Heard Sri Swapnil Kumar, learned counsel for the petitioner and Sri C.B. Gupta, learned counsel for the respondents.
Cantonment Board, Agra issued notice to the petitioner dated 8th/13th August, 2008 stating therein that he has raised unauthorized construction of one hall measuring 47'-0" x 47'-8" towards north west of Bungalow No. 166, Agra Cantt., Agra, which was an offence under Section 247 of the Cantonment Act, 2006 (herein after referred to as the 'Act, 2006'). Petitioner was called upon to show-cause by 8th/15th August, 2008 as to why he may not be prosecuted under Section 247 of Act, 2006 and the constructions raised be not demolished in exercise of powers under Section 248/320 of the Act, 2006. Petitioner is stated to have submitted his reply to the said notice on 13th/18 August, 2008 stating that he was replacing the tinshed with the support of the iron angles, which was constructed in December, 1990 under the deemed-sanctioned within the knowledge of hate Staff of the Cantonment Board, Agra. Explanation so furnished by the petitioner was considered by the Cantonment Board and under Resolution No. 86 dated 30th August, 2008, petitioner was called upon to demolish/remove the construction raised. A letter dated 1st October, 2008 was forwarded to the petitioner under the signatures of the Chief Executive Officer communicating the said decision of the Cantonment Board. Petitioner filed an appeal under SEction340 read with 341 and 342 of Act, 2006. The appeal has been dismissed under the order dated 16th February, 2010. It is against this oder that the present writ petition has been filed.
From the records of the present writ petition, this Court finds that the petitioner filed original suit no. 749 of 2008 (Zaki Ahmad versus Cantonment Board, Agra) in the court of Civil Judge (Senior Division), Agra for prohibitory permanent injunction on 2nd May, 2008. The relief prayed for in the suit was that the Cantonment Board and its Staffs may be restrained by a prohibitory permanent injunction from entering into the house of the petitioner i.e. Bungalow No. 166 without prior to notice under Section 308 (2) of the Act, 2006 and from causing any resistance and interference in the replacement of the new leafs of tinshed on light iron guarders and standing pillers, more appropriately described in the plaint itself. Along with the plaint, an add interim injunction application was also made. On the add interim injunction application, the trial court refused to grant any ex parte injunction and directed that notices be issued to the Cantonment Board fixing 15th May, 2008 as the date. On 26th May, 2008 objections were filed on behalf of the Cantonment Board to the injunction application.
On 9th August, 2008, the case was adjourned because the Presiding Officer was on leave and was directed that the case will be taken up on 15th September, 2008. This became the cause for the petitioner to approach the High Court by means of Civil Misc. Writ Petition No.1007 of 2008 with the allegation that the suit proceedings are being adjourned by the trial court day after day without considering his temporary injunction application and there was an apprehension that his constructions would be demolished. The writ petition was presented before this Court on 13th October, 2008. As already noticed above, in the meantime notices have already been issued to the petitioner under Section 247 of Act, 2006 to be precise on 13th August, 2008 to which he submitted reply on 18th August, 2008 and thereafter the decision of the Cantonment Board was communicated to the petitioner on 1st October, 2008.
Despite the aforesaid facts being well within the knowledge of the petitioner, he did not make any statement of these facts in his said writ petition. The writ petition filed by the petitioner is completely silent about the notice, the reply submitted thereto and decision taken of the Cantonment Board dated 30th August, 2008. The aforesaid writ petition was disposed off vide order dated 17th October, 2008 granting stay for a period two months with a direction that interim injunction application filed along with the suit shall be considered and decided on merits within the said period. Relevant Portion of the order passed by this Court dated 17th October, 2008 is being quoted herein below:
"The Court below is directed to decide the application for temporary injunction moved by the petitioner within a period of two months from the date of production of certified copy of the order passed by this Court before the court concerned.
Till then the respondent is restrained from demolishing the disputed construction over the suit property and the petitioner shall also not change the nature of suit property during the pendency of suit.
However, temporary injunction granted by this Court should not be understood that I have applied mind on merit of the case and determined the rights of the parties on merits. Accordingly, the trial court shall proceed to decide the application for temporary injunction on merit without being influenced by the aforesaid interim injunction granted by this Court and observation made in this regard."
On behalf of the petitioner this second writ petition has been presented before this Court challenging the order of the appellate authority. In paragraph-8 of the present writ petition reference was made to the earlier writ petition filed by the petitioner without disclosing the exact order passed thereon.
The Court summoned the original records of the writ petition no. 1007 of 2008 today itself and noticed the facts recorded above.
I am of the considered opinion that the persons like the petitioner, who obtain an order on concealment of material facts and deliberately do not disclose complete facts, do not deserve any sympathy of this Court. Even otherwise, it is apparent that the petitioner has already filed a civil suit for protecting the construction raised. The order passed by the trial court on the temporary injunction application, as directed by the Writ Court on 17th October, 2008 has not been brought on record. Petitioner cannot avail two remedies practically for the same relief at same time.
The present writ petition is therefore, dismissed with cost of Rs. 10,000/-. The same shall be deposited by the petitioner within a month from today before the Registrar General of this Court, who shall transmit the same in the account of "High Court Legal Services Committee, Allahabad", failing which the same shall be recovered by the District Magistrate, Agra from the petitioner as arrears of land revenue within a period of one month thereafter and the same shall be transmitted to the Registrar General of this Court.
(Arun Tandon, J.) Order Date :- 15.9.2010 Sushil/-