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2008 Supreme(Ori) 103
A. K. GANGULY, C.J. AND B. N. MAHAPATRA, J.
Utkal Baptist Mandali Sammilani
Versus
Smt. Janabhi Missal.
W. A. No.19 of 2007
Decided on : 29 -2 -2008
M/s. Prasana Ku. Misra and S. K. Dash, for Appellant; M/s. R. P. Mohapatra, D. Mohapatra and R. R. Das, for Respondent.
The main legal point established is that a writ petition is not maintainable in property disputes between private parties where the private party is not discharging any public duty.
Headnote:
Writ Appeal - Property Dispute - Article 226, Article 227 - AIR 1957 SC 529, AIR 1963 SC 874, AIR 1971 Orissa 212, AIR 1960 Cal 396, AIR 1958 Bom 498, AIR 1976 SC 425, AIR 1989 SC 1607 - The court discussed the scope of writ jurisdiction under Article 226 and 227 of the Constitution, emphasizing that it can be issued against private individuals or bodies performing public duty. The judgment highlighted the principles established in various cases and concluded that a writ petition is not maintainable in a property dispute between private parties where the private party is not discharging any public duty.
Fact of the Case:
The writ petitioner, a defendant in a civil suit, filed a writ petition challenging the order of the Civil Judge. The writ Court set aside the order, leading to the appeal.
Finding of the Court:
The court found that the writ petition was not maintainable as the private religious organization, the appellant, was not discharging any public duty and was not amenable to writ jurisdiction under the Constitution.
Issues: The main issue was the maintainability of the writ petition against a private religious organization in a property dispute between private parties.
Ratio Decidendi: The court held that a writ petition is not maintainable in property disputes between private parties where the private party is not discharging any public duty.
Final Decision: The writ appeal was allowed, setting aside the order of the writ Court, and it was made clear that the judgment will not affect the merits of the case in the civil suit.
Judgement
A. K. GANGULY, C.J. :- This writ appeal has been filed challenging the judgment dated 12-2-2007 passed by a learned Single Judge of the writ Court in W. P. (C) No. 13052 of 2006.
2. On a perusal of the said judgment, it appears that the writ petitioner was the defendant in Civil Suit No. 62 of 2004. In the said suit, the writ petitioner-defendant filed her written statement. The appellant was the opposite party in the writ petition and the plaintiff in the said suit.
3. By the impugned judgment, learned Judge of the writ Court held that the order which was passed by the learned Civil Judge (Senior Division), Parlakhemundi in Civil Suit No. 62 of 2004 cannot be sustained and His Lordship was pleased to set aside the said order dated 21-8-2006 passed by the Civil Judge (Senior Division), Parlakhemundi.
4. By the said order, learned Civil Judge (Senior Division) inter alia held that there was delay in filing the counter claim and the counter claim was filed by the defendant in the suit without the leave of the Court and the Court also held that the defendant was not diligent in the proceeding relating to counter claim which was filed after the issues were settled and as a result whereof the suit got stalled. On the aforesaid grounds, the counter claim was rejected and the suit was fixed for hearing on 4-9-2006.
5. This Court is not going into the correctness or otherwise of the said order on merits since the suit between the parties is pending.
6. Learned counsel for the appellant urged that the writ petition should not have been entertained as the disputes relate to property between private parties and the writ Court by interfering with the order passed by the Civil Court stalled the suit which was fixed for hearing on 4-9-2006.
7. In the writ petition, the only opposite party was the appellant herein and the appellant is Utkal Baptist Mandali Sammilani which is certainly not an authority within the meaning of Art. 12 of the Constitution. This Court does not understand how a writ petition can lie against the opposite party which is a private religious organization. This is very serious infirmity about the maintenance of the writ petition.
8. The language of Art. 226 of the Constitution is very wide and it is provided that the High Courts shall have powers to issue, in relation to the area where it exercises jurisdiction various writs mentioned in the said Article or any directions or orders in the nature of writs to any person or authority. The said expression "person" has received judicial interpretation by Supreme Court and various High Courts on the question whether writ can be issued against any private person.
9. This question came up for consideration in the case of Shri Sohan Lal v. Union of India and another, a Constitution Bench judgment of the Supreme Court, reported in AIR 1957 SC 529. In that case Jagan Nath, a displaced person and a refugee from Pakistan, filed a writ petition in the High Court of Punjab under Article 226 of the Constitution of India against Union of India and one Sohan Lal and prayed for appropriate relief directing Union of India and also Sohan Lal to restore to him the possession of his house. High Court directed Sohan Lal to restore possession to Jagan Nath. Then, Sohan Lal appealed to the Supreme Court against the said High Court order and one of the contentions was whether a writ of Mandamus can lie against any private individual. In that context Justice Imam, speaking for the unanimous Court, held that the eviction of the Jagan Nath was in contravention of express provisions of Section 3 of the Public Premises (Eviction) Act and was illegal. The property in dispute was in the possession of Sohan Lal, but there was no evidence and no finding by the High Court that Sohan Lal acted in collusion with Union of India or that he had any knowledge that the eviction of Jagan Nath was illegal. In the context of those facts, the learned Judges of the Supreme Court held as follows (Para 7) :
"......Norma
