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1998 DIGILAW 763 (RAJ)

Shanker Lal Bachhani v. Shradha Manava Kalyan Samiti

1998-07-16

ARUN MADAN, M.A.A.KHAN

body1998
Honble MADAN, J.–Heard learned counsel for the petitioner. (2). The grievance which has been agitated before us by way of the present review petition filed under Order 47 Rule 1 CPC, is that the petitioner is in lawful possession of one out house and another adjoining property which is at least 140 to 150 feet away from the protected monument in the Punderik Ji Ki Haveli, Brahmpuri, Jaipur. It has been contended that the petitioner had purchased the said residential accommodation by two separate registered sale deeds, executed on 7.10.94 and 29.1.97 respectively which have been produced before us during the course of hearing. In this connection it will pertinent to observe that non-petitioner No. 1 Shradha Manava Kalyan Samiti has filed a D.B. Civil Writ Petition No. 438/98 as a Public Interest Litigation in this court wherein the grievance, which was agitated by the petitioner, related to the illegal construction in the aforesaid premises, which was stated to be a protected ancient monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. The said petition, filed by the present non- petitioner No. 1 Samiti, was for seeking protection from demolition and illegal protection of the said ancient monument. From the perusal of the petition it was brought to our notice that the said Samiti had also given a notice (Annexure-5) through its counsel to the Archaeological Department, Collector and Distt. Magistrate, Jaipur and the Municipal Corporation, Jaipur for taking necessary action in accordance with law against the occupiers of the said property. Be that as it may, the writ petition was consequently disposed of with the following observations : ``The petitioner shall make a representation detailing out the factual aspect, alongwith the photographs which it wants to display in support of its contention, to the Director General of Archaeology, Central Government and if any such representation is made, the same shall be considered objectively and necessary orders shall be passed in accordance with law, within eight weeks from the date of making representation. (3). (3). In this connection we may instantly observe that though the present petitioner Shanker Lal Bachhani was not arrayed as a respondent in the aforesaid writ petition which came to be disposed of vide order dated 28.1.98, yet he has choosen to come up before us by way of this review petition, challenging the propriety of the said order on the ground that his right for protecting the portion in his occupation is being impaired unlawfully at the instance of the-non-applicant/petitioner consequent upon the aforesaid order having been passed by this court. Though we are of the firm view that only that party which has been impleaded in the proceedings has a right to agitate its genuine grievances before this court and since the petitioner was not a party impleaded in the aforesaid writ petition by the said Samiti (petitioner in the said writ petition), he has obviously no right to urge the grievances by way of the instant review petition particularly without the right to seek review of the order passed by the court. The said remedy is only available to that person, in accordance with Order 47 Rule 1 CPC, who is aggrieved (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes and consequently only that person, who falls within the four corners of the provisions of Order 47 Rule 1 CPC as indicated above, has a right to file the review and in the instant case the petitioner in Writ Petition No. 438/98 has not chosen to file the review before this court, yet the present petitioner namely Shanker Lal Bachhani has come up before us by way of the review petition on the ground that his rights have been affected consequent upon the order dated 28.1.98 having been passed. (4). It has further been contended that the present petitioner came to know of the aforesaid order by means of a notice dated 22.6.98, which he has received from the Archaeological Survey of India (Annexure-7) to remove his unauthorised construction from the prohibited area of the monument within the stipulated period and to which he gave his reply on 3.7.98. (5). It has further been contended that the present petitioner came to know of the aforesaid order by means of a notice dated 22.6.98, which he has received from the Archaeological Survey of India (Annexure-7) to remove his unauthorised construction from the prohibited area of the monument within the stipulated period and to which he gave his reply on 3.7.98. (5). We are consequently of the view that if any rights of the present petitioner have been affected or violated consequent upon the threatened action of the Archaeological Department, conveyed by means of the notice dated 22.6.98 having regard to the fact that the said petitioner has an alternative remedy of approaching the civil court for vindication or protection of his rights by filing a civil suit for injunction or declaration, as the situation may warrant, it will be open to the petitioner to avail the said alternative remedy before the civil court of competent jurisdiction, as the said petitioner may be so advised, in accordance with law. In view of the above observations, the present review petition is disposed of.