1 1 S.B. CIVIL WRIT CONTEMPT PETITION NO.109/2006. Maharawal Brijraj Singh & Anr. Vs. B.L. Rao & Anr. Date of Order :: 25th February 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. J.P. Joshi ] Mr. Khet Singh ], for the petitioners. Mr. Narendra Thanvi for Mr. R.K. Thanvi, for the non-petitioners. ..... BY THE COURT: In this contempt petition, the petitioners have alleged themselves to be the owners of Jawahar Niwas Palace, Jaisalmer that was allegedly given as personal property under the Inventory prepared under Article XII of the Covenant entered into between the then ruler of Jaisalmer and the Government of India; and have pointed out that they moved an application dated 29.02.1985 before the then Notified Area Committee of Jaisalmer for grant of permission to raise a boundary wall around the open land of the said Jawahar Niwas Palace. According to the petitioners, the said application was duly considered and, on 28.07.1988, permission was accorded to them to construct the boundary wall as per the site plan but then, they were directed to stop the construction of boundary wall by an order dated 2 23.09.1988 on the ground that they had not applied for the permission to raise the boundary wall at the area where the same was being constructed; and then, by the subsequent order dated 27.09.1988, the construction permission granted to them was sought to be cancelled. The petitioners have pointed out that the said order dated 27.09.1988 was questioned by them before this Court in CWP No. 222/1989 that came to be allowed on 05.04.1999 finding the impugned order violative of principles of natural justice; and this Court, accordingly, quashed the order dated 27.09.1988 but clarified that the respondents may pass appropriate order of cancellation of the construction permission after extending an opportunity of hearing to the petitioners. After passing of the said order dated 05.04.1999, notice was given to the petitioners for cancellation of the permission but thereafter, notices came to be issued, purportedly under Section 203 read with Section 170 of the Rajasthan Municipalities Act, alleging that the petitioners had made encroachment on the municipal land and directing them to remove the fencing around the land in question. Upon receipt of such notice on 18.03.2000, the petitioners filed another writ petition, being CWP No. 877/2000, before this Court wherein, 3 by way of interim order dated 07.04.2000, this Court directed the petitioners to make a detailed representation ventilating all their grievances and upon making such representation, the respondents were required to reconsider the whole case within a period of 6 weeks. This Court noted the fact situation and said,- “This case had come before the Court earlier also when the respondent passed a similar order. The petitioners predecessor in interest filed the Writ Petition No. 222/89 which was finally decided by this Court vide judgment and order dated 5.4.1999 wherein this Court has directed the respondents to consider the case after hearing the present petitioners. In stead of giving any opportunity of hearing to the petitioners a fresh notice has been issued on 18.3.2000 (Annex. 13) which amounts to an order of eviction rather than a notice and it appears that it is an information/order to evict the premises in dispute. Shri Joshi has submitted that this order has been passed in flagrant violation of the order of this Court dated 5.4.1999. If it is so, the petitioners may make a detail representation ventilating all their grievances substantiating the same by adducing sufficient evidence before the respondents and if it is done within a period of two weeks from today, the respondents are directed to reconsider the whole case within a period of 6 weeks thereafter. For a period of 8 weeks the impugned notice/order dated 18.3.2000 shall not be given effect to. Put up the matter after 8 weeks.” The petitioner No.1 is said to have made representation (Annex.7) pursuant to directions of this Court but the said 4 representation was kept pending by the respondents; and on 16.10.2003, this Court, after noticing the grievance of the petitioners but looking to the lapse of time, afforded another opportunity to the Board to decide the representation within three weeks but with directions to submit a compliance report. The said writ petition, CWP No.877/2000, was, of course, disposed of but the compliance was to be reported. This Court ordered,- “The grievance of the petitioner is that his representation has not yet been decided by the Municipal Board, Jaisalmer despite the order of this court, for all these years. Non consideration of the representation of the petitioner by the respondent would have pursuaded me to take a stringent view but looking to the lapse of time one further opportunity is afforded to the Municipal Board, Jaisalmer to decide the representation within period of three weeks hence. It will submit a compliance report to this court. With this observation, the writ petition is disposed of. For the purpose of submission of the compliance report the petition will be deemed to be pending.” The respondents sought extension of time for taking decision on the said representation and thereafter, when the Municipal Board was not deciding the representation/s of the petitioners, they submitted an additional representation that the notice issued to them be withdrawn/cancelled. However, another notice was issued to the petitioners and in response 5 thereto, another reply was submitted by them on 15.07.2004 denying the proposition stated by the respondents, of the requirement to obtain a succession certificate. The petitioners submit that after taking into account all the documents submitted by them with regard to ownership and with regard to their right to raise the construction, the Municipal Board finally decided to withdraw the notice given to them by its resolution dated 31.01.2004 (Annex.14) and a compliance report was, accordingly, submitted to this Court. It seems that noticing such compliance report and particularly the fact that the notice under challenge had been withdrawn, this Court found no cause surviving and finally disposed of the said writ petition, CWP No.877/2000, as having become infructuous by the order dated 14.09.2004 that reads as under:- “Heard. In terms of the compliance report, presently, neither the petitioner is being dispossessed nor any of the consequences are ensuing in pursuance to the notice dated 18.6.2000. Since the notice under challenge has been withdrawn, therefore, no cause survives. Accordingly, this petition is finally disposed of as having become infructuous.” The petitioners submit that after the decision of this 6 Court in terms of the compliance report, they informed the Municipal Board about raising construction in terms of the permission dated 28.07.1988 but then, they received a notice dated 03.02.2005 calling upon them to submit an application in the prescribed proforma with the claim of their title along with the site plan. The petitioners served a notice through their counsel on 27.02.2006 inviting attention of the Board that so far the question of title was concerned, the same had already been examined and thereafter the Municipal Board withdrew the notice under its aforesaid resolution. The petitioners have filed this contempt petition with the submissions that they received yet another notice dated 19.04.2006 in response to the notice served by them wherein the respondents were again taking the stand that the matter regarding title was to be examined by them while holding out a threat for ex parte proceedings in default of appearance. The petitioners submit that the action of the respondents remains directly in conflict with and at defiance of the orders already passed by this Court. Noticing the submissions as made, notices were ordered to be issued in this contempt matter on 26.04.2006. While considering this matter on 13.01.2009, this Court considered it appropriate to examine the record of the 7 proceedings said to be pending with the Municipal Board, Jaisalmer; and the learned counsel appearing for the non- petitioners was directed to ensure production of the concerning record before the Court. The learned counsel appearing for the contemnors has today placed for perusal File No. 122/88-89 drawn on an application for construction permission as moved by the petitioner No.2 and another File drawn on 29.11.2005 on the application as made on behalf of the petitioners for renewal of the construction permission wherein the impugned notice dated 19.04.2006 has been issued. It is noticed that both the aforesaid matters remain pending with the Municipal Board and no proceedings seem to have been drawn in the matter relating to construction permission after the year 1990-91 and similarly, no proceedings seem to have been drawn in the other matter relating to the request made by the petitioners for renewal of construction permission after service of the notice dated 19.04.2006. Though it is submitted on behalf of the petitioners that the respondents are unnecessarily keeping the matter pending and are unjustifiably raising the questions about the title to the property in question again and again despite having withdrawn the notice earlier issued in relation to the same 8 dispute but then, taking a comprehensive view of the matter and the orders made by this Court on 05.04.1999, 07.04.2000, 16.10.2003 and 14.09.2004 as referred hereinabove, this Court is unable to find a clear case of willful disobedience being made out against the respondents so as to continue with these contempt proceedings. Of course, this Court would not make any comment on the validity and correctness of the notice dated 19.04.2006 but having regard to the overall circumstances of the case, it appears appropriate to leave it open for the petitioners to challenge the acts and/or omissions on the part of the Municipal Board, Jaisalmer by way of appropriate substantive proceedings. For that matter, it is also open for the petitioners to appear before the Municipal Board and it would be expected of the Municipal Board to take final decision in the pending proceedings after hearing the petitioners, whether in relation to the notice dated 19.04.2006 or any decision hereafter to be taken by the Municipal Board; and if the petitioners have any grievance and are so advised, it is, and would be, open for the petitioners to take resort to appropriate remedies in accordance with law. Subject to the observations aforesaid, the contempt 9 petition is rejected and the notices are discharged. (DINESH MAHESHWARI), J. Mohan/