Research › Search › Judgment

Rajasthan High Court · body

2003 DIGILAW 1052 (RAJ)

Banwari Lal v. State of Rajasthan

2003-07-28

K.S.RATHORE, S.K.KESHOTE

body2003
JUDGMENT 1. - In this writ petition the arguments were heard on 7th of May, 2003 and the same were concluded. The matter was placed today for dictation of judgment. The counsel for the petitioners is not present. Heard further arguments advanced by Shri K.N. Gupta, the learned counsel for the respondent No. 4. 2. This writ petition under Articles 226 and 227 of the Constitution to India is titled as Public Interest Litigation. It is filed by three persons. The prayer has been made therein for setting aside of the order dated 18th of July, 2002 Annexure 3. Under annexure 3 which is at page No. 14 of the writ petition the, State Government, as per the recommendations made by the Collector, Sikar, granted the permission for allotment of the land of the category of 'gair mumkin' rasta to Municipal Board, Ringas. 3. In reply to the writ petition, the respondents No. 1 to 3 raised a plea that this petition filed in the form of Public Interest Litigation is not a bona fide one. It is a mala fide action of the petitioners and an attempt to abuse the process of the Court. 4. It is stated that one Shri Ram Dev Jat has field a civil suit in the court of Civil Judge (Jr. Div.) Srimadhopur. Along with the suit an application under Order 39 Rules 1 and 2 of the C.P.C. for grant of temporary injunction has also been filed. That has been decided on 26th of April, 2002. The copy of the order of the Civil Judge (Jr. Div.) Srimadhopur is filed as Annexure R-4/2 by the respondent No. 4 along with its reply and that is at page No. 42 of the writ petition. The Civil Judge (Jr. Div.), Srimadhopur ordered that the Municipal Board, Ringus can use the land for general public purpose and only the Collector can change the sanction of user thereof. It is stated in the reply by the respondents No. 1 to 4 that for the same subject matter and relief this writ petition has been filed which is misconceived and not maintainable. Rejoinder to the reply has not been filed. Thus, it stands uncontroverted that for the same subject matter and relief Ram Dev Jat had already filed a suit which is pending in the Court of Civil Judge (Jr. Div.) Srimadhopur. Rejoinder to the reply has not been filed. Thus, it stands uncontroverted that for the same subject matter and relief Ram Dev Jat had already filed a suit which is pending in the Court of Civil Judge (Jr. Div.) Srimadhopur. When the matter is already subjudice in the Civil Court the writ petition filed by these three petitioners for the same subject matter and relief is not bona fide act. It is certainly an attempt to abuse the process of the court. 5. The petition under Article 226 of the Constitution is not a remedy available to the litigant as a matter of right or course. It is an extra ordinary equitable jurisdiction of the court and where in respect of the grievance and relief prayed for in the writ petition the civil court is already seized of the matter, ordinarily the writ petition is not entertained, may it be a Public Interest Litigation. This is a case where firstly an attempt has been made to get interim temporary injunction from the civil court and when full relief was not granted this writ petition is filed. If the petitioners are really interested and affected persons in the matter, they can approach to the civil court for their impleadment as defendants in that suit and to support the plaintiff. 6. In the facts of this case we find sufficient merits in the objection raised by the respondents No. 1 to 4 re the maintainability of the writ petition. i It is not a bona fide petition of the petitioners titling as a Public Interest Litigation. 7. In the result the writ petition fails and the same is dismissed with costs. The petitioners are directed to pay Rs.2000/- costs to the respondents s No. 1 to 3 and Rs.2000/- costs to the respondent No. 4. The amount of costs awarded in favour of the respondents No. 1 to 3 shall be deposited by the petitioners on their behalf in the Relief Fund of His Excellency of Governor of Rajasthan by Account Payee Cheque/DD/Pay Order. The amount of costs awarded in favour of the respondent No. 4 shall also be paid by Account o Payee Cheque/DD/Pay Order drawn in its favour. 8. As a consequence of the dismissal of this writ petition, the stay application does not survive and the same is also dismissed.Writ Petition Dismissed with Costs of Rs. 2000/-. *******