Municipal Council, Rajgarh vs Ramotar
2021 Latest Caselaw 16398 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14535/2021

1. Municipal Council, Rajgarh, Through Chairman, District Churu, Rajasthan.

2. The Executive Officer, Municipal Council, Rajgarh, Tehsil Rajgarh, District Churu, Rajasthan.

----Petitioners Versus Ramotar S/o Prahalad Rai, Aged About 55 Years, B/c Sarawagi Agarwal, R/o Ward No. 9 Rajgarh District Churu Through Mukhtyar Khas Balkishan S/o Ramotar B/c Sarayagi Agrawal Aged 34 Years R/o Ward No. 9 Tehsil Rajgarh, District Churu.

                                                                     ----Respondent


For Petitioner(s)          :     Mr. Nitin Trivedi
For Respondent(s)          :     Mr. D.S. Rajvi



                       JUSTICE DINESH MEHTA

                                  Judgment

28/10/2021

1. The present writ petition involves challenge to the order

dated 30.09.2021, passed by the learned Civil Judge, Rajgarh,

District Churu, whereby respondent's application dated

01.03.2021 has been rejected.

2. The facts narrated briefly are that the plaintiff (respondent

herein) instituted a suit for injunction against Municipal Council,

Rajgarh (petitioner herein) under Section 38 of the Specific Relief

Act, 1963 alongwith application for temporary injunction.

3. In the temporary injunction application, the Trial Court on

16.09.2020, granted time to the Municipal Council to file reply and

posted the matter on 29.09.2020 and till the next date, the

(2 of 5) [CW-14535/2021]

parties were asked to maintain status quo in terms of the

Commissioner report.

4. Since the presiding officer was unavailable on 29.09.2020 on

account of rotation of presiding officers directed by the High

Court, the matter was adjourned to 05.10.2020, (as has been

noticed by this Court in the order dated 26.11.2020), and the

interim order could not be extended.

5. Taking advantage of such situation, the Municipal Council

issued seizure memo on 02.10.2020 and took possession of the

subject shop in question on 05.10.2020.

6. Faced with such situation, respondent moved an application

under Section 151 of Code of Civil Procedure by which, the Trial

Court continued the interim order dated 16.09.2020, passed by it.

7. Challenging the extension of interim order by the trial Court

vide its order dated 09.10.2020, the petitioner preferred a writ

petition being SBCWP No.11822/2020 (Municipal Board Rajgarh

Vs. Ramotaar), which was dismissed by this Court.

8. While dismissing the petitioner's writ petition, this Court had

observed that petitioner-Municipal Council ought not to have taken

advantage of fortuitous circumstances that the interim order could

not be extended by the trial Court between 29.09.2020 and

05.10.2020.

9. But, since the possession had been taken by the Municipal

Council, the plaintiff (respondent herein) moved an application

under Section 151 of Code of Civil Procedure for restoring the

possession and issuing appropriate direction to the defendant

Municipal Council to handover the possession of the shop.

10. Considering respondent's aforesaid application, the Court

below has passed the impugned order dated 30.09.2021 and

(3 of 5) [CW-14535/2021]

directed the defendant Municipal Council to handover the

possession of the shop in question to the plaintiff.

11. Mr. Trivedi, learned counsel for the petitioner challenging the

order dated 30.09.2021, contended that the respondent-plaintiff

had amended his suit by way of an application under Order VI

Rule 17 of Code of Civil Procedure and accordingly a prayer had

been incorporated in the suit that the respondent council be

directed to handover peaceful possession of the shop. He argued

that impugned order dated 30.09.2021 amounts to grant of final

relief, which could not have been granted by the Court below.

12. It was further contended that once the shop in question has

been seized by the Municipal Council, it was required of the

respondent-plaintiff to seek statutory remedy of appeal before the

Director as envisaged under Setion 194 of the Municipalities Act,

2009.

13. On the other hand, Mr. Rajvi, learned counsel for the

respondent-plaintiff argued that the petitioner's arguments are too

technical and have been raised in order to subvert the ends of

justice. While admitting that the petitioner-Municipal Council had

taken possession of the shop taking advantage of the fact that the

interim order duly granted by the Court in his favour could not be

extended, he argued that unless the interim order is vacated by

the Court, one of the litigating parties cannot be allowed to take

action to frustrate the interim order.

14. He argued that by way of the impugned order dated

30.09.2021, the trial Court has simply restored the position as

existed on 16.09.2020. He further argued that petitioner's

argument that as the seizure has taken place, the plaintiff is

required to avail remedy of appeal cannot be countenanced,

(4 of 5) [CW-14535/2021]

because any action taken by the Municipal Council during the

pendency of the suit is/was subject to the suit proceedings,

particularly when this Court so also the trial Court has found the

seizure of subject property to be arbitrary and illegal.

15. Heard.

16. Admittedly, the Municipal Council had taken possession of

the shop from respondent on 05.10.2020, and the seizure memo

was affixed on the shop on 02.10.2020, during the period when

fortuitously the interim order could not be extended. As has

already been held by this Court in its judgment dated 26.11.2020,

the action of the Municipal Council was contrary to law.

17. In the opinion of this Court, it did not behoove the Municipal

Council to take possession of the disputed shop, particularly when

the suit proceedings were pending and an ad interim order was

passed in his favour. Concededly interim order was not vacated by

the trial Court. The action of the petitioner has been held illegal

and arbitrary by this Court and extention of interim order by the

trial Court has been held valid.

18. Since the interim order has been extended and the same has

been duly upheld by this Court, legally speaking action of the

Municipal Council of taking possession has been rendered a nullity

or void.

19. So far as Mr. Trivedi's arguments that the Court has granted

final relief by the impugned order is concerned, suffice it to

observe that the Court has done nothing except requiring the

parties to maintain status quo. That apart since the possession

itself was a nullity and hence even if the order impugned dated

30.09.2021 looks like granting final relief, in the opinion of this

(5 of 5) [CW-14535/2021]

Court, the same is legally justified, as the ends of justice

warranted such an order.

20. While exercising, inherent powers available to the Court

under Section 151 of Code of Civil Procedure, the Court is

empowered to pass such order and restore the position, which was

altered by one of the litigating parties by proceeding arbitrarily

and contrary to law.

21. This Court also hardly finds any merit or substance in

petitioner's argument that once the seizure has been made, the

respondent-plaintiff was required to avail remedy of appeal under

Section 194 (12) of the Municipalities Act, 2009.

22. As noticed above, since the seizure itself was illegal and

arbitrary. Merely because the plaintiff's amended application under

Order VI rule 17 of Code of Civil Procedure had been allowed, the

plaintiff could not have been relegated to avail remedy of appeal

before the Director.

23. Arguments advanced by the learned counsel for the

petitioner are too technical to be accepted. The petitioner-

Municipal Council being local body, is required to adhere to the

laws and orders passed by the competent Courts.

24. As a consequence of discussion foregoing, the writ petition

fails.

25. Petitioner-Municipal Council is directed to forthwith handover

the possession of the shop in question.

26. Stay application also stands disposed of.

(DINESH MEHTA),J 79-Rahul/-

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