Krishan Gopal Ajmera vs State Of Rajasthan
2025 Latest Caselaw 16579 Raj

Rajasthan High Court - Jodhpur

Krishan Gopal Ajmera vs State Of Rajasthan on 2 December, 2025

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           HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                            JODHPUR
                     S.B. Civil Writ Petition No. 17588/2025

     Krishan Gopal Ajmera S/o Kailash Chander Ajmera, Aged About
     37 Years, Proprietor Gambhir Optical And Watches, Shop No. 5,
     Anand Dham Temple Premises, Bhilwara.
                                                                         ----Petitioner
                                         Versus
     1.       State Of Rajasthan, Through The Director, Local Self,
              Local Self Department, Directorate, Jaipur.
     2.       Commissioner, Municipal Corporation, Bhilwara.
     3.       Shreenath Mandir Mandal Trust, Bhilwara, Through Its
              Chairman Rajender Baheti S/o Ramswaroop Baheti, Azad
              Chowk, Bhilwara.
                                                                      ----Respondents


     For Petitioner(s)         :     Mr. C.S. Kotwani with
                                     Mr. Tushar Thanvi.
     For Respondent(s)         :     Mr. Rajesh Panwar, Sr.Adv.-cum-AAG
                                     assisted by Mr. Monal Chug

                  HON'BLE MR. JUSTICE SUNIL BENIWAL

Reportable Order

Conclusion of Arguments & Reserved on : 18/11/2025 Pronounced on : 02/12/2025

1. The present writ petition was listed before this Court on

11.11.2025 on which date the respondents were granted a week's

time to file an additional affidavit while placing on record the

original construction permission in relation to the construction in

question so also detailing out as to whom notices were issued as

recorded in the proceedings dated 21.08.2025.

2. Learned counsel appearing for the respondents submits that

the affidavit as directed by this Court on 11.11.2025 could not be

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filed, however, the original record of the proceedings is available

for perusal of the Court.

3. Learned counsel for the parties submit that the pleadings in

the writ petition are complete and the matter may be finally

heard.

4. By the present writ petition, the petitioner has made

following prayer :-

"It is, therefore, most respectfully and humbly prayed that the instant writ petition may kindly be ordered to be allowed and ;

(i) By an appropriate writ, order or direction, the impugned notice dated 26.08.2025 (Annex.5) may kindly be ordered to be quashed and set aside and respondents may kindly be directed to remove the illegal seizure with immediate effect over the shop in question situated at Shop No.5 Anand Dham Temple Premises, Bhilwara.

(ii) Any other order or direction, which this Hon'ble Court deems fit and proper in the facts and circumstances of the present case may kindly be passed in favour of the humble petitioner.

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

5. The facts in nutshell, as narrated in the writ petition, are that

the petitioner is a tenant of Shop No.5, Anand Dham Temple

Premises, Bhilwara (hereinafter to be referred as 'Shop in

question') constructed by the respondent No.3 - landlord. The

petitioner has given a sum of Rs.21 lacs in advance to the

respondent No.3 and is also paying sum of Rs.1,000/- per month

as rent. Petitioner is in possession of the shop in question since

2020 and is peacefully running his business. The grievance raised

in the present writ petition is against the seizure proceedings

undertaken by the Municipal Corporation, Bhilwara, whereby the

shop in question has been seized on 26.08.2025 on the premise

that the shops have been constructed in an illegal manner.

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6. While challenging the said seizure proceedings, learned

counsel for the petitioner has made following submissions :-

(i)- The seizure proceedings initiated by the respondent are in

complete violation of principles of natural justice as the petitioner

was never served any notice prior to commencement of the

seizure proceedings. Therefore, the seizure proceedings are

required to be quashed and set aside on the ground of violation of

principles of natural justice.

(ii)- Respondents Nos.2 & 3 are hands-in-glove and are

attempting to oust the petitioner from the shop in question.

(iii)- The petitioner has paid a sum of Rs.21 lacs to the

respondent No.3 and is regularly paying rent to the tune of

Rs.1000/- per month as agreed and no default has been

committed by the petitioner. The respondent No.3 is having

hands-in-glove with the respondent No.2 and therefore, has

purposefully not responded to the notice issued by the respondent

- Municipal Council, Bhilwara prior to undertaking the seizure

proceedings.

(iv)- The seizure proceedings have been initiated while exercising

the powers under Section 194(7)(f) of the Rajasthan Municipalities

Act, 2009 ('the Act of 2009'). It is stated that the respondent -

Municipal Corporation could not have proceeded under Section

194(7)(f) and same can be invoked only if the construction is

going on and the same is found to be contrary to the permission

or the same is being raised without permission. In the present

case, shops were constructed long back and therefore, the

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proceedings under Section 194(7)(f) could not have been

initiated. That being so, issuing of notice before seizure so also the

seizure notice dated 26.08.2025 is wholly without jurisdiction.

(v)- The respondents could not have proceeded against the

petitioner while invoking the provisions of Section 245 of the Act

of 2009, as the shop in question is not existing over the public

land and therefore, the respondents could not have proceeded

against the petitioner while invoking power under Section 245 of

the Act of 2009.

(vi)- Reliance has been placed on the judgment passed by the

Division Bench of this Court in the case of Hari Ballabh Baheti

Memorial Charitable Trust, Bhilwara & Anr. Vs. State of

Rajasthan & Anr. (D.B. Civil Special Appeal No.1233/2013),

decided on 29.07.2015 so also the order passed by the learned

Single Judge in the case of Lokesh Kumar Vs. State of

Rajasthan & Ors. (S.B. Civil Writ Petition No.8143/2014),

decided on 24.05.2016 and contended that the respondent

authorities could not have proceeded against the petitioner.

7. Per contra, learned Senior Advocate - cum - AAG, Mr. Rajesh

Panwar assisted by Mr. Monal Chug appearing for the respondents

made following submissions:-

(i)- Learned Senior counsel while taking this Court to the original

record, submitted that permission for raising construction of the

shops in question was never obtained from the Municipal

Corporation, Bhilwara. That being so, the shops in question were

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constructed by the respondent No.3 without permission and

therefore, the same amounts to illegal construction.

(ii)- While referring to Section 194 of the Act of 2009 and more

particularly Section 194(7)(e) and 194(7)(f), learned AAG

submitted that the respondent - Municipal Corporation can

proceed under Section 194 of the Act of 2009 even in cases where

construction is completed. The power under Section 194 of the Act

of 2009 cannot be exercised solely on the on-going construction.

As a matter of fact, the respondent authorities could also proceed

against those persons, who have raised construction without

permission or in violation of a permission.

(iii)- The remedy of appeal is available against the impugned

order by filing appeal before the Director, Local Bodies under

Section 194(12) of the Act of 2009. In view of the efficacious

alternative remedy available, the present writ petition is not

maintainable.

(iv)- Section 245(10) of the Act of 2009 specifically provides that

while confiscating a property, the requirement to issue notice is to

the owner of such property or the person from whom possession

is taken at the time of seizure or attachment. In the present case,

two notices were issued prior to the seizure proceedings. It is

stated that owner of the property i.e. respondent No.3 has not

responded to both the notices and in these circumstances, the

respondent No.2-Municipal Corporation, Bhilwara rightly

proceeded to seize the shop in question.

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(v)- While referring to the proceedings (Annex.R/2), learned

counsel submits that there is reference given to 11 business

persons while undertaking the seizure proceedings. It is stated

that the authorities have uniformly proceeded against all the

shopkeepers while undertaking the seizure proceedings.

(vi)- The contention of the petitioner that the respondents have

proceeded in a discretionary manner and out of 11 shops, only 08

shops were seized, is fundamentally incorrect as from the record it

could be verified that the respondent authorities have proceeded

against all 11 shops of the Dharamshala. That being so, the

allegation of acting in discretionary and arbitrary manner at the

behest of respondent No.2 is totally incorrect.

Based on above submissions, learned counsel for the

respondents submits that the writ petition be dismissed.

(vii) Reliance has been placed on the judgments passed by the

Apex Court in the case of Esha Ekta Apartments Cooperative

Housing Society Limited & Ors. vs. Municipal Corporation of

Mumbai & Ors. : (2013) 5 SCC 357 and Rajendra Kumar

Barjatya & Anr. vs. U.P. Avas Evam Vikas Parishad & Ors. :

2024 SCC OnLine SC 3767.

8. Heard learned counsel for the parties and perused the

material available on record.

9. The bone of the contention in the present writ petition is to

the fact that the petitioner is a tenant and the respondent -

Municipal Corporation in collusion with private respondent has

proceeded to seize the shop of the petitioner in violation of

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principles of natural justice. It is to be noted that earlier notice

was issued on 14.05.2025 to the respondent No.3 followed by

second notice dated 26.08.2025. When no response was received

by the respondent-Municipal Corporation, the seizure proceedings

dated 26.08.2025 was undertaken. It is true that notice was not

given to the petitioner, however, the notices were issued to the

owner of the premises and therefore, it cannot be said that the

authorities have proceeded without following the principles of

natural justice.

Question as to whether it was essential to give notice to

petitioner before undertaking seizure proceedings under Section

194 of the Act of 2009 or not shall be considered in forthcoming

paras but first, it would be appropriate to decide the competency

of the Municipal Corporation to proceed under Section 194 of the

Act of 2009 against the petitioner.

10. The issue which has been raised by the petitioner is with

regard to the applicability of Section 194 of the Act of 2009 in the

present case. Before proceeding further, it would be apposite to

reproduce Section 194 of the Act of 2009 :-

"194. Provisions relating to erection of all kinds of buildings. - (1) Within the limits of a Municipality, any person intending, -

(a) to erect a new building; or

(b) to re-erect or to make a material addition in a building; or

(c) to erect or re-erect any projecting portion of a building; or

(d) to make or enlarge any kind of well or boring ; or

(e) to erect or re-erect any tower or similar structure on a land or building.

shall submit an application in the prescribed form to the Municipality along with the documents required under sub-Section (2) before starting the construction.

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Explanation.- The term "material addition" means any changes in existing set backs, coverage, height, land use and parking areas wherever such parking areas are mandatory under the law. (2) (a) The application as mentioned in sub-Section (1) shall be accompanied by the following, namely:-

(i) all documents in support of the title over the land or the building, as the case may be, along with a personal affidavit on oath regarding the genuineness of the documents and undisputed title over the land or the building;

(ii) a photocopy of the receipt of the prescribed fee deposited with the Municipality;

(iii) six copies of the map (showing the details of the proposed work in different colour) and the site plan. The map would particularly show the specification of construction, height of the building, permissible covered area, open spaces, set backs, parking spaces, ventilation etc.; and

(iv) any other information or documents required by the Municipality for its satisfaction, from time to time;

(b) The maps required under clause (a) shall be signed and authenticated by the qualified architect or engineer registered and approved by the Municipality, Urban Improvement Trust, Jaipur Development Authority, Chief Town Planner of the State or by any other authority empowered by the State Government for such purpose from time to time.

(3)(a) The scrutiny of title papers by the. Municipality should be restricted to ensure that the land or the building as the case may be, does not belong to, the government or any public agency;

(b) The applicant should have legal possession of the land or building on the date of application on the basis of documents submitted by the applicant:

Provided that the sanction of building plans by the Municipality shall not in any manner amount to creating a title in the favour of the applicant.

(4) (a) Municipality may, by bye-laws, provide that the documents required to be submitted under sub-Section (2) may be submitted in electronic form;

(b) The Municipality shall decide the application and convey its written orders within a period of two months from the date of receipt of application. The Municipality or any authority or any committee empowered to grant the permission, shall also be competent to grant or to reject or modify the map or to impose other conditions or restrictions, as may be deemed necessary. In cases where the Municipality fails to convey its decision within two months, the applicant may undertake the construction, after giving one month's clear notice to that effect to the Municipality, considering it as a case of deemed permission. However, it shall be the responsibility of the applicant and the architect or engineer to ensure that in all cases of deemed permission, the provisions of the Act, rules and bye- laws are not violated.

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(5) Where the application submitted under sub-Section (1), pertains to a multi-storied building i.e. a building above height of fifteen meters, or any institutional complex or a commercial complex in an area of more than five hundred square meters, the Municipality shall obtain advice of the Regional Town Planner of the State Government, before granting the permission sought for and shall ensure that proposed plan and construction is not inconsistent with the rules, bye-laws and public convenience.

(6) (a) The Municipality shall frame rules and bye-laws under Sections 339 and 340 for uniform applicability regarding the conditions, restrictions, norms, specifications and the manner of processing the application submitted under this Section;

(b) Where the application submitted under sub-Section (1) pertains to non-residential building, multi-storied building, complex or construction of basement, the Municipality shall obtain the advice of the town planner of the area before granting permission sought for and shall ensure that proposed plan and construction is not inconsistent with the rules, bye-laws and public convenience. (7) (a) No person shall commence any type of construction without written permission of the Municipality, and the Municipality shall decide his application within the period of two months from the date of receipt of application complete in all respect;

(b) If the decision is not conveyed to the applicant within the period of two months, he shall, before commencing the construction, give clear one month's notice to the Municipality asking to take decision on his application within that period;

(c) If the Municipality still fails to dispose of the application or to inform the person, of the action which is being taken in the matter, the applicant may commence the construction taking it to be deemed permission of the Municipality, but he shall not violate any provisions of this Act, rules or bye-laws made thereunder;

(d) A written permission shall not be required where a person has submitted an application under sub-Section (1) on an area less than 250 square meters the proposal is for construction of an individual single residential unit up to first floor, and the total height of the building is not more than ten meters from the road level, including the thickness of the roof and any other structure. However, this provision shall not be applicable in any walled city area where separate bye-laws are in existence or in any area which has been declared as an heritage area under any law for the time being in force;

(e) The Chief Municipal Officer or any other person authorized by him or Chairman of the Committee authorized to exercise the powers to accord permission shall have power of inspection of site or building and to take measurement at any time for the purpose of deciding the application or to ensure that the work is being carried on according to the sanctioned plan. The Chief Municipal Officer shall issue notice to the person violating the sanctioned plan and the conditions imposed therein while erecting or reerecting the building and it shall be lawful for him to ask such person to remove or dismantle such construction or any construction which may be in violation of the sanctioned plan. It shall also be lawful for the Chief

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Municipal Officer to direct the person concerned to stop construction where the construction is going on without permission;

(f) It shall be lawful for the Chief Municipal Officer or any other officer authorized by him in this behalf to seize and take in his possession the whole premises of part thereof and to prohibit the use of such premises for a period specified by him in the notice, for enforcing the provisions of this Section.

(8) The Municipality shall not decide any such application in which change of present land use is involved and permission for such change is needed under Section 182. The applications mentioned in this clause shall be referred to the State Government or the concerned authority under intimation to the applicant and with the directions to him not to commence the work.

(9) (a) After completion of any building having height of more than 15 meters but before its occupancy, the owner of the building, shall submit an application (along with the certificate of safety and verification of other facts by architect / engineer) for issuance of occupancy certificate. The Chief Municipal Officer, after arranging necessary inspection, shall issue such certificate or ask the owner to remove the defects, if any, as may appear to him to be necessary, within the specific period from the date of receipt of such application. He shall also ensure that the applicant has not contravened the sanctioned map. It shall be the responsibility of the owner not to occupy or to allow such building to be occupied without obtaining occupancy certificate;

(b) Whoever contravenes the provisions of clause (a) shall, on conviction by a competent Court, be punished with fine which shall not be less than thirty thousand rupees but which may extend to fifty thousand rupees and in case of a continuing contravention, with fine of five hundred rupees for each day of contravention, till such contravention continues.

(10) (a) if a person commences, continues or completes any kind of erection or re-erection or makes any material alteration in a building or part thereof, or erects or re-erects any projecting portion of a building in respect of which the Municipality is empowered under Section 192 to enforce a removal of the projecting part or restoration to regular line of set back, or engages himself in the construction or enlargement of a well or boring, without submitting an application under sub-Section (1), he shall, on conviction by a competent Court, be punished with simple imprisonment which shall not be less than one month but which may extend to three months or with fine which shall not be less than twenty thousand rupees but which may extend to fifty thousand rupees or with both;

(b) If a person commences or continues or completes erection or re- erection or makes any material alteration in a building or part thereof in contravention of the sanctioned plan or violating norms, conditions, restrictions imposed upon him, he shall, on conviction by a competent Court, be punished with simple imprisonment which shall not be less than fifteen days but which may extend to forty five days or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both;

(c) If any person who has submitted an application under sub- Section (1) and has availed the facility provided under clause (d) of

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sub-Section (7), contravenes the conditions, restrictions and norms prescribed for such construction shall, on conviction by a competent Court, be punished with simple imprisonment which shall not be less than fifteen days but which may extend to forty five days or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both;

(d) If it is found that the map signed and authenticated by the architect or engineer is inconsistent with the provisions of this Section or the rules, bye-laws of orders made under this Act, such architect or engineer shall be blacklisted and his registration shall be cancelled by the Municipality and he shall, on conviction by a competent Court, be punished with simple imprisonment which shall not be less than one month but which may extend to two months or with fine which shall not be less than five thousand rupees but which may extend to ten thousand rupees or, with both in each case;

(e) If it is found that any person has submitted fabricated or fake or false documents or has made wrong and false statement or has concealed the material facts in affidavit for obtaining Municipality's permission, he shall be liable to be prosecuted for fabrication, fraud and concealment under the relevant laws. It shall be the responsibility of the Chief Municipal Officer to initiate criminal proceedings against such person or persons including official, if any, of the Municipality involved in the said act, without delay;

(f) The officer or authority empowered for the operation of this Section or official keeping record for this purpose shall be personally responsible if the period fixed for disposal of application received under sub-Section (1) and in case of any notice received under clause (b) of sub-Section (4) is wilfully ignored. The person or persons responsible for such ignorance shall, on conviction by a competent Court, be punished with simple imprisonment for one month or with fine which shall not be less than five thousand rupees but which may extend to ten thousand rupees or with both;

(g) An employee of the Municipality, who has been assigned duties for a particular area and made responsible for reporting the matter of violation of the provisions of this Section, shall ensure that such violations are reported properly without delay and the same are entered in the register kept for the purpose and take necessary action to stop unauthorized construction and if it is proved that he wilfully or knowingly ignored to stop such unauthorized construction and to make report, he shall be punished according to the provisions of sub- Section (18) of Section 245;

(h) The Municipality shall have power to stop any work commenced without permission, or violating the norms of sanctioned map or without submitting an application;

(i) In addition to the prosecution of defaulter, the Municipality shall have power to demolish whole or part of the construction which has come up without permission or violating the permission, or where permission was sought by fraud etc. as mentioned in this Section. (11) No Municipality shall permit construction of dry latrines and if any person constructs or maintains dry latrine within the municipal area the Municipality shall take steps to demolish such latrines.

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(12) Any person aggrieved by an order of the Municipality or the committee empowered by it or an order of the prescribed authority, may file an appeal against such order within thirty days from the date of such order to the State Government or to any other officer authorized by it."

On a plain reading of the provision aforesaid, it reveals that

the proceedings could be initiated only when the construction is

being raised and not thereafter. However, deep analysis of the

provision clearly indicates that the authority can proceed against

those persons, who had completed construction, but such

construction is either without permission or is in violation of the

permission granted.

11. Section 194(1) of the Act of 2009 provides that a person

intending to erect, re-erect or to make a material addition in a

building would be required to submit an application in a prescribed

form to the municipality along with the documents required under

sub-section (2) before starting the construction.

11.1 Section 194(7)(a) of the Act of 2009 specifically provides

that no person shall commence any type of construction without

written permission of the municipality.

11.2 Section 194(7)(e) of the Act of 2009 gives power to the Chief

Municipal Officer or any other person authorized by him or

Chairman of the Committee authorized to exercise the powers to

accord permission, to carry out inspection of site or building for

the purpose of deciding the application or to ensure the work is

being carried on according to the sanctioned plan. Further, if it is

found that the construction is unauthorized then it shall be lawful

to seek removal of the construction or to dismantle it.

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11.3 Section 194(7)(f) of the Act of 2009 empowers the Chief

Municipal Officer or any other officer authorized by him in this

behalf to seize and take in possession the whole premises or part

thereof and to prohibit the use of such premises for the period

specified by him in the notice for enforcing the provisions of

this section.

The provisions referred above clearly indicate that no person

could be allowed to raise construction without permission and if

any construction is raised without permission or in violation of the

sanctioned plan, then the authorized officer has the power to seize

and take in his possession the whole premises or part thereof for

specified period for enforcing the provision of this section i.e.

Section 194 of the Act of 2009. The words used in Section 194(7)

(f) "for enforcing the provision of this Section" indicates the

intention of the Legislature was to empower the officer of

Municipal Board to proceed / take steps for enforcing the

requirements of Section 194 which includes that the application

for permission is to be filed before starting construction.

12. The seizure notice, as in the present writ petition, dated

26.08.2025 was issued while granting 90 days' time to rectify the

illegal construction and if such rectification is not made, then the

seizure proceeding would remain in currency. If the seizure notice

is examined in light of Section 194 of the Act of 2009, it would

indicate that the seizure notice has been issued while exercising

power under Sections 194(e) and 194(f) of the Act of 2009 and

time has been granted to the owner of the premises to rectify the

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unauthorized construction and remove the same. Such directions

are for the purpose of enforcing the provisions of Section 194 as is

provided under Section 194(7)(f) of the Act of 2009.

12.1 If the entire Section 194 of the Act of 2009 is read, it

provides for the complete procedure from submitting an

application for the purpose of seeking permission to erect building

so also it provides mechanism for provision of deemed permission,

in case application seeking permission to construct is not decided

in time bound manner however, such construction also has to be

in accordance with Act, Rules and Bye-laws. A duty has been

casted upon the Chief Municipal Officer or the authorized officer to

ensure that the provisions of Section 194 of the Act 2009 are

complied with, which inter-alia, requires proper permission before

raising construction. To keep a check on unauthorized

constructions, it is provided that the authorized officer can inspect

the building so as to satisfy itself with regard to the fact that as to

whether the construction is as per sanctioned plan or there is any

deviation from approved plan. Further, power of seizure has been

entrusted if some unauthorized construction has taken place. In

addition to power to prosecute, Municipality has also been given

authority under Section 194(10)(i) to demolish whole or part of

the construction which has been raised without permission or has

violated the terms of permission or has violated the provisions of

Section 194.

12.2 A cumulative reading of Section 194 of the Act of 2009

leaves no room of doubt that Municipality is fully competent to

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inspect at any time, immaterial at what stage the construction i.e.

whether it is under process or has been completed, and satisfy

itself regarding compliance with terms of permission/sanctioned

plan. In cases of violation of provisions of Section 194, apart from

power to prosecute the defaulter, Municipality can proceed to

seize, remove, or demolish the unauthorized construction.

12.3 The interpretation proposed by learned counsel for the

petitioner is to the effect that if construction is under process

then, only action under Section 194 of the Act of 2009 can be

taken. This Court is of the opinion that if such interpretation is

accepted then, it would frustrate the purpose of the provision and

render it futile in event of completed constructions as once the

construction is completed, the Municipality would be left powerless

to initiate action under Section 194 of the Act of 2009, which

details out the complete procedure for raising all kinds of

buildings, and such could not have been the intention of the

Legislature.

In view of the above discussion, the submission made by

learned counsel for the petitioner cannot be accepted that the

powers conferred under Section 194 of the Act of 2009 can be

invoked only in cases where construction is going on. Therefore

the said submission raised by learned counsel for the petitioner is

required to be rejected.

13. The second issue for consideration is as to whether the

notice given to the owner of the property / premises is sufficient

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or the occupier of the premises is also required to be separately

served.

14. Learned counsel for the petitioner has raised objection that

before undertaking seizure proceedings, notice was not given to

the present petitioner. It may be noted that the seizure

proceedings have been undertaken by the Municipal Corporation

while exercising power under Section 194 and the same is

required to be exercised against the person, who has raised

construction in an unauthorized manner. Since the construction in

question was raised by the respondent No.3, therefore, notice was

required to be given to the respondent No.3 alone and not the

petitioner, for the simple reason that it is for the respondent No.3

to satisfy with regard to the permission so also the construction,

which has been raised by it. That being so, there was no

requirement of giving any notice to the petitioner, who has neither

raised construction nor he is the person, who is supposed to take

permission before raising construction and he simply being

occupier was neither required to be heard nor he could be

expected to respond and satisfy the authorities with regard to

permission and the sanctioned plan. That being so, the

proceedings as undertaken in the present case without giving

notice to the petitioner cannot be said to be in violation of

provisions of law.

15. It is to be noted that though there is no reference of Section

245 of the Act of 2009 in the notices so also in the impugned

seizure order, which were issued to the respondent No.3, yet the

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submissions have been made by both the parties with regard to

applicability of Section 245. Section 245 provides for removal of

encroachment on public land. The present case is not a case of an

encroachment over public land.

16. Learned counsel for the respondent has made submission

that as per Section 245(10) of the Act of 2009 before taking

action of confiscating of property, the owner of such property or

the person from whom it is seized or attached is to be given notice

and is to be heard. While referring to Section 245(10), it is

submitted that word 'or' as provided under Section 245(10) clearly

indicates that the notice is to be either given to the owner of the

property or a person from whom it is seized or attached is to be

given notice. This provision, prima facie, is not applicable in the

instant case and the purpose of providing 'or' in Section 245(10) is

perhaps for the reason that encroachment if it is made on a public

land, there could be two possibilities. The owner might be claiming

to be of its own property and the municipality might be treating it

to be a public land and therefore, legislature in its wisdom

considered it appropriate to provide the so-called owner an

opportunity of hearing to establish his case. The other cases could

be a construction by a person on a public land without any title.

Considering to cover up such eventuality, the provision is made for

giving notice to the person from whom the property is seized or

attached. That being so, Section 245 of the Act of 2009 was

neither applied in the present case nor in any manner indicates or

supports the submission of petitioner that the Municipal

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Corporation is required to serve a notice on the occupier of the

premises.

17. In view of the discussion made above and in view of the

observations made, the proceedings initiated by the respondents

in seizure of the shop in question while exercising power under

Section 194(7) of the Act of 2009 is found to be in accordance

with law.

18. Learned counsel for the petitioner has relied upon judgment

passed by the learned Single Judge in the case of Hari Ballabh

Baheti Memorial Charitable Trust (supra). It is to be noted

that the said writ petition was filed by a Trust and the same was

disposed of while negating the challenge to the impugned order

passed by the District Collector. Considering the peculiar facts and

circumstances of that case, the Court opined that closing of

running business shops would not serve any purpose. The

judgment as cited by learned counsel for the petitioner is not

applicable in the present case for the reason that, firstly, the order

was passed considering the peculiar facts and circumstances of

that case; secondly, provisions of Section 194 of the Act of 2009

were not under consideration; and thirdly, the writ petition, which

was under consideration before this Court was filed by the Trust

and not by the tenants. That being so, the judgment passed by

the learned Single Judge is clearly distinguishable on facts.

18.1 Even the judgment passed by the Division Bench in the

same case as decided on 29.07.2015 is of no help to the petitioner

as the Division Bench observed that the Trust was required to be

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[2025:RJ-JD:49917] (19 of 21) [CW-17588/2025]

heard and objection with regard to violation of principle of natural

justice was accepted. That being so, even the observation made

by the Division Bench would not help the present petitioner, who is

the occupier of the shop.

19. The judgment passed in the case of Lokesh Kumar (supra)

as relied on by the petitioner is also distinguishable on the facts as

in the said case there was a discriminatory approach with regard

to the seizure proceedings as 27 tenants of the property therein

were given different treatments in comparison to the treatment

given to the petitioner therein and therefore, considering the facts

of that particular case, Court observed that petitioner therein was

also required to be given similar treatment as was given in other

cases. Be that as it may, even the observation made in the said

case in no manner helps the present petitioner.

20. Learned counsel for the respondents relied on judgment

passed by the Hon'ble Supreme Court in the case of Rajendra

Kumar Barjatya (supra) wherein the Apex Court has observed

that unauthorized construction cannot be perpetuated. If the

construction is made in contravention of the Acts / Rules, it would

be construed as illegal and unauthorized construction, which has

to be necessarily demolished. It cannot be legitimized or protected

solely under the guise of the passage of time or citing inaction of

the authorities or by taking recourse to the excuse that substantial

money has been spent on the said construction.

21. Learned counsel for the respondent has further relied upon

the judgment passed in the case of Esha Ekta Apartments

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[2025:RJ-JD:49917] (20 of 21) [CW-17588/2025]

Cooperative Housing Society Limited (supra), which deals

with an illegal construction and the Apex Court has upheld the

action of the authorities therein, who proceeded against the illegal

construction and further decision was taken to demolish such

construction.

Relying on these judgments, learned counsel for the

respondent submitted that if the construction is raised in an

unauthorized manner, the authorities could take action in

accordance with law.

22. This Court would now examine the objection of the

respondents with regard to availability of alternative remedy as

provided under Section 194(12) of the Act of 2009 since the same

is available to any person, who is aggrieved by the order passed

by the municipality while exercising power under Section 194 of

the Act of 2009. Since this Court has held that proceeding under

Section 194 of the Act of 2009 was rightly initiated in the present

case, therefore, petitioner, if at all aggrieved against the seizure

proceedings, can avail remedy of appeal under Section 194(12) of

the Act of 2009. That being so, this Court is not inclined to

entertain the present writ petition on the ground of alternative

remedy and therefore, deems it appropriate to dispose of the

present writ petition while permitting the petitioner to avail

appropriate remedy.

23. Considering the submissions made above, the present writ

petition is dismissed while granting liberty to avail alternative

remedy as provided under Section 194(12) of the Act of 2009.

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24. Needless to observe that if the appeal is filed, the time spent

in litigating the present writ petition would be excluded for the

purpose of considering the application seeking condonation of

delay.

25. Pending application(s), if any, stand(s), disposed of.

(SUNIL BENIWAL),J Rmathur/-

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