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2019 DIGILAW 2655 (RAJ)

Ashok Vasita v. Urban Improvement Trust

2019-10-04

DINESH MEHTA

body2019
JUDGMENT : Dinesh Mehta, J. 1. The present writ petition has been preferred against the order dated 27.08.2019, passed by the learned Additional District Judge No. 2, Udaipur (hereinafter referred to as "the Appellate Court"), whereby the order dated 05.09.2018, passed by the Presiding Officer, Gram Nyayalaya, Girva, Udaipur (hereinafter referred to as "the Trial Court") has been partially modified and the respondent Urban Improvement Trust, Udaipur has been directed to dispossess the petitioner-plaintiff after adopting due process of law. 2. Operative portion of the order dated 27.08.2019, passed by the learned Additional District Judge No. 2, Udaipur reads thus: ^^vr% vihykFkhZx.k ¼vizkFkhZx.k½ nhid Hkalkyh ,oa uxj fodkl izU;kl] mn;iqj }kjk izLrqr vihy fo:) izR;FkhZ ¼izkFkhZ½ v'kksd olhVk vkaf'kd :i ls Lohdkj dh tkdj ;ksX; v/khuLFk U;k;ky; U;k;kf/kdkjh] xzke U;k;ky;] fxokZ] mn;iqj }kjk izdj.k la[;k 12@2016 eq-nh- v'kksd olhVk cuke uxj fodkl izU;kl o vU;] vUrxZr vkns'k 39 fu;e 1 o 2 lifBr /kkjk 151 naiz-la- esa ikfjr vkns'k fnukad 05-09-2018 vikLr fd;k tkdj vihykFkhZ ¼vizkFkhZ la[;k 1½ uxj fodkl izU;kl dks vkns'k fn;k tkrk gS fd og fof/kd izfØ;k viuk;s fcuk izkFkhZ v'kksd olhVk dks oknxzLr Hkw[k.M ls csn[ky ugha djs] fuekZ.k dk;Z dks /oLr ugha djsA v/khuLFk U;k;ky; dh i=koyh vkns'k dh ,d izfr ds lkFk ykSVkbZ tk,A^^ 3. Mr. Kunal Bishnoi, learned counsel appearing for the petitioner challenging the order dated 27.08.2019, contended that the Appellate Court had no occasion to interfere in an otherwise just order, passed by the Trial Court. He argued that the learned Trial Court having found a prima facie case in petitioner's favour, has directed the parties to maintain status quo, whereas in appeal preferred by the respondents No. 1 and 3, the Appellate Court had issued a direction to the Urban Improvement Trust, Udaipur to take possession and remove the construction, albeit after following due process of law. According to learned counsel, the Appellate Court was not required to pass such order in the mandatory form, particularly when no new fact has been brought to the notice/record of the Appellate Court. 4. Mr. Vijay Purohit, learned counsel appearing for the Urban Improvement Trust, Udaipur argued that the petitioner is neither having any title nor has he obtained any construction permission. 4. Mr. Vijay Purohit, learned counsel appearing for the Urban Improvement Trust, Udaipur argued that the petitioner is neither having any title nor has he obtained any construction permission. The Urban Improvement Trust, Udaipur, after passing of the order dated 27.08.2019 by the Appellate Court, has undertaken due proceedings under Section 91A of the Rajasthan Urban Improvement Act, 1959 and has passed the order dated 17.09.2019, wherein petitioner's construction was found illegal. 5. He argued that as a matter of fact, the present writ petition has been rendered infructuous and if petitioner so wishes, he can prefer an appeal under Section 91 (2) of the Rajasthan Urban Improvement Act 1959. According to Mr. Purohit, petitioner's challenge to the order dated 17.09.2019 in this writ petition is impermissible in the eye of law. 6. Mr. Ravi Bhansali, learned Senior Advocate appearing for the respondent No. 3 supported the order passed by the Appellate Court and submitted that the petitioner's writ petition deserves to be dismissed in view of the order dated 17.09.2019, passed by the Urban Improvement Trust, Udaipur. 7. Having heard learned counsel for the rival parties, this Court is of the view that the order passed by the Appellate Court has been given effect to- the Urban Improvement Trust has passed the order dated 17.09.2019 after considering petitioner's contention and material available on record. Hence, the writ petition has been rendered infructuous. 8. If the petitioner, in any manner, feels aggrieved of the order dated 17.09.2019, he can prefer an appeal against such order. 9. The order dated 17.09.2019, may be a consequence of the order passed by the Appellate Court, but its challenge cannot be entertained in the present petition, given the fact that the present writ petition has been filed under Article 227 of the Constitution of India, which will obviously be confined to the orders passed by the subordinate Courts. 10. This Court does not find any error of law or of jurisdiction in the impugned order dated 27.08.2019, passed by the Appellate Court apart from feeling that the present writ petition has been rendered infructuous. 11. The writ petition is thus, dismissed. 12. The petitioner may prefer an appeal against the order dated 17.09.2019, before the appellate authority within a period of seven days. For a period of seven days, the respondents shall not demolish petitioner's construction, however seizure as reported shall continue. 13. 11. The writ petition is thus, dismissed. 12. The petitioner may prefer an appeal against the order dated 17.09.2019, before the appellate authority within a period of seven days. For a period of seven days, the respondents shall not demolish petitioner's construction, however seizure as reported shall continue. 13. Stay petition also stands disposed of accordingly.