(Per : HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We have heard learned advocate Mr.H.D.Dave for the appellant and learned AGP Ms.Jirga Jhaveri for the State.
2. Learned AGP Ms.Jirga Jhaveri has raised a preliminary objection that this Letters Patent Appeal is not maintainable as the grievance of the appellant was not an individual grievance but the grievance is of a public interest nature and, therefore, remedy is available to the appellant to file Public Interest Litigation or any other remedy provided under the law.
3. We have gone through the impugned order dated 7.12.2011 passed by the learned Single Judge in Special Civil Application No.13719 of 2011. The learned Single Judge has refused to exercise his discretionary jurisdiction under Article 226 of the Constitution of India, that the appellant could not substantiate the encroachment. Prima facie, we are of the opinion that it was not required for the learned Single Judge to go into the merits of the matter as it was not a matter which involves any private interest of the petitioner but was interest of a public nature as he wanted to remove the obstruction of the road.
4. In this view of the matter, the impugned order dated 7.12.2011 passed by the learned Single Judge in Special Civil Application No.13719 of 2011 is set aside. This Letters Patent Appeal is disposed of with a liberty to the appellant either to file Public Interest Litigation or seek appropriate remedy in appropriate legal forum.
(V.M.
SAHAI, J.) (A.J.DESAI, J.) syed/ Top