Aparesh Kumar Singh, J. - (1.) Heard learned counsel for the parties.
(2.) In respect of a grievance relating to shop no.10, which the petitioner claims to have been allotted to him by the Ramgarh Cantonment Board, the respondent no.6, herein had earlier approached this Court in W.P.C. No. 1960 of 2015 with a prayer not to dispossess him at the instance of respondent no.6 therein i.e., the present petitioner. The writ petition was dismissed vide order dated 13.10.2015 by the learned Single Judge of this Court where under the respondent- authorities of the State as well as Officials of the Cantonment Board had also appeared.
(3.) For better appreciation, the entire order is being reproduced herein below:- Seeking a direction upon the respondents not to dispossess the petitioner at the instance of respondent no.6, the present writ petition has been filed. 2. At the outset, Mr. Kalyan Roy, the learned counsel appearing for the respondent nos.4 and 5 and Mr. Dhananjay Kumar Dubey, the learned counsel appearing for the respondent nos.1 to 3 raised a preliminary objection to the maintainability of the writ petition. It is submitted that the writ petition involves serious disputed questions of fact and therefore, it is liable to be dismissed. 3. The petitioner claims that he got Shop No.10 allotted in the name of his brother namely, Ganesh Prasad Gupta- respondent no.6, who was minor at that time. The petitioner started a hotel in the name of Gaya Hotel in the year, 1965. Subsequently, a dispute arose between two brothers and a proceeding under Section 144 Cr.P .C. was initiated at the instance of respondent no.6 vide Case No.163 of 2014. The said proceeding was dropped vide order dated 14.10.2014. The learned counsel for the petitioner refers to communication dated 27.04.2015 and 30.04.2015 and submits that after the respondent no.6 failed in his efforts in the proceeding under Section 144 Cr.P.C., he in collusion with the respondent nos.4 and 5 attempted to get the petitioner evicted from the suit premises. It is contended that even if it is assumed that the petitioner is an illegal encroacher, the respondent Cantonment Board is under a duty to initiate proceeding for eviction of the petitioner, in accordance with law. It is further contended that the possession of the petitioner, which has been recorded in order dated 14.10.2014 in Case No.163 of 2014, may be protected. 4. From the averments in the writ petition, I find that the petitioner himself has admitted that the shop was allotted in the name of respondent no.6. The license was issued in the name of respondent no.6 is not in dispute. On behalf of the petitioner, a reference to order dated 14.10.2014 has been made to contend that the respondent no.6 should have approached the civil court. I am of the opinion that order dated 14.10.2014 is equally applicable in case of the petitioner also. Both, the petitioner as well as the respondent no.6 have disputed the possession of each other. The respondent no.5 in the counter affidavit has asserted that Shop No.10 at old bus stand is the property belonging to the Cantonment Board and the said property was given on rent by the Board to the respondent no.6. Initially, vide letter dated 26.09.1994, the Board had decided to regularize the occupancy right of respondent no.6 over Shop No.10 and the occupancy of respondent no.6 on payment of rent has been extended from time to time. It has been further asserted by the respondent no.5 that the respondent no.6 is in possession of Shop No.10. It appears that vide letter dated 02.05.2014, the respondent no.5 granted permission to the respondent no.6 to carry repairing work in the shop. However, the petitioner raised serious dispute as to possession of the respondent no.6. A writ petition may be decided on the basis of affidavits however, when a fact has been seriously contested by the parties, the writ Court should not exercise its jurisdiction to adjudicate the disputed questions of fact. Order dated 14.10.2014 also records serious disputed facts pleaded by the petitioner and the respondent no.6. The question of possession of the petitioner, as noticed above, was seriously disputed by the respondent no.6 in the proceeding under Section 144 Cr.P..C. and by respondent nos.4 and 5 in the present writ proceeding. Whether the petitioner is in possession of Shop No.10 or not would require evidence, both oral and documentary and the writ Court cannot embark upon a roving enquiry in such situations. In Orissa Agro Industries Corpn. Ltd. v. Bharati Industries , (2005) 12 SCC 725 the Hon'ble Supreme Court has observed as under: 8. In a catena of cases this Court has held that where the dispute revolves round questions of fact, the matter ought not to be entertained under Article 226 of the Constitution. 5. The learned counsel for the petitioner has referred the decision of Hon'ble Supreme Court in East India Hotels Ltd. v. Syndicate Bank reported in 1992 (Supp.) 2 SCC 29 to contend that the Cantonment Board being a statutory authority must resort to due process in law for evicting the petitioner.From the materials produced in the present proceeding, it is apparent that the alleged possession of the petitioner over Shop No.10 was not legal or permissive. Since the initial possession itself appears to be illegal, reliance on East India Hotels Ltd. case is misplaced. 6. I find no merit in the writ petition and accordingly, it is dismissed .;