SBCWP 7068/05 – Smt. Indira V/S State and ors. : JUDGMENT DTD.29.2.2008 1/7 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.7068/2005 Smt. Indira versus The State of Rajasthan and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr. Sajjan Singh, for the petitioner. Mr.K.N. Joshi } Mr.R.S.Saluja } for the respondents. Mr.A.K.Rajvanshi } DATE OF JUDGMENT : 29th February, 2008. JUDGMENT 1. This writ petition has been filed by the petitioner challenging the impugned construction permission given by the Municipal Corporation, Jodhpur to the respondent No.4 for raising construction on his plot No.6B situated at Chopasani Road, Jodhpur and compounding of alleged deviations in construction raised by the respondent No.4 over the said plot, under the provisions of Rajsathan SBCWP 7068/05 – Smt. Indira V/S State and ors. : JUDGMENT DTD.29.2.2008 2/7 Municipalities (Compounding and Compromising of Offence) Rules, 1966 (hereinafter referred to as the Rules of 1966). 2. A preliminary objection has been raised by the respondent No.4 to the maintainability of the writ petition on the ground that the same petitioner has already filed a civil suit, namely, Civil Suit No.108/2005 – Indira V/s Sohan Raj in the Court of Additional Civil Judge No.1 (Jr. Division), Jodhpur in which the plaintiff – petitioner herein had sought relief of injunction against construction at the said site against the defendant No.1 – respondent No.4 herein and also for demolition of alleged illegal construction. 3. The learned counsel for the petitioner Mr. Sajjan Singh on the said preliminary objection submitted that the said suit was merely for injunction and the issue involved in the present writ petition is a different cause of action and the present writ petition is directed against the illegal grant of permission to raise construction and illegal compounding of the deviations in the construction raised by the respondent No.4. He submitted that as per the terms of sale-deed under which the wife of respondent No.4 had sold ½ portion of said plot No.6 which in total measured 80 ft. x 120ft, namely, 40 ft. x 120 SBCWP 7068/05 – Smt. Indira V/S State and ors. : JUDGMENT DTD.29.2.2008 3/7 ft to the present petitioner by a registered sale-deed Annex.1 dated 12.9.1988, it was clearly agreed between the parties that both the parties would leave 10 ft. each at the centre of the respective portions of the petitioner and the respondent No.4 for proper light and air, whereas contrary to the said terms in the sale-deed, the respondent No.4 has raised construction on his portion covering said 10 ft. also by construction and such illegal construction has been regularized by the Municipal Corporation by taking composition fee, which according to the petitioner is illegal and hence he has filed this writ petition. The learned counsel for the petitioner has also cited certain authorities in support of his submission which need not be dealt with herein for the reasons given hereinafter. 4. Mr. R.S. Saluja, learned counsel for the Municipal Corporation has supported the orders of compounding and grant of permission in favour of respondent No.4 and has submitted that the same was done in accordance with the provisions of Rules of 1966 and therefore, the writ petition deserves to be dismissed. 5. Mr. K.N. Joshi, the learned counsel for the respondent No.4 has drawn attention of the Court towards a resolution passed by the Urban SBCWP 7068/05 – Smt. Indira V/S State and ors. : JUDGMENT DTD.29.2.2008 4/7 Improvement Trust on 31.3.1998, Annex.R/5 on record, whereby the requirement of leaving set back was waived by the Urban Improvement Trust on the specified areas including the said road from Bombay Motors Chauraha to Akhliya Chauraha. He, therefore, contended that not only the respondent No.4 has left 10 ft. space as agreed in the sale-deed and merely because the respondent No.4 has raised boundary wall at the centre of these two respective portions of the plot in question, the petitioner who was misusing part of the land of respondent No.4 also and has been thus prevented by raising of wall, therefore, the petitioner is trying to create all sorts of problem for respondent No.4 and has dragged the respondent No.4 to this Court even though the Civil Suit already filed by the petitioner is pending in the competent Court. He submitted that even if some deviation is there in the construction, the same has been regularized by the Municipal Corporation in accordance with 1966 Rules and no exception can be taken to the same by the petitioner and it is between the respondent No.4 and the Municipal Corporation. He, therefore, prayed for dismissal of the writ petition with costs. He also relied upon certain law precedents. SBCWP 7068/05 – Smt. Indira V/S State and ors. : JUDGMENT DTD.29.2.2008 5/7 6. I have heard the learned counsel for the parties and perused the record. 7. In the considered opinion of this Court, the petitioner has unnecessarily approached this Court by way of present writ petition, when admittedly, the Civil Suit filed by her, namely, Civil Suit No.108/2005 seeking injunction against raising of construction by the respondent No.4 at this site itself is pending in the said Court. For any subsequent development taking place during the pendency of said Suit, the plaintiff – petitioner herein could very well seek appropriate amendment in the suit and get the said suit tried on merits. Allowing the petitioner to pursue the present writ petition while the said suit is still pending which was stated by the learned counsel for the petitioner to be at the stage of plaintiff's evidence, would be to permit the petitioner to ride on two horses. This in the opinion of this Court would amount to abuse of process of this Court. 8. The contention of the learned counsel for the petitioner that the subsequent cause of action, namely, grant of permission by the Municipal Corporation to raise construction and compounding of deviation in the construction entitles the petitioner to file this writ SBCWP 7068/05 – Smt. Indira V/S State and ors. : JUDGMENT DTD.29.2.2008 6/7 petition is, with respects, misconceived. Whether the permission could be granted or not, whether the construction has some deviations or not, whether compounding was in accordance with Rules of 1966 or not etc. are questions of facts or atleast mixed questions of facts and law, which would depend upon appreciation of evidence brought before the Civil Court. Merely alleging such compounding to be illegal, is not sufficient. Same has to be proved to be contrary to the Rules or without jurisdiction for invoking writ jurisdiction. Prima facie this Court is satisfied that this cannot be permitted while the Civil Suit filed by the petitioner is already pending. 9. The judgment cited by the learned counsel for the petitioner, namely S.Shanmugha Velayudaswamy Gounder V/s State of Tamil Nadu and ors. in AIR 2003 Madras 57 where the writ petition was entertained by the Court against exemption from Building Rules given in a particular case is on different footing. In that matter the Civil Suit filed by the petitioner had already been dismissed by the Civil Court on the ground that application for exemption was pending before the Government. Thus, no parallel remedy was available to the petitioner in that case. The reliance placed by the learned counsel for the petitioner on some other judgments are not SBCWP 7068/05 – Smt. Indira V/S State and ors. : JUDGMENT DTD.29.2.2008 7/7 discussed in detail here for the reason that if such discussion is made and any observation is made on the merits of the case while disposing of this writ petition, it may cause prejudice to the trial of the Civil Suit by the trial Court, therefore, advisedly this Court refrains from making any observations on merits of the case. 10. Accordingly this writ petition is dismissed summarily with the liberty to the petitioner to raise the issue raised in the present writ petition in the Civil Suit already filed by her namely, Civil Suit No.108/2005 which is pending in the Civil Court. No order as to costs. (Dr.VINEET KOTHARI)J. Item No. Ss/-