[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R D.B. CIVIL WRIT PETITION NO. 6799/2003 JAGDISH PRASAD CHOWDHARY & ORS. Vs. STATE OF RAJASTHAN & ORS. Date: 16/09/2008. PRESENT H ON'BLE MR. J USTICE SH IV KUMAR SH ARMA H ON'BLE MR. J USTICE K.S. RATH ORE Ms. Anita Agarwal for Mr. G.K. Garg for the petitioners. **** BY TH E COUR T (PER H ON 'BLE M R . R ATH OR E, J.) On 25.02.2005, the Division Bench of this Court having considered the rival submissions of the respective parties and after carefully going through the material available on the record as well as the report submitted by the Collector, Sikar, dismissed the instant writ petition on the ground that no issue of public interest in involved in the writ petition. 2. Against the order of the Division Bench dated 25.02.2005, the petitioners preferred an appeal i.e Civil Appeal No. 399/2008 (Arising out of SLP {Civil} No. 13190 of 2005)- Jagdish Prasad Chowdhary Vs. State of Rajasthan & Ors., before the [2] Hon'ble Supreme Court and the Hon'ble Supreme Court vide order dated 11.01.2008 while setting aside the order dated 25.02.2005 passed in the present writ petition i.e. Writ Petition No. 6799/2003, remitted the matter to this Court with direction to dispose of the writ petition by a reasoned order, in accordance with law observing that all contentions including maintainability of the writ petition is left open. 3. The petitioners, who are the residents of Village Khatu Shyamji, Tehsil Dantaramgarh, District Sikar, have preferred the instant writ petition in the public interest stating therein that the temple of Shri Khatu Shyamji is one which attracts millions of Indians from within the country and from abroad as well. For the purposes of reaching the temple, there is only small path and if shops are allowed to open on the above path, then the path becomes still narrower. The petitioner claimed to be interested in the welfare of the villagers of Shri Khatu Shyamji and also interested in those who are visiting the village Shri Khatu Shyamji for Darshan of Shri Khatu Shyamji (Lord Krishna every year. As per the petitioners, they have preferred this writ petition in the public interest so that the devotees of Lord Krishna (Shyam Baba) may not face any [3] inconvenience, traffic jams on mishaps like stampede etc. 4. The petitioners have also challenged the action of the respondent No.3 Gopal Singh, who is constructing the shops opening on the road leading to the temple of Shri Khatu Shyamji. Further the State as well as the Tehsildar, Tehsil Dantaramgarh, District Sikar are not taking action refraining the respondent No.3 from constructing the shops and that too opening the same on the road leading to the village, particularly to the deity and such action of the respondent No.3 is creating obstructions and nuisance to the public visiting at the site where the shops are being constructed. 5. By way of this writ petition in the public interest, the petitioners have prayed to issue writ, order or direction for seeking following reliefs:- “(i) by issue of an appropriate writ, order or direction in the nature thereof direct the Respondents to provide a passage as shown in site plan B as A, H, I, J and to keep it free from being encroached upon or in any manner obstruct the free movement of the pilgrims; (ii) by issue of a writ of Prohibition or any other appropriate writ, order or direction in the nature thereof prevent the Respondent No.3 [4] himself or by his assignees, transferees, agents, employees, servants etc., from constructing the shops abutting and opening on the road on the land acquired from him; (iii) by issue of mandatory Injunction order the demolition of the shops opening on the road' (iv) award costs of this writ petition; and (v) award such other and further relief/s,as may be deemed just and expedient in the facts and circumstances of the present so as to give full relief.” 6. This court having considered the averments advances on behalf of the respective parties, vide order dated 18.03.2004 has observed as under:- “The third respondent surrendered to the State some land out of khasra nos. 1731, 173 and 17343 situate in Khatu Shyamji village for construction/ widening of the road leading to the temple of Khatu Shyamji. According to the learned counsel for petitioner and Mr. Bharat Vyas, learned counsel for the State, the object and reason for acquiring the land from third respondent was to decongest the passage/road leading to the temple of Khatu Shyamji, which is visited by millions of people from all over India and abroad. At the time of the surrender of land, the third respondent secured conversion of 0.07 hectare of land comprised in khasra no. 1731 from agriculture to commercial use by order of the Administration dated January 30, 1993. After surrender of the land, the third respondent started [5] construction of shops over the land abutting the road. At this point the Administration issued a notice to the third respondent to show cause as to why order of conversion be not cancelled. The Administration also required the third respondent to desist from constructing the shops to prevent congestion on the passage/ road leading to the temple. Thereupon the third respondent filed a civil suit for permanent injunction restraining the Administration from cancelling the order dated January 30, 1993 and from creating obstruction in the construction of the shops. Along with the suit the third respondent also moved an application for temporary injunction for restraining the Administration from cancelling the order dated January 30, 1993 and from interfering with the construction of the shops. The trial court granted the interim injunction on November 24, 1993. Not satisfied with the grant of interim injunction by the trial court the Administration filed an appeal before the District Judge. By order dated January 27, 1994 the District Judge while allowing the appeal set aside the order of the trial court. Thereafter, the third respondent moved revision petition against the order of the District Judge dated January 27, 1994, which was finally dismissed on September 30, 1996 for non- prosecution. We are told that ultimately even the civil suit was dismissed. In spite of the fact that the civil suit of the third respondent was dismissed he was able to raise the construction in the meantime. It appears that the third respondent reaped undue benefit of proceedings, which were initiated by him before the trial court. On the one hand the third respondent surrendered the land for the purpose of decongesting the road leading to the temple of [6] Khatu Shyamji, on the other hand for his own personal gain constructed shops on the land abutting the passage/road. This action of the third respondent would again lead to congestion of the passage/road, thereby defeating the purpose for which the land was surrendered by him and taken over by the Administration. As a consequence, thousands of pilgrims and tourists will be put to inconvenience. In the circumstances, therefore, in case the third respondent is allowed to open the shops towards the roadside the problem of congestion will become extremely acute. We are told that one of the shops has already started serving tea and snacks to its customers. Having regard to the aforesaid discussions we are prima facie of the view that except the shop, which has already started doing business none of the shops should be allowed to open towards the roadside. We order accordingly. In case the third respondent wishes to undertake business in the shops, the shops can be opened towards the other side. In regard to the shop, which has already been opened we would like to know the particulars of the person, so that we could accord him a hearing. The third respondent shall furnish his name and address. List the matter on 16.4.2004.” 7. Controverting the allegations as alleged against the respondent No.3, the respondent No.3 has filed reply stating therein that the petitioners have no public interest to espouse and in the garb of public interest litigation, they are [7] espousing the cause of one Shri Banney Singh, who has been constantly in litigation with the respondent No.3 and his family members for the last more than two decades. 8. As regards apprehension of stampede and traffic jams, the respondent No.3 had voluntarily surrendered free of charge a strip of 75' wide and 413' long land from his own khatedari land on 06.01.1993 for the public interest to widen the existing road leading to the temple and after surrendering the aforesaid land, the petitioner has deposited Rs. 5,600/- as conversion charges. Thereafter on 26.06.2003, 0.45 hectare of land belonging to the respondent No.3 has further been converted from agriculture to commercial purposes by the Collector, Sikar. Thus, the allegations as alleged by the petitioners that the respondent No.3 has encroached over the land in question and constructed the shops over the path, is contrary to the facts and if any encroachment is there in the public way leading to the temple, they should have proceeded under Section 133 Cr.P.C. Further the District Magistrate has got ample powers to remove, after due inquiry, any unlawful obstruction or nuisance. 9. Not only under Section 133 Cr.P.C. but [8] under Rule 165 of the Rajasthan Panchayati Raj Rules also, there is specific statutory provisions for removal of encroachments on panchayat lands and the petitioners could have invoked the powers of Gram Panchayat, Khatu Shayamji for redressal of so-called obstruction in the public way. 10. On behalf of the respondent Nos. 1 and 2, it has been submitted that there is no lapse in the action taken against the respondent No.3. As and when any provisions of law has been contravened by the respondent No.3, action has been taken against him and if any illegal construction is carried out by the respondent No.3, strict action will be taken against him in accordance with law. 11. It is further contended that upon perusal of the averments made in the writ petition, it is evidently clear that petitioners themselves have admitted that the respondent No.1 and 2 have time and again taken action against the respondent No.3 as and when he was found contravening the provisions of law. The respondents also undertake that in future if the respondent No.3 is found to be indulged in any illegal activity, action will be taken against him as per law. 12. We have heard learned counsel for the [9] petitioners and carefully gone through the material available on the record. 13. Vide order dated 16.04.2004, this Court directed the Collector, Sikar to explore the feasibility of having the shops, which have been constructed on road to Khatu Shyamji, opened on the other side of the road. For this purpose he shall set up meeting with the shopkeepers and the shopkeepers will cooperate and would agree to open the shops on the other side of the road so that there is no possibility of congestion on the road leading to Khatu Shyamji. The Collector was directed to file his reply within two weeks. 14. In compliance of the order of this Court dated 16.04.2004, compliance report has been submitted by the respondent Nos. 1 and 2. It is submitted that pursuant to the directions issued by the Division Bench vide order dated 16.04.2004, a meeting was held by the Collector, Sikar on 14.05.2004 with the concerned shopkeepers regarding feasibility of opening shops on the other side of the road. The aforesaid shopkeepers did not agree on the idea of opening the shops on the other side of the road leading to the temple of Khatu Shyamji. 15. It is further submitted that a survey of [10] the area in question was also carried out and it was found that all the shops presently opened on the temple road have come into existence only after the year 1993 i.e. the year when this temple road was constructed. It was also found that the owners of commercial establishments have been using the present road for their commercial purposes. Almost all the shops have made their temporary sitting arrangements out of the shops on the side of the road. Lot of vehicles were also found to be parked on the road side and this need caution for free movement of the people and generally traffic is also restricted. 16. It is also submitted that feasibility of opening of the shops on the opposite side of the road was checked and it was found that it would not be possible to have the shops opened on the road side because of the fact that there is no alternative road on the opposite side of the main road. The land on the back side of the shops is khatedari land and the Khatedars of the said land are not willing to provide any way to the shops if they are opened on the opposite side. 17. Further an alternative suggestion was also given whereby it was suggested by the District Administration that if the shopkeepers could move [11] their shops 5'-6' back from the road, then the very purpose of free movement of the people and the traffic could somewhat be solved out. The owners of the shops and establishments did not agree on this alternative suggestion also. 18. A civil suit was also filed by the respondent No.3 before the Civil Judge (Sr. Division), Dantaramgarh, District Sikar and on 24.11.1993, temporary injunction was granted by the trial Court. Thereafter an appeal was preferred before the District Judge, Sikar and the same was allowed vide order dated 27.01.1994 setting aside the order of the trial Court, against which a revision petition was preferred by the respondent No.3 and that too came to be dismissed on 30.09.1996 pursuant to the per emptory order of this Court. 19. Admittedly the suit which was filed by the respondent No.3 was with regard to injunction order not to obstruct construction of the shops and has no relevancy with the present controversy. 20. As the respondent Nos. 1 and 2 have given undertaking that action will be taken against the respondent No.3 as and when he is found to be indulged in any illegal activity contravening the [12] provisions of law and presently the respondent No.3 has not encroached over the land, on the contrary, the respondent No.3 who is Khatedar of the land, has donated/surrendered a strip of 75' wide and 413' long land out of his own khatedari land free of cost, upon which the said road has been constructed. 21. Upon careful perusal of the material available on the record as well as the averments made in the writ petition and considering the submissions advanced on behalf of the respective parties, we find no merit in the writ petition as the petitioners utterly failed to establish the fact that the respondent No.3 has encroached over the land. Admittedly, the respondent No.3 has constructed the shops on the land of his khatedari after depositing the conversion charges and after getting the land converted. 22. As the respondent Nos. 1 and 2 have given undertaking that they are ready to take action against the respondent No.3 if he is found to be indulged in any illegal activity contravening the provisions of law and encroached over the public way, still if the petitioners found that the respondent No.3 has encroached over the public way, in such eventuality, the petitioners can represent [13] before the respondent Nos. 1 and 2 for taking appropriate action against the respondent No.3, but in any case as per the report submitted by the respondent Nos. 1 and 2, there is no encroachment as alleged by the petitioners. Thus, we find no merit in the writ petition and the same deserves to be dismissed being devoid of merit. 23. In the result, the writ petition fails and the same is hereby dismissed having no merit. (K.S. RATHORE),J. (SHIV KUMAR SHARMA),J. /KKC/ (DB reserved)