1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SPL. APPL. WRIT No. 128 of 2001 SMT.SUKIRTI DEVI PUROHIT V/S STATE & ORS Date of Judgment : 23.7.2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. Mr. RG PUROHIT, for the appellant / petitioner Mr. MC BHOOT, Mr. KAILASH JOSHI, for the respondent BY THE COURT : (PER HON'BLE GUPTA,J.) The appellant has filed this appeal seeking to challenge the order of the learned Single Judge dated 18.12.2000, disposing of the writ petition while making substantial observations having the effect of keeping virtual remedy open to the petitioner. The grievance of the appellant is, that the learned Single Judge has himself observed that though the question raised by the appellant requires consideration, notwithstanding this, the learned Judge has not entertained the writ petition, and has left the appellant to the remedy of already pending civil suit. It was submitted that from the documents, Annex.4, Annex.13 and other documents annexed with the writ petition, coupled with the provisions of Section 73, 75 and 90 of the Urban Improvement Trust Act and 2 the rules framed under the said Act being The Rajasthan Urban Areas (Sub-Division, Reconstruction and Improvements of Plots) Rules, 1975, more specially Rule 5 and 8 etc., also if read in the background of the established principles laid down by Hon'ble the Supreme Court, that illegal constructions made on set back portions, or by reducing set backs etc. should be demolished, since in the present case, the factual side of all the aspects is not in dispute between the parties, there was no justification for relegating the appellant to the remedy of pending suit, and the writ petition was required to be considered on merits by this Court itself, and was required to be allowed. It was submitted that the provisions of Act are mandatory, which require that before raising construction, permission has to be obtained, and the things required to be disclosed for obtaining permission are also mandatory, while in the present case, admittedly the construction was raised by the private respondent in violation of permission, therefore, notice, Annex.4 was given, but then, without hearing the appellant, and despite the fact that the appellant had raised objection before the Urban Improvement Trust, the Urban Improvement Trust has proceeded to compound the construction, while there are no rules or legislation in force, authorising the Urban Improvement Trust to compound the matter. In such circumstances, the appellant should not have been relegated to the suit. 3 Learned counsel for the respondent supported the impugned order. We have considered the submissions and have gone through the record. As transpires from the record, that the suit was filed before filing of the present writ petition, and was filed on 2.5.2000, and as alleged in the writ petition, a temporary injunction was also granted in favour of the plaintiff, according to the plaintiff construction was raised in defiance thereof, therefore, proceedings for disobedience have also been initiated, which are pending. Then from a look at the copy of the plaint, which has been filed in this appeal, shows that the suit is not only for declaratory decree and demolition of unauthorised construction, it is for perpetual injunction, and abatement of nuisance. Various pleadings had been taken in the suit, about the plaintiff having behaved like a good neighbour, but the defendant raised construction without obtaining previous permission from the Trust, and has obstructed the natural light and air of the plaintiff, and that has constructed 8 latrines and bathrooms illegally, which emit foul odor, which is directly adversely affecting the life of plaintiff and his family members, appropriate sewerage connection has not been done, with the result, that there is always risk of overflow, discharge of foul air by exhaust fan towards the side of plaintiff. It is also alleged, that the premises 4 are being used for commercial purposes, and a hospital and maternity home is running therein, with the result, that the organic and inorganic effluent also emits foul smell, the crowd of patients and their attendants coming to hospital also create obstruction in the passage of the plaintiff's husband, who happens to be an advocate. Then noise and smoke emitted by generator, keeping a pet Alsatian, who barks too much, and discharges body effluent in the house itself, is also taken a ground of nuisance. With all these averments, it is also alleged that some construction is being raised without permission of the Urban Improvement Trust, over night construction was raised without permission of the Urban Improvement Trust, to which the plaintiff objected, but evasive/avoiding reply was given, and keeping the plaintiff in dark, construction has been raised. With these averments, the suit has been filed for demolition of the construction and abatement of the nuisance, so also for perpetual injunction. In the writ petition, the petitioner has challenged Annex.11 and 13 being dated 21.4.2000 and 16.5.2000, and has also prayed for direction to the Urban Improvement Trust to take steps to demolish the construction made by the private respondent without permission, and also the encroachment on the set back. Annex.11 is the communication granting permission for raising construction, likewise is Annex.13. No order has been produced about the Trust having compounded the matter as contended before us. In the writ 5 petition, it is alleged, that after the order was passed by the learned Addl. District Judge, the private respondent submitted application before the Trust to permit use for non-residential purpose, copy of application is said to be Annex.6, and a copy of another application is said to be Annex.7. According to the averments of the writ petition, both the applications Annex.6 and 7, are said to have been submitted to the Urban Improvement Trust, and the applications also do purport to have been submitted to the Urban Improvement Trust, though in the writ petition, Annex.7 was originally mentioned to have been submitted to Municipal Corporation, but then it has been erased, and instead of Municipal Corporation, Urban Improvement Trust has been substituted. Then it is alleged that Municipal Corporation issued public notice on 19.9.2000, inviting objections on the application of the private respondent, which has been produced as Annex.8, to which the petitioner submitted objections to the Municipality and the Urban Improvement Trust, which have been produced as Annex.9 and 10. Then in para 15, it is alleged, that the private respondent moved application for the construction of first floor on 14.6.1999, which application was allowed without any notice, without inspection of site, and without noticing the encroachment on the set backs in the ground floor, vide Annex.11. Then in para 16 it is alleged, that respondent No.3 also moved an application on 2.5.2000 for permission for construction on the second floor, but before filing of the application for permission, 6 the respondent No.3 had completed the construction of first floor and second floor. It is then alleged in para 17, that the petitioner then submitted objections to Urban Improvement Trust against grant of permission on 5.5.2000, being Annex.12, and according to the averments of para 18, the objections were noticed by the Urban Improvement Trust on 8.5.2000, however without any notice to the petitioner and without giving any opportunity of hearing, the authorities arbitrarily granted permission for construction and charged from the respondent No.3 Rs.95,470/- on 16.5.2000 as penalty for encroachment, and on the set backs on all the four sides. The copies of the orders are produced as Annex.13 and 13A. It would suffice to say that there is no averment about the matter having ever been compounded by the Urban Improvement Trust. It is also a different story, that Annex.13A does not show encroachment on set backs on all the four sides, inasmuch as, on the front side there is only balcony. Be that as it may, we do not mean to make any observation, which may, even in a far-fetched manner, be construed to mean to justify the action of the Urban Improvement Trust. Thus, it is clear that Annex.13 and 13A have been issued during pendency of the suit, and as noticed above, from the sequence of dates, that this writ petition purportedly seeks to challenge the Annex.13, but then it substantially over laps the grounds raised, and relief claimed, in the original plaint. It 7 may be observed here, that it cannot be disputed that for the same relief, both the remedies, of suit and writ petition cannot be allowed to be pursued together, simply because after filing of the suit, some events take place, which by themselves may furnish a fresh cause of action, and claiming right to challenge that event constituting fresh cause of action, the writ petitioner chooses to combine the fresh cause of action, and the old cause of action, and reliefs already claimed in the suit, by filing a writ petition. It was submitted by learned counsel, that if the writ petition is allowed, which according to him is required to be allowed, the suit would be rendered meaningless, and it would be withdrawn, and that since the suit is pending for the last 9 years, and the trial has not proceeded an inch, therefore, he should be granted relief in the writ petition. In our view, when the petitioner has already chosen the remedy of suit, which obviously is more efficacious and effective, and gives better opportunity of hearing to both the parties, simply because for one reason or the other, which is neither known to us, nor disclosed to us, suit has not registered material progress, the petitioner cannot be conceded a right to insist upon being granted relief by way of writ petition. In the above background, a look at the 8 impugned order shows, that the contention raised before the learned Single Judge was that the compounding was illegal, and the private respondent has been granted permission to use property in question for non-residential purposes in the residential area, and the learned Single Judge has held, that the question raised requires consideration. We hasten to add, that the learned Single Judge has not held, that the question is required to be decided in favour of the appellant. Obviously the question does require consideration, and it cannot be said, that the question will not receive appropriate and adequate consideration in the civil suit. Then learned Single Judge has noticed, that the injunction has also been issued in the suit regarding constructions made on the set back area. Obviously, the petitioner stands to have gained from that suit, and as we are informed by the learned counsel, that even proceedings for disobedience of injunction are pending. In that circumstance, if once the relief has been obtained by the plaintiff by way of injunction, any further direction from this Court, which also would obviously be in the nature of injunction, is not thought appropriate to be granted in writ jurisdiction. Likewise, the learned Single Judge has observed that comprehensive relief can be obtained by the petitioner in the pending civil suit, by making necessary amendments in the plaint. By making this observation, the learned Single Judge has rather given a complete free hand to the plaintiff-petitioner to 9 amend the plaint, rather even without examining the question, as to whether the plaintiff is able to make a case of amendment or not. Then it has also been noticed, that in the writ petition the petitioner may get only partial relief, while the suit is more comprehensive. Assailing this observation, learned counsel contended, that if Anex.11 and 13 are quashed, the purpose of the petitioner would be served. In our view, the submission is impregnant with very many complications, inasmuch as, mere quashing Annex.11 and 13 would not give any executable, or tangible relief to the petitioner, rather it may only create a further right in favour of the petitioner to initiate further litigations, whether in this Court or in the trial Court, while on the other hand, if the suit is decided, and in case it happens to be decided in favour of the plaintiff, all litigations would come to an end once for all, and in case it is decided against the plaintiff, obviously the remedy of plaintiff is open in the hierarchy. The learned Single Judge has already left it open to the petitioner to pursue the remedy before the Civil Court, and has also made further positive direction, that the proceedings of the suit shall not be effected by reason of the compounding order passed by the Urban Improvement Trust (Annex.13 or 13A for that matter) and has also gone to the extent of observing, that since the petitioner was not a party those orders will not bind him, nor it will effect his rights adversely to seek his remedies. In our view, 10 nothing better could have been done by the learned Single Judge in the writ petition. Thus, in our view, the appeal has no force, and is dismissed. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /tarun/