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2010 DIGILAW 1340 (RAJ)

Madhu Sudan Purohit v. State of Rajasthan

2010-08-02

DINESH MAHESHWARI, JAGDISH BHALLA

body2010
JUDGMENT 1. - The petitioners, said to be the public spirited citizens and particularly keen on the betterment of the city of Bikaner, have filed this writ petition as a Public Interest Litigation. 2. The petitioners submit that there is situated an ancient city-wall surrounding the city of Bikaner that was declared as protected monument by a notification issued on 30.04.1984 by the Art and Culture Department of the State of Rajasthan under Section 3(4) of the Rajasthan Monuments, Archaeological Sites & Antiquities Act, 1961 (the Act of 1961) but then, by the impugned notification dated 27.05.2003, the aforesaid notification dated 30.04.1984 was sought to be amended and the city-wall was sought to be taken out of the purview of protection. This, according to the petitioners, has been contrary to the requirements of the Act of 1961 and has been in colourable exercise of powers. The petitioners further state that the respondent Urban Improvement Trust, Bikaner (UIT) intend to sell a part of the land adjoining the city-wall by making allotments of shops under the impugned auction notice dated 17.01.2003 (Annex.5). Such an act, the petitioners contend, would not only damage the heritage monument but would also reduce the width of the road known as Rajiv Marg that was laid for the purpose of dealing with traffic congestion; and this reduction of road-width is not permissible and is against public interest. 3. The respondent UIT has filed a reply to the writ petition denying specifically the allegations about reduction of the road-width and, while stating that the apprehension of the petitioners is foundation-less, has reiterated in the reply several times that the road-width is not going to be reduced. The respondent UIT states,- "6.....The width of the road will not be reduced from 40 ft., which was originally marked by the Urban Improvement Trust, Bikaner. At some places, the width of the road is more than 40 ft. so, the apprehension of the petitioners that by auctioning the plots for construction of shops, the width of the road will be reduced is only apprehension and this apprehension is not based on any foundation." --- --- --- ........In the original plan, the width of the road is 40 ft. and that shall be remaining intact after auction of the plots. and that shall be remaining intact after auction of the plots. The Trust right from very beginning has made the plan that the width of the road will not be reduced from 40 ft." 4. In regard to the city-wall, it is submitted by the answering respondent that major portion thereof has already been encroached upon and houses have been constructed thereat; and now there remains in existence only about 5% part of the said wall. It is, however, submitted that the area for shops proposed to be auctioned has been demarcated leaving 1 ft. space after the city-wall; and such shops shall only protect the wall. 5. In regard to the notification under the Act of 1961, the answering respondent-UIT, while submitting that the related averments are to be replied by the concerned Department, contends that the Government has the power to issue the notification and has the similar powers to amend the previous notification. 6. It is also pointed out in the reply by the respondent-UIT that concerning the same controversy, a civil suit has been filed by Govind Ram and another that remains pending in the Court of Additional Civil Judge (Senior Division) No.2, Bikaner; and it is alleged that the present petition has been filed only in order to complicate the issue and to gain popularity. It is also submitted that several disputed questions of fact are involved that cannot be determined in the writ jurisdiction. 7. Earlier, on 03.08.2005, a Division Bench of this Court considered the submissions of the parties and proceeded to allow this writ petition while saying,- "Having heard learned counsel for the parties and perused the different maps produced before us, we are satisfied that if the respondent is allowed to allot the subject land for construction of shops, it will create traffic problem. It is desirable that the subject area is left open. Consequently, the petition is allowed. The order dated 27th May, 2003 is quashed and set aside. The respondent UIT is restrained from making any allotment of the shops near the City Wall in pursuance of the Notification Annexure 5 dated 17.1.2003." 8. The aforesaid order was, however, not approved by the Hon'ble Supreme Court in Civil Appeal No. 1895/2008, decided on 10.03.2008. The Hon'ble Supreme Court observed that the High Court had only recorded its satisfaction in the aforesaid order and no reasons had been assigned therefor. The aforesaid order was, however, not approved by the Hon'ble Supreme Court in Civil Appeal No. 1895/2008, decided on 10.03.2008. The Hon'ble Supreme Court observed that the High Court had only recorded its satisfaction in the aforesaid order and no reasons had been assigned therefor. Thus, while setting aside the aforesaid order dated 03.08.2005, the Hon'ble Supreme Court remanded the case to this Court for decision afresh. 9. Additional affidavit and counter have been filed suggesting that the civil suit aforesaid is yet pending with the Court concerned. 10. We have heard the learned counsel for the parties and have examined the material placed on record. 11. So far the apprehension about reduction of road-width is concerned, in view of the categorical averments of the respondent-UIT in its reply, we find no reason to issue any writ, order or direction in this petition. There appears no reason to disbelieve the specific and categorical submission made on behalf of the respondent-UIT that by the auction of the shops in question, the sanctioned road-width shall not be reduced in any manner. 12. The corollary question regarding the notifications under the Act of 1961 does not appear to be of much relevance in this matter nor has any bearing on the principal issue regarding the width of the road. Moreover, the facts concerning the existence of the wall in its form so as to be protected as monument have not been clarified by the petitioners. In the reply on behalf of the UIT, it is asserted that about 95% of the said wall has already been encroached upon. The notification dated 27.05.2003 also states the same facts. The Department of Art and Culture appears to have issued the notification with due regards to the fact situation at the site while stating that constructions have been raised on about 20 ft. area adjoining the said wall and hence, only the ancient gates constructed on the wall namely, Kote Gate, Jassusar Gate, Nathusar Gate, Sheetla Gate and Goga Gate were to be protected as heritage monuments. The Department does not appear to have proceeded in a mechanical manner and has taken care to keep the heritage intact with protection of the aforesaid city gates. 13. The Department does not appear to have proceeded in a mechanical manner and has taken care to keep the heritage intact with protection of the aforesaid city gates. 13. In the aforesaid fact situation, we do not find any element of public interest being adversely affected by the aforesaid notification dated 27.05.2003 so as to call for interference in this PIL petition. Moreover, the petitioners do not appear to have raised objections before the concerned Department against the said amendment notification. Without the petitioners having first raised such objections with the concerned Department, on the material as placed herein, we do not find any justification to adjudicate finally on the validity of the notification dated 27.05.2003. Such adjudication essentially involves determination of several disputed questions of facts, which cannot be determined in the writ jurisdiction. 14. We would, however, not like to make any comments in regard to the civil suit said to have been filed in relation to the controversy in question particularly for the plaintiffs of the suit being not before us. We would prefer leaving all the aspects relating to the civil suit open for determination by the concerned Court. So far this writ petition is concerned, we do not find any reason to issue any writ, order or direction against the respondents.With the observations aforesaid, the writ petition stands dismissed.Writ Petition dismissed. *******