Geeta Kumai vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No. 960 of 2019 dated 11.06.2019. In the order under appeal, the learned Single Judge directed the Chief Secretary, Government of Uttarakhand to look into the matter and, in case he came to the conclusion that there was actually an encroachment on the public property, by the sixth respondent and her family members, he should direct his subordinate officials to do the needful in the matter. While holding that government property needed to be protected, and the allegations leveled against the elected representative was extremely serious, the learned Single Judge observed that, if action was not taken in accordance with law, the presumption would go against the law enforcement agencies. While directing that the matter be expedited, and necessary action be taken in accordance with law, the learned Single Judge directed that the case be listed after four weeks in the daily list. Aggrieved thereby, the sixth respondent, in the writ petition, is in appeal before us.

The sixth respondent-writ petitioner had invoked the jurisdiction of this Court seeking a mandamus directing the respondents to conduct and conclude the inquiry forthwith regarding the legality and validity of the sixth respondent holding the post of Sabhashad of Nagar Palika Mussoorie; and to remove her from the said office.

Reference was made, in the writ petition, to Section 13-D of the U.P. Municipalities Act, 1916, as amended by Act No. 13 of 2002, which provides for disqualification of membership if the member or any of his/her family member or his/her legal heirs are in unauthorized occupation of any land or building owned or managed by the municipality/Government or a public road or pavement, canal, drain, or is a beneficiary of such unauthorized occupation. The sixth respondent-writ petitioner contended that the appellant was disqualified from contesting the election as she and her husband had encroached upon the property of the Nagar Palika Parishad; proceedings were pending; and, despite this fact, the respondent-authorities had not taken any action against the sixth respondent, and had failed to remove her from the post of Sabhashad in terms of Section 13-D(n) of the U.P. Municipalities Act, 1916.

Mr. Arvind Vashistha, learned Senior Counsel appearing on behalf of the appellant, would submit that the directions issued by the learned Single Judge, to the Chief Secretary, Government of Uttarakhand, are contrary to law; eviction from public property is governed by the provisions of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972; and, since the Nagar Palika Parishad has already instituted proceedings against the appellant's husband, no directions should have been issued by the learned Single Judge, to the Chief Secretary, Government of Uttarakhand, to the contrary.

On the other hand Mr. Sagar Kothari, learned counsel appearing on behalf of the sixth respondent-writ petitioner, would submit that proceedings under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, were instituted against the appellant's husband in the year 2011 nearly eight years ago; the Prescribed Authority (i.e. the Sub-Divisional Magistrate) has not taken any action so far, though eight years have elapsed since the proceedings were instituted; and, in such circumstances, the learned Single Judge was justified in directing the Chief Secretary, Government of Uttarakhand to look into the matter, and take necessary action in accordance with law.

Exercise of jurisdiction, under Article 226 of the Constitution of India, is discretionary. (C.R. Reddy Law College Employees' Association, Eluru W.G. District vs. Bar Council of India, New Delhi, reported in 2004 (5) ALD 180). The jurisdiction of this Court is exercised only in furtherance of the interest of justice and in larger public interest, and not merely on a legal point being made out. The interest of justice and the public interest coalesce. They are very often one and the same. The Court has to weigh public interest vis-à-vis private interest while exercising its discretionary powers. (Ramniklal N. Bhutta v. State of Maharashtra reported in AIR 1997 SC 1236; Manohar Lal v. Ugrasen & others reported in (2010) 11 SCC 557; Master Marine Services Pvt. Ltd v. Metcalfe and Hodgkison Pvt. Ltd reported in (2005) 6 SCC 138; Air India Ltd. v. Cochin International Airport Ltd. reported in (2000) 2 SCC 617). A writ of mandamus and a writ of certiorari are discretionary, unlike a writ of habeas corpus which can be sought as a matter of right. One of the principles inherent is that the exercise of discretionary power should be for the sake of justice. (State of Maharashtra v. Prabhu reported in (1994) 2 SCC 481). Even if a legal flaw might be electronically detected, (Rashpal Malhotra v. Mrs. Saya Rajput reported in AIR 1987 SC 2235 and Council of Scientific and Industrial Research v. K.G.S. Bhatt reported in AIR 1989 SC 1972), or some defect is found in the decision-making process, this Court would exercise its discretion with great caution and only in furtherance of public interest, and not merely on the making out of a legal point. Only when it comes to the conclusion that overwhelming public interest requires interference, should it intervene. (Air India Ltd. v. Cochin International Airport Ltd. reported in (2000) 2 SCC 617). It goes without saying that protection of public property is, undoubtedly, in larger public interest.

As the learned Single Judge has, in the order under appeal, exercised his discretionary jurisdiction to issue such directions, only in furtherance of the larger public interest of safeguarding public property from encroachments, that too by people holding public offices or their kith and kin, interference therewith may not be justified. The technical objections raised by the appellant notwithstanding, the fact remains that, despite the Nagar Palika Parishad having instituted proceedings under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 eight years ago, the said proceedings have not culminated in any order being passed by the Estates Officer so far, which does lend support to the submission that it is the appellant's husband, who has been dragging on proceedings only to avoid the possibility of an adverse order being passed against him.

The jurisdiction which a Division Bench exercises, in an intra-Court appeal, is extremely limited. It is only if the order under appeal suffers from a patent illegality, would interference be justified. We find no such infirmity in the order under appeal. All that the learned Single Judge has done, by way of the order under appeal, is to direct the Chief Secretary, Government of Uttarakhand to take necessary steps to protect public property. If, as is now contended before us on behalf of the appellant, the subject property is not public property, her apprehension of forcible action being taken, against her husband, by the Chief Secretary, Government of Uttarakhand, is wholly unjustified. It is only if the property, occupied by her husband, is held to be public property, would action be required to be taken to remove such an encroachment.

We see no reason, in such circumstances, to interfere with the order under appeal. The Special appeal fails and is, accordingly, dismissed. No costs.