[2023:RJ-JD:33515] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14929/2023 Mahendra Choudhary S/o Shri Purkha Ram, Aged About 48 Years, By Caste Choudhary, Resident Of 29, Ram Nagar, Banar Road, Jodhpur.
----Petitioner Versus
1. Jodhpur Development Authority, Jodhpur, Through Secretary.
2. Police Station Banar, Jodhpur, Through S.h.o.
3. State Of Rajasthan, Through Tehsildar, Jodhpur.
4. Deputy Commissioner Of Police, Headquarter And Traffic Commissionerate, Jodhpur.
5. District Collector, Jodhpur.
----Respondents S.B. Civil Writ Petition No. 15203/2023 Pushpa Kanwar W/o Shri Bhagwan Singh Ji, Aged About 59 Years, 369, Mohan Nagar-Ii, B.j.s. Colony, Jodhpur.
----Petitioner Versus
1. Jodhpur Development Authority, Jodhpur, Through Secretary.
2. Police Station Banar, Jodhpur Through S.h.o.
3. State Of Rajasthan, Through Tehsildar, Jodhpur.
4. Deputy Commissioner Of Police, Headquarter And Traffic Commissionerate, Jodhpur.
5. District Collector, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Narendra Thanvi
For Respondent(s) : Mr. Karan Singh Rajpurohit, AAG with
Mr. Rajat Arora.
Mr. Rajat Dave.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment Reserved on 06/10/2023 Pronounced on 31/10/2023 (Downloaded on 12/11/2023 at 08:15:10 AM) [2023:RJ-JD:33515] (2 of 7) [CW-14929/2023]
1. Since both the instant petitions involve a common controversy, though with marginal variation in the contextual facts, therefore, for the purposes of the present analogous adjudication, the facts and the prayer clauses are being taken from the above-numbered S.B. Civil Writ Petition No.14929/2023, while treating the same as a lead case.
2. The prayer clauses read as under:
"It is, therefore, respectfully prayed that this Hon'ble Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction:-
(i) quash the order impugned dated 04.09.2023 (Annexure-8) passed by the Learned Addl. District Judge No.2, Jodhpur Metropolitan in Civil Appeal Order No.20/2023; and
(ii) the order dated 25.07.2023 (Annexure-6) passed by learned Additional Civil Judge No.2, Jodhpur Metropolitan in Civil Misc. Case No.60/2023 may kindly be restored back throughout; and
(iii) the temporary injunction application filed by the petitioner may kindly be allowed with costs in toto; and
(iv) any other appropriate relief which this Hon'ble Court deems fit necessary in the fact and circumstances of the present case be granted in favour of the petitioner; and
(v) Cost of the writ petition kindly ordered to be awarded to the petitioner."
3. Brief facts of the case, as placed before this Court by learned counsel for the petitioner, are that petitioner instituted a suit for declaration and mandatory & permanent injunction alongwith an application under Order 39 Rule 1 & 2 CPC with Section 151 CPC against the respondents before the learned Civil Judge & Metropolitan Magistrate No.2, Jodhpur Metropolitan, stating therein that the petitioner was having a land i.e. plot no. (Downloaded on 12/11/2023 at 08:15:10 AM) [2023:RJ-JD:33515] (3 of 7) [CW-14929/2023] 45 & 46 in Khasra no.53 at Village-Banad, which was purchased by him through a sale deed from one Gopal Das. On the western side of khasra no.53, there was a land of khasra no.56 and the same was allotted to the respondents; whereafter, respondents also placed their board on khasra no. 53 for construction of administrative & residential block of police department and the possession of the land in question was handed over to the respondents.
3.1. The petitioner further stated that khasra no. 53 belonged to the petitioner and he was legal owner of the said land, and therefore he prayed for temporary injunction against the respondents restraining them from raising any construction over the land in question.
3.2. Thereafter, the learned Court below vide order dated 25.07.2023 allowed the said application and directed the respondents not to make any construction over the land in question and maintain the status quo in regard thereto. 3.3. Being aggrieved by the order dated 25.07.2023, the respondents no.2 to 5 filed an appeal under Order 43 Rule 1 CPC before the learned District Judge, Jodhpur Metropolitan (Appellate Court), whereupon the learned Appellate Court vide the impugned order dated 04.09.2023 allowed the said appeal, and quashed the order dated 25.07.2023. Thus, the present petition has been preferred claiming the afore-quoted reliefs.
4. Learned counsel for petitioner submitted that the petitioner was having his owned, purchased & pattasud plots of land in question and issuance of the said patta was never challenged (Downloaded on 12/11/2023 at 08:15:10 AM) [2023:RJ-JD:33515] (4 of 7) [CW-14929/2023] before any authority. It was further submitted that the respondents did not make any demarcation of the land for the purpose of allotment, and therefore, the impugned order is not justified in law.
4.1. Learned counsel further submitted that the learned Court below in the order dated 25.07.2023 observed that the petitioner is not claiming any right regarding the land situated in khasra no.56 and the presence of the board of the respondents over the land in question does not establish the possession of the respondents, and therefore, the impugned order is not sustainable in the eye of law.
4.2. Learned counsel also submitted that the respondents with an intention to encroach upon the land of khasra no.53 despite the fact that the respondent no.1 has only allotted 5 bighas land of khasra no. 56 to the respondent no.2 and the same was also clear from the allotment letter dated 02.08.2017 and site possession handing over report dated 13.06.2018.
4.3. Learned counsel further submitted that the intention of the respondents is clear from non-demarcation of the land in question, and therefore, it is clear that prima facie case is made out in favour of the petitioner, but the learned Appellate Court passed the impugned order without considering that the case of the petitioner falls under the parameter for grant of temporary injunction.
5. On the other hand, Mr. Karan Singh Rajpurohit, learned Additional Advocate General (AAG) with Mr. Rajat Arora; and Mr.Rajat Dave appearing on behalf of the respondents, while (Downloaded on 12/11/2023 at 08:15:10 AM) [2023:RJ-JD:33515] (5 of 7) [CW-14929/2023] opposing the aforesaid submissions made on behalf of the petitioners, submitted that the respondent-Police Department applied for allotment of the land before the respondent -JDA, whereafter, the respondent-JDA as per the law, allotted the land in question to the respondent-Police Department vide allotment letter dated 02.08.2017.
5.1. It was further submitted that the petitioner did not furnish any document to show that the allotted land was part of khasra no.53, and therefore, no case was made out in favour of the petitioner for grant of temporary injunction, and thus, the impugned order passed by the learned Appellate Court is justified in law.
5.2. It was also submitted that the possession of the land in question was allotted to the respondent-Police Department and the construction of the police station had already been started, and thus, the entire exercise was undertaken as per the law; hence, the petitioner's prayer for grant of interim relief in question was not maintainable, and thus, the impugned order passed by the learned Appellate Court does not suffer from any error of law. 5.3 In support of such submissions, reliance was placed upon the following judgments:-
(a) Larsen & Toubro Ltd. Vs State of Gujarat & Ors. (1998) 4 SCC 387;
(b) Legal Representatives of Late Sh. Badiya Vs State of Rajasthan & Ors. (S.B.C.W.P. No. 82/1999, decided on 01.06.2017) by the Coordinate Bench of this Hon'ble Court; and (Downloaded on 12/11/2023 at 08:15:10 AM) [2023:RJ-JD:33515] (6 of 7) [CW-14929/2023]
(c) Legal Representatives of Late Sh. Badiya Vs State of Rajasthan & Ors. (D.B. Spl. Appl. No. 724/2017, decided on 28.08.2017) by the Division Bench of this Hon'ble Court.
6. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar.
7. This Court observes that the petitioner instituted the aforementioned suit alongwith the application under Order 39 Rule 1 & 2 CPC with Section 151 CPC against the respondents before the learned Court below. The learned Court below vide order 25.07.2023 allowed the T.I. application and directed the respondents not to make any construction over the land in question and maintain the status quo in regard thereto. Aggrieved by the order dated 25.07.2023, the respondents no.2 to 5 filed the aforementioned appeal before the learned Appellate Court, which was allowed vide the impugned order dated 04.09.2023, while quashing and setting aside the order dated 25.07.2023.
8. This Court further observes that total 5 bighas land from khasra no. 56 was allotted to the respondent-Police Department for construction of administrative and residential block of Police Station, Banad as per the Government Policy as well as the provisions of law and the allotment letter dated 02.08.2017 was issued and possession was also handed over on 13.06.2018.
9. This Court also observes that there is nothing on record as well as in the impugned order passed by the learned Appellate Court, which could show that the land of khasra no. 53 was included in khasra no.56 and allotted to the respondent-Police Department.
(Downloaded on 12/11/2023 at 08:15:10 AM)
[2023:RJ-JD:33515] (7 of 7) [CW-14929/2023]
10. This Court further observes that the petitioner's case was not falling under the parameters for grant of temporary injunction in the present case, because there was no prima facie material available on record to support the case of the petitioner for grant of temporary injunction.
11. This Court also observes that as per the photographs provided by the respondents' counsel, it is clear that the construction in question has already been started by the respondents, and thus, at this stage, if any interim relief is granted in favour of the petitioner, then the respondents shall unwarrantedly suffer an irreparable loss. This Court further observes that for the balance of convenience, at this stage, the petitioners are not entitled for any relief.
12. This Court also observes that the learned Appellate Court passed the impugned order after duly considering the overall facts and circumstances of the case as well as after duly appreciating the material placed on record before it.
13. Thus, in light of the aforesaid observations as well as looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioners in the present petitions.
14. Consequently, the present petitions are dismissed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
SKant/-
(Downloaded on 12/11/2023 at 08:15:10 AM) Powered by TCPDF (www.tcpdf.org)