Hon. Barin Ghosh, C.J. (Oral)

We have considered the averments made in the application for condonation of delay, to which no objection has been filed and, being satisfied with the reasons furnished for the delay in filing the appeal, we allow the application (CLMA No. 6216 of 2012) and condone the delay of 37 days.

2. In the writ petition, which has been dismissed by the judgment and order under appeal, appellants contended that they are the owners of the land described in the writ petition and part thereof is in wrongful occupation of the respondents to the writ petition. Since the respondents are officers of the Union of India, a writ of mandamus was sought directing them to remove themselves from the land in question. The writ petition has been dismissed only on the ground that in order to do what the appellants have approached, appellants are required to approach the Civil Court and, for which, appellants have already issued a legal notice. Aggrieved thereby, the present appeal has been filed contending that the Hon’ble Supreme Court has clarified in its judgment, rendered in the case of K.T. Plantation Private Ltd. and another Vs. State of Karnataka reported in (2011) 9 SCC 1 that an aggrieved party in relation to property matters has to approach the High Court under Article 226 of the Constitution of India. We are of the view that the learned counsel has not been able to understand the scope of the pronouncement made in the said judgment of the Hon’ble Supreme Court. In that judgment and particularly in paragraph 166 thereof, Hon’ble Supreme Court merely held that in view of the change effected in the Constitution of India, right to property being no longer a fundamental right, an aggrieved person cannot approach the Hon’ble Supreme Court, but may approach the Hon’ble High Court, inasmuch as, scope of Article 32 of the Constitution of India is breaches of fundamental right, whereas scope of Article 226 of the Constitution of India is not only breaches of fundamental right, but also of any other legal right.

3. However, in order to approach the High Court under Article 226 of the Constitution of India, litigant is required to establish that he has a legal right, which in law, he is entitled to protect. In the instant case, appellants purchased the land in question by a sale-deed; a part of that is in possession of Union of India or its officers. Appellants are, therefore, required to establish that the land, they purchased, is now in possession of Union of India or its officers. The same is required to be established by tendering evidence. At this stage, appellants are only relying upon the reports given by Patwari, Tehsildar and Sub Divisional Magistrate. None of those can be treated to be evidence. They are merely expressions of opinion. On the basis of such opinions, the Court cannot act. Such opinions may support other available evidence, which may be led before a Civil Court.

4. Only because appellant no. 1 is 69 years’ old and only because the learned counsel appearing in support of the appeal submitted that the civil suit takes long time, in exercise of power under Article 226 of the Constitution of India, the Court cannot hold what the appellants are seeking the Court to hold. There is, therefore, no scope of interference. The appeal fails and the same is dismissed.