TaxTMI 
TaxTMI 
2022 (10) TMI 1309
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....vate respondents are living in the close vicinity of each other and are in possession of the proprietary land. The case of the petitioner is that in the year 2021, the private respondents 5 to 8 started dumping of building material for renovation of their old structure and feeling aggrieved of the same, the petitioner approached the civil court by way of the suit and the learned court directed the parties to maintain status quo. However, the private respondents subsequently produced the permission/sanction granted by Municipal Corporation vide order No.235 of 2021 dated 17.07.2021, which reads as under:- "....for restoration of existing double storey with attic residential house over existing parameters without any change in shape size height and without dismantling the structure on the plot of land compromising survey No. 894/2. And the total built up area 805.0 s. fts. & attic floor 402.0 s. fts...." 3. Further stand of the petitioner is that the private respondents under the garb of the permission started to dismantle the existing structure and started to construct the new structure without adhering to the terms and conditions of the building permission by dismantlin....
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....n and, accordingly, submitted that the order impugned cannot sustain the test of law and is liable to be set aside. 8. Per contra, Azhar-ul-Amin, learned counsel for private respondents 5 to 8 has raised an issue with regard to maintainability of the present writ petition in light of the fact that the petitioner has already availed the remedy of filing the suit before the civil court and had obtained status quo order on misrepresentation of the fact that the construction has been undertaken by the private respondents without any sanction/permission. Learned counsel further argued that permission has already been granted in favour of the private respondents by the competent authority, the petitioner immediately withdrew the said suit as not pressed after the private respondents filed the written statement and brought the permission/sanction on record. He further argued that the permission for restoration/re-construction on the existing parameters was granted vide order No. 235 of 2021 dated 19.07.2021. Learned counsel has also argued that the Tribunal has discharged the caveat on the ground of the petitioner having no locus standi and had recorded the finding that the houses of t....
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....ounsel has argued that the present writ petition is not maintainable, as by virtue of the aforesaid writ petition, challenge has been thrown to the building permission granted by the statutory authority in favour of the private respondents and the official respondents were directed to restrain to act under the enabling provisions of the statute, which is not permissible. 11. This Court vide Order dated 07.09.2022, granted last and final opportunity to the official respondent Nos. 2 to 4, to file reply within four weeks but inspite of this, reply has not been filed till date. 12. When the case was taken up today, Mr. Moomin Khan, learned counsel for the respondent Nos. 2 to 4 submits that he does not wish to file reply and sought permission of this Court to address arguments in absence of the reply. He was permitted to make submissions, accordingly, he argued that the writ petition is not maintainable and is liable to be dismissed as the petitioner has no locus to call in question the order passed by the Tribunal wherein he was not the party in the proceedings. Besides, he has also argued that the petitioner has an alternate and efficacious remedy available under the statue. I....
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....writ petition, but both cannot be pursued simultaneously. It would be advantageous to reproduce paragraph 4 of the aforesaid judgment hereunder: 4. So far as the second point is concerned, the High Court relies upon the ordinary rule of construction that where the legislature has passed a new statute giving a new remedy, that remedy is the only one which could be pursued. It is said that the Taxation on Income (Investigation Commission) Act, 1947, itself provides a remedy against any wrong or illegal order of the Investigating Commission and under Section 8(5) of the Act, the aggrieved party can apply to the appropriate Commissioner of Income Tax to refer to the High Court any question of law arising out of such order and thereupon the provisions of Sections 66 and 66-A of the Indian Income Tax Act shall apply with this modification that the reference shall be heard by a Bench of not less than three Judges of the High Court. We think that it is not necessary for us to express any final opinion in this case as to whether Section 8(5) of the Act is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided....
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....ing the same subject-matter. The Court held that suit was not maintainable as a person cannot be permitted to pursue two parallel remedies in respect of the same subject-matter at the same time. 18. In Bombay Metropolitan Region Development Authority, Bombay v. Gokak Volkart Ltd., (1995) 1 SCC 642 : (1995 AIR SCW 808), the petitioner therein had filed a writ petition during the pendency of the appeal before the Statutory Authority. The Hon'ble Apex Court held that such a writ was not maintainable. 19. Thus, from the aforementioned enunciation of law, it is clear that a person may have a right to choose the forum for redressal of his grievance, but he/she cannot be permitted to choose two forums in respect of the same subject-matter for the same relief. If parallel proceedings are allowed, they may give rise to forum hunting, wherein, a party who filed a suit and was not able to get the interim relief abandons the remedy before the civil Court and approaches the remedy of filing the writ petition, it will amount to abuse of the process of the Court by forum hunting. 20. In the peculiar facts and circumstances of the present case, it is emphatically clear that the presen....
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....arged. The petitioner has no locus standi to challenge the order of the Tribunal as the petitioner was a stranger to the proceedings before the J&K Special Tribunal, Srinagar. The petitioner has filed the present writ petition challenging the order of the Tribunal, whereby no adverse order has been passed by the Tribunal, and has yet to become party and has got interim order which is harshly working against the private respondents by virtue of which the official respondents have been restrained to consider the case of the private respondents for regularization of minor deviations under the enabling provisions of the Master Plan-2035 and the Srinagar Municipal Corporation (Building) Bye-Laws. The Tribunal has also recorded the finding that the caveator (petitioner herein) has no locus standi as the houses of the petitioner and the private respondents are separated by 11 feet public pathway. This was precisely the reason that the caveat was discharged. 24. Furthermore, the petitioner, with a view to mislead this Court and to get the interim order, has deliberately suppressed the factum of filing appeal before the civil court against the order of withdrawal of the suit and the said....
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.... the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible." b. In Udyami Evam Khadi Gramodyog Welfare Sanstha and another v. State of Uttar Pradesh [(2008) 1 SCC 560], at paragraphs 16 and 17, the Hon'ble Apex Court, held as follows: "16. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law. In Advocate General, State of Bihar v. M.P. Khair Industries[(1980) 3 SCC 311], this Court was of the opinion that such a repeated filing of writ petitions amounts to criminal contempt. 17. For the reasons aforementioned, there is no merit in th....
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....nt case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years. 26.Thus, from the aforementioned pronouncements, the law has been settled that suppression of any material fact amounts to abuse of the process of law and amounts to fraud and would deprive an unscrupulous litigant from availing equitable or discretionary remedies under Article 226 of the Constitution of India. In the present case, the petitioner, with a view to mislead this Court and to get the interim order, has deliberately suppressed the factum of filing appeal before the civil court against the order of withdrawal of the suit and the said appeal is pending disposal as on date before the court of learned 3rd Additional District & Sessions Judge Srinagar. In these circumstances, the petitioner is not entitled to claim the discretionary remedy available under Article 226 of the Constitution of India. CONCLUSION:- 27.For what has been stated hereinabove and in the light of the settled legal position: - I. I, hold that the present writ petitio....