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Sheo Dutt Singh Solanki v. State Of U.P. Thru' D.M./Collector & Ors. - WRIT - C No. 38343 of 2005 [2005] RD-AH 1314 (11 May 2005)


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Sheo Dutt Singh Solanki          .......... Petitioner


State of U.P. & Ors.     ............     Respondents

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

This writ petition has been filed raising the grievance that the petitioner is the owner and is in actual physical possession of plot nos. 1351 and 1352 at Chandausi-Kot Talpur Road. A Pakka construction has been raised by respondents no. 5 to 8 putting certain idols encroaching upon the land in front of petitioners land. The petitioner had moved several applications before the authorities. Several orders have also been passed but no concrete action has been taken for their eviction or demolition of the said construction. Hence the present petition.

It has been submitted in the petition that this is the second writ petition filed by the petitioner as he had earlier filed a writ petition wherein a direction had been issued to approach the competent authorities and in pursuance of the order passed by this Court, no action has been taken by the said authorities.

No details of the earlier petition filed by the petitioner has been furnished and if an order of the removal  had been passed in the said petition, the petitioner ought to have filed a contempt petition but not the second petition. Petitioner has not furnished full facts before the Court. He has merely submitted in paragraph 1 that this is the second writ petition in respect of the same controversy and in paragraph 2 of the writ petition, it has been submitted that this Court had directed to approach the administrative authorities for removing the encroachment. Learned counsel for the petitioner has not filed the copy of the order passed by this Court earlier nor the particulars of the writ petition have been furnished. Thus, we fail to understand as under what circumstances, the second writ petition is maintainable for the same relief even if the authorities have not taken any action in pursuance of the order of this Court.

Be that as it may, if there has been encroachment by the land grabbers and the petitioner was so aggrieved, he could have filed a suit for permanent injunction and if they had encroached upon the public land creating nuisance, the petitioner ought to have approached the competent Court under Section 133 of the Code of Criminal Procedure.  This is not a case where writ petition should be entertained for the reason that the construction had been made much earlier. As per the version of the petitioner, his first application for removal of the said encroachment was dated 16th March, 2004. For want of pleadings, it is difficult for this Court to pass any order. When we tried to explain the position to Shri K.S. Mishra, learned counsel for the petitioner, instead of satisfying the Court on factual and legal issues, he has the audacity to tell the Court to hear him properly and meet the submissions made in this writ petition and in case petition is decided against him, he would approach the Hon'ble Supreme Court against the said judgment.  

The learned counsel for the petitioner is not able to explain as under what circumstances, he is aggrieved if somebody has encroached upon the land in front of his land and if he is so aggrieved, why could he not approach the appropriate forum, i.e. civil or criminal Court. In every paragraph, it has been submitted that no action has been taken against the land grabbers, therefore, it requires judicial interference by this Court. The grounds taken by the petitioner mainly run on the powers of this Court under Articles 226 and 227 of the Constitution. It may be worth noting the grounds taken by the petitioner from grounds no. 3 to 7, which read as under:-

"(III) BECAUSE the power of the High Court is conferred under Sub-Article (2) (3) of Article 227. The power of the superintendence so conferred on the High Court is administrative as well as judicial and is capable of being invoked at the instance of any person,  aggrieved or even may be exercised suo moto. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing obstacle therein.

(IV) BECAUSE the power under Article 226 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction.

High Court Act 1961

Government of India Act 1935

Section 107 of Govt of India Act, 1915.

(V) BECAUSE the Gonda elements respondents nos. 5 to 8 have raised illegal construction by destroying the frontal commercial value of petitioner's land, the public authorities re not initiating immediate action since 6.4.2004.

(VI) BECAUSE the respondents are in-dolent dullard and inactive.

(VII) BECAUSE supervisory jurisdiction is capable of being exercised suo moto as well, as efficacious remedy is not available in such urgent cases"

When we asked the learned counsel for the petitioner as what was the High Courts Act, 1961; what was the provisions of Section 107 of the Government of India Act, 1915, he started shouting in the Court that you must decide the case in accordance with law.

In view of the above, as neither the learned counsel is able to render any assistance nor he is in  a position to explain any of his grounds nor he is able to explain as why the petitioner could not file a suit or criminal complaint if he was so aggrieved by land grabbing in front of his land; why he could not annex the copy of the order passed by this Court or why he could not furnish details of the writ petition filed by him earlier, we are not able to persuade ourselves to interfere in a writ jurisdiction where the petition has been filed in such a casual and cavalier manner and taking the grounds which make no sense either on fact or law. Encroachment if any had been long back thus no writ can be issued to entertain the said respondents now. Petitioner, if so aggrieved ought to have approached the appropriate forum for proper relief. Filing the writ petition in such a casual manner is deprecated. Petition is accordingly dismissed.




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