Hon'ble Alok Mathur,J.
Mohammad Aslam Khan, leaned Advocate appearing on behalf of petitioner by filing his Vakalatnama which is taken on record.
Supplementary affidavit filed by the petitioner is taken on record.
The writ petition has been filed to the following prayers which are quoted herein below:-
"i. issue a writ, order or direction in the nature of Mandamus commanding the opposite party No. 1 to 5 to restrain the opposite party No. 6 to 8 to stop the illegal construction on pavement road in the Sahan Land of the petitioner with immediate effect"
The perusal of the prayer shows nothing, but to command opposite party Nos. 1 to 5 to restrain opposite party Nos. 6 to 8 to raise illegal construction of pavement road. The petitioner has approached the Civil Court to seek injunction by filing a suit for permanent injunction. An application for grant of temporary injunction was also filed. The notice on the suit was also issued on 10.12.2018. The matter was posted on 17.01.2019. On 10.12.2018 itself a further direction was given for inspection of the site. Since petitioner has already taken an remedy to seek a restraint order by approaching the Civil Court, simultaneously proceedings by filing writ petition would not be permissible. One and same parties cannot take two remedies simultaneously, rather it has to be deprecated.
Learned counsel for the petitioner has urged about constitutional right in the property. The land could not have been used for construction of the pavement/road without acquisition.
The merit of the issue cannot be addressed when the matter in reference to same pleas is pending before the Civil Court. It is more so when the petitioner has not disclosed complete facts pertaining to the Civil Court's proceedings despite a supplementary affidavit filed today. It does not disclose about the development of the suit as to what happened after 17.01.2019.
Learned counsel for the petitioner, orally stated that no progress in the civil suit has been made and accordingly petitioner was left with no option but to file a writ petition to secure his constitutional right as granted under Article 300A of the Constitution of India. It is also stated that matter was sent for the Mediation by this Court but due adamant attitude of the Pradhan, no settlement could be arrived. Taking aforesaid to be an exception, the writ petition may not be thrown on the ground of maintainability.
We have considered the submissions of the learned counsel for the petitioner. We find that a remedy to seek a restrain order, as prayed in the present writ petition, has already been taken by filing a Civil Suit. Simultaneously writ petition cannot be maintained for the same prayer. It cannot be only for the the reason that by an interim order, the matter was sent to the Medication by this Court and it has failed.
Simultaneously proceedings by the same party needs to be deprecated as it involves nothing but multiplicity of the litigation. We are not commenting on the merit because it would be considered by the Civil Court, but matter needs to be expedited by the Civil Court. Accordingly while dismissing the writ petition, the Civil Court is directed to expedite the proceedings of the pending Civil Suit.
Learned Civil Court would take note of all the arguments raised by the petitioner in the pending suit and would appropriately passed the order as per the provisions of law.
Order Date :- 30.8.2019 A.K. Singh