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2007 DIGILAW 1418 (PAT)

Atul Chandra Gupta v. Patna Municipal Corpn.

2007-08-28

NAVANITI PRASAD SINGH

body2007
Judgment 1. The petitioner claims to be the part owner of certain lands. He submits that in 2003 he had Instituted a partition suit as against respondent No. 3 and others, After the suit was instituted respondent No. 3 entered into an agreement with respondent No. 4 (hereinafter referred to as the Builder) and pursuant thereto an application was filed before the Patna Regional Development Authority (PRDA) for sanction of plan for a multi storey building thereon, PRDA treating respondent No. 3 and others to be the owners, sanctioned the plan. Subsequently, in 2004 an injunction application was filed in the said partition suit by the petitioner. In the said injunction application, petitioner had prayed for maintaining status quo for restraining respondent No. 3 and others from alienating the property or changing the physical feature of the property. It appears that he also filed an application before PRDA saying that the sanction of the plan was obtained by fraud and as such the sanction must be recalled. PRDA temporarily stopped the construction, which had also begun pursuant to sanction granted. It is not in dispute that PRDA noticed the owner/ developer and after hearing the petitioner and others refused to interfere noticing that the parties were in dispute in civil Court but no injunction had been granted. 2. It is now virtually this decision of the PRDA which is in challenge. Pursuant to notice issued by this Court by order dated 3.07.2007 respondent Nos. 3 and 4 have appeared and filed counter affidavits and interlocutory application for vacating the exparte interim order passed on that date. 3. The respondents have brought on record the facts that these lands were purchased almost 40 years back and the names of other persons therein were the names of their employees, who were at that time their benamidars. It is asserted that this was known to all and therefore they had never asserted their right in respect of the property. The land revenue receipts were in exclusive name of respondent No. 3 for the entire land. It is asserted that this was known to all and therefore they had never asserted their right in respect of the property. The land revenue receipts were in exclusive name of respondent No. 3 for the entire land. In 1992 when respondent No. 3 came to know that the petitioner was seeking to negotiate for sale of his alleged interest in the land, he had sent a legal notice to the petitioner and also published in three news papers, a warning to general public asserting their individual exclusive right on the entire land to the exclusion of the petitioner. These were never responded to by the petitioner and it is 11 years later that the partition suit is now being filed. 4. One very important aspect of the matter was brought on record i.e. the final order in the matter of injunction, as sought for by the petitioner in the said partition suit. By order dated 7.06.2007 the trial Court finally disposed of the injunction matter refusing to grant injunction, As indicated above, injunction application was filed in 2004 even before PRDA had sanctioned the plan, By injunction they had sought to restrain the respondent No. 3 from creating third party interest, transferring or alienating the property or incumbering the property in any manner. This prayer after due contest was rejected by a Court of competent jurisdiction, though the interest of the petitioner was preserved, dependent on the final result of the suit. It has been asserted that this fact was known to the petitioner that he had lost the injunction matter on 7.06.2007 but while arguing the matter for admission on 3.07.2007 and praying for an interim relief before this Court, this matter was not brought to the notice of the Court and thereby material facts were concealed and an interim order obtained. 5. Mr. R. B. Mahto and J. S. Arora, learned counsel appearing for respondent Nos. 3 and 4 rightly submits that the petitioner having taken recourse to civil Court in a matter which is now subjudice cannot be permitted to achieve indirectly what he has failed to get directly from the civil Court. 5. Mr. R. B. Mahto and J. S. Arora, learned counsel appearing for respondent Nos. 3 and 4 rightly submits that the petitioner having taken recourse to civil Court in a matter which is now subjudice cannot be permitted to achieve indirectly what he has failed to get directly from the civil Court. In other words, he submits that the matter being subjudice before the civil Court, injunction having been refused, what he is seeking to achieve by this writ petition is an injunction against the respondents which has been denied by the Court of competent jurisdiction. 6. Having considered the matter I find it difficult to interfere in this matter in this jurisdiction. Petitioner asserts a joint or co-ownership. Respondents assert exclusive ownership. Matter is before a competent civil Court. This Court in such matters, as between two individuals, would not like to interfere. The matter that the concerned respondents had sought sanction from PRDA, had started constructions were all within the knowledge of the petitioner. The constructions are almost completed and a third party agreement has been entered into. Some third parties who were without notice and bona fide purchasers have taken possession but the petitioner chose to move this Court in 2007, after all this was done. Even PRDA was moved in August 2008 by then substantial construction had already been completed. 7. In my view, considering the facts that injunction has been rejected by the Court of competent jurisdiction permitting third party interest to be created and that too of persons who were bona fide purchasers without notice, and moving the authorities and this Court belatedly, it would net be a proper case to interfere at this stage. But, before parting I must observe that whatever has been done by the parties would always be subject to the result of the litigation as between the parties in the suit pending before the civil Court. 8. This writ petition stands disposed of accordingly.