Excelsior Correspondent
Srinagar, Mar 18: Jammu and Kashmir High Court today held that order of a Government authority, lower than a District Judge, can’t be challenged in High Court and it is also not meant for hearing the private rights of the parties.
Justice B L Bhat while dismissing a writ petition of a business establishment holder, whose business unit was ordered to be closed by the Additional District Magistrate Srinagar, ordered that under Article 226 of the Constitution an order of a Government authority, lower than a District Judge, can’t be challenged in High Court.
The Court held that it is well settled that writ jurisdiction under Article 226 of the Constitution of India is extra ordinary in nature and it is not meant for declaring the private rights of the parties.
“The remedy available under Article 226 is not available unless there is violation of some statutory duty on the part of the statutory authority”, court said, adding “a writ petition is a remedy in public law which can be filed by any person but the main respondent should either be the State Government, governmental functionaries, or its instrumentalities / agencies within the meaning of Article 12 of the Constitution”.
Court also recorded that a private individual cannot be equated with State or its instrumentalities / functionaries. The person against whom writ can be issued must have some statutory or public duty to perform. “Power under Article 226 is exercised at the instance of persons or citizens for vindication of their constitutional or statutory rights. The relief under Article 226 can be claimed against statutory or public authority or as a matter of right when there is infringement of fundamental rights”, reads the order.
The writ petition was filed by the business unit holder against the order of Additional District Magistrate Srinagar on an application for removal of his business unit in the locality as it causes nuisance and pollution in the locality.
Complainant who filed application before the Magistrate averred that the petitioner has created unhygienic atmosphere in the locality and is carrying on commercial activity in residential area which is prohibited by law.
Court while dismissing the writ petition also held that from the perusal of pleading of parties and the record available in the case that there is no perversity in the impugned order passed by the Executive Magistrate, who has exercised his jurisdiction within the bounds of law.
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