Santosh Sood vs Gajendra Singh & Ors

Santosh Sood ... Appellant

Versus

Gajendra Singh & Ors. ... Respondents

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. The extent of jurisdiction of the High Court to pass an order of

demolition of property, ownership whereof is claimed by the appellant

without giving him an opportunity of hearing is the question involved

herein.

3. The said question arises in the following factual matrix : 2

This appeal is directed against the impugned judgment and order

dated 14.3.2007 passed by the High Court of Judicature for Madhya

Pradesh, Jabalpur Bench, Gwalior in Writ Petition No.5429 of 2006

directing the respondents for taking steps for dispossessing the petitioner

from the disputed land; as also the order dated 28.09.2007 of the said Court

dismissing the review petition being No. MCC 254 of 2007 filed for review

of the said order dated 14.3.2007.

The petitioner had obtained a loan of Rs.9 lakhs from Respondent

No.8, namely, the State Bank of Indore, Sheopur for construction of a

building which was to be let out to the bank upon completion of

construction. The Respondent-bank had duly verified the title of the

appellant by obtaining a search report through its panel lawyer Mr.

Mahendra Kumar Jain. It furthermore obtained legal opinion from the

aforesaid panel lawyer who certified in regard to his title vide letters dated

24.11.2005 and 7.04.2006. Once the property was ready upon construction,

it was let out on rent by the petitioner and was duly furnished for use of the

bank. Since it involved a substantial expenditure and also public money, it

had serious apprehensions of being dispossessed when the writ petition

(PIL) was entertained by the High Court. In the said writ proceedings, it was 3

submitted by the respondent-bank that it was ready to pay the rent either to

respondent Nos.6 and 7 or to the present petitioner not to both the parties. It

was apprehended by the bank that if an order is passed by the High Court

with regard to dispossession of the answering respondent, it would involve a

huge loss pertaining to the furnishing and shifting of the premises besides

loss of business due to shifting. In those circumstances, permission was

sought by the bank to deposit the rent with the present appellant till

liquidation of loan amount due to the bank and it was also submitted that the

bank was ready and willing to deposit the amount of rent as per the direction

of the court by making an application for recall of the order dated

14.03.2007 in Writ Petition No.5429 of 2006 (PIL). The High Court,

however, dismissed the aforesaid application of the respondent bank.

It was furthermore submitted by the petitioner that the High Court had

dismissed the writ petition and the subsequent review petition merely on the

basis of oral submissions made by the petitioner. The petitioner had not been

served with a notice of the original writ petition as a result whereof, no reply

could be filed. It was also submitted that the High Court relied upon a

statement of the respondents wherein it was stated that earlier a title suit had

been filed by the petitioner which has already been decided in favour of the 4

Nagar Palika and the same was affirmed by the High Court in FA No.77 of

1998 against the petitioner. The High Court failed to consider that the said

Civil Suit No.1-A of 1986 on which the court had relied upon was filed by

the petitioner in respect of a different property and not the land in dispute in

the present case.

A Civil Suit being No.178-A of 2006 is pending before the Civil

Judge Class II, Sheopur with regard to the property involved in the present

case in which the Nagar Palika, one of the parties in the instant appeal had

filed a reply and written statement on 12.10.2006. In the said suit, the

petitioners herein had obtained an injunction in their favour and the same is

in operation till the pendency of the suit.

A Public Interest Litigation (PIL) was filed by the first respondent

before the High Court praying, inter alia, for the following reliefs :

"(i) That the concerned authorities may kindly be directed to take immediate possession of the property in question from respondent No.7 and cancel the order of transfer in the records of Municipal Council, Sheopur.

(ii) That the authorities may kindly be directed to take strict disciplinary and criminal action against the officers who have indulged in the illegal act causing loss to the Government as well as Municipal Council, Sheopur.

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(iii) That the loss which has been caused may kindly be ordered to be recovered from the officers and other persons who are liable for the same."

The First Respondent contended that despite unsuccessful attempts on

the part of the appellant to establish ownership over the land which, in fact,

is vested in the respondent No.6, Nagar Palika; the appellant in collusion

with its officers, managed to see that it does not take steps for her eviction.

In the said public interest litigation, the appellant was arrayed as respondent

No.7.

4. Indisputably, appellant had entered into an agreement of loan with the

respondent No.6-Bank pursuant whereto or in furtherance whereof,

constructions were raised as per the Bank's requirements. The monthly

installments payable in terms of the said loan agreement to the bank were

adjusted from the rent stipulated for occupation of the said building.

5. Before the High Court, the Nagar Palika appeared. The counsel for

the Bank entered appearance. A statement was made by them that the title

suit filed by the appellant against the Municipal Council has been dismissed

and an appeal preferred thereagainst has also been dismissed. It was

furthermore contended that the Nagar Palika had cancelled the mutation 6

entry made in her favour and steps were being taken to obtain actual

possession of the property. A statement was also made by the counsel of the

Bank that it would be ready to pay rent to the Nagar Palika. The High

Court, relying on or on the basis of the said statements, directed :

"In view of this statement, this petition is disposed of with the liberty to respondents No.5 and 6 to take steps in accordance with law for dispossessing the respondent No.7 and 8. They can also accept the rent as tendered by respondent No.8.

With the aforesaid observation, petition stands disposed of."

6. Appellant filed an application for recalling of the said order, inter alia,

on the premise that before the passing of the same, she was not heard.

By reason of a judgment and order dated 28.9.2007, the said review

application was dismissed, stating :

"After perusing the order passed by this Court in the writ petition, we find that this Court has disposed of the said writ petition merely on the statements of the parties and has not decided any controversy. Hence, there is no mistake apparent on the face of the record to call for review."

7. Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the

appellant would contend :

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1) A Public Interest Litigation involving a complicated question of title

by and between the appellant and the Nagar Palika was not

maintainable.

2) In any event, no order and/or observation could have passed/made

without giving an opportunity of hearing to the appellant.

8. Learned counsel appearing on behalf of the bank would support the

case of the appellant.

9. Mr. Ashok Mathur, learned counsel appearing on behalf of respondent

No.6 and 7, would contend that by reason of the impugned judgment, they

having merely been permitted to take steps for eviction of the appellant to

which it was otherwise entitled to no interference with the impugned

judgment is warranted. Our attention has furthermore been drawn to the fact

that the appellant, despite having lost in two suits, has filed another suit in

the court of Civil Judge, Sheopur being suit No.178-A of 2006 as a result

whereof the Municipal Council is hesitant to take steps for demolition of the

building and/or evicting the appellant and/or the Bank.

10. Learned counsel for respondent No.1 urged that the Public Interest

Litigation had to be filed as the officers of the Municipal Council, despite 8

passing of the decree by the Civil Court, in collusion and in conspiracy with

the appellant, had not been taking steps for her eviction from a public

property.

11. Admittedly, the appellant was not given any notice in the PIL.

According to her, the dispute between the appellant and the Nagar Palika is

only in respect of the boundary wall and not for the entire building. Had an

opportunity of hearing been given to the appellant, it could have shown that

the public interest litigation was uncalled for, particularly having regard to

the admission made by the Nagar Palika in its written statement filed in the

earlier suits.

12. It is beyond any doubt or dispute that the parties are on litigating

terms. Two rounds of litigation have come to an end. Admittedly, another

suit has been filed by the appellant in the court of Civil Judge, Sheopur.

Whether such a suit is maintainable or not or whether in effect and substance

it is an abuse of the process of the court will have to be determined by the

Civil Court itself.

13. The High Court, unfortunately, even on its own showing disposed of

the public interest litigation on the basis of the statements made at the Bar

without entering into the merit of the matter and, thus, without resolving the 9

controversy between the party. There cannot, however, be any doubt

whatsoever that subject to an order passed by a competent court of law, the

Nagar Palika would be entitled to take steps either to execute the decree

passed in its favour and/or in terms of the provisions of the Act. For the

said purpose, no order of a court of law was necessary. Before us, a detailed

counter affidavit has been filed wherein it has been projected that the land in

question belongs to the Nagar Palika. The State of Madhya Pradesh also in

its counter affidavit raised similar contentions.

If a Civil Suit was pending which may or may not be frivolous,

ordinarily the High Court should not have entertained a public interest

litigation. On the other hand, if it was found that the civil court was not

proceeding with the matter as expeditiously as it should have, appropriate

directions could have issued in that behalf. It is trite that save and except

cogent reasons, the High Court, in a public interest litigation, would not

interfere with the due process of law. If an abuse of process of court was

undertaken by a party, some finding of fact was required to be arrived at and

even a proceeding under the Contempt of Courts Act could have been

initiated. [See The Advocate General, State of Bihar v. Madhya Pradesh

Khair Industries & Anr. [AIR 1980 SC 946].

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The parameters of a public interest litigation is well known in view of

a series of decisions of this Court . {[see for example Guruvayoor

Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors. [(2003 (7)

SCC 546]}.

We need not enter into the said question, particularly, in view of the

order proposed to be passed by us.

14. In the peculiar facts and circumstances of the case, we are, therefore,

of the opinion that interest of justice would be subserved, if this appeals are

disposed of with the following directions :

1) The Civil Judge, Sheopur must take up the hearing of Suit No.178-A

of 2006 immediately and dispose of the same as expeditiously as

possible and not later than three months from the date of

communication of this order. It shall not grant any adjournment in the

suit save and except for sufficient and cogent reasons.

2) If no order of injunction has been passed against the Nagar Palika, it

would be open to it to take such steps as is permissible in law. Parties

shall, however, be at liberty to pray for interim order or direction if

found to be necessary.

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3) The Bank shall deposit the amount of rent in the said suit which

would be disbursed by the Court to the successful party subject to the

result thereof and subject to any other and further order which may be

passed by the learned Civil Judge.

15. The appeals are accordingly disposed of with the above directions.

No costs.

.....................................J. [S.B. Sinha]

.....................................J. [Dr. Mukundakam Sharma] New Delhi;

May 15, 2009