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2015 DIGILAW 870 (RAJ)

Neeraj Verma v. State of Rajasthan

2015-04-17

SUNIL AMBWANI, VEERENDR SINGH SIRADHANA

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JUDGMENT : 1. This Writ Petition, in public interest, has been filed with the following reliefs:- “(i) The respondent No.1, 2, 3 & 7 be directed to protect the Holy and sacred Bargad tree and the Pacca Chabutra from illegal encroachment and trespass and destruction through their officers and servants in collusion with the Bhoo-mafia's. (ii) Be pleased to further direct the respondents to keep the land and Bargad tree of public park as it is and protect the same from the invasion by Bhoo Mafias, in collusion by hired unsocial elements and restrain the respondent No.3, 5 & 6 from trespassing and encroaching over the public park land and Bargad tree and Chabutra. (iii) Any other order which this Hon'ble Court deemed just and proper in the facts and circumstances of the case may also be passed in favour of the petitioners.” 2. We have heard learned counsel appearing for the petitioners, representing Shri Neeraj Verma-petitioner No.1, Secretary, Civil Lines Colony Vikas Samiti, Jaipur and Shri Rajendra Kumar Meena-petitioner No.2, President, Civil Lines Colony Vikas Samiti, Jaipur. We have also heard Shri G.S. Gill, learned Additional Advocate General appearing both for the State of Rajasthan and Jaipur Development Authority. Ms.Naina Saraf appears for Nagar Nigam, Jaipur and Shri Pradeep Choudhary appears for the respondent Nos.4 & 5. 3. The respondent No.6 has not been served as yet. It is stated that the respondent No.6 has no concern with the plots, or the Banyan 'Bargad' Tree, which is subject matter of the dispute. 4. During the course of arguments, we were informed that in respect of the same property, the respondent Nos.4 & 5, claiming to be allottees of the plots in the Colony, which is situate opposite to the land, on which the old Bargad Tree is situate, had filed a complaint in the police, which was referred to the Additional District Magistrate, City (South), Jaipur under Section 145 Cr.P.C. 5. The Additional District Magistrate, City (South), Jaipur has, by order dated 28.09.2010, recorded his satisfaction that there is apprehension of breach of peace between the residents of the colony, on one hand, and Shri Mahipal Choudhary, Shri Ashok Jhunjhunwala, Shri Vinamra Sounkhiya, Shri Suresh Meena and Shri Narendra Singh, on the other hand. Party No.2, in proceedings under Section 145 Cr.P.C., are the President and Secretary of the Civil Lines Colony Vikas Samiti, Jaipur. Party No.2, in proceedings under Section 145 Cr.P.C., are the President and Secretary of the Civil Lines Colony Vikas Samiti, Jaipur. It was found that the residents of the colony had collected about 100-150 persons, for not allowing the complainants, to exercise their rights over the land, which they claim to be allotted to them, and that, the proceedings under Section 107/116(3) Cr.P.C., were also drawn against them. The Additional District Magistrate has, by order dated 28.09.2010, attached the land, and appointed the SHO, Sodala, as Receiver. The orders are still in force, and have not been modified or challenged. 6. It is submitted by learned Additional Advocate General that the property was a Government property, recorded as 'Siwai Chak'. The property belongs to the Jaipur Development Authority. He states that the Bargad Tree is very old, and that, the residents of the colony have religious sentiments attached it. There was some litigation with regard to the property, in which orders were passed by the civil court, but that, for more than 12 years, the orders were not executed. 7. Learned counsel appearing for the Nagar Nigam, Jaipur states that the property is recorded in the name of private individuals, in the municipal records. 8. Be that as it may, the matter is already pending before the Additional District Magistrate, in which an order has been passed under Section 145 Cr.P.C, on 28.09.2010, attaching the property, and a Receiver has been appointed, until the parties produce an order of the competent court. 9. We do not find that the writ petition, filed in public interest, is an appropriate remedy for the petitioner, for seeking the prayers, for protecting the Bargad Tree and Pacca Chabutra from the illegal encroachment. This dispute can be decided either amicably or by a civil court, after taking documentary and oral evidence. 10. In our opinion, the Additional District Magistrate has rightly passed an order, attaching the property and appointing a Receiver, until the court of competent jurisdiction decides the matter. The court of competent jurisdiction, in this case, is the civil court. Any person aggrieved by the order under Section 145 Cr.P.C., can challenge it before the appropriate forum, and that, if the petitioners or the respondents seek to enforce any property rights over the land, it will be open to them to file a civil suit and seek appropriate reliefs. Any person aggrieved by the order under Section 145 Cr.P.C., can challenge it before the appropriate forum, and that, if the petitioners or the respondents seek to enforce any property rights over the land, it will be open to them to file a civil suit and seek appropriate reliefs. The respondent No.4 & 5, if they want to exercise their property rights over the land, and for which they have stated that they have no claim over the Bargad Tree, and that, they do not propose to cut the Tree, may also, if advised, file a civil suit for claiming declaration or injunction, as the case may be. 11. In the aforesaid facts and circumstances, the Writ Petition, filed in public interest, is dismissed.