Ganga Sahay vs Nagar Palika, Sawaimadhopur (Rajasthan) and Others

Amitava Roy, C.J.—In challenge is the judgment and order dated 2.1.2014 passed in S.B. Civil Writ Petition No. 21573/2013 dismissing the same. The writ petitioner is in appeal. We have heard Dr. Prakash Chandra Jain, learned counsel for the appellant/writ petitioner.

The recorded facts reveal that the pleaded case of the appellant/writ petitioner is that he had purchased a plot of land bearing No. 38, Indira Colony, Bazariya, Sawaimadhopur vide registered sale deed dated 15.1.2007, and is in possession thereof. The respondents No. 2 & 3 instituted a suit against him on the basis of an agreement of sale dated 6.2.1997, and the same came to be decreed by the judgment and decree dated 28.11.2011. Aggrieved by the verdict, the appellant/writ petitioner has preferred an appeal before this Court as S.B. Civil First Appeal No. 3/2012. By order dated 5.1.2012, the learned Single Judge, after hearing the learned counsel for the parties, passed the following order:-

Heard.

Both the parties shall maintain status-quo as its today and no further alienation shall be made regarding the plot in dispute.

The appellant/writ petitioner has alleged that inspite of the above interim order, the respondents have, in violation thereof, forcibly dispossessed him from the land involved and have started raising construction thereon, even without obtaining necessary permission u/s 194 of the Rajasthan Municipalities Act, 2009 (for short, hereafter referred to as ''the Act''). The appellant/writ petitioner has stated that being aggrieved, meanwhile, he has filed an application under Order 39 Rule 2A of the CPC (for short, hereafter referred to as ''the Code'') read with Section 10/12 of the Contempt of Courts Act, 1971, on which a notice has been issued by this Court on the respondents on 12.9.2013.

The appellant/writ petitioner had also submitted an application before the District Collector, Sawaimadhopur complaining against the ongoing constructions pursued by the respondents without the permission of the Municipal Council (Nagar Palika), Sawaimadhopur in violation of Section 194 of the Act. According to him, though the Collector, Sawaimadhopur, by order dated 23.1.2012, directed action to be taken against the respondents and a request to this effect was made to the Chairman/Executive Officer, Nagar Parishad, Sawaimadhopur, no action has been taken. Situated thus, he approached this Court under Article 226 of the Constitution of India praying for an appropriate writ and/or direction to the Municipal Council, Sawaimadhpur as well as the respondents No. 2 & 3 to remove the illegal constructions raised on the plot.

The learned Single Judge, being primarily of the opinion that in view of the pendency of the appeal involving the same land and the interim order passed on 5.1.2012, the appellant/writ petitioner ought to seek remedy before the appellate forum for enforcement of the direction to maintain status quo of the land involved, declined to intervene.

Dr. Jain has emphatically argued that as qua the illegal constructions raised in violation of the order of status quo, the learned appellate forum in the proceeding under Rule 39 Rule 2A of the Code would, at the most, penalize the respondents for the disobedience of its order dated 5.1.2012 and having regard to the framework of the appeal, it might not pass any order directing demolition and removal thereof, the remedy, as indicated by the impugned order, is not equally efficacious, as may be accorded in the exercise of writ jurisdiction. Moreover, as the respondent No. 1 i.e. Nagar Palika, Sawaimadhopur has inexplicably failed to act, as expected, to ensure that the order dated 5.1.2012 passed by this Court in S.B. Civil First Appeal No. 3/2012 is abided by the respondents No. 2 & 3 in letter and spirit, the exercise of writ jurisdiction in the matter is not barred.

Upon hearing the learned counsel for the appellant/writ petitioner and on a consideration of the materials on record, we are unable to lend our concurrence to the pleas raised.

Admittedly, the property involved in the appeal is the same as in the present proceedings. The appellant/writ petitioner and the respondents No. 2 & 3 herein are also parties in the aforementioned appeal. A plain reading of the order dated 5.1.2012 would evince that thereby, the parties in the said appeal had been directed to maintain status quo and not to further alienate the plot in dispute. By the order of status quo, the learned Appellate Forum did, in no uncertain terms, intend that the parties would not change nature and character of the property involved.

In that view of the matter, if the allegation of new constructions on the same land by the respondents No. 2 & 3, during the currency of the order dated 5.1.2012, is correct, not only, in our understanding, the learned Appellate Forum would be within its authority to take appropriate action for disobedience thereof (order dated 5.1.2012), but also would be, as contemplated in law, competent to issue necessary directions to redress the grievance of the appellant/writ petitioner, as registered in the writ petition. For obvious reasons, we refrain from making further observations at this stage.

Be that as it may, we find ourselves in complete agreement with the conclusion recorded by the learned Single Judge in the impugned judgment and order. The appeal thus, lacks in merit and is dismissed.