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2018 DIGILAW 47 (RAJ)

Mohan Lal Chomal v. State of Rajasthan

2018-01-03

M.N.BHANDARI

body2018
JUDGMENT : M.N. Bhandari, J. By this writ petition, a direction is sought to remove the obstruction from the public way situated in eastern side of petitioner's Plot No.22, Ward No.17, Chirawa, District Jhunjhunu. 2. Learned counsel submits that a plot was allotted to the petitioner showing a public way in the eastern side. The land of public way has been possessed by the private respondent No.4 unauthorisedly and, accordingly, Municipal Board, Chirawa gave a notice to him 3rd November, 1979 vide Annexure-2. The private respondent-Shiv Kumar challenged the aforesaid by invoking Section 285 of the Rajasthan Municipalities Act, 1959 (for short "the Act of 1959"), then existing. The challenge did not sustain before the Sub-Divisional Officer, rather, a direction was given that land of 6 yard of the public way may be measured and got vacated. Despite order aforesaid, no action was taken. 3. The petitioner then preferred a civil suit. It was decided with the observation that court is having no jurisdiction thus suit to be returned for its filing in the competent court. The matter was taken up at different levels which includes even before the Collector. No action was taken on the ground that possession of the private respondent exists for last 20 years. The notice served by the Municipal Board, Chirawa was not given effect. The writ petition has been filed accordingly. It is basically nothing but to seek execution of the notice and the order passed by the SDO court on an application filed by the private respondent under Section 285 of the Act of 1959. 4. Learned counsel for the private respondent has opposed the petition. He submits that there exists no public way as is coming out from the note sheets of the Collector and other authorities because for last 20 years, the private respondent is in possession of the land. In view of the above, no direction be given for execution of the notice given by the Municipal Board, Chirawa or the order passed by the SDO. It is more so when on an application under Section 133 of the Act of 1959, at the instance of the State Government, order was passed on 12th July, 1995 dismissing the application. It was for want of evidence by the party concerned. Accordingly, no case is made out for issuance of direction, as prayed by the petitioner. 5. It is more so when on an application under Section 133 of the Act of 1959, at the instance of the State Government, order was passed on 12th July, 1995 dismissing the application. It was for want of evidence by the party concerned. Accordingly, no case is made out for issuance of direction, as prayed by the petitioner. 5. I have considered the rival submissions made by learned counsel for the parties and perused the record. 6. The site plan of land allotted to the petitioner shows a road in the eastern side. The Municipal Board, Chirawa, accordingly, gave notice to the private respondent to remove the encroachment from the public way. The notice issued on 3rd November, 1979 was challenged by the petitioner by maintaining an application under Section 285 of the Act of 1959 before the SDO court. It was decided vide order dated 5th December, 1980. Therein, direction was given to the private respondent to remove the possession on Khasra No.794 upto 6 yard. The private respondent did not challenge the said order and, accordingly, it became final. 7. The petitioner thereupon preferred a civil suit when order of the SDO court was not executed. The civil court finding it to be a revenue dispute dismissed the civil suit, however, with the observation to return the plaint with liberty to take up the matter before the appropriate court. The matter then travelled to different levels which includes at the level of Collector. It was found that land is in possession of the private respondent No.4 for last 20 years thus no public way exists. It was without taking note of revenue record or even the order passed by the SDO court on an application under Section 285 of the Act of 1959. The administrative order cannot be accepted contrary to revenue record and the order passed by the SDO court on an application preferred by the private respondent himself. It is more so when it was not challenged. The private respondent has made reference of few orders but therein the petitioner is not a party and otherwise dispute is pertaining to other land as is coming out from the perusal of Annexure-R/6. 8. Accordingly, I find ground for issuance of direction prayed by the petitioner so that land of public way is vacated, if not already vacated by the private respondent No.4. 8. Accordingly, I find ground for issuance of direction prayed by the petitioner so that land of public way is vacated, if not already vacated by the private respondent No.4. The respondents are directed to maintain the public way and, accordingly, land upto 6 yard be got vacated by the private respondent, as directed by the SDO court. 9. The writ petition is allowed with the aforesaid.