Hon'ble Saurabh Lavania,J.
(Delivered by Hon'ble Saurabh Lavania,J.) Heard Sri N.K. Seth, Senior Advocate assited by Sri Ashish Chaturvedi learned counsel for the petitioner as well as learned Standing Counsel for opposite party No. 1 and Sri Ratnesh Chandra appears for the Lucknow Development Authority, the opposite party no. 2.
The petitioners have made the prayer for the following reliefs:-
(i) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to interfere in the peaceful possession of the petitioner company over plot no. 9 measuring in Industrial Area, Aishbagh, Lucknow.
(ii) Issue such other writ, order or direction as this Hon'ble Court may deem fit and proper so as to protect and safeguard the interest of the petitioner.
Preliminary objection has been raised by Sri Ratnesh Chandra that the very nature of the prayer shows that a kind of injunction is being sought from the writ Court as such, the writ petition is not maintainable in this case.
The case of the petitioners as disclosed by the counsel for the petitioners is that it is a Public Limited Company incorporated under the Companies Act, 1913 having its registered Office at Construction House, 5, Walchand Hirachand Marg, Ballard, Estate, Mumbai-400001 and having its Branch Office at Industrial Area, Aishbagh, Lucknow.
It has been further contended that the Company was allotted plot no. 9 measuring about 5 Bighas in Industrial Area, Aishbagh, Lucknow for the extension of factory premises, already existing in the industrial area over the adjacent plot nos. 9A & 10A. This has been done on 07.10.1948.
It has been stated that the Lucknow Improvement Trust which has later been known as the Lucknow Development Authority, had informed the petitioner/Company that the lease is for 90 years.
On 22.11.1948, it is stated that the Lucknow Improvement Trust required the Company to deposit Rs. 640, 14 Ana and 6 Pai and also offered the Company to take possession over the plot no. 9 situated in industrial area scheme.
Learned counsel for the petitioner contends that the petitioner company deposited Rs. 21,635, 2 Anna and 6 Pai which includes premium of Rs. 20,591, Stamp on premium Rs. 504, Stamp on rent Rs. 132, cost of plans and forms etc. Rs. 16.08 paisa, and rent for the year 1955-56 Rs. 514,12 paisa and 5 Anna = Rs. 21758, 4 Anna, 6 Pai less already stamp and legal charges Rs. 123.2 = 21635, 2 Anna, 6 Pai.
The Company vide its letters dated 07.01.1972, 03.01.1974 and 22.11.1973 requested the Improvement Trust to execute and register the lease deed in favour of the petitioner/Company. The detailed representation was again moved on 26.09.1999 that the deed may be executed but the same was never done. It is the case of the petitioner/Company that it is holding the said plot of land in pursuance of the allotted letter and the period of lease would expire in the year 2038. It has also been mentioned that regular payment of lease rent has been paid up to 31.03.2019.
It has been alleged that on 29.11.2018 the officials of the Lucknow Development Authority came to the factory premises of the petitioner/Company and forcibly tried to take the possession of the entire land. The officials of the Lucknow Development Authority also threatened the employees of the petitioner/Company to remove the entire factory premises and other equipments from the land in question or else they will take the forcible possession of the entire land.
On this cause of action, the counsel for the petitioners submits that a writ may be issued restraining the opposite parties from interfering into the peaceful possession of the said plots.
Sri Ratnesh Chandra, counsel for the respondent No. 2, on the other hand, has submitted that the petitioners have brought this writ petition with the concealment of material facts and has placed before this Court the photocopy of the order dated 23.10.1952 passed by one Haroon Ahmad, Assistant Secretary. By this order, the alleged allotment to the petitioner was cancelled with effect from 23.10.1952 with reference to the letter dated 28.06.1952 of the Chairman Improvement Trust, Lucknow No. TS 47-7-V-382. It has also been written in the letter that the allotment was cancelled forthwith as the allottees have not deposited the premium, rent etc. The petitioners have not brought on record the cancellation of their allotment in the year 1952 while Sri Ratnesh Chandra has produced photocopy of the order which we have taken on record. For convenience, the contents of the letter dated 23.10.1952 so far as, it relates to the petitioner is being quoted hereinunder:-
Sub:- Allotment of land in Industrial Area, Lucknow.
With reference to your letters No. TS 47-7-V-382, dated June, 28, 1952 I am directed to say that the following allotments be cancelled forthwith as the allottees have not deposited the premium, rent etc. and or are not interested in having the plots allotted to them:-
Sri Ratnesh Chandra, counsel for the respondent no. 2 has further submitted that since the allotment has already been cancelled, no lease agreement was ever entered into. The petitioners have not annexed any document showing the fact that the lease was granted to them. This fact has been conveniently concealed and an impression has been given that the allotment of 1948 is still existing.
Further, the petitioners have themselves mentioned in Paragraph 15 of the writ petition that "the officials of Lucknow Development Authority illegally and unlawfully painted the walls of the factory premises of the petitioner/Company by writing that the property belongs to the Lucknow Development Authority."
The argument of the counsel for the respondent is that this goes to show that the possession is already with the Lucknow Development Authority and a case is being built up to show as if something is being done on 29.11.2018.
On the basis of these arguments, Sri Ratnesh Chandra, has forcefully submitted that the writ petition in such a situation is not maintainable. The petitioner neither has any allotment, title or possession over the land in question after, 1952, when the allotment was cancalled. They are coming up after the letters written by them in the year 1972-73-74 itself are the proof that the lease deed was never executed in their favour and they kept on request for grant of lease which was never done.
The petitioners could have approached the Civil Court for any kind of injunction but have tried to invoke the writ jurisdiction so that the disputed questions of fact may be decided by this Court in the garb of equity and justice. Sri Nirmal Seth has cited a number of judgments. (vide: AIR 1924 P.C. 144 Midnapur Zamidary Co. Ltd. v. Kumar Naresh Narayan Roy; AIR 1968 S.C. 620 : (1968) 2 SCR 203 - Lallu Yeshwant Singh v. Rao Jagdish Singh; AIR 1959 ALL. 1 (FB) : AIR 1958 ALJ 628 Yar Mohammad v. Lakshmi Das; (1989) 4 SCC 131 Krishna Ram Mahale v. Shobha Venkat Rao; (1989) 2 SCC 505-State of U.P. and Others v. Maharaja Dharamender Prasad Singh; (2002) 3 SCC 137, S.R. Ejaz v. T.N. Handloom Weavers Cooperative Society Ltd; 2004 (1) SCC 769-Rame Gowda (Dead) by L.Rs. v. M. Varadappa Naidu (Dead) By L.Rs.; 2008 (26) LCD 1590 Naresh Kumar Sonkar v. State of U.P.; 2009 (16) SCC 187 Mariamma Roy v. Indian Bank; 2010 (1) SCC 126 Satwati Deswal v. State of Haryana; (2003) 2 SCC 107 Harbansh Lal Sahnia v. Indian Oil Corporation Limited; AIR 1962 SC 1893; East India Commercial Co., Ltd. v. Collector of Customs.
On the strength of these judgments Sri. N.K. Seth has forcefully argued that even if the petitioner is a trespasser, the opposite parties cannot evict him without having recourse to the procedure of law. Further, he has argued that in the aforesaid cases, writ petition has been entertained by the High Court as well as by Hon'ble Supreme Court on a number of occasions. We are in respectuful agreement with all the judgments cited before this Court.
However, this Court comes to the conclusion that the facts and circumstances of the case are entirely different from this matter. Judgments cannot be used as a sword but rather as a shield against any arbitrary action. The petitioners are approaching this Court instead of going for either a suit for permanent injunction or for specific purpose before the Civil Court of appropriate jurisdiction. The question of possession is a question of fact which cannot be established before this Court. The petitioners have to come with clean hands before a writ Court and the Court has to examine whether there is genuine case wherein, a writ should be issued urgently by entertaining a writ petition. But, if the, Court comes to the conclusion that the specific alternative remedy available with the petitioner is being deliberately surpassed, the discretion should be refused.
Firstly, there is concealment of fact. The petitioners have not brought on record the cancellation of their allotment in the year 1952 while Sri Ratnesh Chandra has produced photocopy of the order which we have taken on record.
Secondly, the writ petition is not maintainable. The petitioner has an efficacious and alternative remedy in the form of Civil Court. The prayer itself shows a kind of injunction is being sought from the Court for peaceful possession and non-interference by the opposite parties. We are not inclined to interfere in this matter.
Sri Ratnesh Chandra has placed before us a judgment of the Hon'ble Supreme Court in the matter of U.P. State Spinning Co. Ltd. v. R.S. Pandey & Another [(2005) 8 SCC 264].
In paragraph 11 their lordships' have held that:-
Normally, the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case that there exist good grounds to invoke the extraordinary jurisdiction.
Further, in paragraphs 12, 13, 14 and 15 their lordships' have held that:-
"12. Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission 1954 SCR 738 : AIR 1954 SC 207; Sangram Singh v. Election Tribunal, Kotah (1955) 2 SCR 1 : AIR 1955 SC 425; Union of India v. T.R. Varma 1958 SCR 499 : AIR 1957 SC 882; State of U.P. v. Mohd. Nooh 1958 SCR 595 : AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras (1966) 2 SCR 229 : AIR 1966 SC 1089, held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
13. Another Constitution Bench of this Court in State of M.P. v. Bhailal Bhai (1964) 6 SCR 261 : AIR 1964 SC 1006 held that the remedy provided in a writ jurisdiction is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 of the Constitution is a discretionary power. Similar view has been reiterated in N.T. Veluswami Thevar v. G. Raja Nainar 1959 Supp (1) SCR 623 : AIR 1959 SC 422; Municipal Council, Khurai v. Kamal Kumar (1965) 2 SCR 653 : AIR 1965 SC 1321; Siliguri Municipality v. Amalendu Das (1984) 2 SCC 436 : 1984 SCC (Tax) 133 : AIR 1984 SC 653; S.T. Muthusami v. K. Nataranjan (1988) 1 SCC 572 : AIR 1988 SC 616; Rajasthan SRTC v. Krishna Kant (1995) 5 SCC 75 : 1995 SCC (L&S) 1207 : (1995) 31 ATC 110 : AIR 1995 SC 1715; Kerala SEB v. Kurien E. Kalathil (2000) 6 SCC 293 : AIR 2000 SC 2573; A. Venkatasubbiah Naidu v. S. Chellappan (2000) 7 SCC 695; L.L. Sudhakar Reddy v. State of A.P. (2001) 6 SCC 634; Sri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (2001) 8 SCC 509; Pratap Singh v. State of Haryana (2002) 7 SCC 484 : 2002 SCC (L&S) 1075 and GKN Driveshafts (India) Ltd. v. ITO (2003) 1 SCC 72.
14. In Harbanslal Sahnia v. Indian Oil Corpn. Ltd. (2003) 2 SCC 107, this Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
15. In G. Veerappa Pillai v. Raman & Raman Ltd. 1952 SCR 583 : AIR 1952 SC 192; CCE v. Dunlop India Ltd. (1985) 1 SCC 260 : 1985 SCC (Tax) 75 : AIR 1985 SC 330; Ramendra Kishore Biswas v. State of Tripura (1999) 1 SCC 472 : 1999 SCC (L&S) 295 : AIR 1999 SC 294; Shivgonda Anna Patil v. State of Maharashtra (1999) 3 SCC 5 : AIR 1999 SC 2281; C.A. Abraham v. ITO (1961) 2 SCR 765 : AIR 1961 SC 609; Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433 : 1983 SCC (Tax) 131 : AIR 1983 SC 603; H.B. Gandhi v. Gopi Nath and Sons 1992 Supp (2) SCC 312; Whirpool Corpn. v. Registrar of Trade Marks (1998) 8 SCC 1 : AIR 1999 SC 22; Tin Plate Co. of India Ltd. v. State of Bihar (1998) 8 SCC 272 : AIR 1999 SC 74; Sheela Devi v. Jaspal Singh (1999) 1 SCC 209 and Punjab National Bank v. O.C. Krishnan (2001) 6 SCC 569, this Court held that where hierarchy or appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction.
In view of the facts and circumstances and the law, this Court is of the considered opinion that the writ petition deserves to be dismissed. It is dismissed accordingly.
Order Date :- 21.12.2018 Arun/-