1997 Supreme(Guj) 323

Gujarat High Court
Judgename :S.K.Keshote
CIVIL HOSPITAL KARMACHARI SAHKARI CANTEEN SOCIETY LIMITED - Appellant
Versus
STATE - Respondent
S.C.A. 5684 of 1984
Decided On : 07/11/1997

Headnote:(a) Constitution of India, 1950 - Art. 226 - Notice calling upon petitioners to remove the Shed and Close down the canteen with in four days - Plea of discrimination on ground that other canteen contractors who are also illegally running canteen have not been asked to remove their canteens - In view of settled law ground of discrimination on basis of illegal or unwarranted order or acts or omissions of authority is not tenable - Plea of discrimination raised by petitioner can not be sustained.

       As far as the plea of discrimination raised on the ground that other canteen contractors who are also illegally running canteens have not been asked to vacate the place and only the petitioners have been asked to remove the canteen is concerned, suffice it to say that in the reply to the special civil application the respondents have come out with case that necessary action has been taken against those persons. However, reply to this grievance of the petitioners is not specifically forthcoming and there may be some justification in the say of the petitioners that those persons who are supported by one ex M.L.A. belonging to Congress Party have brought pressure on the authorities to remove the canteen of the petitioners. But plea of discrimination on this ground is not tenable. It is settled law that ground of discrimination on the basis of illegal or unwarranted orders or acts or omission of the authority is not tenable.

       [Para 15]

       (b) Constitution of India, 1950 - Art. 226 - Notice to petitioners to remove illegal construction of canteen on Govt. land - Petitioners contention that construction was under taken with permission of Administrative Officer/Medical Superintendent of Civil Hospital or Deputy Secretary Health & Family Welfare Department - Court found that such permission can be granted by State Govt. & none of the officers is competent or authorised on that behalf to accord such sanction - Beside no letter is produced by petitioner indicating grant of such permission - Such construction in the hospital premises may be result of connivance of hospital authorities but that can not justify the action of petitioner to garb Govt. land in the name of association of Class IV employees of hospital - Notice to remove construction does not infringe any legal or fundamental right of petitioner - Interference refused.

       The fact remains that the Administrative Officer or the Medical Superintendent of the Civil Hospital or even the Deputy Secretary, Health and Family Welfare Department was not competent to grant permission to the petitioners to make construction of any sort in the Civil Hospital Compound and start canteen. Deputy Secretary in the Department does not mean the State Government. No permission was granted to the petitioners in the form of an order in writing to put up construction and to start canteen. The petitioners have no right whatsoever to put up any construction and to start canteen. It is a case where the petitioners are employees of the Civil Hospital itself. As members of the Society they made encroachment on the land of Civil Hospital. Not only that they made encroachment on the land, but also started canteen without permission. In the garb of association the petitioners cannot grab Government land, and cause nuisance in the Hospital compound. The petitioners have taken the law in their own hands. Petitioner No. 1 is an association of the class IV employees of the Civil Hospital. Petitioner No. 2 is also an employee of the Civil Hospital. In such matters, not only the petitioners should be asked to remove the canteen but drastic action also should be taken by the Government against the persons responsible for creation of such a situation.

       [Para 13]

       No legal or fundamental right of the petitioners has been infringed. Writ jurisdiction of this Court under Art. 226 of the Constitution of India is not meant for the protection of Government servants who encroach upon the Government land and create nuisance at public place. Equitable and extraordinary jurisdiction of this court is meant to be exercised for giving reliefs to law abiding persons where their rights are to be protected or injustice has been meted out to them. If Government employees like the petitioners, who encroach upon Government land, are protected, then certainly it would be abuse of process of the Court.

       [Para 14]