The petitioner has approached this Court by way of this petition under Article 226 of the Constitution of India, with the following prayers;
(a) This petition may kindly be admitted,
(b) Your lordship may be pleased to issue a writ of mandamus or issue any other writ, order or direction in the nature of mandamus by questioning and setting aside the impugned order, decision dt. 15.03.2012 passed by respondent no.3 annexure "A".
(c) Any other order or direction as may be deem fit just and proper may kindly be passed in facts and circumstances of the case.
(d) Cost of application may be granted.
Interim Relief:
a) Your lordship may be stay, winning, escavating, lifting and transporting send from the lease area in dispute.
b) Any other order or direction as may be deem fit just and proper may kindly be passed in facts and circumstances of the case.
The facts in brief leading to filing this petition deserve to be set out as under.
The petitioner applied for lease for excavating and taking sand under Rule 7 of the Gujarat Minor Mineral Rules, 1966 for Survey Nos. 321 and 341 admeasuring 6 hector in the river bed of Narmada at Kothiya, Talkuka Karajai, Dist: Vadodara. The respondent no.3 has raised as many as 25 points and asked the petitioner to comply and fulfill those quarries vide letter dated 04.12.2010. The petitioner has approached and informed respondent no.3 by letter dated 2O.01.2011 that the deficiencies have been fulfilled and there existed no deficiency in the application. The respondent no.3 passed an order on 28.04.2011, rejecting the application of the petitioner. The petitioner filed Revision Application before the competent authority. As the revision was not being decided, the petitioner was constrained to file writ petition being S.C.A. No.17274 of 2011, which came to be disposed of with a direction to the authority to dispose of the same within a period of four months from the date of receipt of the order. Thereafter, the revision was decided and the revisional authority remanded the matter back to the concerned Collector for reconsidering the application. The concerned Collector while reconsider the application of remand rejected the same vide order dated 15.03.2012. Being aggrieved and dissatisfied with the same, the petitioner has approached this Court under Article 226 of the Constitution of India.
Unfortunately, the petitioner has made averment on oath in paragraph no.5 as under;
The petitioner most respectfully submits that there is not alternative remedy available to the petitioner except to approach that Hon'ble Court in this present application.
This averment, in my view, is incorrect, as the facts narrated by the petitioner in the memo of the petition itself goes to show that there exists a remedy which is by way of filing Revision Application before the State and petitioner himself had availed on earlier occasion the said remedy, therefore, petitioner could have made this statement on oath. The petitioner cannot make statement as per his understanding of law or his perception of law or that means perception of learned counsel who advising him. The statement on oath need to be corrected and if that statement on oath is found to be incorrect, then the writ petition would merit straightway rejection.
This Court is of the considered view that this is a time when practice of filing petition without examining the pleadings in its proper perspective needs to be discouraged, as it adds to undue consumption of forensic time, which is so precious in these days of mounting litigations and burdens.
The Court is not convinced with regard to the submission that filing of revision would not be efficacious, in fact this very petitioner had availed the remedy and that remedy of revision yielded result that he could not convince the revisional authority for remanding the matter. Therefore, the counsel for the petitioner would not be justified in arguing that there exists no efficacious remedy for challenging the order dated 15.03.2012 passed the the concerned Collector.
Apart from the aforesaid observations, the petition is required to be dismissed, also on the ground that the petitioner's counsel has failed in indicating as to what is the right inuring in the petitioner qua particular lease area, as in case, if during the pendency of consideration of his case on account of the advent of new policy for forming blocks and auctioning the area and that has been acted upon in that case how the petitioner can maintain this petition challenging the order dated 15.03.2012 without first challenging the policy of forming block and auctioning the block as such.
The aforesaid observation would also go to indicate that the Court under Article 226 of the Constitution of India would not undertake examination or scrutiny of the order, which is based upon the policy, which is in existence at the instance of State and in that absence of any challenge thereto straightway judicial scrutiny of the order would otherwise also not be permissible under Article 226 of the Constitution of India.
For the aforesaid reasons, the petition being hopelessly meritless, deserves rejection and it is accordingly rejected. There shall be no order as to costs.
(S.R.BRAHMBHATT, J.) Pankaj Top