SBCWP NO.203/2008. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.203/2008. Shri Shyo Har Mahadev Phool Maliyan Sansthan Vs. State and ors. Date of order :- 17/1/2008. HON'BLE MR.JUSTICE M.N. BHANDARI Shri Ashok Mishra for the petitioner. **** The petitioner has preferred this writ petition with the following prayers:- “It is, therefore, prayed that this Hon’ble Court may very graciously be pleased to accept and allow this writ petition, call for the entire record of the respondents relating to the present matter and after examining the same, the Court may further be pleased:- (i) to declare the action of the respondent-J.D.A. of regularizing the scheme of Sri Ram Colony of the respondent-Mutual Grah Nirman Sahakari Samiti Ltd. and issuing Pattas of Plots No.40, 41 and 42 making part of the land of Khasra No.160, as illegal, against law, arbitrary and malafide by holding that the land of Khasra No.160 does not belong to the said housing society and the said housing society has no title and ownership over the land of Khasra No.160; (ii) to declare the action of the respondent-J.D.A. of approving the map and lay out plan of Sri Ram Colony of respondent-Mutual Grah Nirman Sahakari Samiti Ltd. showing Plots No.40, 41 and 42 as part of Khasra No.160, as illegal, against law and arbitrary; (iii) to declare the action of the respondent-J.D.A. in rejecting the allotment of land of Khasra No.160 in favour of the petitioner samiti, as bad in law and the petitioner samiti may be held entitled and competent to be allotted the land of Khasra No.160; (iv) to direct the respondent-J.D.A. to allot the land of Khasra No.160 in favour of the petitioner samiti, (v) to quash and set-aside the SBCWP NO.203/2008. 2 order/intimation dated 27/12/2006, issued by the Deputy Commissioner, Zone-II, J.D.A., Jaipur; (vi) to direct the respondent-J.D.A. to comply with the order dated 05/10/2005 of the Appellate Tribunal, J.D.A., Jaipur passed in Reference Case No.233/2005, Shri Shyo Har Mahadev Phool Maliyan Sangthan Vs. J.D.A.; (vii) to direct the respondent-J.D.A. not to construct the proposed road into the land of the petitioner samiti, falling in Khasra No.160 as the same is being in use and occupation of the petitioner samiti since long and a temple is existing in the same since long; (vii) any other order or direction which the Hon’ble Court may deem just and proper may also kindly be passed in favour of the petitioner samiti with costs.” The grievance of the petitioner is that despite of the judgment of the Tribunal in Reference Application, J.D.A. has taken to construct a ring road and aggrieved by that, petitioner has preferred this writ petition with many fold prayers. The core issue raised by the petitioner is that there is a temple in Khasra No.160 and they are having possession over it for last many years however, now, out of the land of Khasra No.160, respondents are going to construct a road. During the course of arguments, learned counsel for the petitioner was asked show as to whether the petitioners are having any ownership, title or interest on the land in dispute of which the J.D.A. has taken decision to construct the road, learned counsel for the petitioner fairly conceded that they are not having any ownership, title or interest of the said land and on asking that when petitioner has no title or interest over the said land, it should be treated as trespasser, reply of the counsel for the petitioner is that even though they are trespasser, they have a right to agitate the matter in the light of the judgment of the Tribunal in Reference Petition No.233/2005 decided on 5/10/2005. It was submitted that in the said decision, it clearly came SBCWP NO.203/2008. 3 out that the J.D.A. is proceeding ahead for construction of road without undertaking due process of law. In reference to the direction issued in the said judgment, learned counsel for the petitioner was asked to show as to what is the process which is required to be undertaken for construction of road, he could not show any provision and submitted that a notice is required to be given. On raising question under what provision of law the notice is required to be given, counsel for petitioner could not give any answer. It is otherwise a fact that subsequent to the decision dated 5/10/2005, a further Reference Application was decided by the Tribunal vide its judgment dated 31/8/2006 at Ann.17 wherein it was made clear that J.D.A. may proceed with construction of road but maintaining the decorum and structure of the old temple situated therein. Perusal of the record shows that without touching the old temple, road is going to be constructed and it is further came out from the record that original size of the temple has now been enlarged, may be at the instance of someone interested and thereby the encroachment of the land existed in any case. Now, in view of the decision given by the Tribunal, the road is required to be constructed, a trespasser cannot be allowed to agitate the matter when earlier their application submitted to the J.D.A. for allotment of the land was rejected vide order dated 27/12/2006 holding that the land from which road is to be constructed for public convenience cannot be allotted to the petitioner- society thus, it becomes clear that there was clear notice to the petitioner that the land encroached upon would be required for construction of road cannot be allotted to them. Hence, the challenge to the subsequent judgment of the Tribunal dated 31/8/2006 is found baseless because there was a simple direction given by the Tribunal to SBCWP NO.203/2008. 4 implement the plan for construction of road subject to certain conditions and one of the conditions was to protect the old temple which otherwise is going to be protected by the J.D.A. The petitioner cannot claim right, title or interest on the land on which a road is being constructed for the public convenience. The prayer of the petitioner that the land should be allotted to them cannot be accepted by this Court for the reasons already given in the order dated 27/12/2006. In view of above, the writ petition having no merit is dismissed in limine. (M.N. BHANDARI), J. anil