SHETHNA, J. - (1.) IS this Court bound to interfere with each and every order passed by subordinate authority in its powers under Article 226/227 of the Constitution of India?" Answer to this question is no.
(2.) THE petitioner has challenged in this petition, which is filed under Article 226/227 of the Constitution of India, the impugned order at Annex. 4 dated 15. 4. 1998 passed by the Addl. Divisional Commissioner in exercise of his powers under Section 300 of the Municipality Act, 1959 remanding the matter to the Municipality to decide the case afresh after extending an opportunity to both the petitioner as well the contesting respondent No. 4. Learned counsel Shri J. P. Joshi for the petitioner vehemently submitted that the revision petition filed by respondent No. 4 against the order passed by the Municipality, Rajsamand on 18. 1. 1997 (Annex. 1) is wholly without jurisdiction as the impugned order dated 18. 1. 1997 (Annex. 1) was appealable under Section 170 (12) of the Municipality Act before the Collector. He submitted that instead of filing appeal, the respondent No. 4 preferred a revision petition under Section 300 before the Addl. Divisional Commissioner, Udaipur because the appeal was hopelessly time barred by a period of about ten months. He further submitted that under Section 170 (14) of the Act the order passed in appeal is final, therefore, no revision was maintainable. Hence, he submitted that the impugned order of remand at Annex. 4 passed by the Addl. Divisional Commissioner is wholly without jurisdiction, therefore, this Court must exercise its jurisdiction under Article 226/227 of the Constitution of India. It is not in dispute that the impugned order at Annex. 1 was appealable. Even the Addl. Divisional Commissioner himself while passing the order of remand clearly stated in the order that appeal was maintainable under Section 170 (12) of the Act against the order at Annex. 1. But, he was very much concerned with the gravity of the case, therefore, he was of the opinion that the revision was maintainable, therefore, he can pass order of remand in exercise of his powers under Section 300 of the Act. In this case, the case of the petitioner was that after inviting objections the permission was granted vide Annex. 1 and the respondent No. 4 slept over the matter for a period of more than ten months and when he realised that his appeal would be time barred, therefore, he filed a revision petition under Section 300 of the Municipalities Act. However, from the reply filed by respondent No. 4 it is clear that petitioner had forged the signature of the respondent No. 4 when the objections were invited. Under the ordinary circumstances, this Court would have certainly interfered with such impugned order of remand when the authority exercised its revisional jurisdiction though the appeal was maintainable against the impugned order which was under challenge in revision, but when the substantial justice is done by the Addl. Divisional Commissioner and by the impugned order simply the matter is remanded to the Municipality, Rajsamand to decide the case afresh after hearing both the petitioner as well as respondent No. 4 then I am of the view that this Court should not exercise its jurisdiction in such type of cases. At the most, the respondent No. 4 would have been asked to prefer appeal against such order by directing the appellate authority to condone the delay and decide the appeal on merits as time and again the Hon'ble Supreme Court and this Court took the view that matter should be decided on merits and it should not be thrown out on technical objection like limitation, etc. In that view of the matter, even if the respondent No. 4 was relegated to the alternative remedy of appeal then also it would have been exercising futility because ultimately the appellate authority would have remanded the matter to the Municipality.
(3.) IN view of the above discussion, I do not see any reason to interfere with such remand order in this writ petition in exercise of my powers either under Article 226 or 227 of the Constitution of INdia. Hence, this petition fails and is hereby dismissed. Stay, if any, granted earlier stands vacated forthwith. .;