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2015 Supreme(MP) 430
MADHYA PRADESH HIGH COURT AT JABALBUR BENCH
A.M. Khanwilkar, Alok Aradhe, JJ.
Satya Pal Anand - Appellant
Versus
Bal Neketan Nyas and Ors. - Respondent
Writ Petition No. 2804-2015
Decided On : 24-03-2015
For the Petitioner: Party-in-Person.
For the Respondents:Shobha Menon, Senior Advocate and Ankita Khare, Advocate.
Headnote:
Judicial Orders - Maintainability of Writ Petition - M.P. Accommodation Control Act, 1961 - [Section 3(2)] - Summary of Acts and Sections: The court discussed the maintainability of a writ petition under Article 226 of the Constitution of India against the orders passed by the Executing Court in MJC No. 561/12 and MJC No. 40/13. The court referred to the provisions of the M.P. Accommodation Control Act, 1961, specifically Section 3(2), and the legal framework established by the Nine Judge Bench decision in the case of Mirajkar and the Three Judge Bench decision in the case of Radheshyam, which held that judicial orders passed by the Civil Court are not amenable to writ jurisdiction under Article 226 of the Constitution of India.
Fact of the Case:
The petitioner filed a writ petition under Article 226 of the Constitution of India seeking relief against the orders passed by the Executing Court in MJC No. 561/12 and MJC No. 40/13. The petitioner's objections under Order 21 Rule 97 of the Code of Civil Procedure were rejected by the Executing Court, and the petitioner sought to challenge the validity of the judgment and decree dated 10.10.2012.
Finding of the Court:
The court found that the writ petition was not maintainable under Article 226 of the Constitution of India, as the petitioner had statutory remedies available under the Code of Civil Procedure to challenge the orders of the Executing Court. The court held that the principal relief claimed in the writ petition was with regard to quashment of the orders passed by the Executing Court, and the other relief's claimed were dependent on the challenge to the validity of the said order. The court also rejected the petitioner's contention that the law laid down by the Nine Judge Bench in the case of Mirajkar and the Three Judge Bench in the case of Radheshyam was per-incuriam.
Issues: The main issue was the maintainability of the writ petition under Article 226 of the Constitution of India against the orders passed by the Executing Court in MJC No. 561/12 and MJC No. 40/13.
Ratio Decidendi: The court held that the writ petition was not maintainable under Article 226 of the Constitution of India, as the petitioner had statutory remedies available under the Code of Civil Procedure to challenge the orders of the Executing Court. The court also referred to the legal framework established by the Nine Judge Bench decision in the case of Mirajkar and the Three Judge Bench decision in the case of Radheshyam, which held that judicial orders passed by the Civil Court are not amenable to writ jurisdiction under Article 226 of the Constitution of India.
Final Decision: The court dismissed the writ petition, holding that it was not maintainable under Article 226 of the Constitution of India, and granted the petitioner liberty to take recourse to such other remedy as may be available to him under the law.
Alok Aradhe, J.
1. In this petition titled as one under Article 226 read with Articles 14, 19, 21, 215 and 235 of the Constitution of India, the petitioner has prayed for multiple relief's which are reproduced below for the facility of reference:
7. (a) In view of the submissions made above, the impugned order dated 16.12.2014 directing dismissal of the MJC No. 40/2013 be kindly be quashed by a writ of Certiorari and granting such other relief's as deemed deserved in law exercising constitutional powers vested in this Hon'ble Court under Article 226 of the Constitution of India and by a writ of Mandamus the respondent No. 2 be directed not to re-issue any warrant of delivery of physical possession of the premises in the lawful possession of the petitioner in this own rights till the mandatory investigations are completed as per law, so that a running business of the petitioner is not disturbed abruptly in violation of his rights to have justice as per law of this land.
(b) And the amount of the compensation claimed be kindly granted as prayed or such other amount as estimated to be just upon the facts herein in the public law proceedings and the respondents be directed to make payment of the directed amount of the compensation and exemplary costs in a just time and report compliance to this Hon'ble Court within directed time.
(c) And the respondent No. 3 be kindly directed to investigate and submit his report under what circumstances such heavy Police force remained at the premises of the petitioner when it is said in the order dated 16.5.2014 that there was no judicial order passed directing the Police force to be present there during the far long time when the execution of the warrant for delivery of the physical possession was being carried out on 23.4.2014 till 2.00 p.m. and even thereafter without the authority of law and directing such action against the process servers who have made a false statement of fact that there was no police force when they had been executing the warrant under question on 23.4.2014.
(d) That the order passed in case of MJC No. 563/12 on 16.12.2014 be kindly quashed and set aside passing such order thereupon as deemed just.
(e) That Judges (Protection) Act, 1985 be kindly read down as prayed herein.
(f) That such further or additional relief's as deemed just be kindly granted together with costs deemed just".
2. In order to appreciate the scope and ambit of relief's and the context in which the aforesaid relief's are prayed for by the petitioner, it is apposite to refer to few relevant facts which are stated infra. The respondent No. 1 Trust filed a suit for eviction, possession and mesne profits against Anand Automobiles of which petitioner is the owner and proprietor. In the plaint, it was averred that provisions of M.P. Accommodation Control Act, 1961 (hereinafter referred to as "the Act") are inapplicable to the suit premises as it is owned by a charitable trust, in view of notification dated 7.9.1989 issued by the State Government granting exemption to accommodations from provisions of the Act issued in exercise of powers under Section 3(2) of the Act from provisions of the Act. The tenant resisted the suit inter-alia on the ground that issuance of notification dated 7.9.1989 does not result in an exemption from provisions of the Act in so far as respondent No. 1-Trust is concerned. The trial Court framed an issue and decided the same in favour of respondent No. 1 vide order dated 15.3.2004. Being aggrieved, the petitioner filed a writ petition namely W.P. No. 3192/2004 in which following relief's were claimed:-
(i) for a declaration that Section 3 of the Act are unconstitutional.
(ii) for a declaration that the notification dated 7.9.1989 issued by the M.P. State Government in exercise of power under Section 3(2) of the Act is constitutionally invalid and void ab initio and also ultra vires Section 3(2) of the Act.
(iii) for a declaration that each Trust claiming an exemption from the applic
