WAF ALALAULAD Vs. SUNDARDAS DAULATRAM AND SONS

JUDGEMENT

(1.) On 26/05/1950, Waqf Alalaulad through its Mutwalli (hereinafter referred to as the owner) executed a lease deed of its property (herein after referred to as the property) in favour of Sri Om Prakash Gupta for the purposes of running a cinema house. The said lease was for a period of 45 years with effect from 1-1-1950 with a stipulation for its renewal for a further period of 15 years. Period of the lease expired on 31-12-1994. The owner took possession of the property after mid-night of 3 1/12/1994. Being aggrieved, M/s. Sundardas Daulatram and sons and M/s. Imperial Theatres (hereinafter referred to as the tenants) filed a writ petition on 6/03/1995 before this Court for the following reliefs :"(a) Issue a writ, order or direction in the nature of mandamus commanding the respondents 1 and 2 to force the respondents 3, 4 and 5 to restore back possession of the premises in dispute to the petitioners.(b) Issue a. writ, order or direction in the nature of mandamus commanding the respondents 1 and 2 to maintain law and order at least providing the protection of law to the petitioners whereby they may enjoy and exercise their legal rights and fundamental rights and the same may not be violated by taking law in their own hands by respondents 3, 4 and 5 or anybody else.(c) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. I not to refuse the renewal of the licence of the petitioner on account of the incident, which had taken place in the mid-night of 31/12/1994 and I st January 1995 referred to in the writ petition.(d) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."(e) Issue an order awarding costs."On 7-3-1995 learned Single Judge passed the following interim order issuing interim mandamus to the District Magistrate and Senior Superintendent of Police, Bareilly to look into the matter and to restore the possession of the property to the petitioners if the allegations made by them are found to be correct."In this petition the allegation is that the petitioners were forcibly dispossessed by the respondents through local Mafia. This allegation is serious because nobody can be dispossessed except by following the procedure of law. Hence on the facts and circumstances I issue an interim mandamus to the D.M., Bareilly and S. S. P. Bareilly to look into the matter and if the allegations of the petitioners that they were forcibly and illegally dispossessed, are correct, they should restore possession to the petitioners forthwith or show cause within two weeks."In pursuance of the above order the District Magistrate constituted a committee consisting of Sub-Divisional Magistrate, Sadar, Bareilly and Assistant Superintendent of Police, Bareilly, to make enquiry. The said committee submitted the report dated 20-3-1995 before the District Magistrate, which was filed before the learned Judge. On 27-11-1995 the learned Judge passed the following order :"Heard Shri R. P. Goyal and Shri S. K. Garg, learned counsel for the petitioners and Shri H. N. Singh, learned Counsel for the respondents Nos. 3, 4 and 5 and Shri Vineet Saran for Shri A. K. Vishnoi, the then District Magistrate and Shri Gurbachan Lal, the then Senior Superintendent of Police.In view of the affidavits of District Magistrate and the Senior Superintendent of Police, it is evident that the respondent Nos. 4 and 5 had taken forcible possession of the premises in question instead of taking proceedings. Hence, this forcible possession is clearly illegal and I confirm the interim mandamus dated 7-3-95 and direct the respondent Nos. 4 and 5 to hand over possession back to the petitioner within two weeks from today. The respondent Nos. 1 and 2 will ensure that this order is complied with. However, it is open to the respondent Nos. 4 and 5 to take such legal proceedings such as civil suit or other proceedings as they may be advised."Being aggrieved by it the owner and its mutwalli have filed this appeal. The Division Bench on 8-12-1995 passed an interim order directing for the maintenance of status quo and adjourned the case for 11-12- 1995. On 11-12-1995 after hearing the learned counsel for both the parties the Division Bench was of the opinion that the appeal should be listed for final hearing along with the writ petition in which interim order, against which the appeal has been filed, was passed. The Bench further directed that two other writ petitions involving the controversy relating to the house grabbing, should also be listed along with the appeal. Hon'ble the Chief Justice directed these cases to be listed before our Bench. Other petitions which were to be listed along with instant appeal have been delinked because in one of them controversy is not the same and the other is not ready for hearing. We have, therefore, to decide the Special Appeal along with the writ petition in which the order impugned in the appeal was passed.

(2.) We have heard the learned counsel for the parties. We have also heard Sri S. P. Gupta, Senior Advocate and Sri Rakesh Dwivedi, Additional Advocate General who, at our request, have addressed the Court on the question relating to the jurisdiction of this Court under Article 226 of the Constitution to entertain a writ petition challenging grabbing of the property forcibly by unlawful means.

(3.) The contention of the learned counsel for the tenants is that the property of which they were in lawful possession has been unlawfully grabbed by the owner with the help of Mafias and it is the duty of the Court to restore its possession to them. Learned Counsel for the owner, apart from disputing the above contention, has raised the following preliminary objections :(i) This Court under Article 226 of the Constitution of India can neither issue writ of madamus to private individual for protection and enforcement of the contractual/legal rights of the private party, nor can it interfere in such matter even if the tenants have been unlawfully dispossessed from the property;(ii) Tenants have alternative remedy of suit under Section 6 of the Specific Relief Act; and(iii) Petitioners have no legal rights to remain in possession of the property after 31-12-1994 and as such writ of mandamus cannot be issued.