Rajasthan High Court - Jodhpur
Manoj Agarwal vs State Of Rajasthan ... on 21 September, 2024
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:39597-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition (PIL) No. 15160/2024
Manoj Agarwal S/o Shri Ramlal Agarwal, Aged About 53 Years,
R/o Puranabazar, Fatehnagar, District Udaipur Rajasthan
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Urban
Development & Housing Department, Government of
Rajasthan, Secretariat, Jaipur (Raj.).
2. Municipal Corporation, Udaipur (Raj.), Through Its
Commissioner.
----Respondents
For Petitioner(s) : Mr. Avin Chhangani
For Respondent(s) : Mr. Ayush Gehlot for
Mr. Rajesh Panwar, Sr.Adv.-AAG
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE KULDEEP MATHUR Order 21/09/2024 Per, Kuldeep Mathur, J.
In the present writ petition (PIL), the petitioner has prayed for the following reliefs:-
"It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to issue a writ, order or direction:-
(A) directing the respondents to uphold the sanctity of Statutory Bye-Laws dated 09.12.2013 (An.1), by holistically implementing the same; (B) directing the respondents to forthwith stop/prevent/demolish any construction being carried out (or already carried out) in Haridasji Ki Magri, in excess of G+2; on the legal premise that the same falls foul of the Statutory Bye-Laws, 2013 (An.1);(Downloaded on 12/10/2024 at 10:06:36 PM)
[2024:RJ-JD:39597-DB] (2 of 5) [CW-15160/2024] (C) direct the respondents to constitute a high level committee to discern and scrutinse various infractions of the Statutory Bye-Laws, 2013 (An.1); (D) any other appropriate relief/s which this Hon'ble Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner;
(E) this PIL petition may kindly be allowed with costs."
2. In support of the aforesaid prayers, the petitioner has raised following legal grounds contained in para 8.1 to 8.3 of the memo of the writ petition, which is reproduced herein below for the sake of ready reference:-
"8.1 That a holistic perusal of the material available on record would conclusively establish that even though it is incumbent on the respondents/authorities to implement in letter and spirit the Statutory Bye-Laws, 2013 i.e. An.1, the respondents/authorities have failed to do so. It is a settled proposition of law that Statutory Bye-Laws, framed under a particular statutory provision, are not only binding but are also imbued with the force of the Statute itself. It goes without saying that such Statutory Bye-Laws stands on much high pedestal than any other instrument of law, especially any administrative order/notification/circular.
On the anvil of the aforementioned proposition of law, it would become abundantly clear that in the present case, the respondents/authorities have demonstrated scant respect for their statutory obligations; which have been enjoined on them in terms of the Statutory Bye- Laws l.e. Απ.1. Thus, the inaction of the respondents/authorities in not upholding the sanctity of An. 1 deserves to be strongly deprecated.
8.2 That it is a settled proposition in the realm of Interpretation of Statutes that provisions regarding maintaining the environmental and ecological architecture ought to be given purposive interpretation. The reason being, such provisions are necessarily promulgated with a view to protect the right to clean environment, which inheres in every citizen of the country. It bears noting that in the present case even a literal perusal of An.1, would leave no room for doubt that it is incumbent on the respondents/authorities to ensure and protect the sanctity of Statutory Bye-Laws; by duly ensuring that the construction permissions being granted by them are in consonance with the Statutory Bye-Laws and do not fall (Downloaded on 12/10/2024 at 10:06:36 PM) [2024:RJ-JD:39597-DB] (3 of 5) [CW-15160/2024] foul thereof. Therefore, on the anvil of both literal and purposive interpretation, the inescapable conclusion is that the grant of construction permissions beyond G+2 have no sanction in law.
8.3 That it is a salutary principle of law that right to access clean environment is an indispensible element of the right to life; as contemplated by Article 21 of the Constitution of India. The Hon'ble Supreme Court as well as this Hon'ble High Court have laid down the proposition, in various judicial pronouncements, that right to life as envisaged by Article 21 would be an empty formality if citizens do not have access to clean environment. In this regard, it hardly warrants detailed elaboration that lakes and other water bodies are meant to facilitate and ensure access to a clean environment. Therefore, the action of the respondents/authorities in the instant case tantamounts to a colossal violation of the petitioner's right, guaranteed under Article 21 of the Constitution of India."
3. Having gone through the record of the case, this Court is not having any hesitation in reaching to the conclusion that the prayers made in the present writ petition (PIL) are quite innocuous and are not worth considering in PIL jurisdiction.
4. In the opinion of this Court, all the respondents are under an obligation to work in tandem with the object and purpose for which Statutory Bye-Laws dated 09.12.2013 have been framed. Unless some specific violation of the Statutory Bye-Laws is shown or established before this Court, no direction as sought for in Clause-A of the relief clause reproduced supra can be issued. Similarly, a bare reading of the prayer made in Clause-B would reveal that the relief prayed for by the petitioner is likely to affect third-party rights as the Court may have to issue directions to stop/prevent/demolish the undergoing constructions at various places at Haridasji Ki Magri at Udaipur City. The petitioner however, has not cared to implead the persons whose rights would (Downloaded on 12/10/2024 at 10:06:36 PM) [2024:RJ-JD:39597-DB] (4 of 5) [CW-15160/2024] be adversely affected, as party respondents in the present PIL. Even the permission to raise construction of buildings has neither been placed on record nor has been challenged in the present writ petition. Thus, the present writ petition (PIL) appears to be an abuse of the process of law.
5. The disclosures, which have been made in para 3.4 of the writ petition show that for the very same cause of action, the petitioner had instituted a civil suit under Section 91 of the Civil Procedure Code, 1908, being Civil Suit No.613/2023 before the Court of learned Civil Judge and Judicial Magistrate (South), Udaipur. The disclosure made by the petitioner in para 3.4 is reproduced below for the sake of ready reference:-
"3.4 That to the best of the petitioner's knowledge and research, the primary issue raised in the present petition regarding upholding the sanctity of Statutory Bye-Laws, 2013 (An.1), has not been dealt with or decided by this Hon'ble Court. However, it is incumbent on the petitioner to declare, at this juncture, that as far as the ancillary issue is concerned regarding illegal construction being raised in Haridasji Ki Magri- the present petitioner had instituted a civil suit in terms of Section 91 of the Code of Civil Procedure (C.P.C.). The said Civil Suit came to be registered as Civil Suit No. 613/2023; which is currently pending on the file of learned Civil Judge & Judicial Magistrate (South), Udaipur. However, in the said civil suit the issue of these Statutory Bye-Laws, 2013 in question has not been directly or primarily raised. Thus, it is respectfully submitted that the present Public Interest Litigation (PIL) occupies a different sphere as compared to the aforementioned civil suit. It is also worth mentioning that as it relates to ancillary issues, some petitions may have been filed before this Hon'ble Court; regarding which, the petitioner does not have any definitive knowledge. The photocopy of the plaint filed by the present petitioner is submitted herewith and marked as ANNEXURE/2."(Downloaded on 12/10/2024 at 10:06:36 PM)
[2024:RJ-JD:39597-DB] (5 of 5) [CW-15160/2024]
6. In view of above, the present writ petition (PIL) deserves to be and is hereby dismissed.
7. Before parting, this Court is constrained to observe that although, for misusing the process of PIL forum/jurisdiction, heavy cost should be imposed upon a litigant however in the present case, this Court while exercising great restrain, is refraining from imposing cost upon the petitioner.
(KULDEEP MATHUR),J (SHREE CHANDRASHEKHAR),J 9-himanshu/-
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