Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 2097 (RAJ)

Premvati Meena v. Urban Improvement Trust, Alwar Through Its Secretary

2022-07-22

MAHENDAR KUMAR GOYAL

body2022
JUDGMENT 1. Although, the matter comes up on an application No.1/2022 filed under Article 226 (3) of the Constitution; but, with the consent of the learned counsels for the respective parties, the writ petition was heard on its merit at this stage. 2. This writ petition under Article 227 of the Constitution of India assails the legality and validity of the order dated 21.05.2022 passed by learned Civil Judge No.1, Alwar in Case No.41/15/22 whereby, while partly allowing the application filed by the respondent No.2 under Section 151 CPC, a direction has been issued to demolish the construction raised by the petitioner on her plot in violation of interim direction of the Court and Building Bye- laws. 3. The facts in brief are that the respondent No.2 filed a suit for mandatory and permanent injunction against the petitioner alleging that she was raising construction on Plot No.E-251, Ambedkar Nagar, Alwar in violation of the Building Bye-laws covering the front setback. While deciding the temporary injunction application filed by the respondent No.2 alongwith the suit, the learned trial Court, vide its order dated 13.01.2022, restrained the petitioner from raising the construction on her plot. In civil miscellaneous appeal preferred by the petitioner thereagainst, the learned appellate Court vide its order dated 05.04.2022 permitted the petitioner to raise construction on her plot in accordance with Building Bye-laws with injunction not to raise construction on disputed part of the property marked as "ABCD" in the blueprint. Alleging that the petitioner has raised construction in violation of interim direction of the Court as also in violation of the Building Bye-laws, the respondent No.2 filed an application under Section 151 CPC praying therein to demolish the illegal construction so raised. The application has partly been allowed by the learned trial Court vide its order dated 21.05.2022, the subject matter of challenge. 4. Assailing the order, learned counsel for the petitioner contended that she has not raised construction on the disputed portion, i.e., marked "ABCD" in the blueprint. He submitted that the learned trial Court erred in relying upon the Commissioner Report which was prepared in her absence. He, therefore, prayed that the writ petition be allowed, the order dated 21.05.2022 be quashed and set aside and the application filed by the respondent No.2 be dismissed. 5. He submitted that the learned trial Court erred in relying upon the Commissioner Report which was prepared in her absence. He, therefore, prayed that the writ petition be allowed, the order dated 21.05.2022 be quashed and set aside and the application filed by the respondent No.2 be dismissed. 5. Per contra, learned counsel for the respondent No.2 submitted that the learned trial Court has partly allowed the application filed by him on the basis of material on record which does not warrant any interference of this Court under its limited supervisory jurisdiction. 6. Learned counsel for the respondent No.1 submitted that it has already served a notice dated 06.05.2022 upon the petitioner stating therein that she has raised construction on the disputed portion, i.e., setback and to remove the same. 7. Heard. Considered. 8. A perusal of the order dated 21.05.2022 reveals that taking into consideration the material on record including the Commissioner Report dated 17.05.2022, the learned trial Court has recorded a categorical finding that despite the restraint order, the petitioner has raised the construction covering the front setback which was not only in violation of the interim direction; but, also in violation of the Building Bye-laws. Although, the petitioner has asserted that the Commissioner Report dated 17.05.2022 was prepared in her absence but, its veracity has not been challenged. The petitioner has placed on record a copy of the notice dated 11.05.2022 issued by the Commissioner intimating both the parties that he would inspect the site at 4 p.m. on 13.05.2022 and the notice reflects its receipt by the plaintiff as also the petitioner. Although, it is true that the petitioner was not present when the site was inspected by the Commissioner on 13.05.2022 but, her absence was on her own volition as she chose not to remain present despite service of notice. Even otherwise also, in absence of challenge to the veracity of the Commissioner Report, such objection is of no significance. 9. Since, learned counsel for the petitioner could not point out any perversity or patent jurisdictional error in the order dated 21.05.2022, the same does not warrant any interference of this Court under its limited supervisory jurisdiction vide Article 227 of the Constitution of India. 10. Resultantly, the writ petition is dismissed being devoid of merit. The pending application stands disposed of accordingly.