Rajasthan High Court - Jaipur
Shri Govind Sharan Sharma S/O Lt. Shri ... vs Jaipur Development Authority on 5 January, 2022
Bench: Manindra Mohan Shrivastava, Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Special Appeal (Writ) No. 881/2021
In
S. B. Civil Writ Petition No. 9605/2021
1. Shri Govind Sharan Sharma S/o Lt. Shri Jagannath Prasad
Sharma, R/o M-6, Jagdamba Colony, Naya Kheda, Jaipur.
2. Shri Kaushal Kishore Mathur S/o Late Shri K.b. Mathur,
R/o M-7, Jagdamba Colony, Naya Kheda, Jaipur.
3. Shri Durga Das Pal S/o Shri Bhagwan Das, R/o M-2,
Jagdamba Colony, Naya Kheda, Jaipur.
4. Shri Ajay Bhargava S/o Late Shri Om Prakash Bhargava,
R/o M-16, Jagdamba Colony, Naya Kheda, Jaipur.
----Appellants/Petitioners
Versus
1. Jaipur Development Authority, Through Its Secretary,
Ram Kishor Vyass Bhawan, Jawaharlal Nehru Marg, Indra
Circle, Jaipur.
2. Deputy Commissioner, Zone-2, Jaipur Development
Authority, Ram Kishor Vyas Bhawan, Jawaharlal Nehru
Marg, Indra Circle, Jaipur.
3. Kamlesh Jain S/o Shri Tara Chand Jain, R/o 104/5,
Parasaram Nagar, Dher Ka Balaji, Jaipur.
4. K.c. Singhal S/o Late Shri Sitaram Singhal, R/o 119,
Indra Colony, Banipark, Jaipur.
5. M/s Pooja Propcorn, Through Its Director Madhu Singhal
R/o F-16, Arya Square, Subash Nagar, Jhotwara Road,
Jaipur
6. Commissioner Of Police, Jaipur Metropolitian, Jaipur,
Jaipur Commessionerate, Jaipur
7. Commissioner, Jaipur Development Authority, Jaipur
Non Appellants/Respondents
8. Shri Sourabh Agarwal S/o Shri Anil Kumar Agarwal, R/o C-58, Vijay Vihar Colony, Naya Kheda, Jaipur.
9. Shri Vinod Khandelwal S/o Shri Om Prakash Khandelwal, R/o C-57-B, Vijay Vihar Colony, Naya Kheda, Jaipur.
10. Shri Surendra Tiwari S/o Shri Deen Dayal Tiwari, R/o E-
(Downloaded on 10/01/2022 at 09:53:57 PM)(2 of 9) [SAW-881/2021] 17, R/o Jagdamba Colony, Naya Kheda, Jaipur.
11. Shri Suresh Pal Bhatia S/o Shri Govin Ram Bhatia, R/o C-
41, Vijay Vihar Colony, Naya Kheda, Jaipur.
12. Shri Subash Jain S/o Deep Chand Jain, R/o C-57(A), Vijay Vihar Colony, Naya Kheda, Jaipur.
13. Shrimati Sushila W/o Lt. Shri Shankar Lal Dusad, R/o C-
47, Vijay Vihar Colony, Naya Kheda, Jaipur.
14. Shri N.l. Verma S/o Shri Mangilal Verma, R/o C-39, Vijay Vihar Colony, Naya Kheda, Jaipur.
15. Shri Amit Sharma S/o Late Shri Sita Ram Sharma, R/o M-
20, Jagdamba Colony, Naya Kheda, Jaipur.
16. Shri Ramesh Jain S/o Shri Ram Pal Jain, R/o M-29, Jagdamba Colony, Naya Kheda, Jaipur.
17. Shri Rajendra Mathur S/o Shri A.n. Mathur, R/o 63-A, Jagdamba Colony, Naya Kheda, Jaipur.
18. Shri Ram Avtar Gupta S/o Late Shri Jaganath Prasad Gupta, R/o M-23-A, Jagdamba Colony, Naya Kheda, Jaipur.
19. Shri Mahaveer Prasad Soni S/o Shri Duli Chand, R/o 27-A, Jagdamba Colony, Naya Kheda, Jaipur.
20. Shri Virendra Singh Chauhan S/o Shri A.s. Chauhan, R/o M-4, Jagdamba Colony, Naya Kheda, Jaipur.
21. Shri Anuj Kumar Bassi S/o Shri Anil Kumar Bassi, R/o 8, Jagdamba Colony, Naya Kheda, Jaipur.
22. Shri Shankar Pareek S/o Late Shri Bhanwar Lal Purohit, R/o M-55, Jagdamba Colony, Naya Kheda, Jaipur.
23. Shri Azad Singh S/o Shri Shankar Singh, R/o M-4B, Jagdamba Colony, Naya Kheda, Jaipur
24. Shri Manoj Pareek S/o Late Shri Bhanwar Lal Purohit, R/o M-55, Jagdamba Colony, Naya Kheda, Jaipur.
25. Shri Durga Narayan Mathur S/o Late Shri A.n. Mathur, R/o M-09, Jagdamba Colony, Naya Kheda, Jaipur.
26. Shri Radha Mohan S/o Shri Mool Chand, R/o M-23, Jagdamba Colony, Naya Kheda, Jaipur.
27. Shri Uttam Mathur S/o Shr Bajrang Lal Mathur, R/o M-5, Jagdamba Colony, Naya Kheda, Jaipur.
28. Shri Lal Chand S/o Late Shri Bheru, R/o M-23A, Jagdamba Colony, Naya Kheda, Jaipur (Downloaded on 10/01/2022 at 09:53:57 PM) (3 of 9) [SAW-881/2021]
29. Shri Om Bihari Mathur S/o Shri Kishan Bihari Mathur, R/o M-8, Jagdamba Colony, Naya Kheda, Jaipur.
30. Shri Ravi Verma S/o Shri Gopa Lal Verma, R/o M-20, Jagdamba Colony, Naya Kheda, Jaipur.
31. Smt. Sushila Pareek W/o Shri Subash Pareek, R/o M-21, Jagdamba Colony, Naya Kheda, Jaipur.
32. Shri Hari Mohan Sharma S/o Shri Satyaram Sharma, R/o C-48, Vijay Vihar Colony, Naya Kheda, Jaipur.
33. Smt. Babita Sharma W/o Bhudutt Sharma, R/o M-1 Jagdamba Colony, Naya Kheda, Jaipur.
34. Shri Mohan Pareek S/o Late Shri Om Prakash Pareek, R/o M-19, Jagdamba Colony, Naya Kheda, Jaipur.
35. Shri Deepak Mittal, S/o Shri Nagar Mal Mittal, R/o M-3, Jagdamba Colony, Naya Kheda, Jaipur.
36. Smt. Bhagwati W/o Shri R.s. Batar, R/o M-4, Jagdamba Colony, Naya Kheda, Jaipur.
37. Shri Naveen Goyal S/o Shri Devi Shankar Goyal, R/o C-
49, Vijay Vihar Colony, Naya Kheda, Jaipur.
38. Shri Badri Narayan Sharma S/o Ladu Ram Sharma, R/o C-46, Vijay Vihar Colony, Naya Kheda, Jaipur.
39. Shri Jai Prakash Verma S/o Shri Ram Chandra Verma, R/o C-51, Vijay Vihar Colony, Naya Kheda, Jaipur.
40. Shri Rajesh Gupta S/o Shri Ram Sawrup Gupta, R/o C-61, Vijay Vihar Colony, Naya Kheda, Jaipur.
41. Shri Chandra Bhann S/o Murlidhar, R/o C-51, Vijay Vihar Colony, Naya Kheda, Jaipur.
42. Shri Gopal Lal Vijay S/o Bhagwan Sahoo, R/o C-45, Vijay Vihar Colony, Naya Kheda, Jaipur.
43. Shri K.c. Poddar S/o Shri Girdhari Lal, R/o C-53, Vijay Vihar Colony, Naya Kheda, Jaipur.
44. Shri Anurag Choudhary S/o Vindo Choudhary, R/o C-54, Vijay Vihar Colony, Naya Kheda, Jaipur.
45. Shri Suresh Bunkar S/o Godraj Bunkar, R/o C-55, Vijay Vihar Colony, Naya Kheda, Jaipur.
46. Shri Bansidhar Khandelwal S/o Bala Sahay, R/o C-43, Vijay Vihar Colony, Naya Kheda, Jaipur
47. Shri Bhagwan Belwani S/o Shri Dhalaram Belwani, R/o C-
42, Vijay Vihar Colony, Naya Kheda, Jaipur.
(Downloaded on 10/01/2022 at 09:53:57 PM)(4 of 9) [SAW-881/2021]
48. Shri Naman Jaiswal S/o Late Shri Rajesh Jaiswal, R/o C-
42, Vijay Vihar Colony, Naya Kheda, Jaipur.
49. Shri Raj Kumar Tikku S/o Late Shri Moti Lal Tikku, R/o C-
4O, Vijay Vihar Colony, Naya Kheda, Jaipur.
50. Shri Naresh Jaiswal S/o Shri Radhey Shyam Jaiswal, R/o C-42, Vijay Vihar Colony, Naya Kheda, Jaipur.
51. Shri Bhagwan Varyani S/o Shri Chuhad Mal Varyani, R/o C-62, Vijay Vihar Colony, Naya Kheda, Jaipur.
52. Shri R.k. Jaiswal S/o Shri Radhy Shyam Jaiswal, R/o C-
42, Vijay Vihar Colony, Naya Kheda, Jaipur.
53. Shri Sushil Sharma S/o Shri Kanti Chand Sharma, R/o M-
23-1, Jagdamba Colony, Naya Kheda, Jaipur.
----Proforma Respondents For Appellants : Mr. Mohit Khandelwal Advocate through Video Conferencing.
For Respondents-JDA : Mr. Vipin Sharma Advocate through Video Conferencing.
HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order 05/01/2022 Heard learned counsel for the appellants and learned counsel for respondent-Jaipur Development Authority.
This appeal arises out of order dated 04.09.2021 passed by the learned Single Judge, whereby, writ petition filed by residents of the area has been dismissed as not maintainable, leaving the appellants to take remedy of filing civil suit.
Learned counsel for the appellants would submit that the appellants and private respondents No. 8 to 53, who are residents of the area, had filed writ petition seeking indulgence of the Court in the matter of alleged encroachment and illegal construction being raised on public road by Respondents No. 3 to (Downloaded on 10/01/2022 at 09:53:57 PM) (5 of 9) [SAW-881/2021] 5 (Kamlesh Jain, K.C. Singhal and M/s. Pooja Propcorn). He would submit that the allegation being of encroachment on public land, Jaipur Development Authority was obliged under the law to enquire into the complaints and hold enquiry. He would submit that relief was sought from the Court to direct Jaipur Development Authority to perform its statutory obligation and it was not a private law remedy sought by the appellants.
Learned counsel appearing on behalf of the respondents-Jaipur Development Authority would submit that in the present case, there are allegations of encroachment by certain persons, which may require factual enquiry and even recording of evidence. Therefore, the learned Single Judge was inclined to dismiss the writ petition leaving the writ petitioners/appellants to work out their civil remedy and there is no decision against them on merits.
The writ petition, which was filed by the appellants, was founded on the allegation that some persons/Respondents No. 3 to 5 have raised illegal construction by encroaching upon public road. This allegation and the relief founded on such allegation was not a relief which could be termed as private law relief but it was public law remedy seeking to invoke extra-ordinary jurisdiction of the Constitutional Court under Article 226 of the Constitution of India.
A distinction has to be drawn between public law remedy and private law relief. It is not a case where two individuals were disputing their title over a piece of land, in which case the remedy would be to approach the civil court and seek appropriate relief.
(Downloaded on 10/01/2022 at 09:53:57 PM)(6 of 9) [SAW-881/2021] Present is a case where the allegations have been made that certain persons have encroached upon public land.
Therefore, remedy sought to be invoked would be public law remedy by approaching the Writ Court. Section 72 of the Jaipur Development Authority Act, 1982 (hereinafter referred to as 'the Act') provides as below:
"[72. Encroachment or obstruction upon public land - (1) Whoever makes any encroachment in any land or space not being private property, whether such land or space belongs to or vests in the Authority or not, except steps over drain in the public street shall on conviction be punished with simple imprisonment which shall not be less than [one year] but which may extend to three years and with fine which may extend to [one lakh rupees]:
Provided that the court may for any adequate or special reason to be mentioned in the judgment impose a sentence of imprisonment for a term of less than [one year].
(2) Whoever makes any obstruction in any land or space not being private property, whether such land or space belongs to or vests in the Authority or not, except steps over drain in any public street shall on conviction be punished with simple imprisonment which may extend to [one year or with fine which may extend to five thousand rupees] or with both.
(3) The Authority or any officer authorised by it in this behalf shall have power to remove any such obstruction or encroachment and the expenses of such removal shall be paid by the person who had caused the said obstruction or encroachment.
(4) Whoever not being duly authorised in that behalf removes earth, sand or other material from any land or space as aforesaid, shall be punished on conviction with imprisonment which may extend to [one year or with fine which may extend to twenty five thousand rupees] or with both.
(5) Notwithstanding anything contained in the foregoing provisions, the Authority or the officer authorised by it in this behalf shall, in addition to the action taken as provided in this section, also have power to seize or attach any property found on the land or space referred to in this section or, as the case may be attached to such land or space or permanently fastened to anything attached to such land or space.
(6) Where any property is seized or attached by an officer authorised by the Authority, he shall immediately make a report of such seizure or attachment to the Authority.(Downloaded on 10/01/2022 at 09:53:57 PM)
(7 of 9) [SAW-881/2021] (7) The Authority may make such orders as it thinks fit for the proper custody of the property seized or attached, pending the conclusion of confiscation proceedings, and if the property is subject to speedy and natural decay, or it is otherwise expedient so to do, the Authority may order it to be sold or otherwise disposed of.
(8) Where any property is sold as aforesaid, the sale proceeds thereof after deduction of the expenses of any such sale or other incidental expenses relation thereto, shall-
(a) where no order of confiscation is ultimately passed by the Authority; or
(b) where an order passed in appeal so requires, be paid to the owner thereof or the person from whom it is seized.
(9) Where any property is seized or attached under sub-section (5) the Authority may order confiscation of such property.
(10) No order for confiscating a property shall be made under sub-section (9), unless the owner of such property or the person from whom it is seized or attached is given-
(a) a notice in writing, informing him of the grounds on which it is proposed to confiscate the property;
(b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and
(c) a reasonable opportunity of being heard in the matter.
(11) The order of any confiscation under this section shall not prevent the infliction of any punishment to which the person affected there by is liable under this Act.
(12) Whenever any property is seized or attached pending confiscation under this section, the Authority or the Tribunal constituted under section 83 of the Act shall have, and notwithstanding anything to the contrary contained in any other law for the time being in force, any court, other tribunal or other authority shall not have, jurisdiction to make orders with regard to the possession, delivery, disposal, release or distribution of such property.
(13) Where any person is prosecuted of an offence under sub-section (1) or sub-section (2), the burden of proving that he has not committed the offence shall be on him.
(14) Whoever, being an employee of the Authority, specifically entrusted with the duty to stop or prevent the encroachment or obstruction punishable under this section, wilfully or knowingly neglects or deliberately omits to stop or prevent such encroachment or obstruction, shall, on conviction, be punished with simple imprisonment for a term which may extend to (Downloaded on 10/01/2022 at 09:53:57 PM) (8 of 9) [SAW-881/2021] #[one year or with fine which may extend to five thousand rupees] or with both:
Provided that no court shall take cognizance against such employee for the offence punishable under this sub-section except with the previous sanction of the Authority.
(15) No investigation of an offence under this section shall be made by an officer below the rank of a Deputy Superintendent of Police]."
The aforesaid provision, in unequivocal terms, casts an obligation on Jaipur Development Authority to remove encroachment upon public land, which necessarily include public road as well. Therefore, when such complaints are made before Development Authority, such allegations are required to be enquired into by Development Authority by issuing notices to the persons, who are alleged to have encroached upon and raised illegal construction over the public road/public land. Since representations failed to evoke response of Jaipur Development Authority, writ petition was filed before this Court.
The appellants sought issuance of writ of mandamus to compel Jaipur Development Authority to perform its statutory obligation and nothing more. Therefore, the appellants clearly sought to invoke public law remedy seeking issuance of writ of mandamus to Jaipur Development Authority, holding of enquiry and removal of encroachments, which is the duty enjoined upon it under Section 72 of the Act.
In our considered opinion and for the reasons stated hereinabove, writ petition ought not to have been dismissed relegating the appellants to file civil suit, but it was a fit case where directions were required to be issued to Jaipur Development Authority to hold enquiry into the matter and if any encroachment is found, to take appropriate action in exercise of its powers under Section 72 of the Act.
(Downloaded on 10/01/2022 at 09:53:57 PM)(9 of 9) [SAW-881/2021] In the result, impugned order passed by the learned Single Judge is set aside. Jaipur Development Authority is directed to examine the complaints regarding encroachment and illegal construction on the public road. It is made clear that those, against whom allegations of illegal construction by encroachment over the public road have been made, shall be given proper notice, afforded opportunity of hearing and then decision shall be taken by Jaipur Development Authority within a reasonable period preferably within a period of four months.
The appeal is partly allowed in the terms as stated above.
(ANOOP KUMAR DHAND),J (MANINDRA MOHAN SHRIVASTAVA),J MANOJ NARWANI /13 (Downloaded on 10/01/2022 at 09:53:57 PM) Powered by TCPDF (www.tcpdf.org)