Mahendra Choudhary vs Jodhpur Development Authority, ...
2023 Latest Caselaw 8867 Raj

[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

[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.

[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

[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

[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

[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.

[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/-

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