Gujarat High Court
Sahajanand vs Amc on 5 December, 2011
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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SCA/17592/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 17592 of 2011
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SAHAJANAND
FLAT HOLDER'S ASSOCIATION - Petitioner
Versus
AMC
& 3 - Respondents
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Appearance :
MR
DHARMESH V SHAH for Petitioner:
None for Respondents : 1 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 05/12/2011
ORAL
ORDER
The petitioner, by way of this petition under Article 226 of the Constitution of India has made the following prayers:
"(A) Your Lordship may be pleased to Admit and Allow this petition.
(B) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents. 1 to 3 to take immediate effective steps for removal of illegal encroachment in COP shown in map by respondent No.4 and further be pleased to direct the respondents authorities to protect the right and interest of the members of the petitioner Association for using the common open plot which is specifically earmarked for the purpose of parking or common use of the members of the petitioner Association in the interest of justice;
(C) Pending admission, hearing and final disposal of this petition, Your Lordship be pleased to the restrain the respondent No.4 from using the common plot for commercial purpose, which is specifically earmarked for the purpose of parking or common use of the members of the petitioner Association in the interest of justice."
Thus, essentially the dispute between the petitioner and respondent no.4, if any, is sought to be given colour of inaction on the part of the concerned authorities so as to bring the petitioner within the purview of Article 226 of the Constitution of India. In my view, the petitioner who has not cared to mention in the memo of the petition as to what is the nature of the petitioner association, could not have maintained the writ petition against respondent no.4 on the spacious plea of inaction on the part of the authorities. Article 226 of the Constitution of India is meant for exercising power which is in terms "extraordinary" and if the Courts starts exercising power at the instance of one party who has roped in the agency of the State under semblance of so called inaction on their part, such petition cannot be said to be a petition maintainable under Article 226 of the Constitution of India. Article 226 of the Constitution is not meant for examining the nitty-gritty of fine rights existing between respondent no.4 and the petitioner. Examination of plans, correctness of plans, examination of raja-chithy, correctness of raja-chithi would certainly not fall under the purview of the Courts jurisdiction. Courts rather would relegate party to the civil proceedings. In the instant case plain reading of the petition would imminently show that the petitioner has grievance only against respondent no.4. Concerned authority has done its job by approving plan and, if somebody is deviating from the plan, it is always open to the concerned person who is aggrieved of the deviation to approach the Court, i.e. the civil court and establish his right qua the another deviating citizen, trust or institution. The authority if in such a case is called upon to act, then, the authority will assume the role of adjudication which is not essentially the role of the authority under the BPMC Act. The petition being hopelessly meritless deserves rejection and is accordingly rejected with cost.
[ S.R. BRAHMBHATT, J ] /vgn Top