HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No.11809 OF 2014 Date: .06.2014 Between :
D Durga Reddy S/o D Malla Reddy R/o Plot No. 14 & 15, Vanitha Colony, Bhavana Enclave, New Bowenpally, Secunderabad and others … Petitioner and Union of India, Rep by its Secretary, Ministry of Defense, South Block New Delhi- 110 –1 and others.
… Respondents The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No.11809 OF 2014 ORAL ORDER:
Petitioners claim to own the properties in Secunderabad Cantonment Board (for short the Board) area and claim to be the members of Phool Bagh Residents Association. Petitioners have developed the properties claimed to be owned by them into commercial properties. Alleging that the Board is interfering with possession and enjoyment of the properties owned by them as well as members of the Sneha Cooperative Housing society, Secunderabad, the Phoolbagh Residents Welfare Association and Sneha Cooperative Housing Society have jointly instituted O.S No. 30 of 2005 on the file of the Special Judge for Trial of Offences under SCs and STs (POA) Act cum VI Additional Metropolitan Sessions Judge cum XX Additional Chief Judge, Secunderabad. In the said suit, plaintiffs have filed an interlocutory application, in I.A. No. 897 of 2005 praying to restrain the respondents from interfering with the possession and enjoyment of the properties of the members of the society and association. Trial Judge granted order of injunction on 3.12.2013 restraining the respondents from interfering in any manner with the peaceful possession of the plaintiffs over the suit schedule property pending disposal of the suit.
2. Case of the petitioners is that after I.A. No. 897 of 2005 was heard and reserved for orders and before the orders were pronounced, the properties of the petitioners were demolished. Petitioners contend that in view of the injunction order granted by the Court below, petitioners are entitled to utilize the properties and enjoy the properties to full extent as was enjoyed by them prior to demolition undertaken by the respondent Board. Injunction order enables them to enjoy the properties to full extent and prohibits interference by the Cantonment Board. There is no useful purpose served, even though injunction order is granted in favour of the petitioners, unless the properties are restored and properly utilised and enjoyed. Petitioners therefore claim that they are entitled to undertake repairs. The cantonment Board is preventing the petitioners from undertaking the repairs and such action of the cantonment Board is illegal, violative of the injunction order passed by the learned trial Judge and amounts to arbitrary exercise of power and authority and encroachment into the property of the petitioners and preventing the petitioners from enjoying peaceful possession. Aggrieved thereby, this writ petition is instituted.
3. Heard Sri S Niranjan Reddy learned counsel appearing for petitioners, Sri P Vishnuvardhan Reddy, learned Assistant Solicitor General appearing for respondents 1 and 2 and Sri Y V Ravi Prasad, learned standing counsel for Secunderabad Cantonment Board-R3.
4. Learned counsel for petitioners Sri S Niranjan Reddy, contended that the writ petition is maintainable and petitioners are entitled to seek mandamus for undertaking repairs to the buildings which are in exclusive possession of the petitioners and effect of injunction order is also to the extent of undertaking repairs and restoring the properties to the position as obtaining prior to their demolition. Learned counsel submits that unless petitioners are allowed to enjoy the properties, there is no purpose in granting injunction and there cannot be enjoyment of the property without undertaking the required repairs. Unless the repairs are undertaken, the properties cannot be utilized for commercial purpose. Thus, the net effect of order of injunction is to undertake all such repairs which are necessary for proper utilization of the structures.
5. In support of his contention learned counsel placed reliance on the decision of this Court in YARLAGUNTA BHASKAR RAO AND OTHERS Vs BOMMAJI DANAM
[1]
AND OTHERS .
6. Learned standing counsel for respondent cantonment Board raised preliminary objection on the maintainability of the writ petition and contended that in view of the institution of the suit, the parties have to work out their remedies flowing out of the issue agitated in the suit before the trial Court. Nothing prevented the petitioners from moving the trial Court seeking appropriate orders when suit is pending and when effective remedy is available to the petitioner, writ petition is not maintainable.
7. Learned standing counsel contended that the ownership is in dispute and even before the injunction order was granted, the properties were demolished as they were illegally constructed and question of restoring the position obtaining prior to demolition does not arise since the order of injunction granted by the trial Court operates prospectively. Respondents are not interfering with the possession and enjoyment of the properties as it stands but petitioners cannot undertake repairs which are extensively required to be carried out to restore back to the position obtaining prior to the demolition and such a course is not permissible unless and until suit is allowed and decree is granted in their favour.
8. The only question that arise for determination in this writ petition is whether by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, can petitioners seek to issue a mandamus directing the respondents cantonment Board not to interfere with the petitioners proposal to undertake repairs and restore the properties as they stood prior to they were demolished by Cantonment Board and to utilize the properties and to enjoy the properties as they were enjoying prior to demolition?
9. As the rival stands would disclose that there is serious dispute to the title to the properties. The issue of ownership and title of the property is now seized by the Special Judge for Trial of Offences under SCs and STs (POA) Act cum VI Additional Metropolitan Sessions Judge cum XX Additional Chief Judge, Secunderabad in O S No. 30 of 2005 and parties have to work out their remedies before the Civil Court. Asserting that the petitioners are not owners of the properties and were under wrongful possession and enjoyment and have made illegal constructions, the cantonment Board took steps to demolish the constructions made by the petitioners and carried out partial demolitions before injunction order was granted by the trial Court. Thus, by the time injunction order was granted, properties were already demolished to great extent, also evident from the photographs enclosed to the writ affidavit.
10. There is no whisper in the affidavit filed in support of the writ petition as to why petitioners have not invoked jurisdiction of the trial Court seeking appropriate orders. Ordinarily, the writ jurisdiction is not available when effective alternative remedy is available. More particularly parties to the writ petition are parties before the trial Court and interse dispute is pending consideration before the trial Court. The issue agitated in the writ petition directly flows from injunction order granted by the trial Court and concerns the same properties which are subject matter of the suit pending before the trial Court. Petitioners are seeking writ of mandamus directing the respondent cantonment Board not to interfere with the petitioners decision to undertake repairs and to restore the buildings as obtaining prior to demolition in respect of properties to which the status of right of ownership yet to be adjudicated upon by the trial Court.
11. Order XXXIX Rule 2-A of the Civil Procedure Code gives sufficient safeguards for enforcement of the injunction order, if the same is violated. As per the contention of petitioners injunction granted to them enables them to undertake restitution of property to a pre-demolition status and the alleged obstruction by the respondent Board attracts said provision. Thus, petitioners are entitled to avail the said remedy and is an effective and efficacious remedy.
12. This Court does not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India, when the Trial Court is in seisin and petitioners have effective remedy before the trial Court. Petitioners cannot seek a mandamus from this Court for undertaking repairs to the properties against which matter is in seisin by the trial Court. It would be an abuse of the process for the writ petitioners to approach the High Court under Article 226 of the Constitution of India seeking an order to restrain the respondents from interfering with the decision of the petitioners to undertake repairs on a subject matter of the property which is pending litigation before the trial Court.
13. The temptation to grant relief in cases of this type ought to be resisted by High Court. The writ jurisdiction under Article 226 of the Constitution of India would remains effective and meaningful only when it is exercised prudently and in appropriate situations. (P er Balasubramanyan,J in P.R. MURALIDHARAN AND OTHERS Vs SWAMY DHARMANANDA THEERTHA PADAR AND OTHERS[2]
14. In the decision relied by the learned counsel for petitioners, trial Court granted injunction in respect of the suit schedule property. It was alleged that the defendants tress-passed into the land, cut barbed wire fencing, broke certain pillars and threatened the plaintiffs with dire consequences. Alleging that injunction order was violated by defendants and dependants and their family members are interfering with the peaceful possession and enjoyment by respondents/plaintiffs, plaintiffs filed Interlocutory Application in I.A. No. 150 of 2011 in the pending suit, seeking direction to direct the Station House Officer to give police aid for implementation of the Court orders. The trial Court granted police aid to the plaintiffs. The said order was challenged in Civil Revision Petition. While examining the scope of granting order of police protection to enforce an injunction order, this Court considered the principles laid down by Supreme Court in P.R.MURALIDHARAN.
15. In P.R.MURALIDHARAN Supreme Court held that order to grant police protection can be issued within a limited scope, in writ proceedings for protection of the rights declared by decree or by an order passed by Civil Court and only in furtherance of the decree or order. It is also held that such directions cannot be extended to cases where rights have not been determined either finally by the Civil Court or, at least at an interlocutory stage in an unambiguous manner.
16. Supreme Court in GHAN SHYAM DAS GUPTA AND ANOTHER Vs.
[3]
ANANT KUMAR SINHA AND OTHERS held as under:
“8. The principle as to when the High Court should exercise its special jurisdiction under Article 226 and when to refuse to do so on the ground of availability of an alternative remedy has been settled by a long line of cases. The remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a civil court or to deny defences legitimately open in such actions. …… ………The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other statutes, and the Judge being entrusted exclusively with administration of justice, is expected to do better. It will be, therefore, difficult to find a case where interference in writ jurisdiction for granting to a judgment-debtor or a claimant objector can be justified. …… …….The High Court, in the present case, therefore, ought not to have embarked upon a decision of the writ petition on merits, and should have refused to exercise its special jurisdiction on the ground of alternative remedy before the civil court.”
17. No relief can be granted by way of mandamus when the dispute is pending before the Special Judge for Trial of Offences under SCs and STs (POA) Act cum VI Additional Metropolitan Sessions Judge cum XX Additional Chief Judge, Secunderabad in O.S. No. 30 of 2005 and petitioners have an effective remedy available for the relief claimed in this writ petition.
18. For the reasons aforesaid, the writ petition is not maintainable and it is accordingly dismissed. It is made clear that any opinion expressed in this writ petition is only for the purpose of disposal of the writ petition and trial Court shall consider all issues on their own merits uninfluenced by the observations made by this Court in this writ petition. No Costs.
Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
JUSTICE P.NAVEEN RAO Date : -06-2014 tvk HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No.11809 OF 2014 Date: 06-2014
[1] 2014 (2) ALT 319
[2] (2006) 4 SCC 501
[3] (1991) 4 SCC 379