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STATE OF U.P.THRU.EXECUTIVE ENGG.,PROVINCIAL DVN.PWD versus RAJEEV RANJAN & ANOTHER

High Court of Judicature at Allahabad

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State Of U.P.Thru.Executive Engg.,Provincial Dvn.Pwd v. Rajeev Ranjan & Another - WRIT - C No. 28363 of 2001 [2005] RD-AH 5668 (11 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.26

CIVIL MISC. WRIT PETITION NO. 28363 OF 2001

State of U.P.

versus

The Ist Additional district Judge, Farrukhabad and others.

HON. SHISHIR KUMAR, J.

The present writ petition has been filed by the State for quashing the order-dated 30.5.2001 passed by Addl. District Judge, Annexure-6 to the writ petition passed in suit No.10 of 2001, Rajeev Ranjan Vs. Executive Engineer.

The facts arising out of the writ petition is that the petitioner is a department of State of U.P. and the respondents no.2 and 3 are farmers having agricultural field adjoining to P.W.D. department at Khasra No.1126 in village- Ganipur, Jogpur, Tehail Kayamganj, district- Farrukhabad. Being the owner of the land, the petitioner has got full right to use the said land and the respondents have got no right to interfere but the respondents filed suit No.10 of 2001 against the petitioner for permanent injunction not to erect any construction over the land shown by sketch map ABCD. After receiving the notice the petitioner immediately filed an objection stating that the land belongs to the State of U.P. and for the purpose of construction of the road, the said land is being temporarily used for the purpose or storage by barricading only for smooth work. The court amin was appointed for verifying the actual possession on the spot. The Amin accordingly submitted a report along with the sketch map, which clearly goes to show that the construction is being made on the land of P.W.D. and the plaintiff-respondents have got no right to interfere in the Government property. The Civil Judge, (Senior Division) after hearing both the parties has come to the conclusion that prima facie the petitioner has failed to prove his case. There is no balance of convenience and irreparable injury, which are main ingredients for granting an injunction. A finding to this effect has also been recorded that it has been admitted by the parties that the land belongs to the petitioner i.e. the State of U.P. A finding has also been recorded that if this interim injunction is granted that will amount to granting final relief for which relief has been sought in the plaint. The trial court has also recorded a finding that from the report or Amin it is also clear that the land in dispute has been covered by the barbed wire and the raw materials for the purpose of construction of the road has been kept. A finding to this effect has also been recorded by the trial court while considering the application for granting the injunction that the contention of the plaintiff-respondent cannot be accepted as there is a Chak Road by which the plaintiff-respondent can go towards his field. Regarding the contention of the plaintiff- respondent that he has easementary right, the court below has recorded a finding of fact that unless and until it is proved on the basis of document that the plaintiff-respondent is using the said land without any interruption for more than 30 years, the petitoner has full right 6o keep the raw materials and to make the constructions.

The trial court after considering the pleadings of the parties and the balance of convenience and prima facie case was pleased to hold that as there is no case in favour of the respondents and granting a temporary injunction will amount to grant the final relief, which cannot be granted , rejected the application-vide its order dated 3.2.2001.

Aggrieved by the aforesaid order, the plaintiff-respondent has filed an appeal, which was numbered as Appeal No.10 of 2001. The appellate authority without reversing the finding recorded by the trial court on the question whether the land belongs to plaintiff and whether there is a path way for reaching towards his filed, has allowed the appeal by the judgment and order dated 30.5.2001. Aggrieved by the aforesaid order grunting the injunction in favour of the plaintiff- respondent, the State of U.P. has filed the present writ petition.

The writ petition was entertained and the interim order was granted. As the counter affidavit and rejoinder-affidavits have been exchanged, as such the matter is being decided with the consent of the parties.

I have heard the learned Standing Counsel Sri Piyush Shukla who has submitted that the trial Court has recorded a finding of fact that unless and until the plaintiff-respondent prima-facie satisfies the Court regarding the grant of ad interim injunction, no injunction can be granted. There are three ingredients for granting a temporary injunctio, i.e. prima facie case, balance of convenience and irreparable injury. The trial court has recorded a clear finding in favour of the petitoner that the petitioner is the owner of the disputed land and the temporary storage is being made by putting the tin shed for the purpose of construction of road, the owner has got full right to use his land as he wishes. As the finding to this effect has been recorded by the trial court that granting a temporary injunction in favour of the plaintiff -respondent will amount to final relief, therefore, no injunction at this stage can be granted.

I have perused the orders passed by the trial court as well as by the appellate authority. The appellate authority has not reversed the finding of fact recorded by the trial court to the extent that what will be the irreparable injury to the plaintiff-respondent in case the interim injunction is not granted when it is admitted to the parties that the land does not belong to the plaintiff-respondent and there is a Rasta and Chak Road by which the plaintiff-respondent can easily go and come. There is no finding by the appellate authority that unless and until it is proved that the plaintiff-respondent has got any easementary right, no injunction can be granted. This finding recorded by the trial court has not bee reversed by the appellate authority. As far as reliance which has been placed by the appellate Authority while granting injunction that is A.I.R.1965 S.C.1147, Municipal Board, Mangalore Vs. Mahadev Ji Maharaj.  I have gone through the said judgment of the Apex Court. The fact of the present case as well as the Apex Court are altogether different and that is distinguishable on facts. In that case the question was whether any construction can be raised by the Municipality or any authority between the Municipal Board and the Nali which is being used by the residents of those places.

Admittedly the plaintiff- respondent is not the owner of the land in dispute. The said fact has been admitted by the plaintiff-respondent. It is well settled that unless and until the plaintiff is able to prove regarding the easementary right on the basis of the relevant record at the initial stage, no interim injunction  could be granted unless and until the rights of the parties are decided. It is also settled that final relief cannot be granted by way of interim relief. The appellate authority has clearly erred in law in granting the injunction order by way of interim relief, which is not permissible in law.

In view of the aforesaid fact, the order dated 30.7.2001 passed by I Addl. . District Judge, Farrukhabad in Appeal No.10 of 2001, Rajeev Ranjan and others Vs. Executive Engineer and others is hereby quashed. The writ petition is allowed. There shall be no order as to costs.

11.11.2005

V.Sri/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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