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2015 DIGILAW 684 (RAJ)

BANSHI v. STATE OF RAJASTHAN

2015-03-23

AJIT SINGH, SUNIL AMBWANI

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JUDGMENT : 1. We have heard learned counsel appearing for the appellants. 2. These intra-Court Special Appeals arise out of the judgment passed by learned Single Judge, dated 04.03.2015, by which he has dismissed the writ petitions on the ground of alternative remedy available to the petitioners, to file a civil suit and seek injunction in the matter. 3. It is submitted, relying upon the judgments of the Apex Court in Real Estate Agencies Vs. State of Goa And Others, (2012) 12 SCC 170 , and Syed Maqbool Ali Vs. State of Uttar Pradesh And Another, (2011) 15 SCC 383, that the High Court under Article 226 of the Constitution of India, does not lack jurisdiction, to issue an injunction order in an appropriate case. Where rights of the parties are grossly violated by the State-respondents, the High Court can issue an injunction order, restraining the respondents from interfering in the rights of the petitioners. 4. In the present case, it was alleged that a new road was being carved out from Khasra No.233 and 235 to 248, from Kotputli to village Pathredi via Bhaloji of Tehsil Kotputli, District Jaipur. The respondents had not acquired the land before carving out and making a road through these plots, violating the petitioners' right to property. 5. In the reply given by the Tehsildar, Kotputli, dated 12.11.2014, it was stated in paragraphs 2 and 3 as follows:- “2. That the contents of this Para of the writ petition are replied in terms that towards eastern side of Khasra No.233, 235 to 248, in Khasra No.234 Rakba 0.80 Hectare Gair Mumkin Rasta is shown in the revenue map which goes from Kotputli to Village Pathredi via Bhaloji. This way was being used in KADIMI manner for conveyance purpose on western side MAIR of Khasra No.233, 235 to 248. In the Year 2004 with the consent of the khatedars gravel road on western side MAIR of Khasra No.235 to 248 instead of way shown in the revenue map at that time was made by the Gram Panchayat and since then the said road is being used for conveyance purpose by the public. The said land was constructed under SGRY Pradhan Mantri Gram Sadak Yojna and 50% expenses thereof were borne by the said Yojna. The said land was constructed under SGRY Pradhan Mantri Gram Sadak Yojna and 50% expenses thereof were borne by the said Yojna. For the said work Gram Panchayat Bhaloji passed Resolution No.3 dated 26.3.2003 thereafter Panchayat Samiti accorded sanction on 17.4.2004 and thus as per sanction of the Gram Panchayat and Panchayat Samiti with the consent of khatedars the said gravel road has been made which is being used by the public. No acquisition proceeding has been initiated in this regard. 3. That the contents of this Para of the writ petition are replied in terms in the western side of Khasra No.233, 235 to 248, there are Khasara No.130, 131, 156 and 157 are in existence in which various Dhanies are situated wherein various villagers are resided. All these residents are connected with the said gravel road and used the same and have no other alternative way for their ingress and egress purpose. Out of the aforesaid road, for preparing road from Dhani Ramkunwar Ki to Dhani of Hoshiyar Singh sanction was issued by the Panchayat Samiti Kotputli vide No.2 dated 17.4.2014 and construction was commenced from 8.8.2004 and was completed on 21.10.2004. Further with the consent of the khatedars gravel road on western side MAIR of Khasara No.235 to 248 instead of way shown in the revenue map at that time was made by the Gram Panchayat and since then the said road is being used for conveyance purpose by the public. The said land was constructed under SGRY Pradhan Mantri Gram Sadak Yojna and 50% expenses thereof were borne by the said Yojna. For the said work Gram Panchayat Bhaloji passed Resolution No.3 dated 26.3.2003 thereafter Panchayat Samiti accorded sanction on 17.4.2004 and thus as per sanction of the Gram Panchayat and Panchayat Samiti with the consent of khatedars the said gravel road has been made which is being used by the public. No acquisition proceeding has been initiated in this regard.” 6. Learned counsel appearing for the appellants submits the averments made in paragraphs 2 and 3 of the reply, are not correct, inasmuch as there is no existing road, nor any road shown in the revenue map, through Khasra Nos.233 and 235 to 248. The appellants had not given any consent, nor any resolution was passed by the Village Panchayat, to construct the road. The averments made by Tehsildar in reply are not correct. The appellants had not given any consent, nor any resolution was passed by the Village Panchayat, to construct the road. The averments made by Tehsildar in reply are not correct. No material was annexed with the reply, to establish that the appellants had given consent for construction of the road. 7. In the reply given by the Tehsildar, it is admitted that there was no road on these plots, but with the consent of the parties, a resolution was passed, on which a gravel road was constructed, and is in use by the villagers since the year 2004 of various 'Dhanis'(cluster of houses). This was the only road, by which the residents of various Dhanies have access to the main road. By disputing the averments made in the counter affidavit of the Tehsildar, the appellants are, in fact, raising issues, which cannot be gone into and decided under Article 226 of the Constitution of India, as the appellants will have to lead evidence to establish their claim. 8. We do not find any error in the judgment of learned Single Judge, relagating the appellants to file a civil suit for the reliefs, claimed in the writ petitions. The dispute raised to the averments made in the writ petitions, would require both documentary and oral evidence, to be led by the parties, to dispute that the appellants had not given consent for construction of the road, and that the road is not in use since 2004 by the villagers as the only passage without any alternative. 9. All the Special Appeals are, accordingly, dismissed. 10. A copy of the judgment will be placed in the connected files.