Case Note & Summary
The petitioner, The Gathic Zoroastrian Anjuman, a registered trust, filed a writ petition under Articles 226 and 227 of the Constitution of India seeking a writ of mandamus to direct respondent Nos. 1 to 3 (Deputy Commissioner, Commissioner of Police, and Station House Officer) to recognize and give effect to various Government Orders dating back to 1892 and subsequent dates, and to take action against respondent No. 4 for alleged illegal encroachment and construction on the Parsee Cemetery (Aramgah) at Vyalikaval, Bengaluru. The petitioner claimed that it was entitled to manage the cemetery by virtue of the Government Orders and that respondent No. 4 had illegally encroached upon a portion of the cemetery. The respondents, including respondent No. 4, opposed the petition. The court noted that the petitioner's title to the property was seriously disputed by respondent No. 4, who claimed that the petitioner was not the owner. The court observed that the Government Orders relied upon by the petitioner did not conclusively establish the petitioner's title. The court held that disputed questions of title cannot be adjudicated in writ proceedings under Article 226, and the petitioner has an alternative remedy by way of a civil suit. The court also held that the police cannot be directed to remove encroachments when there is a bona fide dispute regarding title. Accordingly, the writ petition was dismissed as not maintainable, with liberty to the petitioner to approach the civil court.
Headnote
A) Constitutional Law - Writ Jurisdiction - Alternative Remedy - Article 226 of the Constitution of India - The High Court held that a writ petition under Article 226 is not maintainable when there are disputed questions of title and the petitioner has an alternative remedy by way of a civil suit. The court declined to entertain the petition seeking police action against alleged encroachment. (Paras 4-5) B) Property Law - Encroachment - Title Dispute - The petitioner claimed to be the owner of a cemetery based on Government Orders, but the respondent disputed the petitioner's title. The court held that such disputes cannot be resolved in writ proceedings and must be adjudicated by a civil court. (Paras 3-5) C) Police Law - Duty of Police - Encroachment - The police cannot be directed to remove encroachments when there is a bona fide dispute regarding title, as they are not empowered to adjudicate title disputes. (Para 5)
Issue of Consideration
Whether a writ of mandamus can be issued to police authorities to remove alleged encroachment when there is a serious dispute regarding the petitioner's title to the property
Final Decision
The writ petition is dismissed as not maintainable. The petitioner is at liberty to approach the civil court for appropriate relief.
Law Points
- Writ jurisdiction under Article 226 not maintainable when disputed questions of title exist
- alternative remedy of civil suit available
- police cannot adjudicate title disputes
