Gopal Krishan Vyas, J.—This writ petition has been filed by the Municipal Corporation, Jodhpur challenging the order dt. 26.11.2001 (Annex.1) passed by the Divisional Commissioner, Jodhpur by which the order passed by the Commissioner, Municipal Corporation, Jodhpur on 11.05.2001 in the proceedings intiated under Sec. 203 of the Rajasthan Municipalities Act, 1959 (hereinafter, “the Act”) against respondent No. 3 was set-aside. 2. According to the facts disclosed in the petition, the Commissioner, Municipal Corporation, Jodhpur issued notice under Sec. 203 of the Act against respondent No. 3 on 17.11.2000 and 19.03.2001 for removal of unauthorized occupation of the municipal land. The order passed by the Commissioner on 11.05.2001 was challenged by respondent No.3 by way of filing revision petition under Sec. 300 of the Act before the Divisional Commissioner,Jodhpure. Vide order dt. 11.05.2001 whereby the Commissioner, Municipal Corporation, Jodhpur while treating the land in question as encorachment passed an order for removing the said encroachment from the government road. The Municipal Corporation has challenged the order of the Divisional Commissioner mainly on the following grounds: I. that the lease amount was not deposited by respondent No. 3, therefore, the lease automatically stood terminated and the petitioner is required to remove the unauthorized occupation over the petitioner’s land and according to petitioner the learned Divisional Commissioner has committed error while saying that without cancellation of the lease no eviction or removal from alleged unauthorized occupation could be done. II. that the Divisional Commissioner wholly misunderstood the legal proposition inasmuch as the Corporation need not approach any Court for getting the lease-deed cancelled because the Corporation itself is competent to remove the unauthorized occupation when after notice the situpulated rent was not deposited by respondent No. 3, therefore, the Divisional Commissioner has committed error in quashing order dt. 11.05.2001. It is also stated in ground No. 2 of the petition that initially the lease was granted on 01.12.1952 for Rs. 5/- per month; and, thereafter, law was enacted for allotment of the site for petrol-pump and rules have been framed thereunder. 3. According to the petitioner, after coming into force of the relevant rules, the earlier lease deeds automatically stood as deemed to have been cancelled and respondent No. 3 ought to have applied for determination of the lease amount as per the Schedule appended to the rules for allotment of land for petrol-pump. 3. According to the petitioner, after coming into force of the relevant rules, the earlier lease deeds automatically stood as deemed to have been cancelled and respondent No. 3 ought to have applied for determination of the lease amount as per the Schedule appended to the rules for allotment of land for petrol-pump. The contention of the petitioner is that, according to the rules, the Divisional Commissioner was under obligation to decide the matter in view of the enactment of the rules but the authority has committed grave error of law by allowing the revision petition and ignoring the law. 4. No other ground has been taken by the petitioner in the writ petition for challenging the impugned order dt. 26.11.2001 passed by the Divisional Commissioner, Jodhpur. 5. After issuing notice, reply was filed by respondent No. 3 while raising certain preliminary objections. The first preliminary objection has been raised by the respondent No.3 that the petitioner has not produced on record any resolution taken by the Municipal Corporation taking decision to file the present writ petition against the order passed by the Divisional Commissioner, Jodhpur. Secondly, it is contended that the writ petition is not properly constituted because before the Divisional Commissioner, the State, Municipal Corporation and Assistant Engineer, P.W.D. City Sub-Division, Jodhpur were party respondents. However, in the present writ petition the State has been impleaded as party respondent through the Divisional Commissioner, Jodhpur. Thirdly, objection has been raised to the maintainability of the writ petition on the ground of delay and laches. It is submitted even after filing the writ petition, no attempt was made to pursue the same for reasons best known to the petitioner. Fourthly, it is contended by respondent No.3 that, in fact, action was initiated against the respondent at the instance of landlord of the respondent who wanted to get the premises vacated by getting the business of the respondent closed. Respondent No. 3 contended that efforts have, therefore, been made for removal of the tanks for storage of petroleum products so that the respondent may not be able to carry out business of sale of the petroleum products. It is contended by the respondent No. 3 that before the Divisional Commissioner the landlord move application for impleadment as party respondent, however, the said application was rejected by the Divisional Commissioner vide order dt. It is contended by the respondent No. 3 that before the Divisional Commissioner the landlord move application for impleadment as party respondent, however, the said application was rejected by the Divisional Commissioner vide order dt. 29.10.2001, a copy thereof is annexed to the reply as Annex.R3/1. It is further contended that the landlord filed S.B.Civil Writ Petition No. 3651/2001, Yound Blood Yuva Samiti vs. State of Rajasthan by way of public interest litigation and that writ petition was dismissed by the Division Bench of this Court vide order dt. 04.05.2005. 6. While raising the aforesaid preliminary objections, it is contended by learned counsel for the respondent No. 3 that the proceedigns were commenced at behest of landlord in whose favour initially the lease-deed was executed for storing petroleum products, therefore, the Divisional Commissioner held that in fact the said land was alloted to the lessee by the municipality itself on 01.11.1952 at the rate of Rs. 5/- per month and that lease deed is in force even today. It is contended that the action initiated by the Commissioner under Sec. 203 of the Act was totally without jurisdiction and was at the behest of the landlord and it cannot be said that the respondent No. 3 encroached upon the disputed land. Supporting the order under challenge, it is contended that late Shri Shankerlal who had, later on, moved the Corporation for converting the lease-deed in favour of M/s Caltex India Ltd. Upon this letter, the competent officer of the Corporation directed for raising the demand against Caltex India Ltd. which was subsequently taken over by Hindustan Petroleum Ltd. which is depositing the lease amount with the petitioner. 7. It is next contended by learned counsel for the respondent No.3 that in pursuance of the order passed by the Divisional Commissioner, the petroleum company sent a pay order for a sum of Rs 35,000/- on 22.12.2001 towards arrears of lease rent, however, the petitioner returned the same vide letter dt. 04.07.2002 on the pretext that the Corporation has filed writ petition before the High Court against order passed by the Divisional Commissioner. It is contended by learned counsel for the respondent No. 3 that the order passed by the Divisional Commissioner does not call for any interference. 04.07.2002 on the pretext that the Corporation has filed writ petition before the High Court against order passed by the Divisional Commissioner. It is contended by learned counsel for the respondent No. 3 that the order passed by the Divisional Commissioner does not call for any interference. It is submitted that the premises in which the tank is situated was initially leased out by the Muncipal Corporation as many as 50 years ago, therefore, there is no error committed by the Divisional Commissioner in quashing the order passed by the Commissioner on 11.05.2001. It is lastly submitted that the respondent filed a suit for permanent injunction against the municipality and in the said suit application for temporary injunction has been allowed by the trial Court vide order dt. 12.03.2003 and since the matter is already subjudice this Court will not like to interfere in the matter. 8. A rejoinder to the reply has been filed by the Municipal Corporation. With regard to the preliminary objections, it is contended by the Municipal Corporation that after decision of the Divisional Commissioner, on the opinion given by the panel lawyer, the matter was examined by the Commissioner, Muncipal Corporation and it was decided to file writ petition in the matter. As to the second objection taken to the maintainability of the writ petition by the respondent, it is submitted by the petitioner that the Divisional Commissioner is being arrayed as respondent independently and the State of Rajasthan is to be represented through the District Collector Jodhpur. It is further submitted by the petitioner with regard to the fourth preliminary objection that number of complaints were received by the petitioner in respect of storage tanks under the main road and the matter was accordingly examined and the complaints were found to be true. The petitioner submits that the storage tanks have been constructed on the main road and thereby huge traffic is being obstructed. The petitioner contends that it is not concerned with the landlord or anybody else in the matter and the main concern of the petitioner is that the respondent No. 3 has created the obstruction on the main road by constructing storage tank and if the respondent removes the storage tank obstructing the main road the petitioner has no girevance against the respondent No. 3. It is submitted by petitioner in the rejoinder that since obstruction was created respondent No. 3, therefore, notice under Sec. 203 of Act rightly issued to the respondent. 9. Since certain new things were brought on record in rejoinder filed by the petitioner, a detailed reply to the rejoinder has been filed. Thereupon, alongwith the application for amendment of the cause title, sur-rejoinder was filed by the Corporation. It is contended on behalf of the petitioner that that as per Section 68(5) and the notification issued thereunder, the Commissioner is fully competent to issue intruction for filing the writ petition. It is submitted by the Corporation that the writ petition filed by an organization by way of public interest litigation was contested by the Municipal Corporation as well and it was clearly given out before the Divsion Bench that the Corporation is pursuing its independent writ petition, therefore, the respondent is wrong in alleging that in view of the aforesaid the present writ petition is gross abuse of the process of Court. It is reiterated that all proceedings has been initiated by the Commissioner in pursuance of the complaints received by the Corporation with regard to construction of tank on the road. As regard the contention of the respondent that similarly situated petrol pumps are still in existence it is submitted that proper care has been taken by the Corporation and it is specifically stated that action was taken so far as against Marwar Petrol Pump for removing the storage tank which is pending consideration before the Municipal Corporation and so far as Nagar Filling Station is concerned when proceedings was initiated to remove its encorachment it preferred civil suit before the Civil Judge (Senior Devision), Jodhpur seeking restraint against the petitioner. The said civil suti is pending. Refuting the allegations of the respondent, it is further submitted by the petitioner that with regard to Nasrani Petrol Pump Anti Encorachment Committee of the Municipal Corporation has already observed in the year 2000 that proceedings are required to be initiated under Sec. 203 of the Act whenever petrol pump are running their business by putting storage tank on the public way. However, action could not be taken against said petrol pump because in the year 2000 a lease for ten years was sanctioned in its favour and the said petrol pump has deposited the entire lease amongst. 10. However, action could not be taken against said petrol pump because in the year 2000 a lease for ten years was sanctioned in its favour and the said petrol pump has deposited the entire lease amongst. 10. I have considered the rival submissions. 11. First of all, it is required to be observed that the respondent No. 3 constructed the storage tank after issuance of due lease by the then Municipal Council in the year 1952 in favour of one Shankar Lal. This fact is not disputed by the Municipal Corporation and further that a public interest litigation was taken recourse to by one organization viz., the Young Blood Yuwa Samiti for removal of encorachments located at Chopasani Road, which is 15 km from Magra Punjala. The Division Bench, therefore, held as follows:- “4. There are allegations and counter allegations. It is not necessary for us to enter into the said controversy. The writ petition deserves to be dismissed only on the ground that the material fact has been concealed from this Court. The petitioner seeks direction to execute the order which is non-existent, as the same has been set-aside by the competent authority. It clearly appears that instant petition has been espoused by the land lord namely Smt.Padma Devi. The Apex Court has deprecated to entertain such sort of petitions under the label of public interest litigation. Reference may made to Dattaraj Nathuji Thaware vs. State of Maharashtra & Ors., reported in 2005 (1) SCC 590 .” 12. The said writ petition was dismissed with cost of Rs. 1,000/- it is also correct that in the said order passed by the Division Bench it was observed that the order dt. 26.11.2001 was in existence at the time of filing the said public interest litigation. It is also one of the admitted facts that before the Divisional Commissioner an attempt was made by the landlord by way of filing application for impleading him as party respondent but the said application was rejected by the Divisional Commissioner vide order dt. 29.10.2001; meaning thereby, that the aforesaid facts clearly reveal that the landlord is chasing the proceedings and, therefore, this Court cannot lose sight of the action taken by the landlord at various stage of the proceedings. It is also not disputed by the petitioner Corporation that notice was given to the landlord also. 29.10.2001; meaning thereby, that the aforesaid facts clearly reveal that the landlord is chasing the proceedings and, therefore, this Court cannot lose sight of the action taken by the landlord at various stage of the proceedings. It is also not disputed by the petitioner Corporation that notice was given to the landlord also. Whey the landlord was given the said notice by the Commissioner, Municipal Corporation it creates doubt as the lease-deed was not in favour of Smt. Padma Devi and her application for impleadment was rejected by the Divisional Commissioner. 13. In my opinion, the interference of the landlord was called by the Municipal Corporation which is obvious from the issuance of the notice under Sec. 203 which is not proper. In the proceedings initiated by the statutory body with regard to deemed cancellation of the lease it is very strange that on the one hand for the purpose of utilizing the public way for construction of storage tank for petroleum product lease was given to Nasrani Petrol Pump which is obvious from the sur-rejoinder filed by the respondent in which it is categorically mentioned that action for removal of encroachment was to be taken but the same could not be taken against Nasrani Petrol Pump because in the year 2000 a lease for ten years was sanctioned in its favour and it had deposited the entire lease amount. Thus, if the deposited lease amount is being received by the Municipal Corporation then, certainly, the Corporation is not objecting to construction of underlying petrol tank on the public way because it has itself allowed such construction. Likewise, the lease was granted to respondent No. 3 way back in the year 1952, therefore, it cannot be said that any encroachment was made by respondent No.3. In this view of the matter, there was no jurisdiction to initiate proceedings under Sec. 203 against respondent No. 3. In these facts and circumstances, the Divisional Commissioner rightly arrived at the conclusion that without cancellation of the lease-deed there is no question of eviction/removal from the alleged encorachment. It is obvious that the action is in breach of the agreement. 14. In these facts and circumstances, the Divisional Commissioner rightly arrived at the conclusion that without cancellation of the lease-deed there is no question of eviction/removal from the alleged encorachment. It is obvious that the action is in breach of the agreement. 14. It is also required to be observed that in the earlier public interest litigation the Devision Bench of this Court refused to interfere in the matter and it is left open while observing that there is order of the Divisional Commissioner in existence and as such the validity of the order passed by the Divisional Commissioner on 21.11.2001 that without cancellation of the lease-deed, in the name of removal of unauthorized occupation, the respondent cannot be evicted and for proper eviction it is necessary for the Municipal Corporation to first cancel the lease deed which is not done in this case. Accordingly, the Divisional Commissioner has passed order for depositing the lease amount without interest and that order was complied with by respondent No.3 but the money was not accepted by the Corporation. In these circumstance, in my considered opinion, no interference is called for. 15. Consequently, the writ petition is dismissed. If the petitioner Corporation still thinks its proper to evict/remove the occupation of the land by the respondent, the same can be done only after cancellation of the lease in accordance with law. * * * * *