[Cites 6, Cited by 0]

Rajasthan High Court - Jodhpur

Representative Of General Public Of ... vs State Of Rajasthan (2026:Rj-Jd:4589) on 23 January, 2026

[2026:RJ-JD:4589]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                    S.B. Civil Writ Petition No. 307/2026

Representative Of General Public Of Dugastau, Tehsil Jayal,
District Nagaur As Under-
1. Ramsukh S/o Sita Ram Darji, Aged About 51 Years, R/o
Village Dugastau, Tehsil Jayal, District Nagaur.
2. Bajrang Lal S/o Sita Ram Darji, Age 53 Years, R/o Village
Dugastau, Tehsil Jayal, District Nagaur.
                                                                       ----Petitioner
                                       Versus
1.       State Of Rajasthan, Through District Collector, Nagaur.
2.       Executive Engineer, Public Development Office, Nagaur.
3.       Assistant Engineer, Public Development Office Jayal.
4.       Development Officer, Panchayat Samiti Jayal, District
         Nagaur.
5.       Program Officer Of Mahatma Gandhi National Employment
         Scheme, Jayal, District Nagaur.
6.       Sub Divisional Officer, Jayal, District Nagaur.
7.       Tehsildar, Jayal, District Nagaur.
8.       Gena Ram S/o Nathu Ram Yadav, R/o Village Dugastau,
         Tehsil Jayal, District Nagaur.
9.       Magni Ram S/o Nathu Ram Yadav, R/o Village Dugastau,
         Tehsil Jayal, District Nagaur.
10.      Jena Ram S/o Sanvta Ram Jat, R/o Village Dugastau,
         Tehsil Jayal, District Nagaur.
11.      Kalu Ram S/o Hari Ram Jat, R/o Village Dugastau, Tehsil
         Jayal, District Nagaur.
12.      Murlidhar S/o Jaykishan Jat, R/o Village Dugastau, Tehsil
         Jayal, District Nagaur.
13.      Luna Ram S/o Hema Ram Jat, R/o Village Dugastau,
         Tehsil Jayal, District Nagaur.
14.      Hadman Ram S/o Chuni Ram Jat, R/o Village Dugastau,
         Tehsil Jayal, District Nagaur.
15.      Sharvan Ram S/o Mangi Lal Jat, R/o Village Dugastau,
         Tehsil Jayal, District Nagaur.
                                                                    ----Respondents



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For Petitioner(s)              :      Mr. Rohitash Singh Rathore.
For Respondent(s)              :      Mr. Tushar Jain for
                                      Mr. Aishwarya Anand.


       HON'BLE MR. JUSTICE SANJEET PUROHIT

Order 23/01/2026

1. The present writ petition is filed with the following prayers:-

"(i) The Judgment dtd. 06.11.2025 (Annexure-5) passed by Learned Additional District Judge, Jayal (Nagaur), in Civil Appeal decree no. 32/2023 (General Public of Dugstau & Anr. Vs. State of Raj. & Ors.) by which appeal of the petitioners-plaintiff was dismissed, may kindly be quashed and set aside.

(ii) The Judgment dated 18.01.2023 (Annexure-4) bearing civil origina suit no. 05/2022 (General Public of Dugstau & Anr. Vs. State of Raj. & Ors.) passed by Learned Civil Judge, Jayal District Nagaur by which application of the petitioners-plaintiff filed under Order 39 Rule 1 & 2 of CPC was rejected, may deserves to be quashed and set aside.

(iii) The prayer made in the T.I. application may kindly be allowed and respondents may kindly be directed to construct the road in the middle of the land in dispute, after removing the encroachments, till then construction may kindly be stopped.

(iv) Pass any other order or direction, which this Hon'ble Court deems fit and proper in the facts and circumstances of the case.

(v) Allow cost of the writ petition to the petitioner."

2. The facts in succinct giving rise to present writ petition are

that a suit seeking a decree of permanent injunction is being filed

in representative capacity under Order 1 Rule 8(1) CPC by the

villagers of Village Dugstau, Tehsil Jayal, District Nagaur against

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the respondent Government officials as well as respondent Nos. 8

to 15, R/o Village Dugstau, who are alleged to be encroachers

over the public way. It was stated that a Katani road is going from

Village Yugstau to Mataji and the same is recorded in the revenue

record as non feasible path. The plaintiffs stated that the

aforementioned road running from khasra no. 1288 to 1353 has

different widths at different locations due to the encroachment

being made by the private persons, and inspite of the complaint

being made by the plaintiffs, no action was being taken for

removal of encroachment. Alongwith the suit, an application under

Order 39 Rules 1 and 2 CPC was filed, wherein it is stated that

construction of a road at a different location is being undertaken

and, therefore, the order of temporary injunction was being

prayed.

3. The learned trial Court, while passing the order dated

18.1.2023, observed that the plaintiffs failed to prima facie

establish that the land over which the construction of road is being

carried out, is not in accordance with the revenue record, or that

any encroachment was being made upon the land recorded as non

a feasible path by the private respondents. The learned trial Court

also observed that the averments made in the plaint as well as the

material available on record nowhere establish the extent of the

alleged encroachment, as no details in this regard were furnished

by the plaintiff/petitioners. The learned trial Court also observed

that the earthwork of the road had already been completed and

work of laying gravel is being carried out for construction of the

road under the Government Road Construction Scheme.

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Learned trial court thus held that the petitioners have failed

to establish the prima facie case. While dealing with issues of

balance of convenience and irreparable injury, learned trial Court

observed that since a public road is being constructed under a

government road construction project, any temporary injunction

being granted will cause irreparable injury to the public at large

and not to the petitioners-plaintiffs. On the basis of the said

observations, the learned court vide order dated 18.01.2023

rejected the application filed under Order 39 Rules 1 and 2 CPC.

4. Challenging the said order dated 18.01.2023, the petitioners

filed an appeal under Order 43 Rule 1 CPC. The learned lower

Appellate Court, after considering the record of the case, observed

that on one hand, the petitioner - plaintiff has failed to establish

the size of alleged encroachment being made by the private

respondents, rather the report of the Tehsildar clearly reflects that

the plaintiff -Ramsukh himself has done encroachment over the

land of public road. The learned lower Appellate Court also

observed that even as per the statement of the petitioners-

plaintiffs, the work of construction of road is already over and,

therefore, the application preferred under Order 39 Rules 1 and 2

does not require any adjudication. The Learned Lower Appellate

Court thus vide order dated 06.11.2025, dismissed the said

appeal.

5. Challenging the order dated 18.01.2023, rejecting the

application of the petitioner-plaintiff under Order 39 Rules 1 and

2, so also order dated 06.11.2025 challenging the rejection of

appeal filed under Order 43 Rule 1 CPC, the present writ petition

has been filed.

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6. The counsel appearing on behalf of the petitioners stated

that both the learned courts below have failed to consider the

material available on record. It is stated that in view of the report

of the Tehsildar, the encroachment upon the Katani path was well

established. Thus, the prima facie case was well established by the

petitioners. It is further stated that allowing the construction of

the road without removing the encroachment, amounts to

perpetuating the illegalities and, therefore, the issue of balance of

convenience as well as irreparable injury was also wrongly decided

by the learned Courts below. On the basis of said arguments,

learned counsel for the petitioners prayed for quashing of both the

orders impugned.

7. The counsel appearing on behalf of the respondent, Mr.

Tushar Jain, representing the department, stated that as a matter

of fact, the road has been constructed strictly as per the location

of the road shown in the revenue map and construction on the

same has already been completed, therefore, the application

preferred under Order 39 Rules 1 and 2 CPC by the petitioner -

plaintiff has already been rendered infructuous. Learned counsel

further stated that on one hand, petitioners have levelled

allegations against the private respondents regarding

encroachment, whereas the report of Tehsildar clearly shows that

the plaintiff himself is guilty of encroachment beyond his own

land. Thus, no equitable relief has been granted in favour of the

petitioner. Counsel for the respondents stated that the road has

been constructed under the Mahatma Gandhi National

Employment Scheme and the same is being used by public at

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large and no injunction at this stage can be granted in relation to

the same.

8. Heard learned counsel for the parties and perused the

material available on record.

9. A bare perusal of the orders impugned as well as the record

of the case clearly reveals that the orders challenged in the

present writ petition have been passed while considering he

material available on record and by giving detailed and valid

reasons.

10. It has been rightly observed by the learned Courts below

that the plaintiff has failed to give specific details with regard to

any encroachment allegedly made by the private respondents

upon the land said to be public way / katani rasta and the

existence thereof. The petitioner has further failed to establish as

to how the construction of road under the government scheme is

going to cause irreparable injury to the public at large for which

the suit in the representative capacity is being filed by the

petitioner.

11. The counsel for the petitioner has though orally disputed the

fact that the construction of the road has been completed,

however, in view of the finding recorded by the learned trial Court

in its order dated 18.01.2023 makes it clear that till that time the

earth work of construction road was already completed and laying

of gravel was going on. By the time the appeal preferred by the

petitioner was decided by learned lower appellate court vide order

dated 6.11.2025, a specific finding has been recorded that the

construction of the road was already complete.

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12. In such circumstances, the learned courts below have rightly

held that the petitioner has failed to establish prima facie case.

The counsel for the petitioner has failed to dispute the observation

made by the lower appellate court that as per the report of the

Tehsildar, even the plaintiff - Ramksuh was found to be an

encroacher over the government land.

13. In view thereof, it is clear that the petitioner has not come

with clean hands and not entitled for any equitable relief from this

Court. The suit in question has been filed in representative

capacity i.e. in the nature of public interest. However, the relief

prayed for is to stop the work of construction of public road, which

can, in no case be said to be the cause of public interest. The

counsel for the petitioner has failed to establish any error, much

less an error apparent on the face of record, or any jurisdictional

error or any manifest illegality in passing of the impugned orders

which may call for interference of this Court.

14. It is a trite law that under the suprintendence conferred

upon the High Courts under Article 227 of the Constitution, the

power has to be exercised sparingly and only in cases where grave

injustice would be caused save for its interference. It is also a

settled law that on invocation of Article 227, the High Court does

not assume the role of an appellate court and has limited

jurisdiction to ensure ends of justice are met. The Apex Court in

Bathumal Raichand Oswal vs Laxmibai R. Tarta, AIR 1975

SC 1297, while cautioning the High Court assuming the powers of

an appellate court under Article 227, observed:

"If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari,

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it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact, which only a superior court can do in the exercise of its statutory power as a Court of appeal. The High Court cannot in the guise of exercising its jurisdiction under Article 227, convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or tribunal final on facts"

15. In the landmark judgement of Jai Singh vs M.C.D. (2010) 9

SCC 385, while delving deeper into the might of Article 227, the

Hon'ble Supreme Court in Para 15 observed:

"15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well- recognised principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It can not be exercised like a "bull in a china shop", to correct all errors of judgment of a court, or tribunal, acting

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within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice."

16. Again, in K. Valarmathi vs Kumaresan 2025 SCC OnLine SC

985, the Hon'ble Supreme Court rightly observed that:

"8. Power of the High Court under Article 227 is supervisory and is exercised to ensure courts and tribunals under its supervision act within the limits of their jurisdiction conferred by law. This power is to be sparingly exercised in cases where errors are apparent on the face of the record, occasioning grave injustice by the court or tribunal assuming jurisdiction which it does not have, failing to exercise jurisdiction which it does have, or exercising its jurisdiction in a perverse manner.

9. Essence of the power under Article 227 being supervisory, it cannot be invoked to usurp the original jurisdiction of the court which it seeks to supervise. Nor can it be invoked to supplant a statutory legal remedy under the Civil Procedure Code, 19085. For example, existence of appellate remedy under Section 96 of the Code operates as a near total bar to exercise of supervisory jurisdiction under Article 227.

10. Civil Procedure Code is a self-contained Code and Order VII Rule 11 therein enumerates the circumstances in which the trial court may reject a plaint. Such rejection amounts to a deemed decree which is appealable before the High Court under Section 96 of the Code. This statutory scheme cannot be upended by invoking supervisory jurisdiction of the High Court under Article 227 to entertain a prayer for rejection of plaint."

17. For want of illegality and perversity in the order impugned, I

am unwilling to allow interference of this court under its

supervisory jurisdiction vide Article 227 of the Constitution.

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18. Consequently, the writ petition challenging the impugned

order is dismissed for want of merit. The orders impugned in the

present writ petition are upheld.

19. Stay application and all pending applications stand disposed

of.

(SANJEET PUROHIT),J 49-sumer/-

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