IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 48 of 2010 Dr. Satya Prakash Mittal and another ……… Appellants. Versus State of Uttarakhand and others .………. Respondents. Mr. Pradeep Kumar Mittal, Advocate for the appellants. Mr. P.C. Bisht, Advocate for respondent Nos. 1 to 3. Date of Judgment: 04.06.2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) The appellants approached this Court by filing Writ Petition (M/S) No. 253 of 2010, wherein the primary prayer made by the appellants was for the issuance of a writ in the nature of mandamus, commanding the official respondents to shift Brooklyn School from 3/1 Curzon Road, Dehradun to some other place. The instant prayer was made on behalf of the appellants, in view of the fact that the appellants had purchased a different part of the same plot of land described as 3/2, Curzon Road and 3/3, Curzon Road, Dehradun. The residential accommodation created by the appellants was being disturbed with the activities of the school. 2. It is also necessary to notice, that prior to approaching this Court, the appellants had filed Writ Petition (Civil) No. 11234 of 2005 and Writ Petition (Civil) No. 11235 of 2005 in the High Court of Delhi, praying for the withdrawal of affiliation granted to Brooklyn School, Dehradun, Uttaranchal. The aforesaid writ petitions were, however, withdrawn on 22.08.2006 by the appellants by seeking liberty to file a fresh case in a Civil Court for the same relief. During the course of hearing today, learned counsel for the appellants confirms, that no such case was filed by the appellants after withdrawing the aforementioned writ petitions from the High Court of Delhi. 2 3. The primary grievance of the appellants, is that the common entrance, leading to the property purchased by them, i.e. 3/2, Curzon Road and 3/3, Curzon Road, Dehradun is being obstructed by the activities of the Brooklyn School housed in 3/1, Curzon Road, Dehradun. The learned Single Judge, having examined the claim raised by the appellants, declined to interfere by recording, that the issues canvassed at the hands of the appellants, raised disputed questions of fact. It was also concluded, that the controversy raised by the appellants was in the nature of a civil dispute, and as such, the appellants, if they were so advised, were granted liberty to file a civil suit before a Court of competent jurisdiction. 4. Rather than availing of the remedy suggested by the learned Single Judge, the appellants have approached this Court by filing the present Special Appeal, wherein it is asserted, that the rights of the appellants vested under Article 21 of the Constitution of India, have been violated, and as such, this Court in exercise of its writ jurisdiction is bound to adjudicate upon the controversy on its merits. 5. The narration of facts (recorded in the foregoing paragraphs) leave no manner of doubt in our mind, that there would be a number of disputed questions of fact, which will have to be resolved before the controversy can be adjudicated upon. Besides the aforesaid, it is clear from the lease- deed executed in favour of Brooklyn School Educational Society (placed on the record of the writ petition as Annexure 5), that Brooklyn School Educational Society was registered under the Societies Registration Act as far back as on 14.09.1988. The aforesaid registration was renewed thereafter on 04.10.1993. The said lease-deed depicts the address of the Brooklyn School Educational Society as 3/1, Curzon Road, Dehradun. This also leads to the impression in our mind, that the school under reference became operational as far back as in 1988 or thereabout. Although the lease-deed (Annexure 5) was executed on 09.09.1996, but its contents depict, that the tenancy of the Brooklyn School Educational Society on the premises was prior thereto, but no formal deed was executed when the original tenancy was created. It will be a serious question for adjudication before the claim of the appellants can be 3 considered, whether or not the school has been operating for a number of years prior to the filing of the writ petition. The aforesaid determination shall obviously have to be rendered by a Civil Court. Undoubtedly, if the school has been operating since 1988, i.e. for a period of about 22 years from now and the students have been using the common passage for ingress and egress from the Brooklyn School, there may hardly be any justification at the hands of the appellants to assail the right of the school authorities to allow the common passage to be used by the students for the activities of the school. 6. For the reasons recorded hereinabove, we affirm the determination rendered by the learned Single Judge to the effect, that the claim raised by the appellants cannot be examined by this Court in exercise of the extraordinary jurisdiction vested in it under Article 226 of the Constitution of India. Thus viewed, we also affirm the determination rendered by the learned Single Judge to the extent, that the appellants were granted liberty to seek redressal of their grievance, in case they are so advised before a Civil Court of competent jurisdiction. 7. The instant appeal is disposed of accordingly. Amit (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 04.06.2010 04.06.2010