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2018 DIGILAW 959 (ALL)

TULSIRAM v. STATE OF U. P.

2018-04-18

P.K.S.BAGHEL

body2018
JUDGMENT : Pradeep Kumar Singh Baghel, J. The petitioner has preferred this writ petition for issuance of a writ of mandamus directing respondent nos. 1 to 4 to ensure compliance of the stay order dated 09th April, 2018 passed by the Settlement Officer Consolidation, Allahabad. The relief sought for by the petitioner reads as under: "(A). a writ of Mandamus directing respondent no. 1 to 4 to insure the compliance of stay order dated 9-4-2018 passed by Court of Settlement Officer Consolidation Allahabad in Appeal No. 548 + 332, Chhedi Khan v. Tulasiram under section 11(1) of U.P. Consolidation of Holdings Act, 1953, and also directing to respondents 5 to 14 to maintain status quo on properties old plot no. 176 corresponding to new plots 314, 317, and 318 of Village Kanihar Pargana Jhusi Tahasil Phoolpur, Allahabad." 2. From the relief sought for by the petitioner it is clear that the petitioner wants to get the order of the Settlement Officer Consolidation executed by this Court. Under Article 226 of the Constitution of India this Court cannot issue a writ of mandamus for compliance of the stay order. The Uttar Pradesh Consolidation of Holdings Act, 1953 (for short, the "Act") is a complete Code in itself. The appropriate authority in such cases is the Consolidation Commissioner or the District Deputy Director of Consolidation, as the case may be. From the perusal of the writ petition it appears that without seeking appropriate remedy under the provisions of the Act the petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution, which is an extraordinary remedy. 3. The experience reveals that for petty matters the litigants are approaching this Court under Article 226 of the Constitution. The Delhi High Court in the case of Kotak Mahindra Bank Ltd. v. Bank of Baroda and another, W.P. (C) No. 9828 of 2015, has aptly observed that the High Courts have become very liberal in entertaining the writ petitions under Article 226 of the Constitution and the litigants have assumed that writ petition is remedy for all type of illnesses in the society, with the result that roster of all the High Courts are choked with the petty matters and they are unable to decide the important matters, which are becoming infructuous. The Supreme Court also in the case of Subrata Roy Sahara v. Union of India and others, (2014) 8 SCC 470 , has laid down the law that the time has come when the High Courts should curb the tendency of filing frivolous petitions on petty matters and for that heavy cost should be imposed upon the litigants. In another case in Phool Chandra and another v. State of Uttar Pradesh, (2014) 13 SCC 112 , the Supreme Court has held that to deprecate the tendency of filing of frivolous and petty matters the High Courts should impose cost on advocates also, who accept brief of such frivolous and petty matters. 4. Moreover, from the pleadings of the writ petition it is clear that the petitioner has not approached the District Deputy Director of Consolidation/District Magistrate nor he has made any representation to the Consolidation Commissioner, U.P.. It is a well-settled law that the writ of mandamus can only be issued when a statutory authority fails to perform its duty and the petitioner has approached the authority concerned requesting him for compliance of the statutory provisions but he failed, only then a writ of mandamus lies. Reference may be made to the judgment of the Supreme Court in the case of Amrit Lal Berry v. Collector of Central Excise Central Revenue and others, AIR 1975 SC 538 , which has consistently been followed. 5. The Supreme Court in the case of Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 , has held that writ of mandamus should not be issued in the matters of property dispute. The petitioner has brought on record the photographs to demonstrate that the contesting respondents have raised construction almost upto roof level and by the writ of mandamus he wants to get an injunction issued against the private persons to stop the construction. 6. Learned counsel for the petitioner has placed reliance on the judgments of this Court in the cases of Smt. Jagannathiya v. State of U.P. and others, 2006 (3) AWC 2600 , Hari Om Rastogi and another v. State of U.P. through its Secy. Home Lko. and others , and Mohd. Hamja v. Additional Civil Judge (S.D.) and others, . 7. Learned counsel for the petitioner has placed reliance on the judgments of this Court in the cases of Smt. Jagannathiya v. State of U.P. and others, 2006 (3) AWC 2600 , Hari Om Rastogi and another v. State of U.P. through its Secy. Home Lko. and others , and Mohd. Hamja v. Additional Civil Judge (S.D.) and others, . 7. In the case of Smt. Jagannathiya (supra), the petitioner therein had filed a suit along with an interim injunction application under Order 39 Rules 1 and 2 C.P.C., the said interim application was rejected by the trial Court and a revision was preferred by the plaintiff therein. The revisional Court granted an injunction restraining the respondents from interfering with peaceful possession and occupation of the plaintiff therein. Th order of the revisional Court was not complied with, hence the plaintiff therein moved an application under Order 39, Rule 2A C.P.C. before the trial Court which was rejected. The Court observed that once the Court has granted an interim order, it is for the police administration to ensure compliance thereof. The plaintiff approached the police authorities but no action was taken. In the meantime her revision was dismissed. The petitioner moved a writ petition also and thereafter the Court has dismissed the writ petition. The Division Bench of this Court in that context and in the fact and situation of that case has issued a direction to the Civil Court to issue necessary order to the Superintendent of Police. The Court did not issue any injunction. The said judgment is not applicable in the facts of the present case as the petitioner herein has not approached any authority for compliance of the interim order. 8. In Hari Om Rastogi (supra) also the matter was in respect of interim injunction granted by the trial Court which was not complied with. When the interim order was not complied with, the petitioner therein filed a writ petition wherein this Court has held that the trial Court has got ample power to enforce its order under Order 39, Rule 2A C.P.C.. Hence, in paragraph-4 of the judgment the Court has observed that it was obligatory on the part of the district authorities to implement the order passed by the trial Court. In Mohd. Hamja (supra) the petitioner therein had filed a regular civil suit and a temporary interim injunction was granted. Hence, in paragraph-4 of the judgment the Court has observed that it was obligatory on the part of the district authorities to implement the order passed by the trial Court. In Mohd. Hamja (supra) the petitioner therein had filed a regular civil suit and a temporary interim injunction was granted. In all the three cases, which learned counsel for the petitioner has cited, the matter pertained to the Civil Court where temporary injunction was granted. In the present case, the petitioner in paragraph-8 of the writ petition has averred that respondent no. 15 in collusion with respondent nos. 5 to 14 is indulged to disturb the possession of the petitioner and change the nature of the land by constructing a building. The photograph of the construction raised has been annexed as annexure-6 to the writ petition. 9. The Supreme Court in the case of Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College, Bihar Sharif and others, AIR 1962 SC 1210 , has laid down the law when the Court can issue a writ of mandamus. The relevant part of the judgment reads as under: "(5) ... In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance..." 10. In Shalini Shyam Shetty (supra) the Supreme Court has clearly held that in the property dispute the jurisdiction of Article 226 of the Constitution should not be invoked. The appropriate remedy is that the Court should relegate the petitioner to seek the appropriate remedy in the appropriate forum. Article 226 of the Constitution cannot be invoked in the matter of property dispute. The said judgment of the Supreme Court has consistently been followed. From the averments made in paragraph-8 of the writ petition and also annexure-6 of the writ petition clearly demonstrate that the petitioner wants an injunction order in the garb of the mandamus to restrain the respondents from raising construction. The photograph indicates that sufficient construction has already been made. Moreover, the writ of mandamus cannot be issued against a private person. In fact, he is seeking mandamus against private respondent nos. 4 to 15, who are said to be raising construction. 11. For the reasons mentioned above, the writ petition lacks merit and it is accordingly dismissed. 12. The photograph indicates that sufficient construction has already been made. Moreover, the writ of mandamus cannot be issued against a private person. In fact, he is seeking mandamus against private respondent nos. 4 to 15, who are said to be raising construction. 11. For the reasons mentioned above, the writ petition lacks merit and it is accordingly dismissed. 12. In view of the law laid down by the Supreme Court in Subrata Roy Sahara (supra), the petitioner is liable to be imposed with very heavy cost. However, having regard to the facts that the petitioner is a poor agriculturist the Court desists from imposing any cost but the Court put the petitioner on notice that in case he is indulged in such type of litigation in future, the Court will impose heavy cost.