[2023:RJ-JP:13732-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No.476/2023 In
S.B. Civil Writ Petition No.2103/2022 Purushottam Lal Son Of Shri Charan Singh, Aged About 41 Years, R/o Sirsonda Ward No. 24, Nagarpalika, Roopbas, Tehsil And Thana- Roopbas, District Bharatpur (Raj) ----Appellant
Versus
1. State Of Rajasthan, Through District Collector, Bharatpur (Rajasthan)
2. District Election Officer Cum District Collector, Bharatpur (Rajasthan)
3. Election Officer Cum Sub Divisional Officer, Roopbas, District Bharatpur (Rajasthan)
4. Mithun S/o Jaiprakash, Resident Of 29, Harijan Mohalla, Roopbas, District Bharatpur, Present Member Ward No. 01, Nagarpalika-Roopbas, District Bharatpur (Rajasthan) ----Respondents
For Appellant(s) : Mr. Purushottam Lal, Appellant Present in Person
HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order
10/07/2023
Heard. Though number of grounds have been urged before this Court by assailing the correctness and validity of the order passed by the Ld. Single Judge, we find that the impugned order arises out of an order passed by the Ld. Single Judge in a petition filed by respondent assailing an order dated 27.07.2021 passed by the
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Additional District Judge No.1, Bharatpur in a civil suit filed by Mithun. We have gone through the plaint. It was not a election petition but a civil suit seeking declaration and permanent injunction.
In view of the decision of the Supreme Court in the case of
Radhey Shyam & Others Versus Chhabi Nath & Others, (2015) 5 SCC 423, an order passed by the Civil Court is not amenable to writ jurisdiction under Article 226 of the Constitution of India. In the aforesaid judgment, it has been held thus:
"27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.
28. We may also deal with the submission made on behalf of the respondent that the view in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 stands approved by larger Benches in Shail v. Manoj Kumar, (2004) 4 SCC 785, Mahendra Saree Emporium (Ii) v. G.V Srinivasa Murthy ., (2005) 1 SCC 481 and Salem Advocate Bar Assn.
(2) v. Union of India, (2005) 6 SCC 344 and on that ground correctness of the said view cannot be gone into by this Bench. In Shail, though reference has been made to Surya Dev Rai, the same is only for the purpose of scope of power under Article 227 as is clear from para 3 of the said judgment. There is no discussion on the issue of maintainability of a petition under Article 226. In Mahendra Saree Emporium (2), reference to Surya Dev Rai is made in para 9 of the judgment only for the proposition that no subordinate legislation can whittle down the jurisdiction conferred by the Constitution. Similarly, in Salem Advocate Bar Assn. (2) in para 40,reference to Surya Dev Rai is for the same purpose. We are, thus, unable to accept the submission of the learned counsel for the respondent.
29. Accordingly, we answer the question referred as follows:
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"29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai is overruled."
Therefore, the impugned order is essentially in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India. In view of above, this writ appeal is not maintainable and accordingly dismissed.
(PRAVEER BHATNAGAR),J (MANINDRA MOHAN SHRIVASTAVA),J
Karan/11
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