Right To Choose Forum For Redressal Of Grievance Does Not Permit Choice Of Two Forums For Same Reliefs: J&K&L High Court Imposes 50K Cost

The observations and the penalty to that effect was passed by a bench comprising Justice Wasim Sadiq Nargal while dismissing a plea filed by Tanzeem Khursheed Zargar challenging an order passed by J&K Special Tribunal Srinagar on May, 02, 2022 whereby his application for impleading him as a necessary party in a case relating to demolition orders was rejected.

The court observed that the petitioner has not come to the Court with "clean hands".

Background

The petitioner and the private respondents live in close vicinity and it is the case of the petitioner that private respondents started dumping building material for renovation of their old structure. Pursuant to the complaint of the petitioner, the official respondents took note of the violation of the building permission granted to the private respondents, and issued demolition notice under Section 235(1) of J&K Municipal Corporation Act, 2000.

High Court noted that the Petitioner had already filed an appeal before the civil court, which is pending adjudication before the court of 3rd Additional District & Sessions Judge, Srinagar.

It held that 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."

"I, hold that the present writ petition is not maintainable and is liable to be dismissed as the same is sheer abuse of process of the Court as the petitioner has already initiated parallel proceedings by way of filing appeal against the order passed by the court of learned 3rd Additional District & Sessions Judge Srinagar, which is pending adjudication before the said court involving the same issue in question, which is subject matter of the present writ petition," the court said.

The court held that the petitioner has no locus to call in question the order passed by the Tribunal, wherein the appeal has been preferred by the private respondents against the order of demolition issued by the Srinagar Municipal Corporation, in which the petitioner is not a party and wherein no adverse order has been passed against the petitioner.

The bench recorded that the petitioner has deliberately suppressed the material fact of filing appeal before the court of 3rd Additional District & Sessions Judge Srinagar against the dismissal/withdrawal of the suit filed by him with a view to mislead this Court and to get interim order.

Justice Nargal ruled 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," the court underscored.

In these circumstances, the bench said, the petitioner is not entitled to claim the discretionary remedy available under Article 226 of the Constitution of India.

The court noted that the present writ petition is totally an abuse of process of Court, more particularly, when the petitioner has already availed the remedy of filing appeal against the order dated May, 05, 2022 by virtue of which the civil suit along-with the interim application was dismissed in a Civil Suit filed by the petitioner by way of misrepresentation of the facts seeking stay on the construction by urging that the construction was undertaken by private respondents without any permission.

The bench pointed out that when the private respondents filed the written statement before the civil court and the sanction/permission was brought on record, the petitioner immediately withdrew the aforesaid suit as the petitioner anticipated the fate of the said suit.

After having failed before the civil court, the court noted, the petitioner has chosen to file the present writ petition against the order of the Tribunal, in which his caveat was discharged.

"Once the petitioner has chosen to file an appeal before the civil court, she, by no stretch of imagination can initiate parallel proceedings before this Court under Article 226 of the Constitution of India by abandoning the remedy before the civil Court and approach the remedy of filing the writ petition. Thus, the present writ petition tantamount to abuse of the process of Court", the bench said.

In order to buttress the adopted course the bench found it worthwhile to record the observations of supreme court in A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani, AIR 1961 wherein SC had observed that even where a party has approached the alternative forum, the Court should entertain a writ petition or not, a straitjacket formula cannot be formulated and the Court may examine the facts and circumstances of the case and decide as to whether it was to entertain the petition or not. SC however had maintained that where the petitioner has already approached the alternative forum for appropriate relief, it is not appropriate that the writ petition should be entertained and this rule is based on public policy and motivating factor is that of existence of the parallel jurisdiction in another Court.

"The petitioner has, accordingly, abused the process of court by filing the writ petition and accordingly, this is a fit case where cost of Rs.50,000 is imposed upon the petitioner to deprecate such practice of forum hunting and suppression of material facts," Justice Nargal concluded.

Case Title : Tanzeem Khursheed Zargar Vs J&K Special Tribunal & Ors.

Citation : 2022 LiveLaw (JKL) 201

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