BABITA DHANKAR D/O EX. HAV. MOOL CHAND DHANKAR (DELECTED) Vs. UNION OF INDIA THROUGH CHIEF ARMY STAFF, SOUTH BLOCK, NEW DELHI

JUDGEMENT

(1.) By this writ petition, a direction is sought on the respondent No. 2 not to seal public road leading to Kailash Nagar from and to the cantonment area. It is in consonance to the direction/instruction issued on 13th October 1998 and 20.12.2000 in reference to the judgment of the Supreme Court. The prayer is even to demolish the wall (at point E) along with Kendriya Vidyalaya-2.

(2.) Learned counsel for the respondents have raised preliminary objection about maintainability of the writ petition. It is on the ground that prior to filing of the writ petition, a suit in the representative capacity was filed by the resident of Kailash Nagar, Kumawat Colony and Prem Nagar. The suit has been dismissed. An appeal has been filed which is pending consideration. During pendency of the civil litigation, this writ petition was filed in the individual capacity though the civil suit in the representative capacity was pending and now the appeal. An application under Order 41, Rule 27 CPC has been filed in the appeal to bring the instructions/letter dated 13.10.1998 and 20.12.2000 on record. Thus, effectively, for same cause and the prayer, two litigations are going on, though not permissible. It is more so when the civil suit has been filed in the representative capacity. It is further submitted that the instructions referred by the petitioner in prayer clause are not applicable to the present case. It is not a cantonment area rather is an area belonging to South Area Command. It is quite sensitive.

(3.) Learned counsel for the petitioners submits that though civil suit was filed prior to filing of the writ petition but this petition was filed on its own cause. It is when petitioner's father suffered heart attack and was not permitted to use the public road. The prayer in the writ petition is also in consonance to the instructions issued by the respondents themselves. The road in question is a public road and used by the petitioners for last 40 years.