Rajasthan High Court - Jodhpur
Green Belt Society, Rajsamand vs State & Ors on 14 February, 2017
Author: Govind Mathur
Bench: Govind Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 620 / 2017
Green Belt Society, Rajsamand, a Registered Society Having Its
Registered Office At Matra Shree Pratap Choraha, Veer Sawarkar
100 Feet Road, Tehsil Rajsamand, Dist. Rajsamand (Raj.) Through
Its President, Madhu Prakash Laddha, Rajsamand
----Petitioner
Versus
1. State of Rajasthan Through the District Collector, Rajsamand
2. The Principal Secretary, Local Self Government, Secretariat,
Jaipur
3. The Municipal Council, Rajsamand Through Its Commissioner,,
Municipal Council, Rajsamand
4. The Chairman Municipal Council, Rajsamand
5. The Commissioner, Municipal Corporation, Rajsamand
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Ravi Bhansali, Sr. Advocate assisted by
Mr. Vipul Dharnia & Mr. Piyush Bhandari
For Respondent(s) : Mr. T.S. Champawat
Mr. Yashwant Mehta
_____________________________________________________
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI Order 14/02/2017 Learned counsel appearing on behalf of the petitioner after arguing the matter at length desired to withdraw the writ petition and while doing so he is also ready to bear a cost in a tune of Rs.1.0 Lac. While giving permission to withdraw the writ petition (2 of 5) [CW-620/2017] with a cost of Rs.1.0 Lac, we would like to state certain necessary facts, which clearly indicates abuse of the process of public interest litigation jurisdiction by a Society registered under the Societies Registration Act.
The petitioner-Society has preferred the instant petition for writ to have the following reliefs :-
"A. That the land/place reserved for Public Park in the year 1976 should be used for the said purpose only without any deviation or change as being done by the respondents.
B. The change of use of land as resolved by the respondents by their general house on 04.06.2016 may kindly be declared illegal, unconstitutional and contrary to law.
C. The respondents be further directed to remove the construction, if made any, and the space be developed in the best possible manner by releasing and earmarking certain specific fund for the aforesaid purpose to provide best amenities to the local residents of the surrounding area and further the respondents may be restrained from installation of GBM Tower in the Park area.
D. Any other appropriate writ, order or direction which this Hon`ble Court deems just and proper may kindly b e passed in favour of the petitioner.
(3 of 5) [CW-620/2017] E. Writ petition filed by the petitioner may kindly be allowed with costs."
As per the petitioner, the land where the respondent Municipal Council desires to construct a "Sabjimandi" is essentially earmarked for a public park. It is also stated that much back in the year 1976 a decision was taken by General House of the Municipal Council, Rajsamand to keep the land in-question vacant to develop a public park. Subsequent thereto, in the year 2001 a decision was taken for using the land in-question for commercial purposes and that was questioned by way of filing an application before the Collector, Rajsamand as per provisions of Section 285 of the Municipalities Act, 1959 (hereinafter referred to as 'the Act of 1959'). Suffice to mention that at that time certain kiosks were constructed by Municipal Council, Rajsamand and those were objected by initiating proceedings under Section 285 of the Act of 1959. The Collector, Rajsamand set aside the decision of the Municipal Council, Rajsamand to construct kiosks. It is also pertinent to notice that under Section 285 of the Act of 1959 Collector had only interim power to stop execution of resolution taken by a Municipal Board and further to refer it to the State Government but no such procedure appears to have been adhered.
Be that as it may, a reply to the writ petition has been filed on behalf of respondent Municipal Council, Rajsamand stating therein that for the same cause a Civil Suit bearing No.194/2016 (4 of 5) [CW-620/2017] was filed before the court of learned Civil Judge, Rajsamand. An application to have temporary injunction as per provisions of Order 39 Rule 1 & 2 CPC was also filed, that came to be dismissed under an order dated 16.1.2017. The order passed by the civil court is subject matter of an appeal pending before the court of learned District Judge, Rajsamand. It is also brought into knowledge of Court that the civil court before passing order dated 16.1.2017 issued a public notice, that was published in daily newspaper 'Rajasthan Patrika' dated 08.12.2016. The facts stated above, as per learned counsel appearing on behalf of respondents were intentionally concealed by the petitioner only to have interim direction, which was passed by this Court on 24.1.2017. During pendency of appeal, the present petitioner has preferred instant petition for writ without disclosing the facts referred above. The writ petition is supported by an affidavit sworn-in by one Shri Madhu Prakash Laddha, whose real brother Shri Sampat Laddha, who happens to be Member of petitioner-Society and was appearing on behalf of plaintiffs in the Civil suit.
Learned counsel appearing on behalf of the petitioner does not dispute that Shri Madhu Prakash Laddha is real brother of Shri Sampat Laddha, who appeared before the civil court in the case concerned on behalf of plaintiffs. He also does not dispute that Shri Madhu Prakash Laddha, who is President of the petitioner- Society and Shri Sampat Laddha is a Member thereof. The facts noticed indicates that the petitioner, President of the petitioner- Society, must be knowing about pendency of litigation before civil (5 of 5) [CW-620/2017] court and the order passed therein. It is really strange that no fact has been mentioned in the entire petition for writ about the litigation aforesaid. In the entirety we are satisfied that the petitioner on being failed to get any relief from civil court approached this Court in its public interest jurisdiction and that is nothing but abuse of the process of court.
In this factual background we permit the petitioner to withdraw the writ petition with a cost of Rs.1.0 Lac, which is to be deposited with Municipal Council, Rajsamand by the petitioner- Society on or before 20.3.2017. The dismissal of this writ petition shall be having no effect on merits of the appeal preferred by the plaintiffs said to be pending before the District Judge, Rajsamand giving challenge to the order dated 16.1.2017. (DEEPAK MAHESHWARI)J. (GOVIND MATHUR)J. Sanjay