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2018 DIGILAW 33 (UTT)

Shamshuddin v. State of Uttarakhand

2018-01-11

MANOJ K.TIWARI

body2018
JUDGMENT : Manoj K. Tiwari, J. 1. Heard learned counsel for the parties and perused the records. 2. By means of this writ petition, following relief has been sought:- “(i) Issue a writ order or direction in the nature of mandamus directing the respondent No. 3-5, to restore possession of plot of land to the petitioner situated in Ward No. 20/1, Mohalla Jagatpura, Rudrapura from which the respondent Nos. 3 to 5 have forcibly evicted the petitioner on 03.01.2017 and grant adequate compensation to the petitioner.” 3. According to the petitioner, his father constructed a tin shed over nazul land situated in Mohalla Jagatpura in Rudrapur town about thirty years ago with the permission of Municipal Board, Rudrapur. Subsequently, on 30.06.1987, Special Nazul Officer, Rudrapur allotted one Nazul plot No. 17 admeasuring 50 square meter, to petitioner’s father in Mohalla Jagatpura for a period of thirty years, but, no lease deed was executed in respect of the said nazul plot. In the year 2002, some neighbours started interfering in the peaceful possession of the petitioner over the land in question. Consequently, petitioner along with three other persons filed a suit for injunction against (1) Shri Sumer Singh, (2) Shri Shyam Singh, (3) Shri Kalwa and (4) Shri Vidhya Ram, which was registered as Civil Suit No. 103 of 2002. The said suit was decreed ex-parte on 24.04.2003 by learned Civil Judge (Senior Division), Udham Singh Nagar. On 03.01.2017, the structure raised by the petitioner over the land in question was demolished under the garb of anti-encroachment drive by the Municipal Authorities with the help of District Administration. According to the petitioner, his tin shed was demolished under the pretext that the land is needed for developing a public park, although park was never notified. 4. In paragraph No. 18 of the Writ petition, it has been stated that respondent Nos. 3 & 5 have started making preparation for constructing boundary wall on the site of petitioner’s erstwhile building and for that purpose, they are digging the land. 5. Municipal Corporation, Rudrapur has filed a counter affidavit stating that petitioner had encroached the land of Public Park in Mohalla Jagatpura which was removed on 03.01.2017 in the presence of Sub-Divisional Magistrate. It has further been stated that earlier in the year 2002 also, encroachment was removed from the said park in the presence of Additional District Magistrate, Nazul. 5. Municipal Corporation, Rudrapur has filed a counter affidavit stating that petitioner had encroached the land of Public Park in Mohalla Jagatpura which was removed on 03.01.2017 in the presence of Sub-Divisional Magistrate. It has further been stated that earlier in the year 2002 also, encroachment was removed from the said park in the presence of Additional District Magistrate, Nazul. In paragraph No.4 of the counter affidavit, it has been stated that petitioner’s father was granted patta of plot No.17 in Mohalla-Jagatpura, which is different land than the land of the park and the said land was disposed of by petitioner to some other person. It has further been stated that under the garb of the patta granted to petitioner’s father, petitioner had made encroachment upon the park land by constructing the tin shed. It has further been stated that Municipal Corporation, Rudrapur was not a party in Civil Suit No.103 of 2002. 6. Tehsildar, Rudrapur has filed a separate counter affidavit on behalf of respondent Nos. 2, 3 & 4, whereby certain documents have been brought on record. A perusal of those documents reveals that residents of Jagatpura ward No.1 had made representation against encroachment over park land to the Sub Divisional Magistrate, Rudrapur and on the direction of Sub Divisional Magistrate, Rudrapur, steps were taken for removing the encroachments. 7. From the pleadings made by the parties, it is apparent that petitioner has been dispossessed from the land in question. The relief, which petitioner has sought, is to restore his possession over the land from which he has been dispossessed. Such relief cannot be granted without recording findings on disputed question of facts. In the opinion of this Court, such relief cannot be granted in a writ petition under Article 226 of the Constitution of India and appropriate forum to grant such relief would be a Civil Court. 8. Learned counsel for the petitioner submits that in view of Section 6 of the Specific Relief Act, 1963, petitioner cannot approach a Civil Court seeking restoration of his possession. Section 6 of the Specific Relief Act, 1963 is extracted below:- 6. 8. Learned counsel for the petitioner submits that in view of Section 6 of the Specific Relief Act, 1963, petitioner cannot approach a Civil Court seeking restoration of his possession. Section 6 of the Specific Relief Act, 1963 is extracted below:- 6. Suit by person dispossessed of immovable property.— (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought— (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. 9. The remedy provided under Section 6 of the Specific Relief Act, 1963 is a summary and speedy remedy, which is available to a person who has been wrongfully dispossessed of his immovable property, in addition to the remedy of filing a regular suit for declaration of his rights and/or restoration of possession. Thus, the remedy under Section 6 of the aforesaid Act is not the only remedy available to a person, who has been dispossessed of his immovable property. 10. Section 9 of the Code of Civil Procedure clearly lays down that the Civil Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is well settled that the Civil Court has jurisdiction to try all suits of civil nature and the exclusion of jurisdiction of the Civil Court is not to be lightly inferred. Section 9 of Code of Civil Procedure, 1908 is extracted below:- “9. Courts to try all civil suits unless barred— The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 9 of Code of Civil Procedure, 1908 is extracted below:- “9. Courts to try all civil suits unless barred— The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. [Explanation I].—A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. [Explanation II]. For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.” 11. The question regarding bar of jurisdiction of Civil Court has been considered in a recent decision rendered by Hon’ble Supreme Court in the case of Samar Kumar Roy Vs. Jharna Bera reported in (2017) 9 SCC 591 . Para 15 and 16 of the said judgment are extracted below:- “15. It is obvious that a suit or proceeding between parties to a marriage for a decree of nullity or restitution of conjugal rights or judicial separation or dissolution of marriage, all have reference to suits or petitions that are filed under the Hindu Marriage Act and/or Special Marriage Act for the aforesaid reliefs. There is no reference whatsoever to suits that are filed for declaration of a legal character under Section 34 of the Specific Relief Act. Indeed, in Dhulabhai v. State of M.P., this Court had occasion to consider whether the civil court’s jurisdiction was expressly or impliedly barred by statute. After referring to a number of judgments, this Court laid down 7 propositions of law, of which two are of relevance to the present case: (AIR pp. 89-90, para 32) “32. … (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.” 16. On a reading of the aforesaid propositions, it is clear that the examination of the remedies provided and the scheme of the Hindu Marriage Act and of the Special Marriage Act show that the statute creates special rights or liabilities and provides for determination of rights relating to marriage. The Acts do not lay down that all questions relating to the said rights and liabilities shall be determined only by the Tribunals which are constituted under the said Act. Section 8(a) of the Family Courts Act excludes the civil court’s jurisdiction in respect of a suit or proceeding which is between the parties and filed under the Hindu Marriage Act or Special Marriage Act, where the suit is to annul or dissolve a marriage, or is for restitution of conjugal rights or judicial separation. It does not purport to bar the jurisdiction of the civil court if a suit is filed under Section 34 of the Specific Relief Act for a declaration as to the legal character of an alleged marriage. Also as was pointed out, an exclusion of the jurisdiction of the civil courts is not readily inferred. Given the line of judgments referred to by the High Courts, and given the fact that a suit for declaration as to legal character which includes the matrimonial status of parties to a marriage when it comes to a marriage which allegedly has never taken place either de jure or de facto, it is clear that the civil court’s jurisdiction to determine the aforesaid legal character is not barred either expressly or impliedly by any law.” 12. For the aforesaid reason, this Court refrains from exercising its jurisdiction under Article 226 of the Constitution of India. Consequently, the writ petition fails and is hereby dismissed. No order as to costs. 13. Pending application, if any, also stands disposed of accordingly.