High Court · 2009

Heard Mr. R.P. Sharma, the learned Sr. counsel for the petitioner, Mr. N ath, the learned State counsel for the respondent Nos.1 to 4, Mr. K. Paul, the l earned counsel appearing for the respondent No.5 and Mr. S.S. Dey, the learned c ounsel appearing for the respondent No.6. The petitioner has filed the present petition with the following prayer: (cid:28)Under the aforesaid circumstances it is therefore prayed that Your Lord ship would be pleased to admit this petition Call for the records, Issue a Rule, calling upon the Respondent to Show Cause so as to why and appropriate Writ of Mandamus Certiorari, or any other Writ or Direction shall not be issued directin g the respondent No.4 i.e. the Officer-in-Charge, Khanapara Police Station to al low the petitioner to construct the building in the schedule land and also not t o harass the petitioner and further be pleased to direct the respondent No.4 not to prevent the petitioner from constructing her building thereon and on perusal of Records causes shown if any, and upon hearing the parties would be pleased t o make the Rule absolute and or pass any other order/direction as your Lordship may dim fit and proper in the interest of Justice. (cid:29) According to the petitioner, she was originally a tenant in respect of t he land under the original owner one Shri K.K. Wallang, which was subsequently p urchased by Smt. Genevive Sophdang and after the death of Genevive Sophdang the respondent No.5, inherited the property being the sister of Genevive Sophdang. T he further contention of the petitioner is that the part of the land originally in possession of the petitioner as tenant was acquired under provisions of Natio nal Highway Authority Act, where a dispute arose between the petitioner and the said Genevive Sophdang relating to the entitlement of compensation, however, suc h dispute was amicably resolved between her and the respondent No.5 on the basis of which the Land Acquisition Officer had passed an order on 24.04.2008 recordi ng the settlement arrived at between the parties to the effect that the responde nt No.5 shall be entitled to the entire amount of compensation awardable for suc h acquisition and the respondent No.5 instead shall continue to allow the petiti oner to occupy the land under her possession and also to allow her to make new c onstruction over the land. It has further been contended by the petitioner that while the new construction over the land was going on, the respondent No.4, the Officer-in-Charge of Khanapara Police Station, in the month of November, 2008 ca me to the land under possession of the petitioner and asked her to stop the cons truction on the ground that some orders have been passed by the Court in respect of such land. The petitioner, therefore, filed the present petition with the pr ayer as noticed above. The State respondents though have not filed the affidavit-in-opposition in the present proceeding, Mr. Nath, the learned counsel appearing for the State respondents has submitted that the Officer-in-Charge of the said Police Station has directed the petitioner not to make construction over the land in question in view of the order dated 29.05.2008 passed by this court in Civil Revision (P ) No.8(SH)/2008 and as such no illegality has been committed by the said respond ents. The learned counsel appearing for the respondent No.5 has submitted that the land under possession of the petitioner was given to the petitioner by virt ue of the settlement arrived at between the parties in the dispute relating to t he payment of compensation for acquiring the land under National Highway Authori ty Act, which has duly been recorded by the Land Acquisition Officer on 24.04.20 08 in such L.A. proceeding and hence the petitioner is entitle to occupy the own er of the land under her possession and also to make constructions. The learned counsel further submits that the land involved in the present case, which is und er the possession of the petitioner, is not the part of the suit land involved i n the T.S. 1/2007 instituted by the respondent No.6 against the respondent No.5 and presently pending in Subordinate District Council Court at Shillong. The contention of the respondent No.6 is that a plot of land has been pu rchased by her from Genevive Sophdang during her lifetime on 09.09.2004 which in cludes the land involved in the present writ petition. According to the responde nt No.6 a suit being T.S. No.1/2007 has already been instituted in the Subordina te District Council Court at Shillong where the present respondent No.5 is the s ole defendant and wherein an order of injunction was initially passed on 05.10.2 007 by the learned Trial Court, which was affirmed by the learned District Counc il Court vide order dated 16.12.2008. According to this respondent though Civil Revision (P) No.2(SH)/2009 had been filed before this court against the order da ted 16.12.2008 passed by the District Council Court, the same had been disposed of on 05.08.2009 directing the parties to maintain status quo by affirming the o rder of injunction passed. It has further been submitted that in another proceed ing being Civil Revision (P) No.8(SH)/2008 filed against the order dated 05.10.2 007 admitting the appeal by the District Council Court, an order of status quo d ated 29.05.2008 had been passed directing parties to maintain status quo. The cl aim of the respondent No.6 is, therefore, that the land involved in the present writ petition is the part of the land involved in the said suit, which according to the respondent No.6 she purchased from Genevive Sophdang on 09.09.2004. Since a dispute has arisen as to the identity of the land and whether th e land involved in the present writ petition is part of the suit land as well as relating to the title of the land, such disputed question of fact cannot conven iently be decided in a writ proceeding under Article 226 of the Constitution of India, as it requires examination of witnesses and finding of fact is required t o be recorded, which can conveniently be done by the learned Civil Court in the appropriate proceeding. In view of the above, the relief claimed in the present writ petition ca nnot be granted by this court in exercise of the jurisdiction under Article 226 of the Constitution of India as before granting such relief the finding of fact is required to be recorded as to the identity of the land and also whether this land is a part of the suit land being T.S. No.1/2007 as well as the right, title and interest over the land involved in the present writ petition. Hence the present writ petition is disposed of with the observation that the petitioner may approach the learned Subordinate District Council Court in T .S. No.1/2007 with appropriate application, who shall thereafter consider and pa ss necessary order in accordance with law. The writ petition is accordingly disposed of. No cost.