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2020 DIGILAW 225 (HP)

State Of H P v. Ghanshyam Tagore

2020-03-12

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - Cmp(M) No.1396 of 2019 Heard. As this is convinced that delay in filing the revision petition is bonafide and not intentional, the same is condoned. Application is disposed of. Civil Revision No.36 of 2020 Be registered. With the consent of the parties, this Revision Petition is heard today itself and the same is being disposed of vide judgment of even date. This Revision Petition filed under Section 115 of the Civil Procedure Code is directed against the orders passed, respectively, by the Court of learned Senior Civil Judge (Junior Division), Court No.1, Mandi, District Mandi, H.P. in C.M.A. No. 124/2018 titled as Ghanshyam Tagore Versus State of H.P. & others, decided on 16.08.2018 in Civil Suit No.271 of 2018 and judgment dated 26.11.2018 in Civil Miscellaneous Appeal No.11/2018, dated 26.11.2018, titled as State of H.P. & others Versus Ghanshyam Tagore, passed by the Court of learned Additional District Judge (II), Mandi, District Mandi, H.P., vide which the application filed by the present respondent under Order 39, Rule 1& 2 of the Civil Procedure Code was allowed by the learned Trial Court and the appeal filed against the same by the State stands dismissed by the learned Appellate Court. 2. I have heard learned counsel for the parties and have also gone through the orders passed by the learned Courts below. 3. To obtain an order under Order 39, Rule 1 and 2 of the Code of Civil Procedure Code, a party has to demonstrate before the Court:- (a) prima facie case; (b) balance of convenience; (c) irreparable loss. 4. A perusal of the order passed by the learned Trial Court as well as the judgment passed by the learned Appellate Court demonstrates that it is only because the respondent before this Court i.e. the plaintiff before the learned Trial Court was able to demonstrate existence of a prima facie case, balance of convenience as well as irreparable loss in the event of denial of interim order, then the learned Trial Court granted interim order in favour of the respondent therein. 5. 5. The matter which is pending adjudication before the learned Trial Court is that the plaintiff therein i.e. the present respondent has assailed the act of District Collector, Mandi, H.P., who vide order dated 25.09.2017, has ordered the transfer of 8 biswas of the suit land in favour of Panchayati Raj Department for construction of a Panchayat Bhawan for Gram Panchayat site. The case of the plaintiff before the learned Trial Court is that the transfer of the land in issue is against the interest of the school as the land was in the actual physical possession of Government Senior Secondary School, Saigaloo, Tehsil Kotli, District Mandi, H.P. and was required for the purpose of the extension of the school including its playground. Ignoring this, District Collector, Mandi, H.P. passed the order of handing over the land to the Panchayati Raj Department, which order was under challenge before the learned Trial Court. 6. By way of an application, which was filed under Order 39, Rule 1 and 2 of the Civil Procedure Code, a prayer was made before the learned Trial Court for grant of temporary injunction for restraining the defendants from raising any construction over the suit land till the disposal of the main suit. This application stood allowed by the learned Trial Court vide order dated 16.08.2018 and the appeal filed against the said order by the State before the learned Appellate Court stood dismissed. 7. Having perused the order passed by the learned Trial Court as well as the order passed by the learned Appellate Court, as I have already mentioned hereinabove also, this Court is of the view that the same do not call for any interference. 8. While passing the order as well as the judgment, learned Courts below have taken into consideration the fact that the Education Department was earlier approached for permitting the Panchayati Raj Department to use the said peace of land for the purpose of construction of a Panchayat Bhawan, however, the same was objected to by the Principal of the school. Record also demonstrates that SMC of the school in issue was also not in favour of the transfer of the land from school to Panchayati Raj Department. Record also demonstrates that SMC of the school in issue was also not in favour of the transfer of the land from school to Panchayati Raj Department. This was more so for the reason that the Education Department/SMC intended to carry out the extension work of the school by way of raising a science laboratory and also an Administrative Block as well as playground in the land which is the subject matter of the suit. 9. Learned Courts below held that though it was the prerogative of the State Government to allocate the land in favour of any department, however, the State cannot act in an arbitrary manner to the prejudice of the children, who are studying in the school and on these basis, learned Courts below held that in order to avoid multiplicity of litigation, it was in the interest of justice that defendants were restrained from raising any construction on the suit land till the disposal of the main suit. 10. During the course of arguments, learned Additional Advocate General has not been able to point out that the order and judgment under challenge were passed by the learned Courts below in exercise of jurisdiction either not vested in them or by not exercising the jurisdiction vested in them. He has also not been able to demonstrate that the order as well as the judgment have been passed by the learned Trial Court as well as learned Appellate Court by exercising jurisdiction vested in them with material irregularity. The order passed by the learned Trial Court as well as the judgment passed by the learned Appellate Court are well reasoned and the findings returned therein are duly borne out from the record as were necessary for the purpose of adjudicating an application filed under Order 39, Rule 1 and 2 of the Code of Civil Procedure. 11. Therefore, this Court is of the view that there is no need to interfere either with the order passed by the learned Trial Court or with the judgment passed by the learned Appellate Court. 11. Therefore, this Court is of the view that there is no need to interfere either with the order passed by the learned Trial Court or with the judgment passed by the learned Appellate Court. However, it is clarified that the observations which have been made by this Court in this Order are only for the purpose of adjudication of the present revision petition and the suit pending before the learned Trial Court shall be decided by it on the basis of the pleadings of the parties as well as the evidence which may be led by the respective parties in support of their respective contentions. Petition is dismissed. Pending miscellaneous applications, if any, stand disposed of. Interim order, if any, stands vacated.