Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 30.11.2005. Heard learned counsel for the parties and perused the record.

2. The prayer in the writ petition was for a mandamus directing the respondents not to obstruct the petitioners to build up their driveway/boundary wall as per the sanctioned plan of the property over the land allotted to them by lease deed dated 26.5.1971. The petitioner has also prayed for a mandamus restraining the respondents from making any construction on the strip of land measuring 22.6 ft. x 120 ft. in width on the eastern side of the petitioners house. Petitioner also prayed for a direction for demarcation of the property as per the lease deed and the sanctioned plan of the petitioner.

3. The facts of the case are that the Land and Development Officer (L. and D.O.) had leased out a plot of land having demarcation admeasuring 1067 sq. yards situated at Plot No.DD-13 in Kalkaji Rehabilitation Colony, New Delhi to Shri O.P.Bhasin vide lease deed dated 26.5.1971. On the death of Shri O.P.Bhasin, same was substituted in the name of his legal heirs. The legal heirs of Shri O.P.Bhasin sold the property to M/s Ravi Industrial Promotions Limited and M/s Giltedged Industrial Securities Limited.

4. The petitioner claimed to be the lessee of the said property by virtue of the agreement to sell dated 28.6.95 with M/s Ravi Industrial Promotions Limited and M/s Giltedged Industrial Securities Limited. Copies of the agreement to sell and purchase are Annexure P-III to the writ petition.

5. It is alleged in para 2 of the writ petition that MCD is trying to construct a pavement on the strip of land belonging to the petitioner.

6. M/s Ravi Industrial Promotions Limited and M/s Giltedged Industrial Securities Limited had entered into an agreement on 24.3.93 with M/s Richi Industrial Private Ltd for construction on the said plot of land and erection of a building comprising of basement, ground floor, first floor and second floor on the said plot of land vide MCD sanctioned plan and MCD Sanctioned Elevation Plan for the construction of the building dated 22.9.92. The copies of the said Sanctioned Plans are Annexure P-II to the writ petition.

7. It is alleged that by virtue of the aforesaid agreement M/s Richi Industrial Private Limited became owner of 50% share of total constructed areas and common areas etc.

8. It is alleged in para 3.8 of the writ petition that as per the approved plan and schedule in the lease deed the driveway/parking space of area 22.6 x 120 feet was to be maintained for the usage of petitioners for driveway/parking their vehicles etc. In front of the parking place/driveway there was a small passage connecting the G Block with the DD Block. It is alleged that the said passage had never been the main entrance of the G Block colony. It is alleged that G Block residents welfare association has constructed a gate thereon on their side enclosing their G Block which hardly opens for a very few hours and it is not a regular main connecting entrance of the said G Block colony. It is alleged that the said passage was converted into a lane with a mala-fide intention of residents of the G Block association in collusion with the respondents. Moreover, there exists a service lane between G Block and DD and PT Block colony on the south side of petitioners property.

9. It is alleged in para 3.13 of the petition that in the month of January 2001 the petitioners tried to construct a boundary wall for their driveway/parking space on the said strip admeasuring 22.6 x 120 feet, but the residents welfare association of G Block objected to it and at their instance the local police intervened and stopped the petitioners from constructing the boundary wall covering the entire parking space of open area of land of their own being 22.6 x 120 feet. By letter dated 14.1.2001 the SHO Police Station Kalkaji directed the petitioners to get the demarcation done of the boundary and construct the driveway/boundary wall. It is alleged that on 18.3.2005 some labourers along with some officials at the instance of the Respondent No.1 MCD came at the property No.DD-13, Kalkaji Extension, New Delhi and were trying to construct a pavement on the strip of land, which is the sanctioned and approved driveway/parking space exclusively for usage of the petitioners as per the lease deed dated 26.5.1971. On the strong protest by the petitioners and the members of the Residents Welfare Society DD and PT Block the officials of the Respondent No.1 stopped the work and went away threatening that they will construct the same on 22.3.2005 onwards. It is alleged that petitioners have reasonable apprehension that they will be deprived of their own land.

10. An additional affidavit was also filed by the writ petitioner stating that demarcation has been done by the Overseer, LDO, L and DO in the presence of the parties.

11. A counter affidavit was filed by respondent No.2 and we have perused the same. It is alleged in paragraph 1 of the same that the petitioners have no locus standi to file the writ petition as they are not recorded lessee of the property. The original lessee was Shri O.P. Bhasin, whose heirs sold their leasehold interest to M/s Ravi Industrial Private Limited and M/s Giltedeged Industrial Securities Ltd. The latter applied for extension of time to construct over the plot, and the same was granted up to 31.12.90 with a condition that they will construct only a single storeyed building containing one flat or double storeyed building consisting of only one or two residential flats, and will not start constructing till the plan passed by MCD is approved by responent No.2. The recorded lessee submitted their plan which was examined by the Technical Section and it was found that there are four units, two in each floor, and hence the same comes under Group Housing, and hence not in accordance with the lease terms. The recorded lessee was hence, vide letter dated 20.7.92, requested to seek formal permission for construction of Group Housing but the lessee never applied for permission for the same and made the construction without permission/approval of lessor under the terms of lease deed. It is alleged that the said construction is unauthorized. The petitioners are not the recorded lessee, and hence it is not possible for the respondent to recognize them. The property stands mutated in the name of M/s Ravi Industrial Promoters Ltd. and M/s Giltedged Industrial Securities Ltd. It is stated that the petitioners never submitted any representation to demarcate the property to the respondent nor had they any right to do so as they are not the recorded lessee. The recorded lessee had constructed a Group Housing unauthorisedly without seeking necessary permission for the same under the terms of lease deed and in accordance with the policy of the answering respondent. 12.In para 3.4-3.6, it is stated that neither any plan for construction was approved by the lessor under the terms of the lease nor any permission to sell etc. was ever granted by the answering respondent to the recorded lessee i.e. M/s Ravi Industrial Promoters Ltd and M/s Giltedeged Industrial Securities Ltd. The agreement to sell or purchase if any along with transfer of possession is illegal and in violation of the terms of the lease. It is stated that no plan was ever approved by the answering respondent under the terms of the lease. Demarcation was done pursuant to the orders of this Court by the Overseer in the Office of the L and DO.

13. A counter affidavit has also been filed by MCD and we have perused the same.

14. The G Block Residents Welfare Association Kalkaji, New Delhi appellant herein filed an impleadment application in the writ petition and also filed an application for modification of the order dated 12.7.2005. It is stated therein that relief prayed for in the writ petition, if granted and order dated 12.7.2005, if allowed to continue, would cause grave harm, injustice, irreparable loss and injury to the applicant and its members residents of the area besides other residents of the area including the residents of DDA Residents Scheme namely Mangla Apartments. It is stated that the applicant has been adversely affected by raising a fencing in as much as the link road, which was about 9.99 meters resultantly stands reduced to about 5 meters, which is almost half of the width of the road. It is stated that the said link road is an access road for G Block residents, the applicant herein to three different schools in the locality, a Post Office, a Police Station and Electricity Department etc. The reduced road of about 5 meters has made the passage so narrow that only one vehicle at one time can pass through, as no pavement has been left. It is stated that with the increased flow of traffic, even 9.99 meters of road was not sufficiently wide, but as a result of the reduction of the width of the road to 5 meters, the traffic movement problems have assumed alarming proportions. The narrowness of the said link road has made the entry difficult for emergency vehicles, fire brigade, ambulance, etc.

15. In our opinion, the writ petition should have been dismissed on the ground of an alternative remedy of filing injunction suit. The prayer in the writ petition was basically one for injunction and declaration and hence a writ petition was not the proper remedy.

16. In Krishan Lal Gupta and Ors. v. Adhishahi Adhikari and Ors. 1998(9) SCC 587 the Supreme Court held that where there are factual controversies, a Civil Suit instead of a Writ Petition would be the proper remedy. A similar view was taken by the Supreme Court in Kishan Singh v. Financial Commissioner, Haryana and Others 1979(4) SCC 489.

17. There are several disputed questions of fact in this case e.g. what is width of the lane, whether petitioners were legal lessees of the property in dispute, whether the construction was unauthorized. The case of the respondent is that construction was made in violation of the rules, and permission of the L. and D.O. has also not been taken for the sale of the property to respondent No.1 in this appeal, the writ petitioner.

18. The learned Single Judge has referred in his judgment to the demarcation having been carried out by the L. and D.O. The demarcation report is at page 75 of the paper book. In this connection, it may be mentioned that the demarcation is always done by the local authorities. According to Rule 34 of the Delhi Land Revenue Rules 1962, in case of boundary disputes the Patwari shall make local inquiry with or without survey as may be directed by the court.

19. A perusal of the demarcation report shows that it only bears signature of the draftsman of the L and DO. Hence it is doubtful whether it is a valid demarcation report. However, we are not expressing a final opinion on this point as that can be decided in a civil suit.

20. In our opinion, all these matters were to be adjudicated in a Civil Suit and not a writ petition.

21. As held by the Constitution Bench of the Supreme Court in Thansingh v. Supdt. Of Taxes, AIR 1964 SC 1419 [LQ/SC/1964/26] :-

"The jurisdiction of the High Court under Art.226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal to correct errors of fact, and does not by assuming jurisdiction under Art.226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Art.226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."

22. In our opinion, the petitioner had clearly an efficacious alternative remedy by filing a civil suit for declaration and injunction. In fact, in case where the allegation is that someone is trying to encroach into the petitioners property or is trying to prevent him from building a boundary wall or from making constructions etc., the proper remedy is to file an injunction suit.

23. Learned counsel for the respondent Mr. Sudhir Chandra submitted that there is no absolute bar to entertain a writ petition and for this proposition he has relied on the Supreme Court decision in ABL International Ltd and Anr. v. Export Credit Guarantee Corporation of India and Ors. (2004) 3 SCC 553. It is true that alternative remedy is not an absolute bar to a writ petition. However, the normal rule is that if there is an alternative remedy, the petitioner should be relegated to the same. Since writ is the discretionary jurisdiction, the High Court ordinarily does not entertain a writ jurisdiction where there is an equal efficacious remedy vide Abraham, C.A. v. ITO, AIR 1961 SC 609 : 1961 (2) SCR 765 [LQ/SC/1960/297] ; Veluswami Thevar N.T. v. Raja Nainar, G., AIR 1959 SC 422 [LQ/SC/1958/149] : 1959 Supp. (1) SCR 623 ; Reliance Petroleum Ltd.v. Zaver Chand Popatlal Sumaria, (1996) 4 SCC 579 (paras 12 and 13); State of U.P. v. Bridge and Roof Co.(India) Ltd., (1996) 6 SCC 22 (para 21) : AIR 1996 SC 3515 [LQ/SC/1996/1309] ; MSR Prasad v. Bommisetti Subba Rao, (1996) 10 SCC 49 (para 3); Umesh Shivappa Ambi v. Angadi Shekara Basappa, (1998) 4 SCC 529 (paras 4 and 5); State of H.P. v. Raja Mahendra Pal, (1999) 4 SCC 43 (para 6) : AIR 1999 SC 1786 [LQ/SC/1999/343] ; Todi Industries Ltd. v. Union of India, (1999) 9 SCC 230 (para 1); Chanan Singh and Sons v. Collector Central Excise, (1999) 9 SCC 17 (para 2); Kerala State Electricity Board v. Kurien E.Kalathil, (2000) 6 SCC 293 (para 10) : AIR 2000 SC 2573 [LQ/SC/2000/1016] .

24. Learned counsel for the respondent submitted that once a writ petition has been entertained, it should not be later dismissed on the ground of alternative remedy. In this connection he has relied on the Supreme Court decision in L. Hirday Narain v. L.T.Officer, Bareilly AIR 1971 SC 33 [LQ/SC/1970/275] , where the Supreme Court observed that since the High Court had entertained the writ petition, it was not justified in dismissing it later on the ground of alternative remedy of a revision before the Commissioner of Income-Tax.

25. Learned counsel has also relied on decision of the Supreme Court in Ganga Retreat and Towers Ltd. v. State of Rajasthan (2003) 12 SCC 91 [LQ/SC/2003/1336] , State of H.P. v. Gujarat Ambuja Cement Ltd. 2005 (6) SCC 499 [LQ/SC/2005/693] and U.P. State Spinning Co.Ltd. v. R.S.Pandey 2005(8) SCC 264.

26. In our opinion, none of the aforesaid decisions have laid down any absolute rule that once a writ petition has been entertained or even allowed, the same cannot be subsequently dismissed on the ground of an alternative remedy. It all depends on the facts of the case. An appeal is only a continuation of the proceedings of the original Court and hence the Appellate Court has the same power as the original Court. There are large number of decisions of the Supreme Court where even the High Court had allowed the writ petition, the Supreme Court in appeal dismissed the writ petition on the ground of alternative remedy, e.g. Ganu Ram v. Rikhi Ram Kaundal and Ors, AIR 1984 SC 1513 [LQ/SC/1984/163] .

27. In our opinion, the present is a case where the writ petitioner should have been relegated to his alternative remedy of filing a civil suit. If such writ petitions which are really in the nature of injunction and/or declaration suits are entertained, then this Court would be flooded with such writ petitions. In the present case, the grievance of the writ petitioner (respondent in this appeal) was that on 18.3.2005 some officers of MCD arrived at his property and wanted to construct a pavement on the strip of land allegedly belonging to him. In such circumstances the proper remedy of the writ petitioner was to file an injunction suit to restrain the MCD from constructing or interfering with the petitioners land and also to seek a declaration of title to the land. In our opinion in all cases where there is an allegation that someone is trying to encroach upon a persons land, that person should ordinarily be required to file an injunction and declaration suit and not file a writ petition.

28. For the reasons given above, the writ appeal is allowed and impugned judgment is set aside. The writ petition is dismissed on the ground of an alternative remedy of filing a civil suit for declaration and injunction.