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SCA/15665/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15665 of 2011
=========================================================
HARESHBHAI
DEVJIBHAI GABU - Petitioner
Versus
DY.
COLLECTOR & 2 - Respondents
=========================================================
Appearance :
MR
HEMANG R RAWAL for
Petitioner: 1,
None for Respondents : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 19/10/2011
ORAL
ORDER
Heard
learned advocate for the petitioner.
The
petitioner, by way of this petition, under Article 226 as well as
under Article 227 of the Constitution of India, approached this
Court for the following prayers :
“(A)
This Hon’ble Court may be pleased to admit and allow this petition;
(B) This
Hon’ble Court may be pleased to issue writ of mandamus or any other
appropriate writ, order or direction, quashing and setting aside the
communication dated 9.8.2011 issued by respondent No.2 to the Police
Sub-Inspectorshri, Gadhada;
(C)
This Hon’ble Court may be pleased to issue writ of mandamus or any
other appropriate writ, order or direction, directing respondent No.1
to hear and decide the revision application as well as the
application for interim relief as expeditiously as possible,
preferably within a period of one month;
(D)
Pending admission hearing and final disposal of the petition, be
pleased to stay execution, implementation and operation of the
communication dated 9.8.2011 addressed by respondent No.2 to the
Police Sub-Inspectorshri, Gadhda;
(E)
Pending hearing and final disposal of the petition, be pleased to
direct respondent No.1 to hear and decide the revision application as
well as the application for interim relief as expeditiously as
possible and preferably within one month;
(F)
This Hon’ble Court may be pleased to grant any other and further
reliefs, as the nature and circumstances of the present case may
require.”
Thus,
what is essentially challenge is communication dated 9.8.2011 from
Mamlatdar to P.S.I , Gadhda and an additional prayer is made seeking
some direction to the respondent No. 1 i.e Deputy Collector for
expeditious disposal of the petitioner’s revision.
Learned
advocate appearing for the petitioner contended that the
communication of Mamlatdar is nothing but over stepping of the power
as could be seen from the provisions of Section 21 of the
Mamlatdar’s Court Act, 1906. The petitioner’s advocate has further
submitted that Sub-section (4) of Section 21 also provides penal
action for flouting the order and in view thereof, the concerned
Mamlatdar was not justified in issuing such a communication, which
otherwise would render the petitioner’s revision application as well
as stay application pending before the Deputy Collector infructuous.
This
Court is of the view that present petition required to be dismissed
outright for the following reasons namely:
The
petitioner is admittedly under an order of competent Court which
carries direction to him to remove the artificial wall and the
petitioner has filed Revision Application against said order, though
the petitioner has not been successful in obtaining any orders from
revisional authority, meaning thereby, the petitioner today is
guilty of non-compliance with the order of Mamlatdar, which is an
order of Court as could be seen from the provisions of Mamlatdar’s
Act, 1906.
The
petitioner has not moved any application seeking either early
hearing or invited order of the Deputy Collector on such
application, whereon, he could have some justification for
entertaining petition alleging in action on the part of Deputy
Collector.
The
petitioner has filed this petition under Article 226 and also under
Article 227 of the Constitution of India. In my view, petition under
Article 226 is not maintainable as not an iota of submission, either
written or oral, is canvassed indicating justification for invoking
jurisdiction under Article 226 of the Constitution of India. The
court hastened to add here that petitioner, who is under an
obligation to obey the order passed by Mamlatdar, today he cannot
have been permitted to file petition under Article 226 for invoking
inherent jurisdiction to perpetuate his flouting of the order of
sub-ordinate court.
The
petition is essentially filed under Articles 226 and 227 of the
Constitution of India, but unfortunately, the petition is filed
without joining the ‘State’ as a party respondent. Now, it is
established principle of law, which does not require any elaborate
discussion, the petition which is filed without joining the ‘State’
as a party or which is filed without joining ‘State’ in any manner,
is not maintainable at first instance. Therefore, on this count
also, petition deserves to be rejected.
The
petitioner has set out Section 21 on page-11, whereunder these words
are required to be noted
“(1)
Where the Mamlatdar’s decision is for removal of an impediment or
for awarding possession or restoring a use, he shall give effect
thereto by issuing such orders to the village-officers, or to any
subordinate under his control, or otherwise, as he thinks fit:”
(emphasis
supplied)
The
employment of phrase “or otherwise, as he thinks fit” in
my view, give ample room to learned Mamlatdar in issuing direction
and seeking appropriate help of officers, of having his order
implemented.
Thus,
in my view, the petition being hopelessly merit less, deserves
rejection and is rejected accordingly. However, there shall be no
order as to costs.
(S.R.BRAHMBHATT,
J.)
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