Govind Prasad vs State Of Rajasthan
2023 Latest Caselaw 7835 Raj

[2023:RJ-JD:30648]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4126/2021

Govind Prasad S/o Shri Chhagan Lalji, Aged About 56 Years, By Caste Agarwal, Resident of Sadar Bazar, Abu Road, Dist. Sirohi.

----Petitioner Versus

1. State Of Rajasthan, Through The Special Secretary, Department Of Autonomous Bodies And Local Self Government, Rajasthan, Jaipur.

2. The District Collector, Sirohi.

3. Municipal Board, Abu Road, District Sirohi, Through Its Executive Officer.

4. Senior Town Planner, Town Planning Department, Jodhpur.

5. Tehsildar, Abu Road, District Sirohi.

6. Bhakati Hardya Sharan, Ramji Mandir, Abu Road, District Sirohi.

                                                                   ----Respondents


For Petitioner(s)             :   Mr. Rajesh Shah
For Respondent(s)             :   Mr. Rajesh Parihar, AGC with
                                  Mr. Devam Jain
                                  Mr. C.S. Kotwani with
                                  Mr. Kanishq Singhvi



               HON'BLE DR. JUSTICE NUPUR BHATI

                                   Judgment

Reserved on               :       18/09/2023
Pronounced on             :       04/10/2023

1. The matter has been listed in the category of 'for orders'.

With the consent of learned counsel for the parties, the matter is

heard finally today, itself.

[2023:RJ-JD:30648] (2 of 12) [CW-4126/2021]

2. The instant writ petition has been filed by the petitioner

under Article 226 and 227 of the Constitution of India with the

following prayers:-

"(a) the respondents may kindly be directed to remove all type of illegal constructions raised over the land in question on the basis of forged, fabricated and concocted documents and restrained in raising any type of construction over the land in question.

(b) the respondents may kindly be directed not to grant any permission of construction of commercial complex on the land in question to the private respondent and if any permission in this regard has been granted, the same may kindly be cancelled and also cancelled all proceedings initiated for grant of permission of raising construction of commercial complex.

(c) the respondents may kindly be directed to fill up the pit dugout at the site over the land in question hence forth.

(d) the respondents may kindly be directed to not to issue new patta of the land in question to the private respondent as the private respondent is having no patta of the land in question as the land is with the petitioner and for using it for construction of Ramdwara and Satsang Bhawan because the same has been handed over to the petitioner by the owner of the property

(e) any other appropriate order or direction which this Hon'ble Court deem just and proper be passed in favour of the petitioner.

(f) Costs of this writ petition may kindly be allowed to the

petitioner."

3. Brief facts of the case are that within the territory of Abu

Road, there is a temple of Shri Ramji under the trust of Ramji

[2023:RJ-JD:30648] (3 of 12) [CW-4126/2021]

Mandir Trust, which is being possessed by Bhakati Hardya Sharan

without having any right, title and interest over it. There is a land

admeasuring 33 sq fts x 36 sq fts= 1188 sq fts in Ward No.10

near the house of Ishwar Singh Choutharam, Sadar Bazar, Abu

Road which is in the name of Shri Bhagwan Kishan Swaroop son

of Shanti Swaroop Agarwal, resident of Akara Bhatta of Abu Road.

The respondent Bhakati Hardya Sharan started illegal

construction over it without sanction/permission of the

respondent-Municipal Council, Abu Road, upon which, various

complaints were made to the respondents. After coming into

knowledge about the complaint, the respondent-Bhakati Hardya

Sharan submitted an application for sanction/permission of

construction based on the forged documents. The Municipal

Council processed the application for sanction/permission of

raising construction in the year 2018 over the land of patta

No.537 dated 29.09.1943. In the report, a fact came to

knowledge that the applicant-respondent had shown the size of

land as 33 sq.fts x 36 sq.fts=1188 sq.fts whereas, the size as

shown in Patta No.537 for plot is 28 sq.fts x 45 sq.fts = 1260

sq.fts, and from the map, the same was not being tallied.

Furthermore, the four corners of the plot in question did not

match. Considering the application for sanction of construction,

the Municipal Council took two decisions viz. (1) Issue notice for

filling up of pit and (2) Asked Senior Town Planner, not to proceed

further for making conversion of the land from residential to

commercial.

[2023:RJ-JD:30648] (4 of 12) [CW-4126/2021]

4. The respondent-Municipal Council, Abu Road, looking to the

public agitation in regard to the illegal dugout, made construction

without issuing of NOC in this regard by the Municipal Council, Abu

Road and the respondent-Bhakati Hardya Sharan was restrained

for raising any type of construction unless and until the sanction of

construction is issued and the raw material lying at the site was

also seized and in this regard, a news item was also published in

the news paper. The respondent Municipal Council, Abu Road vide

its letter dated 16.5.2019 (Annexure-3) sought a technical opinion

in regard to the grant of mixed permission of residential as well as

the commercial, over the land in question situated in Ward No.10,

Sadar Bazar by respondent-Bhakati Hardya Sharan for

construction of Basement, Ground Floor, First Floor and Second

Floor. The respondent-Municipal Council. Abu Road on receiving

the application of the respondent-Bhakati Hardya Sharan for

sanction of construction over the land in question, invited

objections from the public at large of Abu Road by issuing and

publishing the Objection Information dated 3.1.2019 (Annexure-4)

and 4.1.2019 (Annexure-5). While coming into knowledge of such

facts of illegal constructions and dugout on the plot in question at

Ward No.10 Sadar Bazar, Abu Road, the residents of Ward No. 10

submitted their objections in regard to such construction of

basement after demolishing the old building structure on the land

in question and digging out deep pit at that site, as there was

apprehension of the residential buildings getting collapsed and

therefore, in the said objections, it was prayed that the existing pit

may be filled up by the respondent No.3.

[2023:RJ-JD:30648] (5 of 12) [CW-4126/2021]

5. The respondent Municipal Council, Abu Road also issued a

notice vide letter dated 17.5.2019 (Annexure-7) to Shri Bhakati

Hardya Sharan of Shri Ramji Mandir Trust and informed him that

he has submitted application for construction over the plot sized

33 sq.fts x 36 sq.fts = 1188 sq.fts whereas, the measurement of

the land in patta is 28 x 45 = 1260 sq. fts, the patta so submitted

with application is not of the land in question rather is of another

land at another place, furthermore, a pit had been dugout at land

in question and it was directed to fill up the so called pit and

explain the opposition about the patta and map otherwise action

would be taken for committing forgery with the respondent-

Municipal Council, Abu Road. Looking to such facts and

circumstances, the petitioner served a legal notice to the

respondents. The petitioner also submitted yet another

representation dated 4.6.2019 (Annexure-9) to the respondent

Municipal Council, Abu Road. Despite legal notice, the respondent

Bhakati Hardya Sharan still had not filled up the pit so dugout at

the land in question. More so, said Pit still is lying open and there

is every possibility of causing loss of human life. Further the

residents of Ward No. 10 and the public at large are facing so

many difficulties and they are living under risk.

6. The respondent Bhakati Hardya Sharan started new

correspondence with the District Collector. Sirohi and submitted

yet another application dated 3.7.2020 (Annexure-11) and

submitted that old building has been demolished situated at Sadar

Bazar, Abu Road therefore he may be granted permission of re-

construction of the same. On receiving the application by the

[2023:RJ-JD:30648] (6 of 12) [CW-4126/2021]

office of the District Collector, Sirohi, the Tehsildar Abu Road and

the Executive Officer, Municipal Council. Abu Road were informed

that Shri Ramji Mandir Trust, Abu Road has stated in his

application that the Ramji Mandir Trust is registered trust under

Public Trust Act and stated that the Trust is having a commercial

building in Ward No. 10, Sadar Bazar. Abu Road and having the

position as tattered, the said building has been demolished and

sought permission for re construction of the said commercial

building. The District Collector vide letter dated 21.8.2020

(Annexure-13) asked the respondent Bhakati Hardya Sharan of

Ram Mandir to remove deficiency of certain documents in his

application i.e. Deed of Patta which was not annexed with it,

information of order of conversion of land from residential to

commercial and asked him to submit the same within 07 days.

7. Shri Bhagwan son of Shanti Swaroop Agarwal, the patta

holder of the land in question submitted another representation

dated 24.8.2020 (Annexure-14) against the new institution of

proceedings for grant of permission to Bhakati Hardya Sharan over

the land having the interest, right and fifle of him which were

given to the petitioner for construction of Ramdwara and Satsang

Bhawan. The Tehsildar, Abu Road and Executive Officer, Municipal

Council, Abu Road, the District Collector, Sirohi again issued yet

another letter and asked to submit the clear factual report in

regard to grant permission of commercial construction as sought

by earlier letter dated 16.7.2020 (Annexure-12). Upon which, the

respondent Municipal Council, Abu Road issued a reminder letter

vide dated 29.10.2020 (Annexure-16) to the letter dated

[2023:RJ-JD:30648] (7 of 12) [CW-4126/2021]

21.8.2020 (Annexure-13) and asked to submit requisite

documents immediately. Again a reminder vide dated 4.2.2021

(Annexure-17) to his letters dated 21.8.2020 (Annexure-13) and

29.10.2020 (Annexure-16) was issued by the Municipal Council,

Abu Road and asked respondent Bhakati Hardya Sharan to submit

the requisite documents. Being aggrieved of the same, the

petitioner has preferred the present writ petition.

8. Learned counsel for the petitioner submitted that the private

respondent has dug a pit on land in question by way of

demolishing the old construction however, despite the service of

notice dated 17.06.2019, the pit has not yet been filled by him

and the residents of ward No.10 and the public at large are facing

grave difficulty as on account of the open pit, lives of the public at

large is in danger. The respondent Municipal Council had also

issued a notice dated 17.05.2019 (Annexure-7) to the private

respondent while informing him that the application submitted by

the private respondent for construction over the plot admeasuring

33 sq fts x 36 sq fts= 1188 sq fts whereas the actual

measurement of the land is 28 sq.fts x 45 sq.fts = 1260 sq. fts

while also mentioning in the stay notices that the application is not

for the land in question. Learned counsel further submitted that

the Municipal Council has proceeded illegally permitting

construction in favor of the private respondent over the land in

question as the private respondent is not having any right, title in

the land in question. He also submitted that the respondents are

well aware of the pendency of the present writ petition however,

despite such knowledge had proceeded to grant the permission in

[2023:RJ-JD:30648] (8 of 12) [CW-4126/2021]

favor of the respondent for construction on the said land in

question vide order dated 04.08.2022

9. Learned counsel for the respondents jointly raised a

preliminary objection that the present writ petition is not

maintainable on the ground that under Section 194(12) of the

Rajasthan Municipalities Act, 2009 (hereinafter The Act of 2009)

an efficacious, alternative statutory remedy of filing appeal is

available to the petitioner.

10. Learned counsel for the respondents further submitted that

the respondent No.6 is a Public Trust registered under the Public

Trust Act, 1959 on 12.02.1988 with the office of Assistant

Commissioner, Dev Sthan Department bearing registration

No.1/88 in the name of Bhakati Hardya Sharan,Ramji Mandir

Trust, Abu Road, Sirohi and a Will dated 19.10.1963 was executed

by the Mahant of Respondent-Trust transfering

immovable/moveable properties including Patta No.537 dated

29.09.1943 in the name of Bai Ummed (Umiya Devi).

11. Learned counsel appearing for respondent No.3 submitted

that upon the application submitted by respondent No.5, the

status report from respondent No.3 and respondent No.4 was

sought by the Additional Collector. Learned counsel for respondent

No.3 also submitted that the concerned Engineer was directed to

prepare a factual report of the land in question in respect of the

construction as requested by the private respondent whereupon,

the said inspection report (Annexure R/2) submitted while

mentioning in it that the plot in question was registered in the

name of Ramji Mandir Trust, Abu Road, Sirohi in the records of

[2023:RJ-JD:30648] (9 of 12) [CW-4126/2021]

Municipality and the Devsthan Department with a specific advice

that since the area is a commercial area thus, the permission of

construction can be given. Learned counsel for the respondents

jointly submitted that again the said inspection report was

prepared by the Assistant Town Planner (Annexure R/3) in which it

was opined that the construction permission can be given to the

respondent No.5. They further submitted that thereafter on

28.07.2022, it was resolved that the matter may be decided by

the Empowered Committee and on 29.07.2022, the members of

Empowered Committee took a unanimous decision of granting

permission to the private respondent over the land in question.

12. Learned counsel for respondent No.3 further submitted that

thereafter, a resolution dated 29.07.2022 was passed by the

Empowered Committee granting permission to respondent No.5

for construction and the deposition of the requisite charges on

12.08.2022. He further submitted that the petitioner has not

submitted any document showing his claim over the land in

question and has also not shown the prejudice that would be

caused to him upon such construction. Learned counsel for

respondent No.3 further submitted that due process of law has

been adopted while granting permission to respondent No.5 to

raise the construction on the land in question. Learned counsel for

the respondent No.3 also submitted that the decision of

Empowered Committee is at par with the resolution of the Board

as laid down under Section 194 of the Act of 2009 and thus, such

decision can be challenged by way of filing a review petition under

Section 327 of the Act of 2009. He further submitted that on the

[2023:RJ-JD:30648] (10 of 12) [CW-4126/2021]

day when the Empowered Committee resolved to grant permission

to the private respondent for raising the construction i.e. on

01.08.2022 (Annexure-R/4) there was no interim order operating

for the said land in question and the contention of learned counsel

for the petitioner that the respondents have proceeded to grant

the permission of construction in favor of the private respondent

despite an interim order operating in favor of the petitioner is

absolutely false and frivolous and the interim order was granted

by this Court on 13.03.2023.

13. Learned counsel for the respondent No.3 also submitted that

the petitioner's son namely Himanshu Garg filed an appeal under

Section 194(12) of the Act of 2009 before the Deputy Director,

Local self Department, Jodhpur challenging the order dated

06.04.2021 and the appeal was decided vide order dated

07.07.2021 (Annexure-25) while directing the Municipal

Corporation to decide the matter afresh while affording the

petitioner an opportunity of hearing. Learned counsel for

respondent No.3 further submitted that thereafter the petitioner

who is the father of Mr. Himanshu Garg has preferred the present

writ petition despite having knowledge of the provision of

alternative remedy available to him.

14. Learned counsel for respondent No.6 submitted that the land

in question vests with the private respondent No.6 as through its

predecessor in title and the patta was issued in favor of Gopi Ram

and Moti Jamna Lal s/o Gopi Ram and thereafter Gopi Ram i.e.

Shanti Lal gifted the land in question to the respondent Trust in

the year 1945. Learned counsel further submitted that the

[2023:RJ-JD:30648] (11 of 12) [CW-4126/2021]

petitioner has no locus standi to file the present writ petition as

the dispute in regard to the land in question is pending as the son

of Shantilal Shri Bhagwan has filed a civil suit against respondent

No.6 while praying that the land in question belongs to Shri

Bhagwan and the temporary injunction application was rejected by

the Court below against which an appeal was preferred which

came to be dismissed by the Appellate Court on 31.10.2022

(Annexure-R/6/3) against which a writ petition was filed being

SBCWP No.16537/2022 and the same is pending consideration. He

further submitted that upon permission being granted to it after

adopting due procedure of law the said construction is being

raised in accordance with law on the said land in question. He also

submitted that upon such permission being granted a huge

expenditure has incurred as the construction has been raised up to

three floors (G+2).

15. Heard learned counsel for the parties and perused the

material available on record.

16. The present writ petition has been filed by the petitioner

claiming the land in question to be his however not a single

document has been placed on record to substantiate the said

claim. Thus, this Court is of firm opinion that the petitioner has

failed to establish before this Court the locus standi to file the

present writ petition and further the nature of right that would be

prejudiced if the construction is raised on the said land in question

by the respondent No.6. It is also seen from the record placed

that the respondent No.6 was granted permission by the

Empowered Committee on 12.08.2022 for raising construction and

the writ petition was filed on 03.03.2021 thus, the petitioner in

[2023:RJ-JD:30648] (12 of 12) [CW-4126/2021]

the present writ petition has not challenged the order dated

12.08.2022 passed by the Empowered Committee. Thus, the

scope of the prayers cannot be enlarged by the petitioner

particularly where the impugned order dated 12.08.2022 is not a

subject matter of the present writ petition. The petitioner has also

an efficacious alternative, statutory remedy available under the

Act of 2009, and further the petitioner has utterly failed to show

the special circumstances under which the writ jurisdiction under

Article 226 of the Constitution of India could be invoked by this

Court for granting indulgence in the present writ petition.

17. The petitioner's contention is devoid of merit that the

Empowered Committee despite having knowledge of the present

writ petition had proceeded to grant permission vide order dated

12.08.2022 in favor of respondent No.6 for raising construction on

the land in dispute as there was no interim order operating in

favor of the petitioner at that time. This Court granted the interim

order on 13.03.2023 and thus, the respondent had all authority

and power to examine the case and pass appropriate order in

accordance with law.

18. In view of the aforesaid observations, the writ petition is

dismissed being devoid of merit.

19. Stay petition and all pending applications, if any, stand

dismissed.

(DR. NUPUR BHATI),J 210-/amit/-

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