Heard learned advocate for the petitioners.
The petitioners, by way of this petition under Article 226 of the Constitution of India, have approached this Court for the following reliefs:
(A) YOUR LORDSHIPS be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the action of the respondents authorities in holding the auction in respect of land bearing Block No. 38 and 60/3 situated at Village- Pithalpur, Tal.: Ghogha, Dist.: Bhavnagar as being illegal, arbitrary, in breach of the principles of natural justice and also violative of Articles 14 and 21 of the Constitution of India;
(B) YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of the impugned action of auction taken by the respondent no.1 and further be pleased to restrain the authorities, their agents, servants from disturbing the ownership and possession of the petitioners of land bearing Block No. 38 and 60/3 situate at Village- Pithalpur, Tal.: Ghogha, Dist.: Bhavnagar, pending the admission, hearing and final disposal of present petition;
(C) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed fit and proper by this Hon ble Court, in the interest of justice;
The facts in brief leading to filing this petition as narrated by the petitioners in the memo of petition indicate that the petitioners have claimed to be co-owners of the land bearing Account No. 21, which includes survey No. 15/1, 32/2, 38, 43/1, 54/2, 56 and 60/3 at village: Pithalpur, Ghogha, District: Bhavnagar. The petitioners received attachment order on 26th June, 2012 from the respondent no. 1 under the provisions of the Bombay Land Revenue Code attaching the property. The said attachment was pursuant to the certificate issued by the competent authority i.e. respondent no. 3 under section 103(B) of the Cooperative Societies Act. This certificate was for recovery of dues from the defaulters, against whom the order under Section 93 have been passed for recovering the amount. The defaulter was one Shri Gughabhai Bijalbhai Chauhan, who happened to be the real brother of present petitioners. The land in question was held in common and jointly. There could not have been any attempt to recovery the damage by way of land revenue under the certificate in question. The authorities were informed about the same but it was of no avail. The petitioners received notice dated 1.12.2012 indicating the date of auction, wherein also, the co-owners were shown to be 31 persons. This factors should have considered by the concerned authority and recovery proceedings could not have been continued. The petitioners, therefore, were constrained to file Regular Civil Suit No. 21 of 2013 in the court of learned Principal Senior Civil Judge, Bhavnagar for permanent injunction and copy of plaint is annexed at Annexure A. Though it is mentioned as copy of regular civil suit but unfortunately, copy of injunction application is annexed. The counsel with due regret at his command submitted that due to inadvertence inspite of copy of plaint, copy of injunction application is annexed. The suit was filed, summons were issued, despite this, on 28.1.2013, the auction proceeded and the properties were sold. The suit, therefore, did not yield any result in favour of the petitioners. The petitioners, therefore, were constrained to file this petition before this Court as the auction, which has taken place on 28.1.2013, if permitted to be resulted into execution of sale deed, irreparable loss will be caused to the petitioners.
Learned counsel for the petitioners submitted that the petitioners resorting to filing of suit, may not held against him as the petitioners are ready and willing to withdraw the suit and pursue this remedy by way of petition, which is permissible under law. The Civil Suit remedy has not been efficacious remedy as could be seen from the development of the events, which indicates that despite pendency of the suit, the respondents have proceeded further and held auction and they may now even execute the sale deed in favour of auction purchaser. Therefore, this Court may interfere with in the matter and restrain the respondents from proceeding further with the matter and declare that respondents have no right to proceed against the land of present petitioners.
This Court is not inclined to interfere with the impugned action solely on the ground that the availability of the alternative remedy, which is in fact have been resorted by to by the petitioners. This Court cannot accept the submission of learned advocate for the petitioners that remedy of civil suit is not efficacious. To accept this submission, would amount to express of lack of faith in the remedy, which is available statutorily to all and once having resorted to remedy and not perusing to its logical end and changing the remedy and selection of remedy, would amount to selecting the remedy, which otherwise, is not permissible.
The Court of of the view that the Court under Article 226 of the Constitution of India, is not equipped to decide as to disputed question of ownership and/or joint ownership.
Unfortunate, it is that the petitioners have inadvertently not produced the plaint or else, there could have been much more light of the claim of the petitioners and what is weighed with the Civil Court is being appreciated. At this stage, learned advocate for the petitioners has submitted copy of the plaint across the bar. The same is taken on record. The Civil Court remedy cannot be said to be not efficacious in any manner and therefore, present petition is preferred. The appropriate remedy is already resorted to and that remedy in case, if injunction application is rejected, the remedy is available thereafter, which the petitioners are at liberty to take and therefore, the petition cannot be entertained on specious presumption that the Civil Court remedy is not efficacious and petition under Article 226 is a remedy. Though the Court should not go into merit of the matter but suffice it to say from the documents, that plain reading of the injunction application also indicate that the petitioners did not have caste iron case holding to claim ownership exclusively as they have claimed in the memo of injunction application as well as plaint. As could be seen from the injunction application as well as plaint, what is stated by the petitioners, is not borne out in the plaint, as in the plaint, the petitioners have joined others as defendants and they have claimed exclusive ownership, which also would indicate contrary to the stand, which they have taken in the memo of petition that the land in question is owned in a joint capacity. This contradiction in pleadings and before two judicial forum would also dissuade this Court from interfering with the matter in any manner.
The petitioners could not avail the remedy and could not have switched to other remedy, which is not available to the petitioners, as the petition is involving several disputed question of facts, which cannot be gone into under Article 226 of the Constitution of India.
The petition, being merit less, deserves rejection and is accordingly, rejected. However, there shall be no order as to costs.
(S.R.BRAHMBHATT, J.) pallav Page 6 of 6