(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) Draft amendment is allowed.
We have heard learned counsel Mr.Dharmendra Parikh appearing for the appellant and learned AGP Mr.N.J.Shah appearing for the respondents.
The writ petition being Special Civil Application No.17481 of 2011 was filed by the appellant challenging the order dated 21.6.2002. When the appellant has already filed civil suit which is pending before the court below, it is always open to the appellant to amend the suit if it is permissible in law. The learned Single Judge while dismissing the writ petition has made following observations in para 5 which reads as under.
"This Court is of the considered view that this petition in the present form is not maintainable for the following reasons.
The petitioner is one of the plaintiffs and the suit is pending on the very subject matter. Therefore, this petition would not be maintainable.
The order impugned is the order dated 21.06.2002 and the petitioner straightway approached this Court under Article 226 without availing the alternative remedy.
The petitioner could not have maintained the petition as if he is aggrieved party in his personal capacity, as can be seen from the earlier attempt in the form of Special Civil Application No.5306/2001, which was a Public Interest Litigation and if at all the petitioner is aggrieved on account of his public spirited nature and pursuits for doing something, it would always open to him to take out his case as Public Interest Litigation and there is no encroachment of right or any fundamental rights ensuring in his favour. There is no reason to maintain this petition in his personal capacity."
We agree with the view taken by the learned Single Judge. This Letters Patent Appeal is devoid of any merits and is accordingly dismissed.
(V.M.
SAHAI, J.) (A.J.DESAI, J.) syed/ Top