- (1.) THIS Writ Petition has been filed for a direction to the respondent authorities particularly the Divisional Commissioner, District Collector, Sub-Divisional Magistrate, District Inspector of Schools to decide the representation filed by the petitioner for restraining the private respondent from raising the construction of the School in the village.
(2.) LEARNED Standing Counsel has raised a preliminary objection regarding the maintainability of the Writ Petition pointing out that this Court cannot issue the direction to decide the representation without addressing itself to the merit of the case and he has placed very heavy reliance upon the judgment of the Supreme Court in A.P.S.R.T.C. and others v. G. Srinivas Reddy and others, JT 2006 (3) SC 189, in which strong comments were made against issuance of direction to the authorities to decide the representations as under the grab of deciding the representations, time barred claims were entertained by the authorities. The relevant portion of the judgment is as under : "We may also note that sometimes the High Court dispose of matter merely with a direction to the authority to 'consider' the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the Court, to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to 'consider' the matter afresh. Be that as it may. There are also several instances where unscrupulous petitioners with the connivance of 'pliable' authorities have misused the direction 'to consider' issued by Court. We may illustrate by an example. A claim, which is state, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to 'consider' and dispose of the representation. When the Court disposes of the petition with a direction to 'consider' the authority grants the relief, taking shelter under the order of the Court directing him to 'consider' the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order 'to consider' as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to 'consider' may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of Court's direction to 'consider' the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily wagers seeking regularization/absorption into regular service is a species of cases, where there has been a large scale misuse of the orders 'to consider'. A Division Bench of this Court to which one of us (Dr. B.S. Chauhan, J.) was a member in Writ Petition No. 8642 of 2003, Rajendra Singh v. State of U.P. and others, decided on 30.7.2003, has also held that without considering the merit of the case, the Court should not issue a direction to decide representation to any of the authorities for the reason that under the garb of getting the representation decided, the party may succeed in getting adjudicated a time barred claim, may be by an authority having no competence or by deciding the representation an order may be reviewed though remedy of review is not provided under the Statute. In the said case, under the garb of getting the representation decided, the party wanted the authority under the U.P. Motor Vehicles Taxation Act, 1997 to review its assessment. This Court while rejecting the writ petition,. Held as under : "The review application is not maintainable against the assessment order nor any order of rectification is permissible asking the said authority to decide representation would amount to directing him to review the said order which is not permissible in law. Creation of a jurisdiction in a Court is a Legislative function and it cannot be conferred by any means by the Court. Review/Appeal is a creation of Statute and it cannot be created by acquiescence of a party or by the order of the Court vide United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230 and Kesar Singh and others v. Sadhu, (1996) 7 SCC 711." Similar view has been reiterated in Employees State Insurance Corporation v. All India I.T.D.C. Employees Union and others, JT 2006 (4) SC 26, wherein it has been observed as under : "We may also note that sometimes the High Court dispose of matter merely with a direction to the authority to 'consider' the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the Court, to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to 'consider1 the matter afresh."
(3.) IN view of the above, a direction to decide the representation cannot be given.;