2022 (11) TMI 1470 - HC - Indian Laws

Maintainability of petition - availability of alternative remedy - Direction to vacate the land in question, remove encroachments or fixtures installed by it on the same, identify, delineate or demarcate the boundaries of the land - HELD THAT - Non-entertainment of the writ petitions in existence of an alternate remedy is a manifestation of self-restraint by the High Court to avoid the exercise of extraordinary powers in each and every case at the throw of a hat, and to reserve the same for cases where the interests of justice and the Court s conscience requires them to be exercised. Hence, it is found that there is an efficacious remedy available to the petitioner which he has failed to avail and in view of the foregoing discussion, this Court does not find any merit to allow the prayers which the concerned and competent authority has the power to adjudicate upon. This Court does not find any cogent reason to direct an authority, to carry out any action, which is yet to be approached by the petitioner and be communicated his grievances. This Court does not find any reason to pass any directions to any authority in favour of the petitioner. The petitioner has not been able to establish that there exists a legal right in his favour and a corresponding duty of the respondent. Neither has he exhausted his remedies before invoking the writ jurisdiction of this Court. Moreover, the disputed facts pertaining to the title and ownership of the petitioner in land in question cannot be adjudicated by this Court in its writ jurisdiction. The instant petition is dismissed for being devoid of merit.

Summary

Issues Involved:
1. Legality of the respondent's occupation and actions on the petitioner's land.
2. Petitioner's entitlement to a writ of mandamus.
3. Existence of an enforceable legal right and corresponding duty.
4. Alternative remedies available to the petitioner.

Issue-wise Detailed Analysis:

1. Legality of the respondent's occupation and actions on the petitioner's land:
The petitioner alleged that the respondent forcefully entered Khasra No. 25/22/1 on 9th November 2021, demolished a room, and took possession. The petitioner claimed the land was allotted to him and his brothers by an order dated 19th May 2000 under the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948. However, the respondent did not acknowledge the petitioner's ownership and contended that the land belongs to the Gaon Sabha.

2. Petitioner's entitlement to a writ of mandamus:
The petitioner sought a writ of mandamus directing the respondent to vacate the land, remove encroachments, and demarcate boundaries. The court noted that a writ of mandamus can only be issued if the petitioner has an enforceable legal right and the respondent has a corresponding legal duty. The Supreme Court's rulings in *Food Corporation of India vs. Ashis Kumar Ganguly* and *Rajasthan State Industrial Development & Investment Corporation vs. Diamond & Gem Development Corporation* were cited, emphasizing that mandamus is issued to enforce an established legal right.

3. Existence of an enforceable legal right and corresponding duty:
The court found that the petitioner only had an allotment letter and no title deed or document proving ownership. The land in question still vested with the Gaon Sabha. Without proof of legal ownership, the petitioner could not establish the legal right necessary for a writ of mandamus. Furthermore, the respondent, being the Department of Forests and Wildlife, was not the appropriate authority to adjudicate the petitioner's grievances or enforce the court's directions.

4. Alternative remedies available to the petitioner:
The court highlighted that the petitioner had not approached the concerned authority before filing the writ petition. The Supreme Court's decisions in *Whirlpool Corporation vs. Registrar of Trade Marks* and *Radha Krishan Industries vs. State of Himachal Pradesh* were referenced, indicating that the existence of an alternative remedy is a significant factor in deciding whether to entertain a writ petition. The petitioner failed to exhaust available remedies, making the writ petition premature.

Conclusion:
The court concluded that the petitioner did not establish a legal right or exhaust alternative remedies. The disputed facts regarding land ownership could not be adjudicated in writ jurisdiction. Consequently, the petition was dismissed for lack of merit, and pending applications were disposed of.

Order:
The petition is dismissed. Pending applications, if any, also stand disposed of. The order is to be uploaded on the website forthwith.