(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. By way of present Appeal under clause 15 of the Letters Patent, the original petitioners have challenged the oral order dated 05.02.2011 passed by the learned Single Judge in Special Civil Application No.17592 of 2011 by which the petition was dismissed mainly on the ground that the dispute is between two private parties with regard to property particularly common open plot.
2. We have heard learned counsel Mr.Dharmesh Shah for the appellant, learned counsel Mr.Maulin J.Raval for the respondents No.1 to 3 and learned counsel Mr.Ravindra Shah for the respondent No.4.
3. We have gone through the papers of petition along with civil application and affidavit-in-reply filed on behalf of respondent No.4 by which several sale deeds have been produced by which the appellant and respondent No.4 had purchased the part of property. Learned counsel for the respondent No.4 has also produced photographs along with the affidavit-in-reply which shows that no fresh construction is carried out by the respondent No.4 as alleged by the appellant. It appears from the photographs that the construction which has been alleged to have been made by the respondent No.4 is of a compound wall, and from the documentary evidence, it appears that the compound wall is constructed since 1981. By way of present petition, the original petitioners prayed that the direction may be issued to the Corporation to take steps to remove the so-called encroachment of the common plot by respondent No.4 on common open plot. The learned Single Judge has observed in para 2 which reads as under.
“Thus, essentially the dispute between the petitioner and respondent no.4, if any, is sought to be given colour of inaction on the part of the concerned authorities so as to bring the petitioner within the purview of Article 226 of the Constitution of India. In my view, the petitioner who has not cared to mention in the memo of the petition as to what is the nature of the petitioner association, could not have maintained the writ petition against respondent no.4 on the spacious plea of inaction on the part of the authorities. Article 226 of the Constitution of India is meant for exercising power which is in terms “extraordinary” and if the Courts starts exercising power at the instance of one party who has roped in the agency of the State under semblance of so called inaction on their part, such petition cannot be said to be a petition maintainable under Article 226 of the Constitution of India. Article 226 of the Constitution is not meant for examining the nitty-gritty of fine rights existing between respondent no.4 and the petitioner. Examination of plans, correctness of plans, examination of raja-chithy, correctness of raja-chithi would certainly not fall under the purview of the Courts jurisdiction. Courts rather would relegate party to the civil proceedings. In the instant case plain reading of the petition would imminently show that the petitioner has grievance only against respondent no.4. Concerned authority has done its job by approving plan and, if somebody is deviating from the plan, it is always open to the concerned person who is aggrieved of the deviation to approach the Court, i.e. the civil court and establish his right qua the another deviating citizen, trust or institution. The authority if in such a case is called upon to act, then, the authority will assume the role of adjudication which is not essentially the role of the authority under the BPMC Act. The petition being hopelessly meritless deserves rejection and is accordingly rejected with cost.”
4. The dispute between the private parties cannot be decided in a writ petition. We are in agreement with the observations made by the learned Single Judge. We do not find any infirmity in the impugned order passed by the learned Single Judge. The appeal is devoid of any merits and is accordingly dismissed.
5. In view of dismissal of main appeal, Civil Application No.1173 of 2012 also stands dismissed.
(V.M. SAHAI, J.) (A.J.DESAI, J.) syed/