1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1281 OF 2009. Ashok Infrastructures Consortium (AOP) Nashik, through its Vice President Shri Shrikant Pandurang Shukla, age 42 years, Occu. Business, r/o Nashik, Taluka and District Nashik. .... PETITIONER. VERSUS Executive Engineer, PWD Dhule, Bandhkam Bhavan, Dhule. .... RESPONDENT. ... Shri B.R. Pathak, Advocate holding for Smt. S.D. Tambat-Dhumal, Advocate for petitioner. Shri N.B. Khandare, Govt. Pleader for respondent. ... CORAM : S.S. SHINDE, J. RESERVED ON : 12.10.2009. PRONOUNCED ON : 16.10.2009. PER COURT: 1. This writ petition is filed by the petitioner under Article 227 of the Constitution 2 of India with following prayers: “A) Allow this writ petition. B) Issue writ of mandamus or any other appropriate writ, order or direction in the like nature, directing the respondent to issue the notification for the collection of toll for the period granted in the award from vehicles passing through the Toll Naka situated at the diversion road outside Dhule town in Dhule District on S.H. No.7 – Surat- Dhule Road, in accordance with law by taking appropriate measures and issuing necessary orders and directions to the respondents and all its concerned authorities; C) Grant stay to the execution, operation and implementation of the order dated 01.09.2008, passed by the Learned District Judge at Dhule in Darkhast No.2/2008, pending the hearing and final disposal of this Writ Petition. 3 D) Prohibit the respondent by order of injunction from stopping the petitioner from collecting and retaining toll from the vehicles passing through the project facility “Construction of diversion road outside Dhule City from Chainage 0/000 to 5/900 i.e. Kms.” E) Grant Ad-inter relief in terms of prayer clause (C) and (D). F) Award cost of the petition and the same may be ordered to be reimbursed by the respondent to the petitioner. G) Any further and other reliefs may kindly be granted in favour of the petitioners as the nature and circumstances of the case may require.” 2. With the consent of the learned Counsel for the petitioner as well as the learned Government Pleader, the matter was taken for final disposal. The learned Counsel for the petitioner advanced 4 arguments on merits of the matter. However, the learned Government Pleader appearing for the respondent raised preliminary objection about maintainability of the writ petition under Article 227 of the Constitution of India before the Single Judge. 3. The learned Government Pleader appearing for the respondent invited my attention to the Rules 1 and 2 of Chapter I and Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960. If the prayer clause (B) of the petition is perused, it appears that this is the main prayer of the petitioner in the petition without asking for setting aside the impugned judgment and order which is challenged in this petition. Therefore, the learned Government Pleader would submit that this prayer cannot be considered under Article 227 of the Constitution of India by Single Judge. The learned Government Pleader further invited my attention to the Prayer (C) in the petition and submitted that though the petitioners have prayed stay to the execution, operation and implementation of the order dated 1st September, 5 2008 passed by the District Judge, Dhule in Darkhast No.2/2008, there is no main prayer praying for setting aside the said impugned order dated 1st September, 2008 and in absence of such a main prayer, prayer (C) cannot be considered by this Court. The learned Government Pleader further invited my attention to prayer clause (D) in the petition and submitted that such a prayer cannot be granted which does not even refer to the judgment and order impugned in this petition. The sum and substance of the arguments of the learned Government Pleader is that in view of the relevant provisions of Chapter XVII, Rule 18 of the Bombay High Court Appellate Side Rules, 1960, this petition with the above prayers is not maintainable before the Single Judge. 4. The learned Counsel for the petitioner submitted that there is prayer Clause (C) praying for stay to the execution, operation and implementation of the order dated 1.9.2008 passed by the District Judge at Dhule in Darkhast No. 2/2008. However, he fairly conceded that there is 6 no main prayer praying for quashing and setting aside the impugned judgment and order dated 1.9.2008 passed in Darkhast No.2/2008 by the District Judge, Dhule. The learned Counsel invited my attention to Ground No.(II) in the petition and submitted that the petitioner has challenged the said order dated 1st September, 2008 by taking specific ground in the petition. He further invited my attention to other contentions in the petition and submitted that though technically specific prayers are not there, this petition is maintainable and this Court may allow the petitioner to amend the prayers. 5. I have heard the learned Government Pleader on preliminary objection and I am of the considered view that with the prayers in the petition which are reproduced herein above, this petition cannot be entertained. On careful perusal of the prayer clauses (B) and (D), it clearly appears that those prayers cannot be considered by this Court under Article 227 of the Constitution. It is admitted position that the 7 petition has been filed under Article 227 of the Constitution. In absence of main prayer praying therein for quashing and setting aside the impugned judgment and order, it is not possible for this Court to entertain the writ petition. 6. I find considerable substance in the arguments advanced by the learned Government Pleader that in absence of main prayer, though there is prayer clause (C) praying for stay to the impugned judgment and order, the petition cannot be adjudicated. On careful perusal of the prayers, I do not think that it is possible to accede to the request of the learned Counsel for the petitioner to allow him to amend prayer clauses. If the petitioner is advised, he may file another petition with comprehensive pleadings and prayers. Since the interim order is running in favour of the petitioner, the learned Government Pleader has serious objection for further adjournment of this matter on any count and, therefore, the matter was taken for final disposal. In fact, the interim order which was continued by this Court from 23rd September, 8 2009 was granted by this Court on 18th September, 2009 in Civil Application No.9228 of 2009. In fact, Civil Application No.9228 of 2009 has been withdrawn by the petitioner and this Court on 23rd September, 2009 has observed: “Civil Application is dismissed as withdrawn.” Therefore, continuation of the said interim order passed in said Civil Application which is already withdrawn, is not possible and, therefore, there was no option but to hear this petition finally since the petitioner was pressing for the interim relief and learned Government Pleader was opposing for any adjournment of the petition and continuation of interim order any further. Therefore, without adjudicating the writ petition on merits in absence of main prayer for setting aside the impugned judgment and order, it is not possible to entertain this writ petition under Article 227 of the Constitution. 7. Hence, the writ petition is dismissed. Interim order granted on 18th September, 2009 stands vacated. 9 It is made clear that dismissal of this writ petition would not preclude the petitioner from filing fresh petition, if he is so advised, with specific prayers and pleadings. [ S.S. SHINDE, J ] Learned counsel for the petitioners, at this stage, prays for continuation of interim order dated 18.9.2009 passed in Civil application No. 9228 of 2009. Since this court on 23.9.2009 ‘dismissed the civil application as withdrawn’ prayer of the petitioner to continue interim order for further four weeks cannot be entertained, hence said prayer is refused. [ S.S. SHINDE, J ] ... Kadam/*