WPMS/1166/2003 of BIRENDRA DUTT Vs RAM SINGH and ORS

HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 1166/2003 (M/S)

Birendra Dutt. …Petitioner. Versus Ram Singh. …Respondent.

Shri L.K. Tewari, Advocate for the petitioner, Shri Rajendra Dobhal, Sr. Advocate assisted by Shri Lokendra Dobhal, Advocate for respondent no.1 Shri R.C. Arya, Brief Holder for the State/respondent no.2

Dated: April 26, 2010

Hon’ble V.K. Bist, J.

This petition has been filed by the petitioner challenging the judgment and order dated 10.11.2003 passed by Addl. District Judge/F.T.C.-1[st], Dehradun in Misc. Civil Appeal No. 55 of 2003 whereby the learned Appellate Court while dismissing the said appeal has confirmed the judgment and order dated 19.03.2003 passed by the Civil Judge (Sr. Div.), Dehradun in Original Suit No. 766 of 2002 ‘Birendra Dutt vs. THDC and others’.

2. Brief facts, arising out of the writ petition, are that petitioner’s land was acquired by the Tehri Hydroelectric Development Corporation (for short THDC) and the petitioner was allotted agricultural plot no.63 and residential plot in Banjarwala, Dehradun. Possession of the plots was also delivered to the petitioner on 27.11.1990 and the petitioner is in continuous peaceful possession alongwith his brothers. The petitioner has laid foundation over his residential plot no. 119 in the year 1996 and also harvested crop on the agricultural land. While the petitioner was in peaceful possession over the land,

respondent THDC cancelled the allotment of the petitioner and allotted the same in favour of respondent no.1. It has been averred in the petition that neither any notice was given nor the petitioner was offered any opportunity of hearing before re-allotting the plots. On getting information from respondent no.1, the petitioner instituted Civil Suit No. 766 of 2002 before the Civil Judge (Sr. Div.), Dehradun for permanent injunction and declaring the allotment null and void. Alongwith the plaint, the petitioner moved an application for grant of interim injunction, but the Trial Court vide order dated 29.03.2003 declined to grant any interim relief in favour of the petitioner. Feeling aggrieved by the order dated 29.03.2003, the petitioner preferred Misc. Civil Appeal No. 55/2003, before the District Judge, Dehradun. The appeal was transferred to the Court of Addl. District Judge/F.T.C. 1[st], Dehradun and after hearing the learned counsel for the parties the said appeal was also dismissed on 10.11.2003. Hence this petition.

3. The respondent no.1 filed counter affidavit in which it has been asserted that the defendant/respondent no.1 is in actual physical possession of the property in question. Since property sought to be acquired of the village Bagi was left out of acquisition, hence there was no justification for the Government/department to allot disputed property in favour of the plaintiff/petitioner. There was no prima-facie case, balance of convenience in favour of the petitioner, therefore both the Courts below have rightly refused to grant interim injunction in favour of the petitioner.

4. I have heard Shri L.K. Tewari, the learned counsel for the petitioner, Shri Rajendra Dobhal, Senior Advocate for respondent no.1 and Sri R.C. Arya, the learned Brief Holder for the State and perused the record.

5. Shri L.K. Tewari, learned counsel for the petitioner submitted that the Trial Court as well as the Appellate Court have completely overlooked the evidence produced by the petitioner and both the Courts below have not considered that prima-facie case, balance of convenience are in favour of the petitioner. Prior to cancellation of the allotment order no notice was given to the petitioner. Moreover, the respondent no.1 has been allotted the plot in dispute in the month of September, 2002 while the cancellation order itself has been passed in the month of December, 2002. He argued that the plot in dispute could not be allotted to the respondent no.1 till December, 2002, as the same was validly allotted in favour of the petitioner. The action of the respondent authority, allotting the plots in question in favour of respondent no.1 was illegal. Learned counsel for the petitioner submitted that since status-quo order was passed in favour of the petitioner by this Court on 01.12.2003, the same should remain in operation till the disposal of the suit. In support of his arguments learned counsel for the petitioner relied on 2004 (13) Supreme Court Cases page-88. On the other hand, Shri Rajendra Dobhal, Senior Advocate for respondent no.1 has submitted that no property of the petitioner was acquired by the THDC. He argued that the petitioner cannot claim ownership without any allotment order and he cannot enjoy both properties one sought to be acquired and lateron left out of acquisition as well as the property under allotment proposed to be given in

exchange to the property sought to be acquired. Placing reliance on the judgment rendered by Hon’ble the Apex Court in (2004) 3 Supreme Court Cases-682 ‘Ranjeet Singh vs. Ravi Prakash, the learned Senior Advocate has argued that the High Court cannot act like an Appellate Court it vests only supervisory jurisdiction and the jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the error in drawing inferences like Court of Appeal. In this regard he also referred the judgment of Hon’ble the Apex Court reported in (2004) 3 Supreme Court Cases-684 ‘Ram Dass vs. Davinder’.

6. After hearing the learned counsel for the parties this Court finds that question regarding allotment has yet to be determined by the learned Trial Court. No irreparable loss will be caused to the petitioner if interim injunction is not granted in his favour. I do not find any illegality in the order of Courts below. Hence, writ petition is dismissed. But, without expressing any opinion on the merits of the case and also considering the fact that the suit is pending before the learned Trial Court since 2003, this Court thinks fit and proper to issue directions to the Presiding Officer of the Court of Civil Judge (Sr. Div.), Dehradun to decide the Original Suit No. 766 of 2002 very-very expeditiously preferably within period of three months from the date of production of certified copy of this order.

7. Parties shall bear their own costs.

NCM:

(V.K. Bist, J.) 26.04.2010