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PETITIONER: MOHAN PANDEY AND ANOTHER

       Vs.

RESPONDENT: SMT. USHA RANI RAJGARIA AND ORS.

DATE OF JUDGMENT19/08/1992

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) RANGNATHAN, S.

CITATION:  1993 AIR 1225            1992 SCR  (3) 904  1992 SCC  (4)  61        JT 1992 (4)   572  1992 SCALE  (2)220

ACT:     Constitution of India, 1950:     Article  226- Writ jurisdiction of  High  Court-Special and extraordinary-Not to be exercised casually and  lightly- Not  to  be  used  for enforcement of  a  private  right  to immovable   property   claimed  by   and   against   private individuals-  Not to replace ordinary remedies available  by way of suit, application etc. under the general law.

HEADNOTE:      During  the  pendency  of a suit for  eviction  of  the appellants  from  the  property  of  Respondent  No.1,   the appellants  were alleged to have trespassed beyond the  area which  was  the subject matter of the suit and  indulged  in several illegal activities.  Thus according to  Respondents, the  appellants  were guilty of  mischievous  conduct.   The Respondents  instead of filing a suit in the Civil Court  or making appropriate prayer for amendment of the plaint in the pending suit field a Writ Petition before the High Court for issuance of appropriate direction retraining the  appellants from  disturbing the lawful possession of  the  respondents. The  Administration  and Commissioner of  Police  were  also impleaded as parties and a direction sought against them not to  register  any  further false  and  vexatious  complaints against  the  Respondents  since undue Police  help  to  the appellants was apprehended.     The   High  Court  gave  certain  directions   to   the appellants  as regards Respondents’ access to the  backyard. The  present  appeal by special leave, is against  the  said orders of the High Court.      On  the question whether the Writ jurisdiction of  High Court would be available for enforcement of a private  right to  immovable  property  claimed  by  and  against   private individuals:      Allowing the appeals, this Court      HELD: 1.  A regular suit is the appropriate remedy  for settlement                                                        905 of  disputes  relating to property  rights  between  private persons  and  that  the  remedy under  Article  226  of  the Constitution  shall not be available except where  violation

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of some statutory duty on the part of statutory authority is alleged.   And  in  such  a  case,  the  Court  will   issue appropriate direction to the authority concerned. [907 E, F]      2.  If the real grievance of Respondent No.1 is against the initiation of criminal proceeding and the orders  passed and steps taken thereon, she must avail of the remedy  under the general law including the Criminal Procedure Code.   The High  Court cannot allow the constitutional jurisdiction  to be used for deciding disputes, for which remedies under  the general  law, civil or criminal, are available.  It  is  not intended  to replace the ordinary remedies by way of a  suit or application available to a litigant. The jurisdiction  is special  and  extra-ordinary  and should  not  be  exercised casually or lightly, [907 F-H]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3284  of 1992      From  the  Judgement and Order dated 18.2.1992  of  the Delhi High Court in Civil Writ Petition No. 2259 of 1991.      R.K. Garg, K.L. Vohra, Rajeev Sharma and D.K. Garg  for the Appellants.      Arun Jaitley, V.B. Saharya, Ashok Bhan and B.K.  Prasad for the Respondents.      The Judgement of the Court was delivered by      SHARMA,J.  Heard the learned counsel for  the  parties. Special leave is granted.      2.   The respondents in this appeal  have  successfully invoked the jurisdiction of the High Court under Article 226 of  the  Constitution for enforcement of a private right  to immovable  property  against  the  appellants  who  are  two brothers  and who are resisting the claim.  The question  is as  to  whether the writ jurisdiction in the High  Court  is available for the enforcement of such a right claimed by and against private individuals.                                                         906      3.   The dispute relates to a house-property in  Delhi. A  suit for eviction of the appellants from the building  is pending  in the trial court.  According to the case  of  the respondent no. 1, who is the owner of the property, she  had let out the same to one Shri B.K. Pandey who later illegally handed  over the possession thereof to the  appellant  no.1. According to the further case of the respondent, the portion of  the said house-property which is subject matter  of  the present  case  is beyond the purview of  the  pending  suit. The  occasion  for initiating the  present  proceeding  with respect to this portion arose, it is said, on account of the high-handedness  of the appellants who illegally  trespassed beyond  the area which is the subject matter of the  pending suit, and indulged in several illegal activities.  In  other words,  the  appellants are trespassers and  are  guilty  of mischievous  conduct.  However, instead of filing a suit  in the  civil  court  or  making  an  appropriate  prayer   for amendment  of  her plaint in the pending suit,  she  through respondent  no.2 holding power of attorney,  approached  the High Court directly by a writ petition under Article 226 for issuance of appropriate direction restraining the appellants from  disturbing the lawful possession of  the  respondents. The  Delhi  Administration and the Commissioner  of  Police, Delhi,  were  also impleaded as parties with a  prayer  that appropriate  order  should be issued against them  also  and they  should be directed not to register any  further  false and vexatious complaint against them at the instance of  the

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appellants.   It is her case that the appellants  have  been getting  undue  police  help and are  being   encouraged  to commence  frivolous criminal cases against  respondent  no.1 and her agent.      4.  The appellants denied the allegations of fact  made against them and also challenged the maintainability of  the writ petition.      5.   Although the fact that a suit between the  parties was already pending in the civil court was known to the High Court, it proceeded to pass a short order stating:          "There is already a civil suit pending between  the          parties.  Except the prayer in regard to access  to          the  backyard, no other relief can  be  granted  in          this writ petition.      We  direct respondents 3 and 4 to remove the grill  for access                                                      907 to   the  backyard  in  the  presence  of  the  police   and representatives of the petitioners on Sunday, 23rd  February 1922  at 11.00 a.m. so that the access of the petitioner  to the servants quarters is not stopped."      6.  Mr. Arun Jaitley, the learned counsel appearing  on behalf  of  respondent  no. 1  has  supported  the  impugned judgement on the ground that prayer for issuing a  direction against Delhi Administration and Commissioner of Police  who were  respondent nos. 1 and 2 was also made.  It has  to  be appreciated that the present appellants were respondent nos. 3 and 4 before the High Court; and the High Court has by the impugned order, considered it fit to allow the prayer of the respondents  against  them  for removal of  the  grills  for access  to  the  backyard.  According to the  stand  of  the landlord-respondent, since the police were taking a partisan attitude  against her, the filing of a writ petition  became necessary.  We are unable to follow this argument.  There is no  doubt  that the dispute is between two  private  persons with  respect  to an immovable property.   Further,  a  suit covering  either  directly a portion of  the  house-property which is in dispute in the present case or in any event some other  parts of the same property is already pending in  the civil  court.   The  respondent justifies the  step  of  her moving the High Court with a writ petition on the ground  of some complaint made by the appellants and the action by  the police  taken thereon.  We do not agree that on  account  of this development, the respondent was entitled to maintain  a writ petition before the High Court.  It has repeatedly been held  by  this court as also by various High Courts  that  a regular  suit  is the appropriate remedy for  settlement  of disputes relating to property rights between private persons and  that the remedy under Article 226 of  the  constitution shall  not  be  available except  where  violation  of  some statutory  duty  on  the part of a  statutory  authority  is alleged.   And  in  such  a  case,  the  court  will   issue appropriate  direction to the authority concerned.   If  the grievance  of  the respondent is against the  initiation  of criminal proceedings, and the orders passed and steps  taken thereon,  she must avail of the remedy under the general law constitutional   jurisdiction  to  be  used   for   deciding disputes,  for which remedies, under the general law,  civil or  criminal, are available.  It is not intended to  replace the  ordinary  remedies  by way of  a  suit  or  application available to a litigant.                                                    908      The  jurisdiction  is special  and  extra-ordinary  and should not be exercised casually or lightly.  We, therefore, hold  that  the  High  Court was in  error  in  issuing  the

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impugned direction against the appellants by their judgement under  appeal.   The  appeal  is  accordingly  allowed,  the impugned judgement is set aside and the writ petition of the respondents  filed  in the High Court is  dismissed.   There will be no order as to costs. G.N.                                      Appeals allowed.                                                         909