Amar Chand Pungaliya vs The Municipal Corporation, Jodhpur

Vineet Kothari, J.—The present Misc. Appeal has been filed by the plaintiff-appellant aggrieved by the order dated 03.09.2015 passed by the learned Additional District Judge No. 1, Jodhpur Metropolitan in pending Civil Suit No. 35/2015 "Amar Chand Pungaliya v. Municipal Corporation, Jodhpur", whereby, the learned Trial Court has refused to grant ad-interim relief to the plaintiff-appellant on the temporary injunction application filed by them in a suit for injunction against Municipal Corporation, Jodhpur.

The matter pertains to the alleged unauthorised and illegal construction beyond the sanctioned limits of the plaintiff-appellant of the hotel known as "Mango Hotel" situated at Mandore Road, Jodhpur, a BRTS Route for the city transport. The matter has now been fixed by the learned Trial Court two days hence, i.e., on 26.09.2015 (Saturday), while granting time to the respondent-Municipal Corporation, Jodhpur to file reply to the temporary injunction application and then hear the other side also vide order impugned dated 03.09.2015.

The reasons assigned by the learned Trial Court for refusing the ad-interim relief in the impugned order dated 03.09.2015 are quoted below for ready reference:--

The apprehension of the appellant-plaintiff at this stage for invoking the jurisdiction of this Court against this ad-interim order dated 03.09.2015 appears to be the notice given by the respondent-Municipal Corporation, Jodhpur on 22.09.2015 vide Sl. No. 11293, referring to the earlier communications, Undertaking and Affidavit of the plaintiff-appellant himself, Amarchand Pungalia to remove the unauthorised/illegal constructions and that period having expired now, a final notice of 48 hours was given by the respondent-Municipal Corporation, Jodhpur to the plaintiff-appellant either to remove the offending constructions himself or else, the same will be removed by the Municipal Authorities or the Municipal Authorities may seize the said premises. The said notice dated 22.09.2015 is said to be served upon the plaintiff-appellant on 22.09.2015 itself and, therefore, as contended by the learned counsel Mr. L.R. Mehta appearing for the plaintiff-appellant that the period of 48 hours would expire at the mid-night hour today, i.e., 24.09.2015 and before the temporary injunction application filed by the plaintiff-appellant is heard by the learned Trial Court day after tomorrow, i.e., on 26.09.2015 (Tomorrow 25.09.2015, Friday being the Public Holiday on account of Eid), the respondent-Municipal Corporation, Jodhpur may even proceed to demolish the alleged unauthorised/illegal constructions.

The learned counsel Mr. L.R. Mehta also submitted that the proceedings even for regularization of the said alleged unauthorised/illegal constructions is pending before the State Government and till such application of the plaintiff-appellant is decided, at least, the demolition should not take place. The learned counsel for the plaintiff-appellant also referred to, as referred by the learned Trial Court also, the orders passed by the Hon''ble Division Bench of this Court in the Suo Moto Civil Writ Petition (PIL) No. 6355/2012 "Suo Moto v. State of Rajasthan".

The relevant portion of the interim order dated 21.11.2013 passed by the Hon''ble Division Bench of this Court is also quoted herein below for ready reference:--

"It is submitted that pursuant to the order passed in this matter on the last occasion, the Director, Local Bodies did make a visit of the city of Jodhpur and had drawn a report. This report shall be placed on the record of this petition by the Municipal Corporation.

It is submitted that the proceedings as regards the offending buildings have been taken up by the Municipal Corporation and, while issuing notices to the concerned owners, 29 buildings have been seized and constructions activities thereat have been prohibited.

The Municipal Corporation, Jodhpur has pointed out in Annexure-B to its report dated 28.10.2013 that as many as 29 buildings located on 15 BRTS Routes in the city of Jodhpur have been seized on the basis of the reports made by the Senior Town Planner. It is also pointed out that in several such cases, disciplinary proceedings have also been adopted against the erring officers, including the Junior Engineers, Encroachment Inspectors etc.

The learned counsel appearing for the Municipal Corporation submits that in relation to these buildings, specific notices have been issued to the person concerned and the proceedings are under way. On the query of the Court, it is also pointed out that the matter of release from seizure, if to be allowed, is finally considered by the respective Building Committees and by the Chief Executive Officer.

It is clear that the Municipal Corporation and the other authorities have themselves realized the requirement of serious proceedings/steps, particularly in relation to the offending constructions and more particularly, in relation to such offending constructions where the requirement of proper parking is said to have been compromised. It needs hardly any emphasis that the matters are required to be examined by the concerned authorities with all seriousness. Of course, a bona fide construction activity, which is carried out while adhering to the requirements of law, may be allowed but, at the same time, the offending constructions where proper parking places have not been provided and which ultimately result in traffic hazard and congestion, are required to be seriously and sternly dealt with.

Looking to the orders earlier passed in this matter and the facts that the Chief Secretary and the Secretary, Urban Development and Housing Department had earlier visited the city, had issued several directions, and are supposed to be monitoring all the relevant aspects, we consider it appropriate and hence, order that as regards the buildings referred by the Municipal Corporation in Annexure-B to the report dated 28.10.2013, if ultimately any proposal for release from seizure is made, the same shall only be given effect to after due approval of the Secretary to the Government of Rajasthan in its Urban Development and Housing Department. Such decisions shall invariably be placed before the Court; and the Monitoring Committee shall also be informed about the same."

The said writ petition was finally decided by the Hon''ble Division Bench of this Court vide order dated 27.03.2015 making the interim orders absolute. The relevant portion of the observations of the Hon''ble Division Bench is quoted herein below for ready reference:--

"Having considered all the details given, we are of considered opinion that at present there is no need to further continue the instant petition for writ. Accordingly, the same is disposed of by making all the directions and instructions issued earlier absolute."

Having heard the learned counsel Mr. L.R. Mehta, Manoj Bhandari and Mr. Ramit Metha, appearing for the plaintiff-appellant and upon perusal of the material available on record, including the reasons assigned by the learned Trial Court in the impugned order dated 03.09.2015, this Court is of the opinion that the apprehension of the appellant-plaintiff is misplaced and the appellant-plaintiff has unnecessarily and hastily filed the present Misc. Appeal without waiting for the final order to be passed by the learned Trial Court on the temporary injunction application filed by the plaintiff-appellant in the pending suit, which is fixed for such hearing only day after tomorrow being a holiday on 26.09.2015 The appellant-plaintiff also appears to have not filed any reply so far to the said notice dated 22.09.2015 issued by the respondent-Municipal Corporation, Jodhpur which was served upon them on the same date which he ought to have done, but filed the present appeal in this Court on 23.09.2015. While the respondent-Municipal Corporation, Jodhpur has been called upon by the learned Trial Court to file reply to the temporary injunction application, as prayed by them, by the impugned order dated 03.09.2015 and after hearing both the parties concerned, the learned Trial Court is expected to decide the temporary injunction application on the next date of hearing, i.e., 26.09.2015.

The appellant-plaintiff can very well bring all these facts to the notice of the learned Trial Court, which he wants to press into service before this Court on the next date of hearing i.e. 26.09.2015. The intervening date of 25.09.2015 is admittedly, a public holiday on account of Eid, therefore, there is no tearing hurry to invoke the jurisdiction of this Court to intervene in the matter at this stage when the learned Trial Court is seized of the case and after hearing both the parties, the learned Trial Court can be expected to decide the temporary injunction application of the plaintiff-appellant on the next date of hearing, i.e., 26.09.2015.

It is needless to add that if any order adverse to the plaintiff-appellant is passed by the learned Trial Court finally on application for temporary injunction, he is free to take recourse to the remedies available to him in accordance with law.

Therefore, this Court is not inclined to interfere with the impugned order dated 03.09.2015 in the pending matter at this ad-interim stage of temporary injunction application. The present Misc. Appeal filed by the plaintiff-appellant is, therefore, liable to be dismissed.

Accordingly and in view of the above, the present Misc Appeal filed on behalf of the plaintiff-appellant-Amar Chand Pungaliya S/o. Dwarka Das Pungaliya is dismissed. No costs. A copy of this order be sent to the Court below and to the parties concerned forthwith.