Narendra Singh Khichi Son Of Late ... vs State Of Rajasthan
2022 Latest Caselaw 2480 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

        S.B. Writ Miscellaneous Application No. 139/2019

Narendra Singh Khichi Son Of Late Shri Ram Singh Khichi,
Resident Of Plot No. 14, Ganesh Colony, Near Imliwala Phatak,
Jaipur (Raj.)
                                                                     ----Petitioner
                                     Versus
1.     State     Of      Rajasthan,          Through          Secretary,    Urban
       Department, Secretariat, Jaipur.
2.     The Chief Executive Officer, Nagar Nigam Tonk Road,
       Jaipur.
3.     The Commissioner, Jaipur Nagar Nigam Tonk Road, Jaipur.
4.     The Commissioner, Jaipur Development Authority, Jaipur.
5.     Shri Vijay Kumar Sharma @ Mamaji Builder, R/o 129-130,
       Janakpuri, Near Imliwala Phatak, Jaipur.
6.     Senior Divisional Engineer, H.Q. North Western Railway,
       Zone Jaipur.
7.     Smt. Deepa Vijay Wife Of Ashok Vijay,
8.     Shri Ashok Vijay Son Of Shri Prayagraj Vijay,
       Both resident Of Plot No. 9, Ganesh Colony, Near Imliwala
       Phatak, Jaipur.
                                                                  ----Respondents

For Petitioner(s) : Mr. M.M. Ranjan, Senior Advocate with Mr. Daulat Sharma, Adv.

For Respondent(s) : Mr. Anil Mehta, Additional Advocate General with Mr. Yashodhar Pandey, Adv., Mr. Amit Kuri, Adv. with Mr. Vikram Sharma, Adv. & Ms. Aditi Jodha, Adv., Dharma Ram, Adv. for JDA

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

23/03/2022

(2 of 7) [WMAP-139/2019]

Matter comes up for considering the application filed by the 5

applicants for recalling the order dated 19.05.2017 passed by this

Court in S.B. Civil Writ Petition No.8106/2009 along with S.B. Civil

Writ Petition No.14948/2009, decided by the common order.

Learned Senior Counsel for the applicants submitted that the

applicants are residents of Ganesh Colony, Arjun Nagar, Mahesh

Colony, Natraj Nagar, Telephone Colony, Barkat Nagar, Radha

Krishan Nagar, Arujunpuri and other nearby colonies and they are

near the Railway Line leading from 22 Godown (Ganda Nala to

Tonk Phatak) Jaipur.

Learned Senior Counsel for the applicants submitted that the

applicants are plot holders and they have constructed their

houses.

Learned Senior Counsel for the applicants submitted that the

JDA has also allotted plots to certain applicants and as such they

are in legal possession and have title over the plots.

Learned Senior Counsel for the applicants submitted that

S.B. Civil Writ Petition No.8106/2009 was filed before this Court

by the petitioner Narendra Singh Khinchi whereby he had prayed

for issuing direction to the official respondents to remove illegal

construction and structure said to be made by the private

respondent No.5 in the writ petition-Mr. Vijay Kumar Sharma.

Learned Senior Counsel for the applicants submitted that the

petitioner had raised grievance in respect of only one person and

strict legal action was sought against the said private respondent

in the writ petition.

Learned Senior Counsel for the applicants submitted that this

Court while passing the order dated 19.05.2017, has given

(3 of 7) [WMAP-139/2019]

direction to remove encroachment said to be existing between the

Railway Track and Mahesh Colony.

Learned Senior Counsel for the applicants submitted that the

respondent-Jaipur Development Authority (hereinafter referred to

as 'the JDA') was given opportunity to give notice under Sections

32 & 72 of the Jaipur Development Authority Act, 1982

(hereinafter referred to as 'the Act of 1982') and compliance of the

order passed in the case of Gulab Kothari & Ors. Versus State

of Rajasthan & Ors. (D.B. Civil Writ Petition [PIL]

No.1554/2004), was also required to be ensured.

Learned Senior Counsel for the applicants submitted that

while passing the order, this Court gave direction to remove all

encroachments against all the similarly placed persons without

discrimination and further found that no opportunity was required

to be given to such encroachers except by issuing notice under

Sections 32 & 72 of the Act of 1982.

Learned Senior Counsel for the applicants submitted that the

applicants who are having the possession over the plots in

question and same having been duly allotted by the Competent

Authorities, are now facing the threat of removal of constructions

which have been validly made by the applicants.

Learned Senior Counsel for the applicants submitted that this

Court while considering the grievance raised by the petitioner in

the writ petition was concerned with the alleged encroachment

said to be made in the plot Nos.9 & 10, Ganesh Colony, Imliwala

Phatak, however, while passing the final order, the judgment in

rem has been passed and persons like applicants have been

rendered remediless.

(4 of 7) [WMAP-139/2019]

Learned Senior Counsel for the applicants submitted that if

at all the Single Bench of this Court was to pass same order of

general nature, proper remedy was available with the petitioner

for either treating the writ petition as Public Interest Litigation or

the learned Single Judge realizing the scope of writ petition could

have referred the matter to the Division Bench for considering the

grievance which was raised by the petitioner of seeking removal of

all the constructions, which were said to be made illegally by

different persons.

Learned Senior Counsel for the applicants submitted that

there is an error apparent on the face of record even from the

bare reading of the relief which has been granted by the Court.

Learned Senior Counsel for the applicants submitted that

there was no prayer on behalf of the petitioner to change the

prayer clause or to make amendment in the writ petition by giving

instances of illegal constructions being made by valid plot holders.

Learned Senior Counsel for the applicants submitted that

though power under Article 226 of the Constitution of India is

available with the Court of issuing directions/mandamus, however,

in absence of necessary and proper parties, if directions are issued

of general nature, the affected parties cannot be rendered

remediless and their right to represent cannot be denied.

Learned counsel-Mr. Devendra Singh Raghav appearing for

the original-petitioner has opposed the prayer made in the

application for recalling of the order passed by this Court.

Learned counsel-Mr. Devendra Singh Raghav submitted that

parties were present before the Court when the order dated

19.05.2017 was passed.

(5 of 7) [WMAP-139/2019]

Learned counsel-Mr. Devendra Singh Raghav submitted that

admittedly there was encroachment on the public road and as

such this Court, considering the gravity of the situation of illegal

encroachments being made by different persons, was within its

competence to issue general directions.

Learned counsel-Mr. Devendra Singh Raghav further

submitted that enough safeguard has already been given in order

to all those people who have made illegal encroachments as notice

is required to be served to such persons either under Sections 32

or 72 of the Act of 1982.

Learned counsel-Mr. Devendra Singh Raghav submitted that

encroachers do not have any right to represent before this Court

and further to agitate their rights by claiming that the valid Patta's

have been issued in their favour.

Learned counsel-Mr. Devendra Singh Raghav further

submitted that if the applicants have any grievance, the remedy is

already provided in the order passed by this Court, and as such,

this Court may not recall the order dated 19.05.2017.

Learned counsel-Mr. Amit Kuri appearing for the respondent-

JDA submitted that reply to the application filed by the applicants

has been filed on behalf of JDA and JDA has brought on record the

different decisions which have been taken from time to time in

compliance of the order passed by this Court.

Learned counsel-Mr. Amit Kuri submitted that the directions

given by this Court are of far reaching consequences and there

has been a great difficulty in implementing the order as well.

Learned counsel-Mr. Amit Kuri submitted that issue of 90 ft.

road or width of the road is yet to be finally decided by the Court

(6 of 7) [WMAP-139/2019]

as in the Zonal Plan, the said road has been shown of 100 ft. after

decision of this Court in 2018.

Learned counsel-Mr. Amit Kuri submitted that at the time of

decision given by this Court, there was no road of 100 ft. as was

claimed by the original-petitioner.

I have heard the submissions made by learned counsel for

the parties and perused the material available on record.

This Court, finds that the directions which have been given

by this Court on 19.05.2017 are of far reaching consequences.

This Court, finds that the applicants or other persons who

are said to be the plot holders of the land which has been duly

allotted as claimed by them, needs to represent their case before

this Court.

This Court also finds that the direction which was sought in

the writ petition was only confined to remove the alleged

encroachments made by the private respondent in the writ

petition, while direction has been given by this Court to remove all

the encroachments on a particular width of the road.

This Court further finds that if the Single Bench was of the

opinion that direction of general nature was required to be given,

it would have been better for the Court to consider all the aspects

and then either to seek necessary amendment in the writ petition

or on its own to refer the matter to the Division Bench by treating

as a Public Interest Litigation.

For the reasons aforesaid, this Court recalls the order dated

19.05.2017.

Accordingly, the misc. application stands allowed.

The writ petition may be listed for admission.

(7 of 7) [WMAP-139/2019]

The applicants would be at liberty to become a party in the

writ petition by moving proper application.

(ASHOK KUMAR GAUR),J

Ramesh Vaishnav /86/Bhavnesh Kumawat

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