1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- 1. SPL. APPL. WRIT No. 1079 of 1999 MUNICIPAL BOARD NOKHA AND OTHERS V/S STATE OF RAJ AND OTHERS 2. SPL. APPL. WRIT No. 1104 of 1999 MUNICIPAL BOARD NOKHA V/S STATE OF RAJ Mr. ANIL BHANDARI for Mr. NM LODHA, for the appellant / petitioner Mr. ANIL VYAS for Mr. SD VYAS, for the respondent Date of Order : 8.8.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER These two appeals have been filed against the identical orders passed by the learned Single Judge, and involve identical factual matrix, and are therefore, being decided by this common order. The facts of Appeal No. 1079, which arises from S.B. Civil Writ Petition No. 538 of 1997 are, that the petitioner Bhagwan Das filed a writ petition, alleging 2 interalia, that the petitioner and 20 more persons were granted land by the Municipal Board measuring 7' x 7' since seventees or so, which land is neither part of the road, nor part of the footpath, but is a vacant side. Then, it is alleged, that all the persons are doing business on the land by establishing modern structure or wooden almirah, and all the persons are carrying on their business for the last 40 years without any disturbance. It is also alleged, that the petitioner had been paying rent but receipt is not available. However, the petitioner has produced notice of the bank demanding repayment of loan, and a notice of the Municipal Board issued in the year 1982, under Section 203 under the Rajasthan Municipalities Act, 1959 as Ex. 1 & 2. It is then alleged, that the State Government directed the Municipal Board to remove all encroachments, and in that garb Municipal Board wants to demolish the construction with the police help, without giving any notice, and without taking proceedings under the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964, hereafter referred to as the Act of 1964, and without following due process of law, to terminate the tenancy. Representation made to the Chairman went in vein, and a notice has been issued being Ex. 5, to remove the construction, which is under challenge. Interalia with these factual averments, it is prayed, that the notice Ex. 5 be quashed, and the Municipal Board be restrained from demolishing the shop, and removing same, or in the 3 alternative Municipal Board be directed to provide suitable size of land to them, or the size of the present land be reduced by 2 ft. A reply to the writ petition has been filed, contending interalia, that the writ petition is replete with misstatement of facts. It was contended, that originally the width of the road was 40 ft. but on both sides encroachments have been made for about 10 ft. reducing the width of road to 20 ft. only. The road is hospital road, and there is market as well. Then it is alleged, that it is wrong to contend that the petitioner or the like 20 persons were given any lease. The averment of giving lease was specifically denied. It was also contended that a wrong statement has been made that the land is neither part of the road, nor of footpath. Then, it is alleged, that the petitioner is a rank trespasser, and encroacher, who is not entitled to invoke 226 jurisdiction. Then giving para-wise reply, it is contended, that the petitioner has put almirah, or wooden cabin, which he has no right to put on the land in question, and he is sitting there only for the last few years. The averment of being there for the last 40 years is ex-facie wrong, as in the writ petition, the petitioner has disclosed his age to be 35 years only. It was alleged that neither land was given on lease basis, nor on any other basis, nor any rent was ever paid, and Municipal Board never receives any amount 4 without proper receipt. Then it was pleaded, that the provisions of the Act of 1964 are not attracted in the case of encroachers or trespassers, rather he shall be dispossessed by due process of law, being under Section 203 of the Municipalities Act. Various other pleas were taken, and it was prayed, that the writ petition be dismissed. The facts of Appeal No. 1104 are, that it arises from Writ No. 539 filed by the petitioner Gordhan Ram, also making identical averments, as made in the writ petition of Bhagwan Das, except that he has produced receipt Ex. 1 of the year 1982, regarding electricity connection. In this writ petition also identical reply has been filed, contending interalia, that the petitioner is 37 years of age only, and repeating other identical averments, as pleaded in the writ petition of Bhagwan Das. The learned Single Judge in the impugned orders held, that the petition is pending before the Court since 1997 (the judgment is dated 9.7.1999), and the possession of the petitioner is protected so far, under interim order of the Court, and solely on that basis it has been concluded by using the word “therefore”, the interest of justice would be served by directing the petitioner to make a proper and detailed representation to the Municipal Board, praying that he may not be dispossessed, in view of 5 the fact, that he is having a small shop of 7'x7' since 1970, and except that he has no other source of livelihood. Not only this, with this it has further been directed, that in case if it is impossible for the Municipal Board, then before evicting him, he may be provided alternative suitable place, at the prevalent market rate. Likewise it has further been directed, that if the decision of the Board is adverse to the petitioner, then the same shall not be implemented for a period of one month from the receipt thereof by the petitioner, so as to enable him to approach the appropriate forum, by way of appropriate proceedings. Assailing the impugned judgment it is contended that the judgment proceeds with basic misconception about the petitioner being there since 1970. There is nothing on record to substantiate that, apart from the fact, that the averments in the writ petition are ex-facie misstatement of facts. It is also contended, that in any case the only consideration that prevailed before the learned Single Judge was, that the possession of the petitioner was protected by interim order of the Court since 1997, while the writ petition was decided in July 1999 itself, and that could hardly be any ground to issue the impugned directions. May be that the Municipal Board could be directed to sympathetically consider the possibilities of making available alternative land at the prevalent market rate, but that could not be made a condition precedent for 6 dispossessing the encroachers, with the safeguards, as incorporated. It is contended, that there had been a Public Interest Litigation also before the Division Bench of this Court, wherein general directions were given to remove the encroachments. According to the learned counsel, in view of the above, the impugned judgment is liable to be set aside. Learned counsel for the respondents, on the other hand, supported the impugned judgment, by contending, that the mention of the petitioners' carrying on business for the last 40 years is only an accidental error, as though the petitioner in both the cases is below 40 years age but before that his father was carrying on business, and that, in any case since the width of road has not been reduced, and that since the petitioner is carrying on business for such a long time, there is nothing wrong on the part of the learned Single Judge in directing the Municipal Board to provide suitable alternative place at the prevalent market rate. We have considered the submissions. In our view, admittedly no rejoinder has been filed by the writ petitioners, to clarify, that before petitioner, his father was carrying on the business, nor any tangible material has been produced to show the existence of possession for the last 40 years, or at least 7 even since 1970. That apart, it has wrongly been pleaded in para-2, that the land was granted by the Municipal Board to the petitioners, much less since 1970 and they are paying rent. Likewise, it has wrongly been pleaded, that the land is neither part of the road nor footpath. In our view, in such circumstances, the encroacher on the public road, or part of the road, cannot be conceded any right to remain there, more so when the area is so congested, being outside the hospital. As such the writ petition was required to be dismissed. However, in the totality of circumstances we are not inclined to interfere with the part of direction, permitting the petitioner to make appropriate representation to the Municipal Board, but then, the representation is not required to be made for not being dispossessed from the land in question, but to provide him alternative suitable place at the prevalent market rate, and it is expected, that if such representation is made, it would be sympathetically considered, but the consideration of that representation, or providing alternative land, cannot be made a condition precedent, before removing the encroachment by the Municipal Board. Accordingly, the appeal is partly allowed. The impugned order is set aside, and both the writ petitions 8 are dismissed. However it is clarified, that petitioner will be at liberty to submit the proper and detailed representation, if not already submitted, praying for being provided suitable alternative place at the prevalent market rate, and if such representation is made, it is expected to be sympathetically considered. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /Sushil/