Sagar Piaza Shopping Center ... vs State Of Rajasthan
2023 Latest Caselaw 8611 Raj

[2023:RJ-JD:35210]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14700/2023

Sagar Plaza Shopping Center Private Limited, Bikaner. Through Directore Rajkumar Moolchandani Son Of Shri Khem Chand Moolchandani Aged About 55 Years, Resident Of C- 32, Sardulganj, Bikaner.

----Petitioner Versus

1. State Of Rajasthan, Through The Director Cum Special Secretary, Local Self Government Department, Jaipur.

2. Municipal Corporation, Bikaner. Through Its Commissioner.

3. Municipal Corporation, Bikaner. Through Its Deputy Commissioner.

                                                                   ----Respondents


For Petitioner(s)            :    Mr. Suniel Purohit
For Respondent(s)            :    Mr. Rajesh Parihar, AGC

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 11/10/2023 Pronounced on 17/10/2023

1. This writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

"It is, therefore, most humbly and respectfully prayed that writ petition filed by the petitioner may kindly be accepted and-

(i) By an appropriate writ, order or direction, the impugned order dated 10.08.2023 (Annexure-10), passed by the respondent No.1 may kindly be quashed & set-aside;

(ii) In alternate, the petitioner's case may kindly be remanded back before the Board or Committee for disposal

[2023:RJ-JD:35210] (2 of 7) [CW-14700/2023]

of the same as per the provisions contained in the Rajasthan Municipalities (Compounding and Compromising of Offences) Rules, 1966 and Rajasthan Municipalities Act, 2009, as remanded in the case of Sri Niwas Agarwal & Ors. versus Commissioner, Municipal Corporation, Bikaner, Appeal No.-F- 53 (2705) NIG/DLB /2022 vide order dated 16.12.2022 (Annexure-11).

(iii) Any other appropriate order or direction which this Hon'ble Court deem just fit and proper may kindly be passed in favour of the petitioner.

(iv) Cost of the writ petition may kindly be awarded in favour of the petitioner."

2. Brief facts of the case, as placed before by the learned

counsel of the petitioner, are that the petitioner had purchased

land admeasuring 14250 square feet situated at Toliyasar,

Opposite Bheru Ji Ka Mandir, Koyla Gali, Binani Building, Bikaner

through the various registered sale deeds, whereafter, a shopping

centre was constructed on the land in question.

2.1. The respondent-Municipal Corporation, Bikaner issued a

notice dated 18.03.2021 to the petitioner under the Section 194 of

the Rajasthan Municipalities Act, 2009 (hereinafter referred to as

'Act of 2009') stating therein that the petitioner had constructed

the building without due permission, and thus, directed the

petitioner to remain present before the concerned authority within

seven days along with the relevant documents. The petitioner filed

a reply to the said notice on 25.03.2021.

2.2. Thereafter, the respondents vide order dated 01.04.2021,

issued a direction to the petitioner to stop the construction work

with immediate effect and remove the illegal construction within

15 days. Aggrieved by the order dated 01.04.2021, the petitioner

[2023:RJ-JD:35210] (3 of 7) [CW-14700/2023]

filed an appeal under Section 194 (12) of the Act of 2009 before

the respondent no.1-Director-cum-Special Secretary, Local Self

Government Department, Jaipur, whereupon the respondent no. 1

had passed an interim order dated 16.04.2021 in favour of the

petitioner.

2.3. Subsequently, the respondent no.1, after filing of reply to the

appeal, vide order dated 21.12.2021 vacated interim order dated

16.04.2021. Aggrieved by the said order dated 21.12.2021, the

petitioner preferred a writ petition (S.B.C.W.P. No. 1065/2022)

before this Hon'ble Court, wherein a Coordinate Bench of this

Hon'ble Court had passed the following interim order on

24.01.2022:

"1. Mr. Kotwani, learned counsel for the petitioner submits that by way of impugned order dated 20.12.2021, the Secretary of the local self government has vacated the earlier interim order dated 16.04.2021, passed in petitioner's case, without assigning any reason.

2. Matter requires consideration.

3. Issue notice. Issue notice of stay application also, returnable within six weeks.

4. Meanwhile, effect and operation of order dated 20.12.2021, shall remain stayed.

5. Needless to observe that during the pendency of the writ petition, if the appeal filed by the petitioner is decided, then, petitioner's right shall be governed by the final order to be passed in the appeal, subject ofcourse to petitioner's right of laying challenge to such final order."

2.4 Thereafter, the respondent no.1 vide the impugned order

dated 10.08.2023 dismissed the aforementioned appeal of the

[2023:RJ-JD:35210] (4 of 7) [CW-14700/2023]

petitioner. Hence, the present petition has been preferred claiming

the afore-quoted reliefs.

3. Learned counsel for the petitioner submitted that as such, no

illegal construction work was carried out by the petitioner, rather

only certain works of plaster, tile fittings, light fitting etc. were

carried out by the petitioner, which is proved by the report dated

10.12.2021 prepared by the respondent no.3.

3.1. Learned counsel further submitted that even if certain illegal

construction is found, then also the matter ought to be referred to

the Board or Committee for disposal as per the provisions of

Rajasthan Municipalities (Compounding and Compromising of

Offences) Rules, 1966, and therefore, the impugned order is not

sustainable in the eye of law.

3.2. Learned counsel also submitted that a similar matter (Sri

Niwas Agarwal & Ors. Vs Commissioner, Municipal Corporation,

Bikaner - Appeal No.-F 53 (2705) NIG/DLB /2022) came up for

adjudication before the respondent no.1, wherein the respondent

no.1 set aside the order impugned therein and remanded the

matter back to the Board for disposal. However, as per learned

counsel, despite the present case being identical to that of the

aforementioned case, the impugned order herein has been passed

in an arbitrary manner.

4. On the other hand, learned counsel appearing on behalf of

the respondents, while opposing the aforesaid submissions made

on behalf of the petitioner, submitted that a complaint was

received regarding the illegal construction being carried by the

petitioner, and same is proved by the mauka report.

[2023:RJ-JD:35210] (5 of 7) [CW-14700/2023]

4.1. It was further submitted that the petitioner had illegally

carried out the construction of basement (underground)

construction without leaving any set back and parking, and such

construction was carried out in the garb of the repairing works,

that too, without due permission of the competent authority.

4.2. It was also submitted that the petitioner had constructed

another floor (G+3) and the basement area without any

permission, which is violative of the provisions of Section 194 of

the Act of 2009. It was further submitted that even after service

of notice upon the petitioner, the petitioner did not furnish any

documents relating to the construction in question.

4.3. It was also submitted that as per the mauka report, the

petitioner had illegally and without any permission carried out the

construction in question, and therefore, the entire action including

the impugned order against the petitioner is justified in law.

5. Heard learned counsel for the parties as well as perused the

record of the case.

6. This Court observes that the respondent-Municipal

Corporation, Bikaner issued the notice dated 18.03.2021 to the

petitioner stating therein that the petitioner had constructed

building without due permission and thus, directed the petitioner

to remain present along with all the relevant documents before

the concerned authority. Thereafter, the respondents vide order

dated 01.04.2021, issued the direction to the petitioner to stop

the construction work with immediate effect and remove the

illegal construction. Aggrieved by the said order dated

01.04.2021, the petitioner preferred an appeal under Section 194

[2023:RJ-JD:35210] (6 of 7) [CW-14700/2023]

(12) of the Act of 2009 before the respondent no.1, which was

dismissed vide the impugned order dated 10.08.2023.

7. This Court further observes that the respondents issued

notice to the petitioner for immediate stoppage of the illegal

construction, but the petitioner without any permission and

sanction of the concerned authority made the construction in

question in an illegal manner. This Court also observes that the

petitioner has constructed additional floor and basement in the

garb of repairing of the building in question.

8. This Court also observes that a bare perusal of the impugned

order clearly reveals that as per the mauka report, the petitioner

was not doing any repairing works, rather the petitioner had made

the construction in question, without any due permission of the

competent authority. Relevant portion of the impugned order

dated 10.08.2023 is reproduced as hereunder:-

"......vihykFkhZ us cslesUV] Hkwry] izFke ry] o f}rh; ry ij ejEer dk;Z ugha fd;k cfYd cslesUV] Hkwry] izFke ry o f}rh; ry ij iq[rk iDdk fuekZ.k dk;Z fd;k gS tks yxkrkj py jgk gS vizkFkhZx.k }kjk ekSdk fujh{k.k djk;k x;k Fkk ftlesa Hkh ;g fjiksVZ esa ml oDr vk x;k Fkk fd cslesaV dk dk;Z py jgk gS] rFkk ,DtsfLaVx fcfaYMx ds xzkm.M ¶yksj ds Nr dh fjis;fjax dk dk;Z pkyq ik;k x;k rFkk izFke ry dh Nr th.kZ "kh.kZ dh voLFkk esa gS rFkk f}rh; ry dh Nr dks mrkjk x;k A ,DthfLaVx dh etcwrh ds fy;s che ds uhps dkye Hkjs tk jgs gS blls ;g izekf.kr gS fd vihykFkhZ us cslesUV Hkwry] izFke ry o f}rh; ry ij iq[rk iDdk fuekZ.k dk;Z djk;k gSA rFkk ftldh etcwrh ds fy;s che ds dkye Hkjs x;s gSA bl izdkj ,d rjQ rks vihykFkhZ ejEer dk;Z djkus dk dFku djrk gS rFkk nwljh vksj brus cM~s Lrj ij fuekZ.k dk;Z djok jgk gS A ;g nksuksa dFku vkil esa fojks/kkHkklh gSA ....."

[2023:RJ-JD:35210] (7 of 7) [CW-14700/2023]

9. This Court also observes that the petitioner had illegally

made the construction in question, as the same was done without

any due permission and sanction of the competent authority,

which is a clear violation of the provisions of the Act of 2009, and

therefore the impugned order had rightly been passed by the

respondent.

10. 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 petitioner in the

present petition.

11. Consequently, the present petition is dismissed. All pending

applications stand disposed of.

(DR. PUSHPENDRA SINGH BHATI), J.

SKant/-

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