Rajasthan High Court - Jodhpur
Arya Samaj Mandir vs State Of Rajasthan And Anr on 24 August, 2021
Equivalent citations: AIRONLINE 2021 RAJ 972
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 8039/2017
Arya Samaj Mandir,maharishi Dayanand Marg, Old Jail Road,
Bikaner Through Its Pradhan Mahesh Chandr, By Caste Soni,
Resident Of Mahrishi Dayanand Marg, Bikaner.
----Petitioner
Versus
1. State Of Rajasthan Through Director And Joint
Secretary,local Self Directorate, Jaipur.
2. Bikaner Nagar Nigam, Bikaner Through Its Commissioner.
----Respondents
For Petitioner(s) : Mr. G.R. Goyal
For Respondent(s) : Mr. S.S. Ladrecha
Mr. Rajesh Parihar
Mr. Vikas Choudhary
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order 24/08/2021 The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India against the order dated 14.06.2017 passed by the Commissioner, Municipal Corporation, Bikaner.
Learned counsel for the petitioner submits that petitioner is affiliated with Arya pratinidhi Sabha, Rajasthan and is having a plot ad-measuring 338.022 sq mtrs upon which old construction existed. Hereafter, the petitioner Arya Samaj decided to demolish the old construction which was not safe for human habitation. Accordingly the petitioner Arya Samaja sought permission from the respondent Municipal Corporation for raising new construction. (Downloaded on 26/08/2021 at 08:22:55 PM)
(2 of 5) [CW-8039/2017] Which was granted by the respondent Corporation vide letter dated 28.01.2016.
Against the said permission, some neighbour having marriage place adjoining to the petitioner's building filed an appeal under Section 194(12) of the Rajasthan Municipalities Act, 2009 [hereinafter referred to as 'the Act of 2009']. The respondent no.1 passed an interim order on 08.11.2016 by which the construction permission granted by respondent no.2 was stayed till further orders. While passing the order dated 08.11.2016, the respondent no.1 sought report from respondent no.2 on our points. The respondent no.2 vide its letter dated 16.01.2017 replied the queries made by respondent no.1 by which respondent no.2 mentioned that construction permission was granted for residential purpose. Respondent State finally vide order dated 17.01.2017 directed that the petitioner may apply before the respondent no.2 for re-construction. Thus, after passing of the order by respondent no.2 for reconstruction, the stay order granted on 11.11.2016 became null. In pursuance of order dated 17.01.2017, the petitioner applied before the respondent no.2 alongwith reconstruction fees on 25.01.2017. The respondent no.2 vide letter dated 14.06.2021 informed the petitioner that permission of reconstruction has been granted by committee in its meeting on 22.05.2017 but the previous permission granted to the petitioner on 28.01.2016 has become ineffective therefore, the petitioner may apply fresh by submitting latest maps of the building.
It is submitted that the observation made by the respondent no.2 in the order dated 14.06.2017 is without jurisdiction and misconstrued. It is argued that in view of the order dated (Downloaded on 26/08/2021 at 08:22:55 PM) (3 of 5) [CW-8039/2017] 17.01.2017 whereby, the stay order granted by the Directorate on 08.11.2016/11.11.12016 became nullified, now the construction permission granted by the respondent no.2 on 28.01.2016 has come in force and thus, petitioner is authorized to raise the construction. However, the respondent no.2 on one or other ground is not allowing the petitioner to raise construction, therefore, the observation made by respondent no.2 in order dated 14.06.2017 is liable to be quashed and set aside. It is further argued that when the matter came up for consideration before this Court on 01.04.21, an interim order was passed by which the petitioner was directed to file an application before the respondent no.2 and counsel for the respondents fairly submitted that necessary consideration shall be made within a period of 60 day from the date of passing of order.
In pursuance of order dated 01.04.2021, the petitioner filed an application before the respondent no.2 and the respondent no.2 passed an order on 28.05.2021 rejected the application filed by the petitioner stating therein that land is being used for institutional purpose without conversion of land from residential to institutional purpose which is to be done by the State Government and only thereafter, the necessary construction permission can be granted as per bye laws of the Municipality. It is argued that the impugned order is absolutely illegal and malafide and same deserves to be set aside.
Per contra, learned counsel for the respondents Shri S.S. Ladrecha and Shri Rajesh Parihar submits that Rule 12 of the Rajasthan Urban Areas (Sub-Division, Reconstitution and Improvements of Plots) Rules, 1975 provides that no plot which is residential or intended to used for residential purpose shall be less (Downloaded on 26/08/2021 at 08:22:55 PM) (4 of 5) [CW-8039/2017] than 35 sq yds or bigger than 1500 sq yards in the scheme of sub division, reconstitution or improvement of plots. However, as per exception clause to Rule 12, the Trust may with the previous sanction of the State Government, grant permission for reconstitution or sub-division of plots bigger than 1500 sq yds in the scheme of reconstitution or sub-division as the case may be, of plots on the condition that set back of reconstituted plots on the condition that the set back of the reconstituted plots shall be as per scheme of prevailing building bye laws applicable on the size of reconstituted plots, whichever is greater and in case of sub- division of plots set back of original plot shall be maintained. In view of said legal position, the earlier construction permission granted to the petitioner became inoperative, null and void, therefore, the respondents are justified in asking the petitioner to submit revised proposal for grant of construction permission.
I have heard learned counsel for the petitioner and respondents and perused the material on record.
Counsel for the petitioner invited attention of this Court towards Section 182 of the Act of 2009 which reads as under :-
"182. Restriction on change of use of land and power of the State Government to allow change of use of land.-
(1) No person shall use or permit the use of any land situated in any muhnicipal area, for the purpose other than that for which such land was originally allotted or sold to any person by the State Government, any Municipality, any other local authority or any other body or authority in accordance with any law for the time being in force or, other than as specified under a Master Plan, wherever it is in operation.(Downloaded on 26/08/2021 at 08:22:55 PM)
(5 of 5) [CW-8039/2017] (2) In case of any land not allotted or sold as aforesaid and not covered under sub-section (1), no person shall use or permit the use of any such land situated in a municipal area for the purpose other than that for which such land was being used on or before the commencement of this Act."
Sub-section (2) is quite relevant as it provides that if the land was not allotted or sold and not covered under sub- section (1), no person shall use or permit to use such land other than for which it was being used on or before the commencement of the Act. The petitioner's building was constructed much prior to commencement of the Act of 2009 and since it became dangerous for living, the petitioner decided to re-construct the building after obtaining permission from the respondent no.2. Thus, the land was being used by the petitioner for the activities of Arya Samaj temple and seeks to continue the same after new construction.
In the light of above discussion, the present writ petition is allowed. The observation made in the impugned order dated 14.06.2017 by the Commissioner, Municipal Corporation, Bikaner to the effect that in view of order dated 17.01.2017, the earlier permission granted on 28.01.2016 became nullified, is hereby quashed and set aside and the respondent no.2 is directed to grant necessary permission for re-construction of building as per permission granted by respondent no.2 on 28.01.2016.
(MANOJ KUMAR GARG),J 114-BJSH/-
(Downloaded on 26/08/2021 at 08:22:55 PM) Powered by TCPDF (www.tcpdf.org)