Judgment & Order (Oral):

1. Heard Mr. K. N. Choudhury, the learned Senior counsel assisted by Mr. R. J. Das, the learned counsel appearing on behalf of the Petitioners and Mr. P. Nayak, the learned Additional Advocate General appearing on behalf of the Respondent Nos. 1 and 2. I have also heard Mr. D. Mozumder, the learned Senior counsel assisted by Mr. B. D. Deka, the learned counsel appearing on behalf of the Respondent Nos. 3 and 4 and Mr. B. Das, the learned counsel appearing on behalf of the Respondent No.5.

PREFACE:

2. The present petition has been filed by the Petitioners seeking a direction upon the Respondent Nos. 1 and 2 to demolish and/or remove the boarded iron structured kiosk measuring 7 feet x 10 feet x 2 feet installed in the space in front of the Petitioners’ shop and also the brick wall on the right side blocking the ingress and egress of the Petitioners’ shop at the ground floor at S.S. Road, Lakhtokia, Guwahati-781001 covered by Patta No.130(new) and 1230/771 (old) and Dag No.421(new)/2213 (old) bearing Municipal Holding No.66, 66A, 258 and clear the space from any encroachment/construction after following the due procedure within a time frame.

3. In the interim, the Petitioners sought for a direction that pending disposal of the writ petition, it shall not be a bar for the GMC to act on the Petitioners’ representation dated 22.10.2024.

QUESTION TO BE DECIDED:

4. The question which arises in the instant writ petition as to whether the Writ Court should exercise jurisdiction in respect to the dispute raised in the present proceedings.

5. For deciding the said question, let this Court take note of the facts which led to the filing of the present writ petition.

BRIEF FACTS:

6. A Deed of Agreement was entered into by and between the Petitioners herein with the Respondent Nos. 3 and 4 as regards tenancy of a room for business purpose except any type of liquor business or shop. The said shop rented out is situated on the ground floor of a G+2 building standing over a plot of land at measuring 5.03 Are covered by Dag No.421 of K.P. Patta No.130 situated at Revenue Village, Sahar, Guwahati, Part-III under Mouza Guwahati in the District of Kamrup (Metro), Assam. The terms of the agreement which was entered into on 1st of April 2021, were that the Petitioners were to pay a rent of Rs.8,000/- in the 1st week of every month and the Respondent Nos. 3 and 4 shall issue a receipt. Clause 7 of the said Deed of Agreement stipulated that the Petitioners will not make any major construction, even at their own cost, without the written consent of the Respondent Nos. 3 and 4. Clause 8 of the said Deed of Agreement is relevant and the same is reproduced herein under:

                   “8. That, the space between the footpath and the shop premises will remain under the exclusive ownership of the First Party and the Second Party cannot use this space in any way or manner as he likes or cause inconvenience to the other tenants of the building.”

7. From a perusal of the above quoted Clause, it appears that the space between the footpath and the shop premises which have been rented out to the Petitioners would remain under the exclusive control of the Respondent Nos. 3 and 4 and the Petitioners cannot use this space in any way or manner as they may like or cause inconvenience to the other tenants of the building.

8. It may not also be out of place to mention that the Respondent No.3 had entered into another Deed of Agreement with one Shri Mohonjit Singh on 01.04.2016 in respect to another room which is on the ground floor of the building in question.

9. The records further reveal that both the Respondent Nos. 3 and 4 had filed a suit being Title Suit No. 291/2024. This suit was filed against the Petitioners and Shri Mohonjit Singh seeking eviction of the Petitioners along with Shri Mohonjit Singh from the suit premises described in the plaint on the grounds provided under Section 5(1)(a), (b) and (c) of the Assam Urban Areas Rent Control Act, 1972. In the said suit, the Respondent Nos. 3 and 4 have also claimed permanent injunction restraining the Petitioners along with Shri Mohonjit Singh, their men, agents, from carrying out any construction over the suit premises or to create any third party rights over the suit premises, thereby subletting the premises to any other person.

10. Along with the said suit, an injunction application was filed by the Respondent Nos. 3 and 4 which was registered and numbered as Misc. (J) Case No. 448/2024 seeking an injunction against the Petitioners herein along with Shri Mohonjit Singh that they should not be permitted to any carry out any construction or change the nature and character of the suit property. The learned Trial Court i.e. the Court of the learned Civil Judge, (Junior Division) No.4 did not grant an ex-parte injunction. Being aggrieved by the non granting of the ex-parte injunction, the Respondent Nos.3 and 4 thereupon preferred an appeal before the Court of the learned Civil Judge (Senior Division) No.2, Kamrup (Metro) at Guwahati which was registered and numbered as Misc. Appeal No.16/2024. Along with the said appeal, an injunction application was also filed.

11. The learned First Appellate Court was not inclined to pass an ex-parte order. Resultantly, the Respondent Nos. 3 and 4 filed an application under Article 227 of the Constitution before this Court which was registered and numbered as CRP(IO) No. 402/2024. The learned Coordinate Bench of this Court vide an order dated 04.10.2024 disposed of the said application with a direction to the learned Trial Court to consider the application for temporary injunction filed by the Respondent Nos. 3 and 4 after hearing both the sides and in the meanwhile, the Petitioners along with Shri Mohonjit Singh were restrained from carrying out any major construction thereby changing the nature of the premises.

12. It is the allegation of the Petitioners herein that on 18.10.2024, the Respondent Nos. 3 and 4 confronted the father of the Petitioner No.1 and the labourers while they were conducting minor interior work like painting, tile work, electric connections, wooden work, etc., for minor renovation of the shop. It was alleged that the Respondent Nos. 3 and 4 tried to lock the shop from outside, misbehaved and used abusive language, threatening both the labourers and the father and mother of the Petitioner No.1 in front of the public and market people. It was alleged that the Respondent Nos. 3 and 4 tried to illegally encroach upon the shop. The records further reveal from an FIR dated 21.10.2024 that on 21.10.2024, the Respondent Nos. 3 and 4 arrived at the premises accompanied by a mob of approximately 100-120 people. The mob led by the Respondent Nos. 3 and 4 tried to forcibly evict the Petitioners and it is under such circumstances, the Petitioner No.1 had filed a First Information Report before the Officer In-charge of Panbazar Police Station on 21/10/2024.

13. On 26.10.2024, another FIR was filed alleging inter alia that a large unauthorized iron structured kiosk, roughly 7 x 7 feet was placed directly in front of the shop premises of the Petitioners obstructing their access. It was further alleged in the said FIR that on 25.10.2024, the said obstruction further escalated when a brick wall was constructed overnight, completely sealing off all entry and exit points to the shop, and goods worth lakhs of rupees were trapped inside causing significant loss during the Diwali season.

14. The records further reveal that on 22.10.2024, a communication was issued by the Petitioner No.1 to the Commissioner, GMC wherein it is alleged that the Petitioner No.1's shop is currently obstructed by a large unauthorized iron structured kiosk approximately 7 x 10 feet in size, positioned directly outside his shutter on the pavement. It is, however, very significant to take note of that in the FIRs which were filed on 21.10.2024 and on 26.10.2024, categorical allegations were made against the Respondent Nos. 3 and 4 whereas in the communication issued to the Commissioner GMC, the said aspect was silent. This Court finds it very relevant to take note of the contents of the communication dated 22.10.2024 issued to the Commissioner GMC, which is reproduced herein under:

                   “To, The Commissioner Date: 22-10-2024

                   Guwahati Municipal Corporation

                   Dispur, Guwahati

                   Assam

                   Subject: Urgent Request for Removal of Unauthorized Iron Block Obstructing Shop Access

                   Dear Sir/Madam,

                   I hope this letter finds you well. I am writing to bring to your immediate attention a matter that is significantly affecting my business. I own a shop located on SS Road in Lakhtokia, and the only entry and exit point to my shop is currently obstructed by a large unauthorized iron block, approximately 7x10 feet in size, positioned directly outside my shutter on the pavement. This obstruction occurred at midnight on October 21, 2024.

                   This blockage is severely hampering customer access, especially during the Diwali season, which is critical for my business. The inability to open my shop is causing significant financial harm, and I am increasingly worried about the impact this will have on my livelihood.

                   I kindly request your immediate intervention for the removal of this unauthorized iron block. Your assistance will help restore access to my shop and contribute to the overall orderliness of the area, especially during this important time.

                   Thank you for your attention to this urgent matter. I look forward to your prompt response.

                   Sincerely,

                   Baljit Singh

                   C/O- Manjit Shoe

                   Lakhtokia, Guwahati”

15. The records further reveal that on 18.11.2024, the present writ petition was filed. A perusal of the contents of the writ petition reveals that the writ petition is being premised on the basis that without permission by the GMC, the iron structured kiosk was permanently attached to the ground by filling its bottom part with fresh concrete. It was also mentioned in the writ petition that no permission could have been granted by the Authority without issuing some kind of notice to the tenant or the occupant of the premises in question as the block would effectively block entry/exit, light, access, etc. to a commercial establishment behind it. The writ petition was primarily premised on the question of inaction on the part of the GMC for removing the iron structured kiosk.

16. When the writ petition was moved before this Court on 25.11.2024, the learned Coordinate Bench of this Court sought instructions from the GMC. On 04.12.2024, the learned Standing counsel of the GMC submitted that a spot inspection was carried out by the officials of the GMC and it was the instruction that the Respondent Nos. 3 and 4 were running another shop in front of the Petitioner's premises, and the shop so run by the Respondent Nos. 3 and 4 are being granted Trade License by the GMC. The learned Standing counsel further submitted that a report has been placed before the competent authority and the matter would now be taken up by the competent authority upon hearing the affected parties. Accordingly, the matter was deferred to 17.12.2024.

17. On 17.12.2024, the learned Coordinate Bench of this Court issued notice and further directed the GMC Authorities to take all steps as per procedure of law to remove the erection/construction structure which have been stated to be placed in front of the shop of the Petitioners as was evident from the report dated 28.11.2024. The learned Coordinate Bench of this Court further directed that the direction for removal be carried out within 24 hours from the date of the said order and a compliance report to that effect be filed by the GMC Authorities giving all particulars as may be necessary to take steps towards complying with the directions passed by this Court.

18. It may not be out of place to mention that in the said order dated 17.12.2024, the learned Coordinate Bench also directed the Petitioners to take steps upon the Respondent Nos. 3 and 4 by Registered Post with A/D as well by usual process within 1 (one) week from the date of the said order.

19. The record reveals that on 18.12.2024, Mr. B. D. Deka, the learned counsel who represents the Respondent Nos. 3 and 4 appeared and submitted that the Petitioners herein have not placed the correct facts inasmuch as the entry was from the eastern side of the premises is available to the Petitioners which they themselves have blocked by erecting a brick wall and these facts were not placed before this Court, for which the interim order should be vacated.

20. The learned Coordinate Bench of this Court vide the order dated 18.12.2024 passed certain directions at Paragraph Nos. 14, 15, 16, and 17 which being relevant are reproduced herein under.

                   “14] In view of the order passed today, the order of 17.12.2024, more particularly, the direction at paragraph-8 of the said order will stand modified to the extent that the GMC authorities will issue notice to the said Mahmadul Alam, if not already issued and thereafter, upon due verification shall decide on the aspect of grant of trade license to such a person to run the shop at the same premises where the Kiosk is permitted to be erected and also to examine whether there is any violation of the building Bye laws/the Rules under GMC and GMDA authorities by the said Muhammad Alam and the respondents no. 3 and 4 while executing the said tenanted lease agreement between them. If any such violation is noticed, appropriate action will be taken by the GMC Authorities under the provisions of law.

                   15] The order dated 17.12.2024 accordingly stands modified to the extent indicated above.

                   16] Let the matter be listed on 05.02.2025.

                   17] The respondent nos. 3 & 4 will ensure the removal of the obstruction on the eastern side and ensuring entry and exit through the southern side within three days from today without affecting the Kiosk of Muhammad Alam.”

21. It is relevant to take note of that the Respondent Nos. 3 and 4 are private parties deriving no form of any right or title from the Respondent Nos. 1 or 2. It is also seen that pursuant thereto, the Respondent No.5 was impleaded who was running his business from the iron structured kiosk.

22. The affidavit-in-opposition so filed by the Respondent Nos. 3 and 4 is relevant inasmuch as the specific stand of the Respondent Nos. 3 and 4 was that the suit premises was situated on the ground floor of a RCC building which was bounded by the S.S. Road on the south and a corridor on the east side. It was also mentioned that the corridor, besides leading to the suit premises is also the passage way leading to the staircase for assessing the floors above and the multiple shops inside. The suit premises had two shutter/gates, one on the southern side towards the S.S. Road and the other towards the eastern side through the aforementioned corridor. It was stated that it was agreed amongst the parties the entry through the corridor on the eastern side would be the designated entrance for the subject shoproom and it is on the basis thereof, Clause 8 was inserted in the Agreement dated 01.04.2021.

23. It was further mentioned that the space between the footpath and the shop premises was for another commercial venture which was leased out to the Respondent No.5 vide an agreement dated 01.08.2023 for installation of a kiosk like structure for retailing purpose. All necessary permissions including a Trade License was also obtained from the Respondent No.1 authorities in that regard. It was alleged that the Petitioners have themselves constructed walls blocking the eastern entry through the corridor perhaps with a view to falsely projecting that the southern shutter is the sole entrance to the shop. Pressure was employed by the writ Petitioners upon the Respondent No.5 to remove the kiosk so that they could gain direct access through the S.S. Main Road. This aspect was also notified to the Circle Officer, Guwahati Revenue Circle on 24.10.2024 which was prior to the filing of the writ petition.

24. It was further averred that the Petitioners instead of contesting the Title Suit on merits, are trying to secure an advantage over the Respondent Nos. 3 and 4. It was further mentioned that the municipal authority had no role in the private dispute between the writ petitioners and the Respondent Nos. 3 and 4. Apart from that, the facts stated in the writ petition have been denied. Annexure-2 to the said affidavit-in-opposition is the eastern entrance wherein a brick wall was constructed. It is the allegation of the Respondent Nos. 3 and 4 that the said brick wall was constructed by the Petitioners and on the other hand, it is the Petitioners who claim that the said brick wall was constructed by the Respondent Nos. 3 and 4.

25. The affidavit-in-opposition of the Respondent No.5 is also of relevance inasmuch as the Respondent No.5 enclosed the Deed of Agreement dated 01.08.2023 entered into by and between the Respondent No.3 with the Respondent No.5 whereby the shop room measuring 30 square feet situated at S.S. Road was leased out to the Respondent No.5. The said shop upon being leased out, was also granted the Trade License as well as the License under the Assam Shops and Establishment Act, 1971.

26. In addition to that, there is another agreement which was entered into on 22.10.2024 between the Respondent No.3 as well as Respondent No.5 in respect to the said shop room. It is further mentioned that on 18.03.2025, the Respondent, GMC Authorities at 10:45 PM dismantled the iron structured kiosk and presently, the Respondent No.5 is running his business by erecting a bamboo structures with a tin shed.

27. In the backdrop of the aforementioned pleadings, this Court heard the learned counsels appearing on behalf of the parties on the maintainability of the writ petition.

SUBMISSIONS MADE BY THE LEARNED COUNSELS FOR THE PARTIES:

28. Mr. K. N. Choudhury, the learned Senior counsel submitted that this iron structured kiosk was set up by the Respondent Nos. 3 and 4 in order to disturb the possession and enjoyment by the Petitioners of their tenanted premises. In spite of a complaint being made on 22.10.2024, the GMC Authorities have not removed the said iron structured kiosk and as such, it can be very well assumed that actions of the Respondent Nos. 3 and 4 to put the iron structured kiosk was with the implied permission of the GMC Authorities. This iron structured kiosk affected the rights of the Petitioners to carry out business which is a fundamental right under Article 19(1)(g) of the Constitution and as such, the writ petition is maintainable.

29. The learned Senior counsel further submitted that when inaction on the part of the Respondent Nos. 1 and 2 leads to violation of the fundamental rights, the Petitioners had rights to approach this Court under Article 226 of the Constitution. In addition to that, the learned Senior counsel also submitted that the learned Coordinate Bench of this Court entertained the writ petition and had passed certain orders and these orders have been sought to be made redundant by the Respondent Nos. 3, 4, and 5 in collusion with the GMC Authorities.

30. Per contra, Mr. D. Mozumder, the learned Senior counsel appearing on behalf of the Respondent Nos. 3 and 4 submitted that the instant writ petition is not maintainable inasmuch as by making a fictitious case against the Respondent Nos. 1 and 2, the Petitioners are trying to get a writ issued against the private Respondents, which is not permissible under law. The learned Senior counsel further submitted that this is a case where there are various disputed questions of facts as to whether the entrance to the Petitioners’ tenanted premises was on the southern side or on the eastern side. Reference was made to the agreement and more particularly to Clause 8 wherein it was clearly mentioned that the space between the footpath and the shop premises will remain under the exclusive ownership of the Respondent Nos. 3 and 4. The photographs which have been enclosed to the affidavit, have also been shown to the effect that the Petitioners’ entrance was on the eastern side which leads to the staircase and further submitted that there is no other boundary of the tenanted premises abutting a road except the S.S. Road and therefore submitted that the area mentioned in Clause 8 of the Agreement is the space abutting the footpath to the SS road.

31. Mr. B. Das, the learned counsel who appears on behalf of the Respondent No.5 submitted that the iron structured kiosk have been under the lease of the Respondent No.5 right from the year 2023. The said southern side of the tenanted premises was never the entrance to the Petitioners’ premises. He, however, submitted that on 18.03.2025, the GMC Authorities at 10:45 PM demolished the premises thereby rendering huge loss to the Respondent No.5. Reference was made to the affidavit in that regard.

ANALYSIS AND DETERMINATION:

32. This Court has duly heard the learned counsels appearing on behalf of the parties and has perused the materials on record.

33. From a perusal of the materials on record and more particularly, the FIRs which have been filed by the Petitioners on 21.10.2024 and 26.10.2024, makes it clear that the allegations are against the Respondent Nos. 3 and 4 trying to oust the Petitioners from the tenanted premises. Under such circumstances, the remedy of the Petitioners was before the Civil Court seeking appropriate declaration as well as injunction.

34. It however, surprises this Court to take note of the contents of the representation submitted by the Petitioner No.1 to the Commissioner, GMC on 22.10.2024 where there is not a single whisper about the Respondent Nos. 3 and 4. It is a vague communication alleging inter alia that the entry and exit point to the Petitioner No.1's shop was currently obstructed by a large unauthorized iron structured kiosk approximately 7 x 10 feet in size, which was put at midnight on 21.10.2024. There is not a single allegation or statement made to the effect in the said communication that the said large unauthorized iron structure kiosk was set up without the permission of the GMC.

35. This Court also finds it relevant to take note of the pleadings in the instant writ petition whereby a case has been developed that the GMC Authorities have not taken any steps for which the writ petition has been filed. In the context of the representation dated 22.10.2024, in the opinion of this Court, the GMC Authorities lacked competence to take any action inasmuch as, there was no allegation in the said communication that the said iron structured kiosk was put in violation to the Gauhati Municipal Corporation Act, 1971 or the building bye-laws.

36. The materials on record further reveal that it is on account of a dispute between the Petitioners and the Respondent Nos. 3 and 4 along with the Respondent No.5, which is purely a private dispute, the public law remedy under Article 226 of the Constitution have been invoked by dragging the GMC Authorities on the allegation of inaction.

37. It is also very relevant to take note of the submission of Mr. K. N. Choudhury, the Senior counsel who further develops the case for the purpose of maintainability of the writ petition to allege that the said iron structured kiosk was set up by the Respondent Nos. 3 and 4 with the blessings of the GMC.

38. In this context, it is apposite to take note of the settled principles of law. More than 70 years back, the Constitution Bench of the Supreme Court in the case of Sohan Lal Vs. Union of India and Another reported in (1957) 1 SCC 439, held that the writ of mandamus does not lie to or an order in the nature of mandamus cannot be made against a private individual. The Supreme Court held that rival claims of title to a property in dispute set up by the parties to the dispute cannot be inquired by the Supreme Court under Article 226 of the Constitution. It was observed that if the Constitutional Courts were to do so, it would be entering into the field of investigation, which is more appropriate for a Civil Court in a properly constituted suit to do rather than for a Court exercising the prerogative of issuing writs. Paragraph Nos. 6, 8 and 9 being relevant are reproduced herein under:

                   “6. We do not propose to enquire into the merits of the rival claims of title to the property in dispute set up by the appellant and Jagan Nath. If we were to do so, we would be entering into a field of investigation which is more appropriate for a civil court in a properly constituted suit to do rather than for a Court exercising the prerogative of issuing writs. There are questions of fact and law which are in dispute requiring determination before the respective claims of the parties to this appeal can be decided. Before the property in dispute can be restored to Jagan Nath it will be necessary to declare that he had title in that property and was entitled to recover possession of it. This would in effect amount to passing a decree in his favour. In the circumstances to be mentioned hereafter, it is a matter for serious consideration whether in proceedings under Article 226 of the Constitution such a declaration ought to be made and restoration of the property to Jagan Nath be ordered.

                   8. The eviction of Jagan Nath was in contravention of the express provisions of Section 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury’s Laws of England, Vol. 11, Lord Simonds Edn., p. 84). If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court. We have not been able to find a direct authority to cover a case like the one before us, but it would appear that so far as election to an office is concerned, a mandamus to restore, admit, or elect to an office will not be granted unless the office is vacant. If the office is in fact full, proceedings must be taken by way of injunction or election petition to oust the party in possession and that a mandamus will go only on the supposition that there is nobody holding the office in question. In R. v. Chester Corpn. it was held that it is an inflexible rule of law that where a person has been de facto elected to a corporate office, and has accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information. A mandamus will not lie unless the election can be shown to be merely colourable. We cannot see why in principle there should be a distinction made between such a case and the case of a person, who has, apparently, entered into bona fide possession of a property without knowledge that any person had been illegally evicted therefrom.

                   9. In our opinion, the High Court erred in allowing the application of Jagan Nath filed under Article 226 of the Constitution and making the order it did. The appeal is accordingly allowed and the order of the High Court is set aside. In the circumstances of the present case, however, we are of the opinion that each party should bear his own costs in this Court and in the High Court.”

39. From the above quoted paragraphs, it would be seen that a mandamus would not lie unless it is proved that there was a collusion between a Statutory Authority and the private parties. In the case of Mohammed Hanif Vs. State of Assam reported in (1969) 2 SCC 782, the Supreme Court dealt with the jurisdiction of the High Courts under Article 226 of the Constitution and further observed that the remedy provided under Article 226 is a remedy against the violation of the rights of a citizen by the State or the Statutory Authority.

40. In the case of Mohan Pandey and Another Vs. Usha Rani Rajgaria (SMT) and Others reported in (1992) 4 SCC 61, the Supreme Court specifically dealt with the issue as regards enforcement of a private right to an immovable property. The question before the Supreme Court was as to whether the writ jurisdiction conferred upon the High Court is available for enforcement of such rights claimed by and against private individuals. As the said judgment have relevance for the purpose of the instant case, it is relevant to take note of Paragraph No.3 of the judgment in the case of Mohan Pandey (supra) which narrates the facts. The said Paragraph No.3 being relevant is reproduced herein under:

                   “3. The dispute relates to a house-property in Delhi. A suit for eviction of the appellants from the building is pending in the trial court. According to the case of the respondent 1, who is the owner of the property, she had let out the same to one Shri B.K. Pandey who later illegally handed over the possession thereof to appellant 1. According to the further case of the respondent, the portion of the said house property which is the subject matter of the present case is beyond the purview of the pending suit. The occasion for initiating the present proceeding with respect to this portion arose, it is said, on account of the high-handedness of the appellants who illegally trespassed beyond the area which is the subject matter of the pending suit, and indulged in several illegal activities. In other words, the appellants are trespassers and are guilty of mischievous conduct. However, instead of filing a suit in the civil court or making an appropriate prayer for amendment of her plaint in the pending suit, she through respondent 2 holding power of attorney, approached the High Court directly by a writ petition under Article 226 for issuance of appropriate direction restraining the appellants from disturbing the lawful possession of the respondents. The Delhi Administration and the Commissioner of Police, Delhi, were also impleaded as parties with a prayer that appropriate order should be issued against them also and they should be directed not to register any further false and vexatious complaint against them at the instance of the appellants. It is her case that the appellants have been getting undue police help and are being encouraged to commence frivolous criminal cases against respondent 1 and her agent.”

41. From the above quoted paragraph, it would be seen that the Respondent therein have alleged that the appellants were trespassers and were guilty of mischievous conduct. The respondents, instead of filing a suit in the Civil Court or making an appropriate prayer for amendment of her plea in the pending suit, filed a writ petition before the High Court for issuance of appropriate direction restraining the Appellants from disturbing the law lawful possession of the Respondents. The Delhi Administration and the Commissioner of Police were impleaded as party with a prayer that appropriate orders should be issued against them also and they should be directed not to register any false and vexatious complaint against them at the instance of the Appellants. The Supreme Court held that the writ petition was not maintainable. The Paragraph No.6 of the said judgment in the case of Mohan Pandey (supra) being relevant is reproduced herein under:

                   “6. Mr. Arun Jaitley, the learned counsel appearing on behalf of respondent 1 has supported the impugned judgment on the ground that prayer for issuing a direction against Delhi Administration and Commissioner of Police who were respondents 1 and 2 was also made. It has to be appreciated that the present appellants were respondents 3 and 4 before the High Court; and the High Court has by the impugned order, considered it fit to allow the prayer of the respondents against them for removal of the grills for access to the backyard. According to the stand of the landlord-respondent, since the police were taking a partisan attitude against her, the filing of a writ petition became necessary. We are unable to follow this argument. There is no doubt that the dispute is between two private persons with respect to an immovable property. Further, a suit covering either directly a portion of the house-property which is in dispute in the present case or in any event some other parts of the same property is already pending in the civil court. The respondent justifies the step of her moving the High Court with a writ petition on the ground of some complaint made by the appellants and the action by the police taken thereon. We do not agree that on account of this development, the respondent was entitled to maintain a writ petition before the High Court. It has repeatedly been held by this Court as also by various High Courts that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between private persons and that the remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged. And in such a case, the Court will issue appropriate direction to the authority concerned. If the real grievance of the respondent is against the initiation of criminal proceedings, and the orders passed and steps taken thereon, she must avail of the remedy under the general law including the Criminal Procedure Code. The High Court cannot allow the constitutional jurisdiction to be used for deciding disputes, for which remedies, under the general law, civil or criminal, are available. It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant. The jurisdiction is special and extraordinary and should not be exercised casually or lightly. We, therefore, hold that the High Court was in error in issuing the impugned direction against the appellants by their judgment under appeal. The appeal is accordingly allowed, the impugned judgment is set aside and the writ petition of the respondents filed in the High Court is dismissed. There will be no order as to costs.”

42. In the case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329, the Supreme Court while referring to the judgment of the Constitution Bench of the Supreme Court in the case of Sohan Lal (supra) and various other judgments, observed at paragraphs Nos. 51, 58, 59, 60, 61, 62, 63 and 64 which are reproduced herein under:

                   “51. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either the Government, governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform.

                   58. In the instant case none of the above features are present, even then a writ petition was filed in a pure dispute between landlord and tenant and where the only respondent is the plaintiff landlord. Therefore, the High Court erred by entertaining the writ petition. However, the petition was dismissed on merits by a rather cryptic order.

                   59. It has repeatedly been held by this Court that a proceeding under Article 226 of the Constitution is not the appropriate forum for adjudication of property disputes or disputes relating to title. In Mohd. Hanif v. State of Assam a three-Judge Bench of this Court, explaining the general principles governing writ jurisdiction under Article 226, held that this jurisdiction is extraordinary in nature and is not meant for declaring the private rights of the parties. (See SCC p. 786, para 5 of the Report.) In coming to the aforesaid conclusion in Hanif, this Court referred to the Constitution Bench decision in T.C. Basappa v. T. Nagappa.

                   60. Following the aforesaid principles in Hanif, this Court in Hindustan Steel Ltd. v. Kalyani Banerjee held that serious questions about title and possession of land cannot be dealt with by writ court. In formulating these principles in Kalyani Banerjee, this Court relied on the Constitution Bench decision in Sohan Lal (see SCC p. 282, para 16 of the Report).

                   61. Again in State of Rajasthan v. Bhawani Singh this Court held that a writ petition is not the appropriate forum to declare a person’s title to property. (See SCC p. 309, para 7 of the Report.)

                   62. Subsequently, again in Mohan Pandey v. Usha Rani Rajgaria, this Court held that a regular suit is the appropriate remedy for deciding property disputes between private persons and remedy under Article 226 is not available to decide such disputes unless there is violation of some statutory duty on the part of a statutory authority. (See p. 63, para 6 of the Report.)

                   63. Following the aforesaid ratio in Mohan Pandey, this Court again in Prasanna Kumar Roy Karmakar v. State of W.B., held that in a dispute between the landlord and tenant, a tenant cannot be evicted from his possession by a writ court. Again in P.R. Murlidharan v. Swami Dharmananda Theertha Padar, this Court held that it would be an abuse of process to approach a writ court in connection with dispute on questions of title for deciding which the civil court is the appropriate forum.

                   64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.”

43. The aforementioned propositions of law have also been reiterated in the case of Radhey Shyam and Another Vs. Chhabi Nath and Others reported in (2015) 5 SCC 423.

44. From the above propositions of law, it would therefore show that a landlord-tenant dispute between two private parties cannot be brought within the fold of the jurisdiction under Articles 226 of the Constitution. Mere addition of a Statutory Authority as a Respondent does not automatically convert a private dispute into a public law matter.

45. At this stage, this Court for the sake of clarity, finds it relevant to observe in view of the aforementioned principles laid down that if a party is in a position to show before the Court that there is a connivance between the other party with a Statutory Authority which led to a violation of fundamental right, a writ petition may lie against the Statutory Authority but then also not against a private individual.

46. In the instant case, it is seen that it is a pure landlord-tenant dispute wherein there were allegations made by the Petitioners before the Officer In-charge of the Panbazar Police Station on 21.10.2024 as well as on 26.10.2024, alleging that the Respondent Nos. 3 and 4 were responsible for the iron structured kiosk. However, there was no reference to the same by the Petitioners before the Commissioner, GMC. This Court does not find any reason why the Commissioner, GMC was not informed about the said aspect. The GMC Authorities would not have the power to remove any structure lying within a private land unless and until it amounts to violation of the Gauhati Municipal Corporation Act, 1971 or the Rules and the bye-laws framed therein under.

CONCLUSION:

47. Taking into account the above, it is therefore the opinion of this Court that the instant petition is not maintainable.

48. In addition to that, this Court also finds it very relevant to observe that there are various factual disputes as regards the entrance of the Petitioners’ shop inasmuch as the Petitioners contend that the entrance from the S.S. Road is the sole entry whereas the Respondents categorically contend that the entrance towards S.S. Road was not the entrance, rather, the designated entrance is towards the eastern side of the tenanted premises. These aspects cannot be decided in a proceedings under Article 226 of the Constitution.

49. The interim order so passed also stands vacated inasmuch part of the interim order passed on 18.12.2024 insofar as the directions issued to the GMC Authorities, no longer survives as the Respondent No.5's premises was demolished on 18.03.2025.

50. Further to that, the interim order which was passed thereby directing the Respondent Nos. 3 and 4 to remove the brick wall so constructed on the eastern side, being a direction issued to the private parties, it is the opinion of this Court with great respect to the learned Coordinate Bench that such directions are contrary to the judgment passed by the Constitution Bench of the Supreme Court in the case of Sohan Lal (supra).

51. The writ petition stands dismissed.

52. Needless to mention that the dismissal of the instant writ petition shall not preclude or prejudice the Petitioners to approach the competent Court of Civil Jurisdiction, if so advised.