IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.11602 of 2007 Date of decision:15.12.2009 Jasmine Asghar ....Petitioner versus The State of Punjab and others ...Respondents II. COCP No.1283 of 2007 Jasmine Asghar ....Petitioner versus Hussan Lal, IAS, Commissioner, Municipal Corporation, Amritsar, and another. ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Ashwani Chopra, Senior Advocate, with Ms.Shilpa Malhotra, Advocate, for the petitioner. Ms. Monica Chibbar Sharma, Deputy Advocate General, Punjab. Mr. T.S.Gujral, Advocate, for respondent No.3 Mr. Akshay Bhan, Advocate, with Mr. Veneet Soni, Advocate, for respondents 6 & 7. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. I. Civil Writ Petition No.11602 of 2007 1. The writ petition seeks for a direction for quashing a purported endorsement dated 20th July, 2007 staying the operation of the proceedings of the Municipal Corporation dated 05.07.2007 revoking the Civil Writ Petition No.11602 of 2007 - 2 - building plans and the sanctioned permit issued in GR No.115, dated 21.04.2005 and Permit No.21/170, dated 22.09.2005 respectively. The order dated 05.07.2007 also directed the demolition of a construction at the disputed site under the provisions of the Punjab Municipal Corporation Act, 1976. The writ petition also seeks for a mandamus directing the Municipal Corporation, Amritsar not to allow the respondents 6 and 7 to raise any illegal construction and for a further restraint against the 2nd respondent, who is the Local Government and Industries Minister not to interfere with the functioning of the Municipal Corporation. The apprehension of interference of the 2nd respondent was allayed by filing a counter affidavit stating that except order dated 20th July, 2007 passed by the 2nd respondent, there was no other order. The endorsement that was made by the minister to a representation given by the 6th respondent merely records the fact that the Director was to enquire into the fact and report and till then, the orders of the Commissioner were stayed. The counsel on both sides admit that the order by an endorsement was withdrawn subsequently. The issue that requires to be adjudicated in this case is whether the order dated 05.07.2007 to demolish the construction could be enforced by the authorities constituted under the Punjab Municipal Corporation Act. 2. The obstruction to such a process comes not by way of any deliberate intransigent act of the officials of the Municipal Corporation but the counsel arguing for the Corporation states that his client is in some sense caught in a bind by virtue of orders of Civil Court restraining it from carrying out any demolition. A civil suit appears to have been Civil Writ Petition No.11602 of 2007 - 3 - filed at the instance of the 6th respondent against one Ashish Kapoor and the Municipal Corporation in Civil Suit No.107 of 2006 seeking for interim injunction from demolishing the construction of the plaintiff. The said Ashish Kapoor contended that he was managing the property as a caretaker on behalf of the Jasmine daughter of Asghar (petitioner herein) and that the construction of the 6th respondent, who was plaintiff in the suit, was illegal and was liable to be removed. The interlocutory application had been allowed on 15.10.2006 against Ashish Kapoor and the Corporation finding that there was nothing to show that he was a caretaker of Smt. Jasmine and in the appeal filed in CMA No.58 of 2006, the order passed by the trial Judge was confirmed. It appears that the present petitioner herself has filed a suit against the Corporation for a declaration that the plaintiff therein was owner of the property and that the sanctioned plan issued by the Municipal Corporation was illegal, null and void and for a restraint against the 6th respondent from carrying of any construction in the property. Amritsar Diocesan Trust Association has claimed ownership of the property and yet another suit filed at its instance is reported to be still pending 3. It must be noticed that the petitioner has made an attempt to implead herself as a party even in the Civil Suit No.107 of 2006 but it appears to have been dismissed on the ground that there was nothing on record to show the ownership of the petitioner in respect of the property and the suit of the petitioner itself has come to be filed subsequently only after her attempt to enter the fray where the parties were litigating over the disputed property, failed. Civil Writ Petition No.11602 of 2007 - 4 - 4. Another aspect of importance in this case is that at the time when the order was passed by the Civil Judge in Civil Suit No.107 of 2006 and when the CMA was disposed of, the respective trial Court and the Appellate Court were acting on the basis of sanctioned plan which, according to the respective Courts, constituted a prima facie entitlement of the plaintiff to enjoy the property unhindered by the Municipal Council. Subsequently the sanctioned orders themselves had been cancelled by the proceedings of the Commissioner dated 05.07.2007 and therefore, the circumstances have varied since the time when the injunction was issued. The Civil Procedure Code makes provision for any party to approach the Court for varying or modifying the order by subsequent events. It appears that the interim order of injunction by the Civil Court as affirmed by the Appellate Court has not yet become final and the proceedings are pending before this Court in civil revision brought at the instance of parties aggrieved by the order of injunction. It shall be always open for the party to bring to the attention of the Court the changed circumstances justifying the modification or vacating the order of injunction already granted. As on today there is Civil Court order of injunction issued against the 3rd respondent and it shall be impermissible for the 3rd respondent to carry out demolition pursuant to his own proceedings so long as the injunction order is still in force. 5. The learned Senior counsel appearing for the petitioner states that she is herself not a party in the suit for injunction brought at the instance of the 6th respondent and even her attempt to implead herself as a party in that suit had been rejected by the trial Court. According to Civil Writ Petition No.11602 of 2007 - 5 - the counsel, since the petitioner is not a party to the proceedings, he will not be bound by the relief of injunction. While it would be correct to urge that the orders of injunction are only orders in personam and the petitioner herself will not be bound by the order of injunction issued in the Civil Suit No.107 of 2006, the same cannot be said of the 3rd respondent. By a specific order passed in the above suit, the 3rd respondent-Municipal Corporation has been prevented from demolition of the building. It may have been in a suit instituted by the 6th or 7th respondent, but so long as there is an order of injunction operating against the Corporation, it shall not be possible for committing a breach of the Civil Court’s order by a direction in the writ petition filed at the instance of the petitioner. Even if for any reason, the petitioner finds that the 3rd respondent is lax in approaching the Court for variation of the order of injunction issued in the civil suit, the petitioner shall be at liberty in a capacity as an aggrieved person to apply for variation of the order of injunction by challenging the order refusing impleadment and obtaining the necessary order either in the civil revision stage where the proceedings are reported to be pending against the order of injunction passed in the civil suit and in the CMA No.58 of 2006. Further the petitioner herself has filed an independent suit where she has sought for the very same relief for the declaration that she is the owner of the property and that the respondents shall not be permitted to carry on with the wrongful construction. In the suit instituted by the petitioner both the Municipal Corporation and the 6th respondent are parties. It shall be impermissible for the petitioner to seek relief through a writ petition Civil Writ Petition No.11602 of 2007 - 6 - when she has already opted for an effective Civil Court adjudication through the suit filed by her. The relief claimed and sought for in the writ petition are a needless duplication when there are already civil suits pending and when effective reliefs could be obtained in the civil suits and the revisions which are reported to be pending. Any order passed in the writ petition will only add to further confusion and may result in conflict of several orders. I refrain, under the circumstances, to entertain the writ petition which involves several disputed questions of facts relating to the entitlement of the property and ownership issues. The writ petition is dismissed reserving the liberty to the petitioner in the manner referred to above. II. COCP No.1283 of 2007 6. COCP No.1283 of 2007 is for action of contempt for alleged violation of orders granted by this Court on 3rd August, 2007. By the said order, a Division Bench of this Court has ordered the stay of a direction given by the minister from giving effect to the order of demolition of the Municipal Commissioner. The minister’s note itself appears to have been later withdrawn subsequent to the said date. There does not appear to have been any further construction after the order of stay was issued. The report of the Advocate Commissioner merely records the existence of construction and can not prove the alleged continuance of construction in defiance of the Court's order. No proof was offered before this Court by the petitioner that there had been any deliberate breach of the order of stay granted by this Court. I find no evidence of any disobedience of the order of stay granted by this Court Civil Writ Petition No.11602 of 2007 - 7 - and the plea in contempt also fails. It is accordingly dismissed. No costs. (K.KANNAN) JUDGE 15.12.2009 sanjeev