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2022 DIGILAW 901 (RAJ)

Dheeraj Kumar v. State Of Rajasthan

2022-03-15

VINIT KUMAR MATHUR

body2022
ORDER 1. Although, the writ petition comes up on an application preferred by the respondent Nos. 7 & 8 for vacating the ex-parte interim order passed by this Court on 05.04.2018 but since the controversy involved in the present writ petition is very short, therefore, the writ petition is being heard and decided today itself. 2. The brief facts of the case are that the present writ petition has been filed by the petitioners with the prayer that the respondent authorities may be directed to restrain the private respondents from raising the commercial construction on the Patta Sudh Land and if any construction has been raised, the same may be ordered to be demolished. The petitioners are neighbours of the private respondents and the respondent Nos. 7 & 8 were issued Patta in the year 2016. He further submits that since the Patta issued by the Panchayat Samiti, Sayla is for raising the construction for the purpose of residence, the private respondents are misusing the same by raising the construction for commercial purposes. The petitioners, therefore, pray that the commercial construction undertaken by the private respondents is de-hors the law and the same should be demolished. 3. The private respondents have filed the reply and stated in their reply that the Revision Petition with respect to the cancellation of the Patta issued in favour of the respondents has also been filed and the same is pending consideration before the District Collector, Jalore. 4. Learned counsel further submits that while the respondents were undertaking the construction activities, there arose a dispute with respect to the measurement of land on the site and, therefore, in the circumstances, the private respondents filed a civil suit for possession and permanent injunction before the Senior Civil Judge, Jalore and the same is also pending consideration. 5. Learned counsel for the private respondents submits that in order to create pressure, a complaint was filed to the Sub Divisional Officer, Sayla. The Sub Divisional Officer (SDO) instructed the Block Development Officer (BDO) of the Panchayat Samiti to get the matter inquired through the Panchayat Extension Officer (PEO). The Panchayat Extension Officer in his report has stated that on the ground floor, shops have already been constructed and on the first floor, the construction for the residential premises is already in progress. The Sub Divisional Officer (SDO) instructed the Block Development Officer (BDO) of the Panchayat Samiti to get the matter inquired through the Panchayat Extension Officer (PEO). The Panchayat Extension Officer in his report has stated that on the ground floor, shops have already been constructed and on the first floor, the construction for the residential premises is already in progress. He further stated that vide order dated 28.02.2017, Gram Panchayat, Sayla has granted the permission for construction. It is also stated that in the nearby areas of the present site, other constructions are in existence in which the commercial activities are being undertaken and to those premises, no permission for undertaking commercial activities has been issued. It is further stated that since in the Rajasthan Panchayati Raj Act, 1996, the provision is only for granting the permission for construction and the same is not distinguishable for undertaking residential or commercial construction, therefore, no fee was charged. 6. In view of the submissions made hereinabove, learned counsel submits that the entire endeavor of the petitioners is to stop the construction activities undertaken by the respondents and, therefore, filing of the writ petition invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is nothing but gross abuse of process of law. 7. I have considered the submissions made at the Bar and have gone through the documents placed on record. 8. It is an admitted position that respondent Nos. 7 & 8 have been issued Patta by the Gram Panchayat, Sayla on which the construction activities are in progress. It is also a fact that the petitioners have filed an application for cancellation of the Patta and the proceedings for the same are pending consideration; on a dispute being arose between the parties with respect to the measurement of land, a civil suit is also pending consideration. It is also noted that a complaint has also been filed to the Sub Divisional Officer (SDO) against the construction activities being undertaken by the respondent Nos. 7 & 8; the proceeding undertaken by the petitioners clearly goes to show that the petitioners are trying their level best to stop the respondents from undertaking the construction activities. It is also noted that a complaint has also been filed to the Sub Divisional Officer (SDO) against the construction activities being undertaken by the respondent Nos. 7 & 8; the proceeding undertaken by the petitioners clearly goes to show that the petitioners are trying their level best to stop the respondents from undertaking the construction activities. Since the construction activities are being undertaken by the private respondents on the subject piece of land, for which Patta has been issued by the Panchayat and there is no distinction for the construction of the premises with respect to the commercial activities to be carried on or the premises to be used for residential purposes, therefore, it cannot be said that the construction activities undertaken by the respondent Nos. 7 & 8 are de-hors the rules. 9. Learned counsel for the petitioners could not show any provision which de-hors the private respondents from raising the construction on Patta Sudh Land for undertaking the commercial activities. It is also noted that in the nearby area of site in question, there are number of shops/homes from where the commercial activities are in progress. This court is of the view that the private respondents cannot be discriminated for raising the construction for commercial purposes vis-a-vis other persons whose premises are in the same vicinity and are being used for commercial activities. 10. Since, there is no impediment to undertake the commercial activities, neither in the Patta issued by the Panchayat nor in the report of the Panchayat Extension Officer (PEO), this Court is of the opinion that the writ petition preferred by the petitioners is an attempt to stop the construction activities of respondent Nos. 7 & 8 de-hors the law. 10. Since, there is no impediment to undertake the commercial activities, neither in the Patta issued by the Panchayat nor in the report of the Panchayat Extension Officer (PEO), this Court is of the opinion that the writ petition preferred by the petitioners is an attempt to stop the construction activities of respondent Nos. 7 & 8 de-hors the law. It will be useful to reproduce the conclusion of the report of the Panchayat Extension Officer (PEO) for better understanding of the facts in the present case :- fu'd'kZ %& izkFkhZ vklqyky iq= Jh ghekth o iouh nso h ifRu Jh vklkjketh tkfr Nhik }kjk vius iqrSuh dCtkkqnk IyksV esa xzkmM ysoy ij nqdkus fuekZ.k gks pqdh gS rFkk izFke eafty ij vkokl dk fuekZ.kk/khu dk;Z can gS] xzke iapk;r lk;yk }kjk 28-02- 2017 dks fuekZ.k dh Lohd'fr tkjh dh xbZ gSA fuekZ.kk/khu IyksV o vkl ikl O;olkf;d bdkbZ;ka vkbZ gqbZ gS ftudh fdlh ds O;kolkf;d Lohd'fr ugha gSA pwaf d jktLFkku iapk;rhjkt vf/kfu;e 1996 esa flQZ Hkou fuekZ.k dh Lohd'fr dk izko/kku gS vkoklh; ;k O;olkf;d Lohd'fr@kqYd dk dksbZ Hkh mYys[k ugha gS ysfdu pqafd izkfFkZ;ksa }kjk xzke iapk;r ls ,d gh ry ij fuekZ.k dh Lohd'fr ysdj mij eafty ij Hkh fuekZ.k fd;k x;k gSA vr% xzke iapk;r jktLFkku iapk;rhjkt vf/kfu;e 1996 ds fu;e 68 ds rgr iapk;r }kjk iwoZ esa vuqeksfnr LFky js[kad esa ifjorZu kqYd 100 :i;s ,oa iapk;r dh vuqKk ds fcuk vizkf/kd'r lafuekZ. k dk fu;fefrdj.k kqYd 10 :i;s izfr oxZ ehVj 1/4vf/kdre 1000 :i;s1/2 dh jkfk olqy dj fu;ekuqlkj Lohd'fr tkjh dj ldrh gSA 11. It is also noted that since the petitioners themselves have assailed the validity of Patta issued to respondent Nos. 7 & 8 before the Competent Authority by way of filing the revision petition and the same is pending consideration, therefore, from that angle also, the Patta issued by the Competent Authority to respondent Nos. 7 & 8 is legal and valid till today, thus, the construction activities of the same cannot be permitted to be halted or stopped. 12. In view of the discussions made above, the present writ petition itself is devoid of force and the same is hereby dismissed. 13. The stay petition as well as other applications, if any, also stand disposed of.