Brijesh Kumar vs State Of U.P. And 8 Others
2019 Latest Caselaw 5856 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 21
 

 
Case :- WRIT - C No. - 21979 of 2019
 

 
Petitioner :- Brijesh Kumar
 
Respondent :- State Of U.P. And 8 Others
 
Counsel for Petitioner :- Sheo Shankar Tripathi,Adya Prasad Tewari
 
Counsel for Respondent :- C.S.C.,Chandra Sekhar Pandey,K.R. Singh
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Piyush Agrawal,J.

The petitioner is aggrieved by the alleged encroachment made by the private respondent nos. 8 and 9. In this regard he has made a representation to the concerned authority. Our attention has been drawn to a report submitted by the Junior Engineer wherein he has recorded that the private respondents have made encroachment on the pathway/lane. The Junior Engineer has recorded that the act of the private respondents comes in the category of encroachment.

The grievance of the petitioner is that in spite of the said report no action has been taken by the competent authority. The petitioner in support of his allegation has also brought on record some photographs.

We have heard the learned counsel for the petitioner, learned Standing Counsel and Sri Triloki Singh, who is appearing for the respondent nos. 2 to 4 and Sri Chandra Shekhar Pandey, learned counsel appearing for the respondent no. 5.

In view of the proposed order, we are not issuing the notice to the private respondents.

Having due regard to the facts of this case, we find that it is a statutory obligation on the Development Authority and the Municipal Corporation to keep the roads and lanes free from encroachment. Accordingly, without expressing any opinion on the merit of this case, we direct the respondent no.5, the Municipal Commissioner, Gorakhpur to look into the matter and pass an appropriate order. In case he is of the opinion that the action is to be taken by the Development Authority, he shall forward the papers to the Development Authority. The authority concerned before passing the order shall furnish an opportunity to the private respondent and pass the order expeditiously preferably within three months from the date of communication of this order. We would like to observe that in such petty matters ordinarily this Court should not interfere.

The Supreme Court in the case of Phool Chandra and another v. State of Uttar Pradesh, (2014) 13 SCC 112 has taken a judicial note that of late there has been an increase in the trend of litigants rushing to the courts, including the Supreme Court, for all kinds of trivial and silly matters which results in wastage of public money and time. A closer scrutiny of all such matters would disclose that there was not even a remote justification for filing the case. It is a pity that the time of the court which is becoming acutely precious because of piling of arrears has to be wasted on hearing such matters. There is an urgent need to put a check on such frivolous litigation. The Court has further noticed that it is high time that the courts should come down heavily upon such frivolous litigation and heavy cost should be imposed not only on the litigant but also upon the learned counsel who has acted in irresponsible manner. Relevant part of the judgment in Phool Chandra (supra) reads as under:

"12. All these are aberrations in the functioning of the Apex Court of any country. Of late, there has been an increase in the trend of litigants rushing to the courts, including this Court, for all kinds of trivial and silly matters which results in wastage of public money and time. A closer scrutiny of all such matters would disclose that there was not even a remote justification for filing the case. It is a pity that the time of the court which is becoming acutely precious because of the piling arrears has to be wasted on hearing such matters. There is an urgent need to put a check on such frivolous litigation. Perhaps many such cases can be avoided if the learned counsel who are officers of the court and who are expected to assist the court tender proper advice to their clients. The Bar has to realise that the great burden upon the Bench of dispensing justice imposes a simultaneous duty upon them to share this burden and it is their duty to see that the burden should not needlessly be made unbearable. The Judges of this Nation are struggling bravely against the odds to tackle the problem of dispensing quick justice. But, without the cooperation of the gentlemen of the Bar, nothing can be done.

13. It is high time that the courts should come down heavily upon such frivolous litigation and unless we ensure that the wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigation. In order to curb such kind of litigation, the courts have to ensure that there is no incentive or motive which can be ensured by imposing exemplary costs upon the parties as well as on the learned counsel who act in an irresponsible manner. {Vide Varinderpal Singh v. M.R. Sharma, 1986 Supp SCC 719, Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 : (2011) 4 SCC (Civ) 1, and Gurgaon Gramin Bank v. Khazani, (2012) 8 SCC 781 : AIR 2012 SC 2881.}"

Recently, a Division Bench of Delhi High Court in the case of Kotak Mahindra Bank Ltd. v. Bank of Baroda and another, W.P. (C) No. 9828 of 2015 has also noticed that in the last twenty years the High Courts have become very liberal in entertaining the writ petitions under Article 226 of the Constitution. In all matters they have treated that Article 226 is the only medicine for all ailments, with the result High Courts are creeping under the arrears of the cases. The Court has further observed that the High Court should follow the earlier Constitution Bench judgments of the Supreme Court in the case of Rashid Ahmed Vs. Municipal Board, Kairana AIR 1950 SC 163 and Nain Sukh Das Vs. The State of Uttar Pradesh AIR 1953 SC 384, wherein the Constitution Benches have held that the writ jurisdiction under Article 226 should be very sparingly used by the High Courts. Ignorance of this law has resulted huge arrears of cases in all the High Courts. Relevant part of the judgement of the Delhi High Court is as follows:

"...The jurisdiction of the High Court under Article 226 of the Constitution of India is an extraordinary remedy, to be not invoked or allowed to be invoked ordinarily, as is found being done increasingly, leaving very little time for the High Courts to deal under Article 226 with issues really deserving consideration thereunder. Supreme Court, as far back as in Rashid Ahmed Vs. Municipal Board, Kairana AIR 1950 SC 163 and Nain Sukh Das Vs. The State of Uttar Pradesh AIR 1953 SC 384 held that prerogative writs are extraordinary remedies intended to be applied in exceptional cases in which the ordinary legal remedies are not adequate but in the last over half century the said principle appears to have been forgotten, with the writ remedy being considered as a cure for all ordinary ailments also and for which the ordinary legal remedies under the civil law are adequate. The same has resulted in the High Courts being inundated with writ petitions, the disposal whereof axiomatically is found to be taking, in most cases, as much time as the disposal of an ordinary civil lis, and which has resulted in the High Courts facing difficulty in providing immediate relief even in deserving cases in writ jurisdiction and / or being left with little time to ponder over the important constitutional issues coming before it in the writ jurisdiction. In my humble view, a time has thus come for the High Courts to send out a clear message of the writ remedy being an extraordinary remedy not available as an alternative to the remedy already available under the civil and general laws."

In view of the above, the writ petition is disposed of .

Order Date :- 9.7.2019

MAA/-