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2005 DIGILAW 1730 (RAJ)

Devi Lal v. U. I. T.

2005-07-08

MANAK MOHTA

body2005
Judgment M. Mohta, J.-These two appeals are directed against the orders dated 21.07.1997 and 18.03.2002, whereby, the learned Single Judge of this Court has dismissed the Writ Petition No. 2819/95 and the Review Petition No. 45/2001 preferred by the petitioner-appellant. Since, the Subject matter is same and common question of law and facts are involved in these appeals, therefore, they are being disposed of by a common Judgment . 2. Brief facts of the case are that in the year 1992, Kesu Singh Gehlot filed a complaint in the Urban Improvement Trust, Jodhpur stating therein that appellant Devilal was going to raise construction by breaking old city-wall "Parkota" and has trespassed over 18 x 31 in the southern side of his plot in Juni Bagar, Mahamandir (Jodhpur). It was also stated that the Jagir Commissioner, Jaipur vide decision dated 211.1965 held that no construction can be raised by breaking the old wall of Parkota, therefore, the illegal construction be removed. The UIT directed the Inspector to inspect the site and submit his report. On 12.05.1992, the Inspector inspected the site and noticed that the appellant Devilal has encroached the land measuring 3 x 18 by dismantling the Parkota and has raised construction over the land in question. After submitting the site-inspection report, the Land Acquisition Officer, UIT Jodhpur gave a show-cause notice under Sections 90, 91 and 92(A) of the Urban Improvement Trust Act to remove the construction. The said notice was served upon the appellant Devilal on 21.05.1992. Thereafter, the appellant filed a reply to the notice to show cause, inter alia, stating that the authority has no jurisdiction to proceed with the matter as "Parkota" city wall was within the purchased land. The house was constructed including city wall and permission with regard to construction was obtained alongwith copy of the patta No. 672 issued by Jagir of Nathji Maharaj in favour of Narsingh Lal and Others, in 1953 together with site-plan and written sale-deed executed by Kanaram S/o Chhotu Ji in favour of Devilal. The UIT Jodhpur vide order dated 01.06.1993 directed the appellant Devilal to remove the encroachment within a period of seven days. 3. The appellant, being dis-satisfied with the order of the UIT Jodhpur dated 01.06.1993 Annexure 3 to the writ petition, preferred an appeal before the Divisional Commissioner, Jodhpur. The same was dismissed by a Judgment dated 17.07.1995 (Annexure-4). The UIT Jodhpur vide order dated 01.06.1993 directed the appellant Devilal to remove the encroachment within a period of seven days. 3. The appellant, being dis-satisfied with the order of the UIT Jodhpur dated 01.06.1993 Annexure 3 to the writ petition, preferred an appeal before the Divisional Commissioner, Jodhpur. The same was dismissed by a Judgment dated 17.07.1995 (Annexure-4). Being aggrieved by the Judgment dated 17.05.1995, the appellant-petitioner preferred a writ petition before this Court praying that the order dated 01.06.1993 and the order dated 17.1995 be quashed and set aside with further prayer that the respondents be restrained from interfering in the raised construction. 4. The aforesaid writ petition came up for admission before this Court on 23.08.1995. After hearing the learned Counsel for the petitioner, this Court thought it proper to appoint Local Commissioner for placing the correct position of the site. Miss Kusum Rao, Advocate was appointed as Local Commissioner. She submitted her inspection report before the Court on 24.08.1995. In her report, she stated that the city wall (Parkota) has been used by almost all the inhabitants who have their houses in the same row to the site in question. 5. After notice to show-cause, respondent No. 1 UIT has filed reply to the writ petition. In reply, respondent No. 1 stated that Mahamandir Area was formerly in the Jagir of Nath Ji Maharaj. It was submitted that the city wall (Parkota) was not personal property of former Jagirdar of Mahamandir. At the time of resumption of Jagir, the case of Mohan Nath, former Jagirdar of Mahamandir was decided by the Jagir Commissioner, Jaipur under the Jagir Resumption Act. The former Jagirdar claimed that the Parkota (city wall) surrounding Mahamandir was his personal property but the said claim was rejected by order dated 211.1965 and Parkota was not declared to be a personal property of the former Jagirdar. In Annexure-1 to the writ petition, the Parkota land was not included in the patta, therefore, the petitioner was not authorised to raise construction over the Parkota (city wall). In rejoinder to the reply, the petitioner reiterated the averments made in the writ petition. 6. In Annexure-1 to the writ petition, the Parkota land was not included in the patta, therefore, the petitioner was not authorised to raise construction over the Parkota (city wall). In rejoinder to the reply, the petitioner reiterated the averments made in the writ petition. 6. This Court, after taking into consideration all the materials on record and after hearing the parties, dismissed the writ petition No. 2819 of 1995 by an order dated 21.07.1997 on the ground that the petitioner has already invoked the civil remedy available to him. Further it was observed that if any other illegal construction is made on "Parkota" wall by any person, the petitioner would not be discriminated and similar treatment would be given to all. It is stated that the petitioner filed a Special Appeal No. 852 of 1997 against this order but that was dismissed on 10.09.1997 with the observation that the petitioner would be free to file review petition before the learned Single Judge. 7. It is revealed from the record that the petitioner filed a review petition No. 45/2001 to reconsider the order dated 21.07.1997 passed in the original writ petition on the ground that the subject matters of writ and suit were different, the writ petition has been dismissed on erroneous grounds. The learned Single Judge by his order dated 18.03.2002 holding that the subject matter in both the cases was same and there was no mistake on record, dismissed the review petition. 8. The petitioner-appellant, being aggrieved by the main order dated 21.07.1997 passed in S.B. Civil Writ Petition No. 2819/1995, filed the present special appeal at belated stage but looking to the circumstances that the review petition was pending, the delay of 1723 days was condoned vide order dated 12.04.2005 and the special appeal was registered as D.B. Civil Special Appeal No. 167/2005. 9. The petitioner also filed a separate Special Appeal against the order dated 18.03.2002 passed in Review Petition No. 45/2002 which was registered as D.B. Civil Special Appeal No. 273 of 2002. 10. We have heard the learned Counsel for the parties and carefully perused the record of the case. 11. During the course of argument. 9. The petitioner also filed a separate Special Appeal against the order dated 18.03.2002 passed in Review Petition No. 45/2002 which was registered as D.B. Civil Special Appeal No. 273 of 2002. 10. We have heard the learned Counsel for the parties and carefully perused the record of the case. 11. During the course of argument. The learned Counsel for the petitioner-appellant submitted that the learned Single Judge while rejecting the writ petition mainly based his Judgment on the ground that the civil suit was pending, so, the writ petition was not maintainable but this aspect was against the record. The Learned Counsel further urged that under the writ petition, the petitioner has challenged the authority of the Urban Improvement Trust to pass the impugned order dated 01.06.1993 (Exhibit-3) as well as order passed by the Divisional Commissioner in the appeal dated 17.07.1995 (Exhibit-4). It was stated that in 1962, the said property was purchased by the father of the petitioner. The father of the petitioner constructed the residential house on the said plot. The city wall was included in the constructed area. It was also submitted that various houses were already constructed and all houses were constructed on the city wall. It was further submitted that in 1982, on account of deteriorated condition of the house, the permission for renovation and construction was obtained from the Municipal Council, Jodhpur, which was given after inspection of the site, which also included the city wall "Parkota". It was further stated that the plot in dispute included the city wall, therefore, the petitioner was the owner of the land in dispute. But on a false and baseless complaint made by the neighbours, the UIT without making proper enquiry passed the impugned order dated 01.06.1993 for removal of the encroachment. The appeal filed against this order was also dismissed without going into the entire record. The subject matter of the suit is entirely different. Firstly in that suit, the UIT was not party to the proceedings and that suit was for permanent injunction having no relevancy with the present writ matter. It was submitted that the learned Single Judge on the wrong assumption of facts that the matter in controversy in the writ petition and the suit were the same and the petitioners had already availed the civil remedy, dismissed the writ petition. It was submitted that the learned Single Judge on the wrong assumption of facts that the matter in controversy in the writ petition and the suit were the same and the petitioners had already availed the civil remedy, dismissed the writ petition. The learned Counsel for the petitioner further submitted that the petitioner also filed a review petition and during the course of hearing, a copy of the plaint and other material were also produced to show that the subject matter was different but the learned Single Judge did not consider the true facts in right perspective and dismissed the review application. In this way, both the orders dated 21.07.1997 and 18.03.2002 are liable to be set aside and the orders dated 01.06.1993 (Exhibit-3) and 17.07.1995 (Exhibit-4) are liable to be quashed. 12. On the other hand, the learned Counsel for the UIT and the learned Counsel for respondent No. 3 supported the Judgment of the learned Single Judge and submitted that the construction over the city wall was without authority. It was argued by both the learned Counsel for the respondents that the city wall was not the personal property of the former Jagirdar of Mahamandir and that has been decided by Jagir Commissioner, Jaipur under the Jagir Resumption Act. It was further stated that father of the petitioner was the purchaser of the said plot and he could not get better title than the seller held. After due enquiry, the order to remove construction was passed and that was confirmed in appeal. They submitted that the petitioner has no right to raise the construction over the Parkota city wall measuring 18 x 3 in southern side of his plot. It was also argued that with regard to the same subject matter that is to say whether the petitioner was having any right over the city wall in dispute, a suit was also filed. In this situation, the learned Single Judge after considering all the facts found that since a civil suit is pending, the writ petition was not maintainable and like-wise review petition was also dismissed. No interference is required. Both the appeals are liable to be dismissed. 13. In this situation, the learned Single Judge after considering all the facts found that since a civil suit is pending, the writ petition was not maintainable and like-wise review petition was also dismissed. No interference is required. Both the appeals are liable to be dismissed. 13. The submissions made on behalf of the petitioner that the petitioner was having possession over the Parkota city wall for long time, that Parkota was included in the sale-deed made in favour of his father by the then Jagirdar and that, the other plot owners were also having construction over the Parkota wall, likewise the submissions on behalf of the respondents that the city wall was not the personal property of Jagirdar that he was not authorised to sell it off , the Parkota wall vests in the State and the petitioner has trespassed over that wall, in our opinion, all these questions can be decided after full enquiry. It is also revealed that the petitioner has filed civil suit though in that suit, the UIT was not made a party but with regard to title over, Parkota wall, the matter is sub-judice. In this way, the learned Single Judge has rightly decided the writ petition by holding that the petitioner has availed the civil remedy. We have also considered the contentions raised by the learned Counsel for the petitioner with regard to the order passed in the review petition. The learned Single Judge after going through the subject matter of the suit and relief claimed in the suit, came to the conclusion that the subject-matter of both the cases were the same and no apparent mistake was found in the order. In our opinion, there is no illegality or impropriety in the order of the learned Single Judge. It is further observed that the petitioner is free to file civil suit if needed and civil Court shall without prejudice, decide the rights of the petitioner, if any. 14. In the result, we find no force in both the appeals. Both the orders under challenge are confirmed and the special appeals are hereby dis-allowed. No order as to costs.