1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR SPL. APPL. WRIT No. 505 of 2008 SMT. INDIRA V/S STATE & ORS. Mr. SAJJAN SINGH, for the appellant / petitioner Mr. A.K.RAJVASHI, RS SALUJA, AND MR. K.M. SINGH for the respondents Date of Order : 20.1.2009 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI SANGEET LODHA,J. ORDER ----- 1. This intra-Court appeal filed under Sec.134 of the Rajasthan High Court Rules is directed against the order dated 29th February 2008 rendered in S.B. Civil Writ Petition No.7068 of 2005 by the learned Single Judge of this Court, by which the petition filed by the appellant has been summarily dismissed and thereby prayer to quash and aside Resolution dated 23rd September 2005 (Annex.6) and the construction permission dated 31st October, 2005 (Annex.7) granted in favour of respondent No.4 by Municipal Corporation, Jodhpur has been refused. 2. The facts of the case are that Smt. Prasan Kanwar purchased Plot No.6 admeasuring 80 ft x 120 ft through auction and got the lease deed in her favour on 11.06.1971. On 12.09.1988, Smt. Prasan Kanwar sold half portion of the said plot as Plot No.6B admeasuring 40 ft x 120 ft. Both the parties i.e. seller and purchaser agreed to the conditions and essentially that the 2 purchaser would construct only in the area measuring 30’ x 120’ and shall leave a common open way and set back measuring 10’ x 120’ at the western side always open and vacate. This condition was for both the parties i.e. for Plot No.6A & 6B vice versa. Thereafter, respondent No.4 moved an application before the Municipal Corporation, Jodhpur and requested to grant him permission for construction on the disputed plot No.6B which was granted by Corporation and respondent No.4 started raising construction over 100% of the land area to which appellant raised objection and asked respondent No.4 to keep set back area open as per the condition of agreement at the time of purchase. The respondent assured him that he would construct as per agreement but kept on raising construction illegally and unauthorizedly. The appellant, on 11.07.2005 submitted a complaint to the Municipal Corporation against respondent No.4 and the Municipal Corporation on 11.07.2005 issued notice to respondent No.4 to stop illegal construction but he did not stop it so appellant filed a suit before learned Civil Judge on 21.07.2005 who granted interim injunction against respondent No.4 vide order dated 22.07.2005. Aggrieved thereby, respondent No.4 filed an appeal before the learned Addl. District Judge No.3, Jodhpur, who amended the order passed by learned Civil Judge and directed that no further construction shall be raised without prior permission of the Municipal Corporation. Later on, respondent No.4 submitted revised map before the Municipal Corporation and requested to settle the matter by deposit of compounding charges. The matter was taken up by the Building Construction & Regulation Committee held on 23.09.2005 and respondent No.2 issued an order of compounding charges amounting to Rs.1,77,742 and permitted respondent No.4 vide order dated 31.10.2005 to construct building over the land in question. The appellant, therefore, filed writ 3 petition and prayed for the reliefs to which reference has been made in the earlier pargraph of the judgment. 3. Respondent No.4 raised preliminary objection before the learned Single Judge about the maintainability of the petition as the appellant had already filed a civil suit being Civil Suit No.108 of 2005 – Indira Vs. Sohan Raj in the Court of Addl. Civil Judge (Jr.Div.) No.1, Jodhpur, seeking injunction against construction at the said site by respondent No.4 and also for demolition of the alleged illegal construction. The learned Single Judge after considering submissions advanced by the learned Advocate appearing for the parties and also considering the preliminary objections, dismissed the petition summarily with liberty in favour of the appellant to raise the issues raised in writ petition in the civil suit filed by her, which has given rise to the instant intra-court appeal at the instance of the original plaintiff-appellant. 4. We have considered the submissions advanced by learned counsel for the appellant. We have also perused the impugned order dated 29th February 2008 passed by learned Singe Judge. 5. Mr. Sajjan Singh, learned Advocate for the appellant submitted that the issues involved in the suit and the writ petition are based on different cause of actions. According to him, as per the terms of the sale deed, under which wife of respondent No.4 had sold half portion of said plot No.6 which in total measured 80’ x 120’ to the appellant by a registered sale deed wherein it was clearly agreed by the parties that both the parties will leave 10 ft each at the centre of the respective portions of the appellant and respondent No.4 for 4 proper light and air whereas contrary to the said terms in the sale deed respondent No.4 has raised construction on his portion covering said 10 ft also and such illegal construction has been regularized by the Municipal Corporation by taking composition fee, which is illegal, hence writ petition has been filed. 6. The appellant in substance has challenged the Resolution dated 23rd September 2005 (Annex.6) passed by the Municipal Corporation, Jodhpur and the construction permission dated 31st October, 2005 (Annex.7) granted in favour of respondent No.4. There is no dispute to the fact that the appellant has filed Civil Suit No.108 of 2005 seeking injunction against raising of construction by respondent No.4 at the disputed land which is still pending. So far as subsequent development taking place during the pendency of the suit is concerned, appellant can very well seek appropriate amendment in the suit and get the said suit tried on merits. If this Court adjudicate the issue raised in the civil suit then it may cause prejucide to either of the parties in a pending suit. When the appellant has already availed the remedy of filing civil suit, he cannot ride on two horses by filing this petition for the same cause, as is rightly observed by learned Single Judge. This, according to us is amounting to abuse of process of the Court. 7. The contention of the learned counsel for the appellant that the subsequent developments entitled the appellant to file the writ petition is also misconceived because if the appellant is aggrieved by the resolution passed by Municipal Corporation he has a remedy under Sec.285 of the Rajasthan Municipalities Act, 1959 (for short, ‘the Act’), which empowers the officer 5 appointed or authorized by the State Government to suspend the execution of the Resolution. Appellant has not availed that remedy under Sec.285 of the Act. 8. Similarly, the appellant has also challenged the granting of permission for construction in favour of respondent No.4. This order is also appellable under sub-sec.(12) of Sec.170 of the Act which in terms stipulate that if any person is aggrieved by an order of a board under clause (a) or clause (b) or clause (c) of sub-sec.(11) may, within thirty days from the date of such order, file an appeal before the Collector but the appellant has also not availed this remedy and without availing the remedy under both these Sections i.e. Sec.285 as well as 170(12) of the Act, straightway approached this Court by filing writ petition. It is settled proposition of law that when alternative remedy is available, normally writ court should not interfere. Therefore, on this count also the writ petition filed by the appellant deserved to be rejected in limine. 9. We find ourselves in complete agreement with the finding, conclusion and resultant order passed by the learned Singh Judge as according to us no other finding, conclusion or order could have been possible on the facts and circumstances emerging from the record of the case and in overall view of the matter, the writ petition filed by the appellant deserves to be dismissed on the ground that a civil suit is pending as well as appellant has not availed the alternate remedy provided under the Act. 10.In aforesaid view of the matter, according to us, learned Single Judge rightly dismissed the writ petition summarily reserving liberty in favour of the 6 appellant to raise the issues in the pending civil suit which were raised in writ petition. 11.Seen in the above context, the appeal lacks merit, deserves to be dismissed and accordingly it is dismissed. No order as to costs. ( SANGEET LODHA ),J. ( AM KAPADIA ),J. jpa/