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2011 DIGILAW 946 (RAJ)

Anjana Kothari v. State of Rajasthan

2011-05-06

VINEET KOTHARI

body2011
Hon'ble KOTHARI, J.— Heard learned counsel for the parties. 2. The petitioner has approached this Court by way of present misc. application after the writ petition filed by her, namely, SBCWP No. 3588/2004 (Anjana Kothari vs. State of Rajasthan & Ors.) was decided by this Court on 24.1.2008 with the following directions:- "4. It is not made stood by this Court as to what is the jurisdiction of the police authorities to have a say in the matter of this nature and to interfere with the civil rights of the citizens for raising construction over the plot of land allotted to them by Urban Improvement Trust or any other local authority. It is only for concerned Public Authority to take appropriate action, if any in accordance with law. If civil right of other third party is affected, they may approach to the Civil Court. But what role police authorities have to play in such matter involving purely civil rights of the parties. It appears to be clearly motivated design, at the instance of some hidden hand behind these communications that the police authorities have ventured to prohibit the petitioner from enjoying her property rights in accordance with law. 5. It is also not appreciated as to how the Superintendent of Police refused to grant police protection at the request of the petitioner even at her own cost by the communication dated 5.6.2006 referred to above. If a citizen is threatened with life and injury to her person and seeks police protection, it is the duty of the police officials to provide such police protection without cost. In the present case, the very fact that the petitioner sought police protection at her own cost and even that was refused reflects badly on the said police officials. 6. Instead of taking any other stern action against the police officials who had played such role in the present matter at this stage, this Court feels advised to dispose of this writ petition with a direction to the respondent No. 2 and 3 not to interfere with the construction activity of the petitioner in any manner and to ensure that the peace of the area is maintained by them. If after passing of this judgment any of the police official seeks to interfere with the said civil rights of the petitioner, this Court may be constrained to initiate contempt proceedings against such police officials. If after passing of this judgment any of the police official seeks to interfere with the said civil rights of the petitioner, this Court may be constrained to initiate contempt proceedings against such police officials. 7. If the petitioner seek police protection in the matter upon threats by any of the local people of the area, the respondent No. 5 Superintendent of Police, Jodhpur is directed to provide needful police protection to the petitioner in accordance with law, without any cost. 8. With these observations, this writ petition is disposed of. No order as to costs. Sd/- (Dr. Vineet Kothari), J." 3. The aforesaid writ petition was filed by the petitioner seeking a mandamus direction against the SHO, Police Station-Basni and Superintendent of Police,Jodhpur City that they under the influence of some local people are trying to interfere in the peaceful possession and enjoyment of the property of the petitioner and raising construction of dispensary on the plot of land allotted to her by the Urban Improvement Trust, Jodhpur ad-measuring 513.88 square yards in Krishna Nagar, Jodhpur. 4. The case of the petitioner is that despite said judgment, since no police aid/protection was provided to her for protecting her rights to raise such construction, therefore, the present misc. application has been again filed for appropriate directions. 5. Learned counsel for the petitioner submitted that the petitioner had to file another writ petition being SBCWP No. 1389/2009 (Anjana Kothari vs. Divisional Commissioner & Ors.) by which she has challenged the order dated 26.9.2007 passed by the Division Commissioner, against the order in appeal filed by the respondent-Krishna Nagar Vikas Samiti through its Secretary by which the learned Divisional Commissioner had set aside the order of the competent authority dated 12.1.2004 in Case No. 1592/2003 while exercising its powers under Section 90-B (7) of the Rajasthan Land Revenue Act, 1956 (for brevity, hereinafter referred to as `Act of 1956'); upon which, the contention of the petitioner is that no such appeal at the instance of said appellant-Krishna Nagar Vikas Samiti was even maintainable in terms of Section 90-B (7) of the Act of 1956. He, therefore, contended that under the garb of said order neither the said Krishna Nagar Vikas Samiti is allowing the construction of dispensary to be raised by the petitioner on the plot of land purchased by her, nor the police officials who are said to have, in collusion or under the influence of such local people, came to her rescue for protecting her rights of life, liberty and property. 6. Upon notice being issued by this Court, Mr. Anand Purohit, Sr. Advocate and Additional Advocate General assisted by Mr. Pradhuman Singh, submitted a compliance report and submitted before this Court that police is always ready and willing to provide necessary police help if a person approaches and assured the Court that if the petitioner also approaches then for appropriate police protection against unnecessary interference of any third party in her property rights, they would provide police help. Upon this assurance given at the bar, this Court would have disposed of this misc. application, simpliciter, as the necessary directions have already been given on 24.1.2008 while disposing of the writ petition No. 3588/2004 filed by the petitioner, but the hurdle in the way of the petitioner seems to be the order passed by the Divisional Commissioner dated 26.9.2007 whereby the said Divisional Commissioner while setting aside the order of the conversion granted in favour of petitioner vide order dated 12.1.2004 in Case No. 1592/03, set aside the order and remitted the matter to the competent authority of U.I.T., Jodhpur, now merged with Jodhpur Development Authority, Jodhpur (JDA for short); and since the respondents in writ petition, Krishna Nagar Vikas Samiti and other authorities of JDA have treated the matter still open and at large as far as question of conversion in favour of petitioner of the said plot of land is concerned, therefore, they are not allowing the said construction to be raised by the present petitioner and the petitioner appears to be running from pillar to post seeking her rights to be ventilated and in the process seeking police aid, which according to petitioner was refused, but according to learned Addl. Advocate General, is assured to be given. Therefore, this Court heard learned counsels upon the said writ petition also and validity of the order dated 26.9.2007 passed by the learned Divisional Commissioner. 7. On this, learned counsel for the petitioner Mr. Advocate General, is assured to be given. Therefore, this Court heard learned counsels upon the said writ petition also and validity of the order dated 26.9.2007 passed by the learned Divisional Commissioner. 7. On this, learned counsel for the petitioner Mr. Tribhuvan Gupta urged that scheme of Section 90-B of the Act of 1956 does not permit an appeal to be filed against an order converting the user of agriculture land into commercial use, passed under sub-section (3) and proviso to sub-section (6) of Section 90-B of the Act, but only appeal which can be filed under sub-section (7) of Section 90-B is one by the person aggrieved (land owner himself) if instead of re-vesting the land in the land owner after its surrender under sub-section (3), the land is not vested in him but is vested in the State under sub-section (5) then only the person aggrieved i.e. the land owner himself who surrendered the land can file an appeal under sub-section (7) of Section 90-B of the Act; whereas in the present case, such appeal was filed by an stranger, the respondent-Krishna Nagar Vikas Samiti upon which the order was passed by the learned Divisional Commissioner on 26.9.2007 setting aside the conversion order dated 12.1.2004. 8. Mr. S.G. Ojha, learned counsel for the respondent JDA could not oppose these submissions and admitted that the person aggrieved under sub-section (7) as per scheme of Section 90-B of the Act of 1956 would be the land owner only and since the conversion in the present case has already been allowed by the order dated 12.1.2004 by the competent authority, such order was passed under sub-section (3) and proviso to sub-section (6) of Section 90-B of the Act on 12.1.2004, therefore, no such appeal could be filed by Krishna Nagar Vikas Samiti. 9. Mr. 9. Mr. R.S. Saluja, learned counsel appearing on behalf of respondent-Krishna Nagar Vikas Samiti, however, submitted that since the land in question allotted to the present petitioner for which `Patta' was issued by the developer of the land M/s. Sagar Family Trust and lease deed was executed by the U.I.T.,Jodhpur, was not being used for public purposes though it was so reserved for setting-up of a dispensary to be used for `public purpose', therefore, the said Krishna Nagar Vikas Samiti had locus-standi to file an appeal under sub-section (7) of Section 90-B of the Act; and it was a `person aggrieved' within the meaning of that provision. Therefore, the appeal has rightly been entertained by the Divisional Commissioner and allowing the appeal of the said Samiti, the matter has been remanded back to the competent authority of JDA, Jodhpur. He further submitted that otherwise the appellant-Krishna Nagar Vikas Samiti would be remediless even if there is some misuse of the land in question by the petitioner or the same is not put to use for `public purpose' as envisaged in the original scheme and the maps approved by the UIT., Jodhpur/J.D.A., Jodhpur. 10. Mr. Anand Purohit, learned Additional Advocate General, however, had nothing to submit on this aspect of the matter. 11. I have given my thoughtful consideration to the has submissions made by the learned counsel for the parties, and carefully gone through the relevant provisions of Act and judgment cited at bar. 12. The provisions of Section 90-B of the Act of 1956 are reproduced herein below for ready reference: 90-B- Termination of rights and resumption of land in certain cases. 12. The provisions of Section 90-B of the Act of 1956 are reproduced herein below for ready reference: 90-B- Termination of rights and resumption of land in certain cases. (1) Notwithstanding anything to the contrary contained in this Act and the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955) where before the commencement of the Rajasthan Laws (Amendment) Ordinance, 1999 (Rajasthan Ordinance No. 3 of 1999) any person, holding any land for agricultural purposes in such urbanisable limits, of an urban area, as may be notified from time to time by the State Government by notification in the Official Gazette, has used or has allowed to be used such land or part thereof, as the case may be, for non-agricultural purposes or, has parted with possession of such land or part thereof, as the case may be, for consideration by way of sale or agreement to sell and/or by executing power of attorney and/or will or in any other manner, for purported non-agricultural use, the rights and interest of such a person in the said land or holding or part thereof, as the case may be, shall be liable to be terminated and such land shall be liable to be resumed. (2) Where any land has become liable to be resumed under the provisions of sub-section (1), the Collector or the officer authorised by the State Government in this behalf, shall serve a notice, calling upon such person to show cause why the said land may not be resumed summarily, and among other things, such notice may contained the particulars of the land, cause of proposed action, the place, time and date, where and when the matter shall be heard. (3) When the tenant or the holder of such land or any person duly authorised by him, as the case may be, makes an application to the Collector or the officer authorised by the State Government in this behalf, expressing his willingness to surrender his rights in such land, with the intention of developing such land for housing or commercial purposes, the Collector or officer authorized by the State Government in this behalf, shall upon being satisfied about the willingness of such person, order for termination of rights and interest of such person in the said land and order for resumption of such land. (4) The proceedings in the matter shall be conducted summarily and shall ordinarily be concluded within a period of sixty days from the first date of hearing specified in the notice served under sub-section (2). (5) Where, after hearing the parties, the Collector or the officer authorised by the State Government in this behalf, is of the opinion that the land is liable to be resumed, under sub-section (1), he shall after recording reasons in writing, order for termination of rights and interest of such person in the said land and order for resumption of the said land. (6) The land so resumed under sub-section (3) and (5) shall vest in the State free from all encumbrances and shall be deemed to have been placed at the disposal of the concerned local authority under Section 102-A of this Act with effect from the date of passing such order: Provided that the land surrendered under sub-section (3) above, shall be made available to the person, who surrenders the land, for its planned development in accordance with the rules, regulation and by-laws applicable to the local body concerned, for housing or commercial purposes. (7) the person, aggrieved by the order made under sub-section (5), may appeal to the Divisional Commissioner or the officer authorized by the State Government in this behalf within thirty days of passing of order under sub-section (5). (8) The Divisional Commissioner or the officer authorised by the State Government in this behalf shall, after hearing the parties pass appropriate orders in such appeal within a period of sixty days from the date of presentation of appeal before him. (9) The order passed by the Divisional Commissioner or the officer authorised by the State Government in this behalf in appeal under this Section shall be final. (10) No Civil court shall have jurisdiction to entertain or decide any suit or proceedings questioning the order made under sub-section (5) by the Collector or the officer authorised by the State Government or an order made under sub-section (8) by the Divisional Commissioner or the officer authorised by the State Government. (11) Nothing in this section shall apply to any land belonging to deity. Devsthan Department, any public trust or any religious or charitable institution or a walf. (11) Nothing in this section shall apply to any land belonging to deity. Devsthan Department, any public trust or any religious or charitable institution or a walf. (12) No proceedings or orders under this section shall be initiated or made in respect of lands for which proceedings under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (Central Act No. 33 of 1976), the Rajasthan Imposition of Ceiling on Agricultural Holdings Act,1973 (Act No. 11 of 1973) and the Rajasthan Land Reforms and Acquisition of Land Owners Estate Act, 1963 (Act No. 11 of 1964) are pending. Explanation: I. part use of the land for purposes sub-servient to the agriculture such as residential house of the tenant 9 subject to the limit of 1/50th part of his holding or 500 sq. yards whichever is less) cattle breeding, dairy farming, fodder storage, poultry farming, horticulture, forestry development, water tank, well, pasturage, grove land and such other purposes ancillary thereto or connected therewith shall not be construed to mean non-agricultural purposes. 11. For the purpose of sub-section (1), urban area shall mean an area for which a municipality is constituted under the Rajasthan Municipality Act, 1959 (Act. No. 38 of 1959) or Urban Improvement Trust is constitution under Rajasthan Urban Improvement Act, 1959 (Act No. 35) of 1959) or the Jaipur Development Authority Act, 1982 (Act No. 25 of 1982)." 13. The scheme of Section 90-B of the Rajasthan Land Revenue Act, 1956 envisages surrender of agriculture land to the State Government and after such land is resumed in favour of State by appropriate order passed by the Collector or officer authorized by the State Government, the land vests in the State Government and this is purport of sub-sections (1),(2) and (3) of the said Section 90-B. Sub-section (6) provides that land so resumed shall vest in the State free from all encumbrance and shall be deemed to have been placed at the disposal of the concerned local authority under Section 102(A) of the Act with effect from the date of passing of such order. The Proviso of sub-section (6) further provides that land so surrendered under sub-section (3) shall be made available to the person, who surrenders the land for its planned development in accordance with rules, regulations and bye-laws and applicable to local body concerned for using for commercial purposes. The Proviso of sub-section (6) further provides that land so surrendered under sub-section (3) shall be made available to the person, who surrenders the land for its planned development in accordance with rules, regulations and bye-laws and applicable to local body concerned for using for commercial purposes. If it is so made available to the person who surrenders the said agriculture land, then the matter ends there, however, sub-section (5) provides that the Collector of Officer, is of the opinion that the land is liable to be resumed in favour of State only under sub-Section (1), (2) and (3), who shall after recording the reasons in writing, order for termination of the rights and interests of such person in the said land, and order for resumption of the said land in favour of State. If it happens like this and the local body or the competent authority of the state does not make available back such land to the person concerned who had surrendered land to the State, then such land owner only becomes an aggrieved person and to provide him a remedy, sub-section (7) has been enacted to provide for an appeal to such `person aggrieved' specifically `by order made under sub-section (5)' to appeal against such order passed under sub-section (5) by the Collector or competent officer to the higher authority, namely, Divisional Commissioner. 14. Sub-section (7) of Section 90-B of the Act, therefore, is a limited remedy provided to person aggrieved (land owner) only. This is not appeal provided where land is vested back by the local body in the person concerned, who surrendered the land under the provisions of sub-section (1), (2) and (3) of the said Section 90-B. Sub-section (9) provides that order passed by the Divisional Commissioner on such appeal of the person aggrieved shall be final and sub-section (10) provides that no civil court shall have jurisdiction to entertain any suit with respect to such order. 15. On a plain reading of these provisions as per Golden Rule of interpretation, and the scheme of Section 90-B of the Act of 1956, it is clear that appeal filed by said respondent-Krishna Nagar Vikas Samiti before the learned Divisional Commissioner was incompetent and was not filed by the person aggrieved because it was not the land owner who surrendered the land in question to the State Government. Since, the order dated 12.1.2004 in Case No. 1592/2003 was neither passed in favour of said Krishna Nagar Vikas Samiti, nor against it, therefore, the question of said Krishna Nagar Vikas Samiti being an aggrieved person against such order dated 12.1.2004 under sub-Section (7) of Section 90-B of the Act does not arise. It is only the land owner against who an adverse order is passed under sub-section (5) vesting such land in State instead of it being revested in such land owner under proviso to sub-section (6) who can file an appeal under sub-Section (7) before the Divisional Commissioner. Neither the competent authority who himself grants such conversion order under the said Proviso to sub-section (6) nor any third party can file such appeal under sub-Section (7) of Section 90-Bof the Act. Therefore, the appeal itself was not maintainable and the order passed by the learned Divisional Commissioner on 26.9.2007 was wholly without jurisdiction and passed on an incompetent appeal and the same, therefore, deserves to be quashed. 16. This is what was held by the Coordinate Bench of this Court in the case of Gajendra Singh vs. The Divisional Commissioner & Ors., while deciding SBCWP No. 42/2008 on 22.12.2008. However, it would be appropriate to reproduce the relevant part from the said judgment here-under:- "In my opinion, the petitioner is purchaser of the land in question from the original khatedar through a legal documents, which is registered sale deed whereas the respondent Nos. 4 and 5 are raising dispute on the basis of so called agreement alleged to be executed by the power of attorney holder of original khatedar in the year 1994 after making payment of Rs. 2 lakhs, which is part consideration of the total amount of Rs. 21 lakhs. Meaning thereby, the respondent Nos. 4 and 5 are claiming their rights on the basis of the said agreement whereas the petitioner was granted patta by the UIT after surrendering the said land being registered owner of the property in accordance with sub-section (3) of Section 90-B of the Act of 1956, therefore, the title of the petitioner is based on a legal document whereas the respondent Nos. 4 and 5 are unnecessarily raising dispute against the petitioner on the basis of the alleged agreement executed by the power of attorney holder of original khatedar in the year 1994 and for the same they preferred a suit before the District Judge for specific performance of contract in which the application filed by them for temporary injunction was rejected by the District Judge vide order dated 22.11.2003. It is also required to be observed that the said suit was filed by the respondent Nos. 4 and 5 after loosing battle before the revenue Courts against the petitioner, therefore, the respondent Nos. 4 and 5 are making their all attempts to get the land in question by any means. In this case the main question raised by the petitioner that pattas were under Section 90-B of the Act of 1956 by the U.I.T. to the petitioner on the basis of order passed by competent authority under sub-section (3) of Section 90-B of the Act of 1956 but no appeal is provided before the Divisional Commissioner under sub-section (7) of the Section 90-B of the Act of 1956. According to the petitioner the Divisional Commissioner, Jodhpur has wrongly exercised its jurisdiction while entertaining such appeal because as per sub-section (7) of Section 90-B of the Act of 1956, appeal can be filed against the order made under sub-section (5) of Section 90-B and not against the order passed under sub-section (3) of Section 90-B of the Act of 1956 because under sub-section (3) of Section 90-B, agricultural land can be surrendered for resumption by the tenant or the holder of such land whereas under sub-section (5) of Section 90-B of the Act of 1956, land can be resumed upon surrender by any interested party and for which the Collector or the officer authorized by the State Government in this behalf can form opinion that the land is liable to be resumed under sub-section (1) and they can resume the land after recording the reasons in writing, meaning thereby according to sub-section (7) of Section 90-B of the Act of 1956, appeal can be filed against the order made under sub-section (5) of Section 90-B of the Act of 1956 but there is no provision for filing any appeal against the order made under sub-section (3) of Section 90-B of the Act of 1956. Therefore, the Divisional Commissioner has illegality entertained the appeal against the order so made by the authorized officer for resumption of the land under sub-section (3) of Section 90-B of the Act of 1956. In this view of the matter on the basis of above discussion, it is abundantly clear that the order passed by the Divisional Commissioner is totally without jurisdiction. So also, the dispute with regard to agreement to sale alleged to have been executed by Harnarayan Heda - power of attorney holder of original khatedar Girdhari is pending before the District Court and the respondent Nos. 4 and 5 can agitate their matter against the original khatedar before the District Court in the suit so filed by them but the Divisional Commissioner has entertained the appeal filed by the respondent Nos. 4 and 5 without any jurisdiction because the order which was challenged before the Divisional Commissioner was not passed by the authorized officer under sub-section (5) of Section 90-B of the Act of 1956. The argument of learned counsel for the respondent Nos. 4 and 5 with regard to provision of U.I.T. Act for entertaining the appeal is also not tenable because the land of the petitioner was resumed under sub-section (3) of Section 90-B of the Act of 1956 and order was passed by the authorized officer under the said section. Thereafter, pattas were issued by the U.I.T., meaning thereby, the provisions of U.I.T. Act with regard to remedy before the Divisional Commissioner is released to the order for the land which is subject matter of the U.I.T. but here in this case, admittedly the petitioner along with other persons purchased the land inquestion from the original khatedar and surrendered the same under sub-section (3) of Section 90-B of the Act of 1956 and thereafter, the said land was resumed under sub-section (3) of Section 90-B of the Act of 1956. Therefore, the contention of learned counsel for the respondent Nos. 4 and 5 that as per U.I.T. Act appeal filed before the Divisional Commissioner is maintainable have no force of law. Further upon perusal of Annexure-11, it is abundantly clear that in the top of the order, it is specifically stated that this appeal has been filed under sub-section (7) of Section 90-B of the Act of 1956. 4 and 5 that as per U.I.T. Act appeal filed before the Divisional Commissioner is maintainable have no force of law. Further upon perusal of Annexure-11, it is abundantly clear that in the top of the order, it is specifically stated that this appeal has been filed under sub-section (7) of Section 90-B of the Act of 1956. Meaning thereby, the said appeal was filed under sub-section (7) of Section 90-B of the Act of 1956 upon which the order impugned was passed by the Divisional Commissioner. Thus, in my opinion, the Divisional Commissioner has exercised its jurisdiction without any authority of law under sub-section (7) of Section 90-B of the Act of 1956. Hence, such an order cannot sustain before the eye of law because, it is totally without jurisdiction. As a result of aforesaid discussion, this writ petition is allowed while holding that the order passed by the Divisional Commissioner, Jodhpur is totally without jurisdiction. Consequently, the orders impugned dated 12.6.2007 Annexure-11 and dated 16.7.2007 Annexure 12 qua the petitioner are hereby quashed and set aside. However, it is made clear that any observation made in this order will not affect the merit of the suit filed by the respondent Nos. 4 and 5 before the District Court, Jodhpur. It is also made clear that the respondent State as well the competent authority are not precluded from making any enquiry with regard to any procedural lapses for granting pattas under Section 90-B of the Act of 1956 to petitioner and any of the persons and further if in that enquiry any lapse or irregularity comes to the knowledge of the State Government or the competent authority then they are free to pass any order up to the extent of cancellation of pattas. There shall be no order as to costs. Sd/- (GOPAL KRISHAN VYAS), J." 17. It may be pointed out here that the order dated 12.1.2004 in Case No. 1592/2003 was passed in favour of present petitioner by the competent authority of U.I.T., Jodhpur holding that plot in question ad-measuring 513.88 square yards on 26.9.1994 by a registered sale deed was sold to her and on which the appropriate conversion order was passed on 20.5.1982 and lease deed was also executed by U.I.T., Jodhpur on 20.5.1982 and lay-out plan was also approved by the Senior Town Planner on 30.4.2002, the said land question of Khasra Nos. 61, 64, 65, 404/63, 401/63, 407/61 and 409/61 in Gram Kuri-Bhagtasni may be vested in the petitioner after conversion of the same into commercial land. This order dated 12.1.2004 is under the proviso of sub-section (6) of Section 90-B of the Act of 1956. The petitioner has already paid the conversion, charges in this respect, therefore, as aforesaid, the appellant-Krishna Nagar Vikas Samiti had no locus-standi to challenge the said order before the learned Divisional Commissioner and that appeal being incompetent, the order passed by the learned Divisional Commissioner thereon, on 26.9.2007 setting aside the order dated 12.1.2004, is held to be without jurisdiction and is hereby quashed. 18. The contention of the learned counsel for the Krishna Nagar Vikas Samiti that construction is not being raised for `public purpose' and such dispensary was required to be a Government Dispensary to be opened for public and that only could have satisfied the requirement of such dispensary being set-up for public purposes, is absolutely misconceived and irrespective of lack of locus-standi of the said Vikas Samiti, the said contention has no legs to stand upon even on merits. The word used in the approved map and plan is only `dispensary'. It is neither Government Dispensary, nor it can be said that a private individual cannot set-up a dispensary for public purposes. The use to which a dispensary constructed will be put only lies in future point of time, and in the present the construction has not even yet been completed. Therefore, the contention raised by the said Vikas Samiti that it is not for public purposes, is without any foundation and is a mere wild allegation. In other words, the said Vikas Samiti appears to be unnecessarily after the blood of the petitioner like a blood hound. It is neither a party to the inter-se rights of the petitioner and the Society which sold this plot to the petitioner, nor it was a party to lis between the petitioner and the State Government when the surrender and conversion proceedings under Section 90-B of the Act of 1956 were pending before the competent authority in this case. Unnecessary harassment or violation of rights of the petitioner caused by the said appellant-Krishna Nagar Vikas Samiti deserves to be strongly deprecated. Unnecessary harassment or violation of rights of the petitioner caused by the said appellant-Krishna Nagar Vikas Samiti deserves to be strongly deprecated. The right of free enjoyment of the property of a person or an individual concerned, is a valuable legal right even though it may not be any longer a fundamental right under 19(1)(f) of the Constitution since its deletion from the Part III of the Constitution of India and shifted to Article 300-A as a legal right since 1979 but such property rights also cannot be permitted to be lightly violated or infringed upon by busy bodies like Vikas Samiti upon a wholly incompetent and not maintainable appeal. At the instance of appellant-Krishna Nagar Vikas Samiti, if the learned Divisional Commissioner chose to set aside the order dated 12.1.2004, therefore, such an illegal order cannot be sustained. 19. Consequently, the present misc. application filed by the petitioner as well as writ petition being (SBCWP No. 1389/2009) both are allowed and the impugned order dated 26.9.2007 passed by learned Divisional Commissioner, Jodhpur in Appeal No. 10/2005 (Krishna Nagar Vikas Samiti vs. Anjana Kothari & Ors.) is quashed and set aside. The order dated 12.1.2004 in Case No. 1592/03 on the application of Mrs. Anjana Kothari is restored. It is held that the petitioner shall be free to raise construction of Dispensary on the said land in question in accordance with approved plan and if any party unnecessarily causes any harassment or interference with the said construction work, the petitioner can seek police aid, which as aforesaid is assured by learned Additional Advocate General, would be given by the Police Department to her. Costs are to be borne by respective parties.