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2006 DIGILAW 508 (DEL)

RESIDENTS WELFARE ASSOC. MADAN v. D. D. A

2006-03-13

SHIV NARAYAN DHINGRA

body2006
MARKANDEYA KATJU , C. J. ( 1 ) HEARD counsel for the parties. This writ petition is filed against the judgment of the learned Single judge dated 24th November, 2003. The present appeal arises out of a writ petition in which the following prayers were made:-" (a) Issue appropriate writ directing the Respondents Nos. 1 and 2 to complete the construction of Boundary Wall between Pocket E and Village Madanpur khadar, and b) direct the Respondent No. 1 to repair and maintain proper fencing around its vacant plot of land situate between Pocket "e" Sarita Vihar and Village madanpur Khadar, New Delhi. c) Direct the Respondent No. 3 to provide full police protection to ensure that there is no interference, interruption or disruption in raising the boundary wall and the fencing as aforementioned. "in our opinion these prayers should have been made in an injunction suit. There are many matters for which the proper remedy would be an injunction or declaration suit and not a writ petition. However, what is actually happening in a large number of cases is that writ petitions are filed instead of a suit. If this practice is encouraged there may be a flood of writ petitions coming into this Court. In our opinion, for the prayers of declaration and injunction, the writ petitioner should ordinarily be relegated to the remedy of a civil suit, which is the proper remedy. ( 2 ) ALTHOUGH, the writ petition has been allowed, yet it is well-settled that appeal is a continuation of the original proceedings. There is no absolute rule that if a writ petition has been entertained or even allowed it cannot subsequently be dismissed on the ground of alternative remedy. There are a large number of decisions of the Supreme Court where the writ petition had been allowed by the High Court but subsequently in appeal the Supreme Court dismissed the writ petition itself on the ground of alternative remedy e. g. AIR 1984 SC 1512 . ( 3 ) IN view of the above, we allow this appeal and set aside the impugned judgment and dismiss the writ petition on the ground of alternative remedy of filing a suit of injunction and declaration. We make it clear that we are not deciding anything on the merits of the case as that will be decided in the civil suit if filed. The appeal stands allowed. .