IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 847 of 2010 (M/S)

Madan Singh

………..Petitioner

Versus

State of Uttarakhand and others

…….Respondents

Shri Siddhartha Singh and Shri Siddhartha Sah, learned counsel for the petitioner .

Shri R.C. Arya, learned Brief Holder for the State.

Dated: 14^h June, 2010

Hon’ble V.K. Bist, J.

Heard learned counsel for the parties.

Present petition has been filed by the petitioner

for quashing the order dated 29.05.2010 passed by

Civil

Judge

(Sr.

Div.),

Roorkee

in

Misc.

Case

no.25/2010 “Madan Singh Vs. State of Uttarakhand

and others” whereby the learned Civil Judge (Sr. Div.),

Roorkee, Haridwar has refused to grant exemption to

the petitioner as provided under Section 80(2) Code of

Civil Procedure, 1908 (for short C.P.C.) and did not

permit the petitioner to file suit without prior service of

notice on the Government.

Brief facts of the case, as emerge out of the writ

petition, are that there is a plot Khasra no.231

measuring

0.128

hectare

situated

at

village

Fatehullahpur/Telpura, Pargana Bhagwanpur, Tehsil

Roorkee, District Haridwar out of which petitioner is

the owner of a portion measuring 0.093 hectare, while

non-party Ritu Jain and Surendra Jain are owners of

remaining portion measuring 0.035 hectare of land.

2

The case of the petitioner is that the respondents want

to construct a road and drain in Khasra no.665 and

are trying to construct the same by encroaching the

land of plaintiff without adopting the procedure

provided in law. The petitioner instituted a suit “Madan

Singh Vs. State of Uttarakhand and others” in the

Court of Civil Judge (Sr. Div.), Roorkee for relief of

permanent

injunction

against

the

respondents

(consisting of the State of Uttarakhand, its District

Officers and Public Works Department) restraining

them from interfering in the peaceful possession of the

petitioners

and

further

restraining

them

from

constructing any road over Schedule “C” property given

in the plaint, along with an application under Section

80(2) of C.P.C. seeking permission of the Court to

grant leave to institute the suit without issuing the

notice under Section 80 C.P.C., which was registered

as Misc. Case no.25/2010 “Madan Singh Vs. State of

Uttarakhand and others”. Petitioner also filed an

application for ad-interim injunction restraining the

respondents from constructing road over suit Schedule

“C” property. In support of his case, the petitioner filed

5 different documents, through a list i.e. certified copy

of Khatauni and Khasra pertaining to 1412-1417 Fasli,

copy of Shajra (Revenue Map) so as to prove the

ownership and possession of the petitioner and the

location of the property and the location and existence

of passage/rasta/road situated in Khasra no.665. On

16.03.2010,the petitioner also moved an application

before Joint Magistrate, Roorkee (S.D.M. Roorkee) to

the effect that Khasra no.231 of the petitioner be

3

measured and demarcated, on which Joint Magistrate

passed an order addressing to Tehsildar Roorkee for

enquiry and measurement. In compliance of the order

passed by the S.D.M. Roorkee, the Lekhpal of the

village measured the land of the petitioner and also

measured the Khasra number 665 of road and raasta

and a Memo was prepared by him on 04.04.2010. After

the measurement of the land of the petitioner, the

petitioner constructed a boundary wall towards the

road so as to demarcate the property.

It is submitted by the petitioner that respondents

in garb of constructing a metallic road over Khasra

no.665, despite knowing the fact that the existing

raasta situated in Khasra no.665 is not equal

widthwise either according to the Shajra or according

to the spot, with the help of its instrumentalities

demolished the wall constructed by the petitioner. The

respondents are bent upon