2003). The suit was dismissed in default on 10 January 2012. A suit was filed against the petitioners (Civil Suit No. 669 of 2005) for possession which has been decreed by the Trial Court on 12 January 2011. The petitioners have filed a restoration application on 8 August 2012. 2. In the meantime, the third respondent filed a writ petition before this Court raising a grievance that the petitioners were encroaching on a public road despite an interim order in his suit restraining them from interfering in the ingress and egress of a Petrol Pump. In that writ petition, it was alleged that a side of the road had been encroached upon and the Indian Oil Corporation had also addressed a letter for the removal of the encroachment which had not been removed from the road of the Public Works Department. The writ petition was disposed of by a Division Bench on 10 October 2013 by directing the District Magistrate to look into the grievance and to pass appropriate orders in accordance with law within a period of three months. 3. Though the learned counsel appearing for the petitioners states that the petitioners were not the parties to the earlier writ proceedings, it must be noted that the Division Bench had specifically observed that the District Magistrate would furnish an opportunity of hearing to other encroachers. Following the order of the Division Bench, the District Magistrate passed an order after hearing the petitioners on 9 January 2014. The District Magistrate has observed that there is a decree of the Civil Court dated 12 January 2011 as well as directions which had been issued by the Division Bench on 10 October 2013. In compliance of the decree, the District Magistrate has directed the removal of the encroachment made by the petitioners on the side of the road. 4. Learned counsel appearing on behalf of the petitioners submits that though there is a decree against the petitioners, the decree has been passed ex parte and the petitioners have submitted an application for restoration as far as back on 8 August 2012, which is pending. Hence, it is submitted that the order of the District Magistrate ought to be quashed and set aside. 5. Hence, it is submitted that the order of the District Magistrate ought to be quashed and set aside. 5. Even if, as claimed by the petitioners, the decree of the Civil Court is an ex parte decree, nonetheless the decree continues to hold the field. That apart, the suit which was instituted by the petitioners for injunctive reliefs has also been dismissed. 6. In that view of the matter, the District Magistrate cannot be said to be in error in holding that the petitioners who have committed an act of encroachment would have to be removed. The encroachment has been found to be on the road. The petitioners have made an application for setting aside the ex parte decree. We clarify that by these observations we do not in any manner intend to affect such rights as the petitioners may have to pursue the application for setting aside the ex parte decree. 7. At the highest, we can order that the application for restoration may be disposed of expeditiously with due notice and after hearing the parties. However, we specifically clarify that we have not interfered with the impugned order of the District Magistrate as the decree continues to hold the field. The decree must be implemented and enforced until it continues to hold the field. 8. The petition is, accordingly, dismissed. There shall be no order as to costs.