HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 381/2010 (M/S) Kuldeep Singh and others. …Petitioners. Versus Bharat Lal and others. …Respondents. Shri Pankaj Purohit, Advocate for the petitioners, Shri G.S. Negi, Advocate for respondent nos. 1 and 2. Shri Sudhir Kumar, Brief Holder for the State/respondent nos. 3 to 7. Dated: April 20, 2010 Hon’ble V.K. Bist, J. Heard learned counsel for the parties and perused the record. 2. This writ petition has been filed by the petitioners challenging the judgment and order dated 18.03.2010 passed by the learned District Judge, Rudraprayag in Misc. Civil Appeal No. 10 of 2009 ‘Addl. District Education Officer (Basic) Rudraprayag and others vs. Kuldeep Singh and others’ whereby the learned Appellate Court while allowing the Misc. Civil Appeal No. 10 of 2009 has set-aside the interim order dated 19.11.2009 passed by the Trial Court in favour of the petitioners. The petitioner have further prayed to restore the order dated 19.11.2009 passed by the learned Civil Judge (Sr. Div.), Rudraprayag in Original Suit No. 20 of 2009 ‘Kuldeep Singh and others vs. Bharat Lal and others’. 3. Brief facts as alleged in the writ petition, shorn of unnecessary details, are that the plaintiff/petitioners filed an Original Suit No. 20 of 2009 before the Court of Civil Judge (Sr. Div.), Rudraprayag, as representative suit for 2 and on behalf of all the residents of village Hemlet Booni of Village Syoor, Tehsil Jakholi, District Rudraprayag with the averments that the Gram Panchayat Syoor comprises the village Hamlets of Syoor, Barsal Chamchaunri, Booni, Bakula and Jaitholi. There are three Primary Schools respectively in village Jaitholi, Syoor and Bakula Hamlets of Gram Panchayat Syoor. Since, there was no Primary School in and around of the nearer place of Booni and Chamchaunri for the small children, an E.G.S. Centre was sanctioned under the Sarva Shiksha Abhiyan for Booni and Chamchaunri villages. Subsequently, the said centre was upgraded in the year 2008-09. On 12.02.2009 a resolution has taken place and the petitioners have gifted 3½ Nalies/0.06 hectares of land of village Syoor in the name of Education Department by way of gift deed for construction of a building of Govt. Primary School. It is alleged that after all the formalities having been completed for the construction of a Primary School at Jiblapani (Garh), the respondent No.1 hatched conspiracy by changing the place for construction of the said school and in order to fulfill his purpose he also got executed a gift deed dated 20.08.2009 in favour of the Education Department, Uttarakhand. This land is situated within the hamlet of Chamchaunri. The respondents, ignoring the convenient place, tried to commence construction of school building at the newly selected place. Feeling aggrieved with the action of respondents the aforesaid original suit was instituted for mandatory injunction. Alongwith the suit, an application for interim injunction was also moved. After receipt of the notices, the respondent nos. 1 & 2 filed their objection thereof. Having heard the learned counsel for the parties, the Trial Court vide order dated 19.11.2009 allowed the interim 3 injunction application restraining the respondent/ defendants not to construct the building in question on any place other than the land comprised in Khata Khatauni No. 96 plot No. 6234 and 6241 of village Syoor, Tehsil-Jakholi, District Rudraprayag. Aggrieved by the aforesaid interim order, the respondent Department preferred an appeal bearing No. 10 of 2009 before the learned District Judge, Rudraprayag. It is alleged that although the respondent/defendant nos. 1 & 2 felt satisfied with the order and have not challenged the same. The learned District Judge vide his judgment and order dated 18.03.2010 allowed the appeal preferred by the respondent Department and quashed the order of the Trial Court. 4. The respondent nos. 1 & 2 filed their counter affidavit in which, interalia, they have stated that there was no Primary School in village Chamchauri, therefore, EGS Centre was opened, which has been upgraded as Primary School. They have further stated that there exists a Primary School in Booni Jaintoli which is illustrated from the certificates issued by the Blok Coordinator, Jakholi and Head Master, Primary School, Booni Jaintoli. The order dated 20.12.2008 itself shows that the said school is sanctioned only for Chamchauri and not for village Booni. The respondents have further asserted that on 03.08.2009 a meeting was held and the Village Education Committee was constituted and in the meeting it was resolved that the Primary School shall remain running continuously in the building of Sri Jeet Singh Negi till the construction of a permanent building. On the date of meeting i.e. on 03.08.2009 it was not in the knowledge of the Village Education Committee that the 4 gifted land in Jibalapani belongs to the Government (Kesharhind) and also the fact that Veer Singh has executed his land of Khata Khatoni No. 96 plot No. 6234, 6241 measuring 0.060 hectares situated in village Booni. It has been further stated in the counter affidavit that on the basis of the representation of the natives of village Booni, the District Education Officer, Rudraprayag sent a letter to A.D.E.O., Rudraprayag. The Village Education Committee made a representation dated 27.08.2009 to the District Education Officer, Rudraprayag, upon which the A.D.E.O., Rudraprayag has directed the building be constructed at accepted place. It is submitted that the petitioners are not aggrieved by the construction of building in Khata No. 104, plot No. 6006, 6008, 6009 measuring 0.056 hectares in village Chamchauri, which is adjacent to Jibalapani and there is no illegality in the judgment and order passed by the Appellate Court. It is also submitted in the counter affidavit that the said construction is being made adjacent place of Jibalapani where the building construction upto 25% has already been made and merely by filing suit does not accrue any legal right to the petitioners. 5. Shri Pankaj Purohit, the learned counsel for the petitioners has argued that the Govt. Primary School was sanctioned after upgrading E.G.S. Centre of village Chamchaunri with the sole purpose that there was no Primary School in and around village Booni and Chamchaunri, but the respondents have started playing tricks with the purpose that the said school building could not be constructed at the previous selected place. It this juncture Shri Sudhir Kumar, the learned Brief Holder for the State and counsel for the private respondents Shri 5 G.S. Negi, Advocate argued that about 25% of the amount has already been invested in the construction of school building in Khata No. 104, plot No. 6006, 6008, 6009 measuring 0.056 hectares in village Chamchauri. 6. Since, as of now, the Original Suit No. 20 of 2009, pending before the Trial Court has not concluded, both the parties shall have enough opportunity to produce their oral and documentary evidence before the Trial Court. At this stage, this Court is refraining to inter into the merits of the case, rather in the interest of justice it feels that ends of justice will meet, as consented by the learned counsel for the parties, if directions be issued to the Court concerned to decide the dispute as expeditiously as possible. 7. Thus, keeping in view of the facts and circumstances of the case and refraining to enter into the merits of the case, the writ petition is disposed of with the direction to learned Civil Judge (Sr. Div.), Rudraprayag to decide the Original Suit No. 20/2009, ‘Kuldeep Singh and others vs. Bharat Lal and others’, pending before him, very-very expeditiously preferably within two months from the date of production of certified copy of this order. However, it is made clear that the sum so invested and further amount if invested for the said purpose shall be at the own risk of the parties and shall be subject to the final decision of the Original Suit No. 20 of 2009. No order as to costs. 8. Interim order dated 31.03.2010 stands vacated. (V.K. Bist, J.) 20.04.2010 NCM: