IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Jagat Singh Rathore Vs. State of Rajasthan & Others. (S. B. Civil Writ Petition No.3683/2006) S.B. Civil Writ Petition under Article 226 of the Constitution of India. Date of Judgment: December 12, 2008 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. A.K. Sharma, for the petitioner. Mr. G.S. Gill, Addl. Advocate General for the State. Mr. K.N. Gupta with Mr. R.P. Garg, for the respondent No.3. Per Court: Like the Biblical story of David and Goliath, this is a case of an individual pitted against the colossal State. Having bought some properties at Pushkar, an ancient and a holy city in Rajasthan, the petitioner has been running a hotel in the name and style of “Hotel Pushkar Palace” since 1981. There were certain legal battles fought between the petitioner and the Municipality Board (‘the Board’, for short), Pushkar—the respondent No. 3 before this court. The Board lost these battles. The Board claims to have served a notice on the petitioner on 22-4-06 directing him to remove the illegal constructions/ encroachments made by him, within three days. But notwithstanding the said notice, on 22-4-06 itself, the Board demolished a part of the hotel and sealed thirty-eight rooms of the hotel. When the petitioner protested against the illegal action of the Board, the Board issued yet another notice on 28-4-06. Stunned by the demolition, aggrieved by the notice dated 28-4-06, the petitioner has knocked at the gates of this court and has sought refuge. 2. This case has a long and chequered history. However, the history is pertinent for appreciating different aspects of the issues which would emerge in this case. Hence, it is essential to narrate the details of running battles and skirmish between the petitioner and the Board. 3. Near Ajmer, nestled among the Aravali Hills, lies the ancient and holy city of Pushkar. According to Puranic mythology, Lord Brahma performed a Yagyna at the Pushkar lake (Pushkar Sarover). However, as his consort, the Goddess Saraswati was not ready to join him in the Yagyna, according to the story, Lord Brahma created another Goddess. Taking her to be his lawful-wedded wife, he performed the Yagyna with her. Upon knowing that another Goddess had substituted her, Goddess Saraswati cursed Lord Brahma that he shall not be worshiped anywhere else in India, except at Pushkar. Hence, the only known temple of Lord Brahma in India exists in Pushkar. According to another Puranic mythology, when the fight ensued between the Gods and the demons over the pot of nectar, Lord Vishnu, in the form of Mohini, stole the pot of nectar from the demons. While Mohini ran with the said pot, drops of nectar fell into the Pushkar Lake (Pushkar Sarovar). Thereafter, Hindus believe that a bath in the Pushkar Sarovar would free the soul from the cycles of births and deaths. In Rajasthan it is common for the people to submerge the ashes of those who have expired in their family in the Pushkar Lake. Thus, like Allahabad and Varanasi, Pushkar is a favorite site for performing the last rites for the dead. Because of these religious stories, Pushkar has held special significance in the minds of Hindus since time immemorial. 4. In modern days, Pushkar is famous for its Cattle Fair which is generally held in the months of October-November. The Pushkar fair has attracted the attention the world-over. Not only the villagers come to sell their cattle, but foreign tourists descend on Pushkar to enjoy, the sites, the sounds & the colors of Rajasthan. Thus, the town is one of the favorite destinations for tourists in Rajasthan; it is vital to the economy of the State. 5. Wanting to establish a hotel business, wanting to cater to the needs of the tourists, both national and international, on 26-10-1980, the petitioner and one Smt. Harminder Kaur purchased an estate on “Bangla Ghat” through a registered sale-deed. Subsequently, Smt. Harminder Kaur sold her share to the petitioner. Hence, the petitioner became the owner of the estate. In 1981, the petitioner established a hotel in the name of “Hotel Pushkar Palace”. In order to expand the premises of the hotel, on 18-2-1983, the petitioner purchased a property lying on the southern side of “Bangla Ghat”, popularly known as “Kishangarh Kunj”. The petitioner submitted building plans before the Notified Area Committee (`the Committee', for short) Pushkar (presently the Municipal Board, Pushkar, respondent No.3) way-back in the year 1983. According to petitioner, the building plans were approved on 16-12-1983 and 14-12-1984. The building, including the dinning hall, kitchen, pantry, store etc. were constructed in accordance with the approved building plans. From 1983 till 1986, the petitioner was running the hotel with due permission and approval of the Committee. 6. However, on 26-2-1986 the Committee issued a notice to the petitioner canceling the permission which was earlier granted by it. The petitioner challenged the said notice/ order by filing a civil suit for permanent injunction along with application for temporary injunction. The suit was registered as Civil Suit No.28/1986 before the court of Additional Munsif and Judicial Magistrate Ajmer City (West) Ajmer. Vide order dated 10-3-1987, the learned Magistrate passed a temporary injunction in petitioner's favor. Since the committee was aggrieved by the stay order, the Committee filed an appeal before the learned Additional District Judge No.1 Ajmer. However, the learned Additional District Judge, vide order dated 20-2-1992, dismissed the appeal. Eventually, vide judgment dated 20-5-1992, the learned Magistrate, decreed the suit in favor of the petitioner. According to the said judgment, learned Civil Court held that the property known as “Kishangarh Kunj” was in the ownership and possession of the petitioner. It was also held that once the sanction for construction was given by the Committee, it had no right to cancel the same or to remove the construction in pursuance thereof. The stand taken by the Committee that the property was described as Ghat, therefore, it belonged to State Government, and therefore, the permission for construction could not have been given, was out rightly rejected. Consequently, the Committee was restrained by permanent injunction not to take any action in pursuance of the notice dated 26- 2-1986. Moreover, they were directed not to demolish the property of petitioner known as “Kishangarh Kunj” and not to dispossess him there from. 7. As in the case of “Kishangarh Kunj”, so in the case of petitioner's property situated at “Bangla Ghat”, the Committee issued a notice dated 26-2-1986 canceling the approval granted by it to the petitioner on 14-3-1983. Again the petitioner filed a civil suit, namely, Civil Suit No.27/1986, for permanent injunction before the same court. Vide order dated 10-3-1987, the learned civil court stayed the operation of the notice dated 26-2-1986. As earlier, the Committee filed an appeal before the Court of Additional District Judge No.1 Ajmer. However, vide order dated 20-2-1992, the said appeal was dismissed. Thereafter, vide judgment and decree dated 20-5-1992, the trial court decreed the suit in favor of the petitioner. The trial Court held that the Committee had failed to prove that the petitioner had made any encroachment on additional land or had raised construction on the land belonging to the Committee. Therefore, the Committee was restrained from demolishing petitioner's property situated at “Bangla Ghat”. The committee was also prohibited from dispossessing the petitioner from the said property. 8. In 1991 considering the sacred and secular importance of Pushkar City, the Pushkar (Pushkar Sarowar Swachhata, Pavitrata Evam Saudaryakaran Up-Vidhiyam), 1991 (herein after to be referred as “Bye-laws 1991”) were promulgated. Bye-laws 1991 were published in the Gazette on 14-11-1991. These bye-laws were aimed at preventing the pollution of and at cleaning the Pushkar Lake. It was also felt necessary that the construction around the lake should be regulated and supervised by the Municipality. 9. After passing of the Bye-laws 1991, in the year 2002 the petitioner was served with a notice holding that he was constructing new rooms in place of old rooms at the Hotel Pushkar Palace. The petitioner replied and contended that as walls of old building were thick, he was merely reducing the size of the walls. Therefore, it was not a case of new construction, but merely a case of renovation. Moreover, as there was no construction towards the Lake, therefore, he was not violating Bye-laws 1991. However, for the purpose of compliance of Bye-laws 1991, the petitioner submitted his plans for permission of construction/ re-construction. 10. On 20-8-2002, the Building Construction Committee of the Board recommended the petitioner's case to the Collector, Ajmer for granting of permission for the proposed construction/ renovation. On 7-5-2003, the petitioner's hotel was inspected by a team of Officers comprising of Additional Collector (Admn.) Ajmer, Executive Engineer, PWD, District Division Ajmer, and Executive Officer, Municipal Board Pushkar. According to their report, it was discovered that the main building of the hotel was four stories high. Internal walls on eastern side of the building, which were previously about 3 to 3½ ft. in size, were reduced to 1¼ to 1½ ft., so as to increase the inner area of the rooms. Thus, it was clearly a case of renovation. Despite the recommendation of the Building Committee of the Board and in spite of the report dated 7-5-2003, according to petitioner, the Collector, Ajmer has yet to decide the case of the petitioner. 11. On 14-4-2006 the Board published a public notice under bye- law 4(1) of Bye-laws 1991. According to said notice in accordance with bye-law 4(1) of Bye-laws 1991 neither any house could be converted into hotel, nor any building could be constructed near the Ghat, without the permission of the Board and the Collector. Furthermore, any hotel or commercial activities or illegal construction carried out after 18-4-2006 would be seized by the Board. Therefore, the public at large was directed to stop such activities forthwith, otherwise action under the provisions of Rajasthan Municipality Act, 1959 (‘the Act of 1959’, for short) would be carried out against such a person. 12. On 19-4-2006 a notice was allegedly sent to the Manager of Hotel Pushkar Palace, wherein it was pointed out that illegal construction was carried out by the hotel at “the Bangla Ghat” and “the Kishangarh Kunj”. The said construction was in violation of the bye-law 2(10)(11) of the Bye-laws 1991. A period of twenty-four hours was given to the petitioner to remove the alleged illegal construction, failing which action would be taken against the petitioner. But, according to petitioner, he never received the said notice. 13. Suddenly on 22-4-2006, the petitioner was served with a notice purporting to be under bye-law 4(2) of Bye-laws 1991. According to the notice, the petitioner was informed that the hotel was within 100 ft. of “the area of Pushkar Sarovar”. According to the notice, the hotel had been constructed illegally. Therefore, the permission under bye- law 4(2) of Bye-laws 1991 could not be granted. For, the grant of such permission would be against “the prestige” of the Sarovar. Therefore, three days time was granted to the petitioner to stop the commercial activities and to close down the hotel. In case the hotel were not closed down within three days, the Board claimed that it would take necessary action against the petitioner. According to petitioner, the notice was sent during his absence from Pushkar. Most importantly, although three days time was given to the petitioner to close down the hotel and the commercial activities, yet the officers of the Board, armed with bulldozers and the demolishing squad, started demolishing parts of the hotel on 22-4-2006 itself. About 38 rooms of the hotel were also sealed by the officials of the Board. Despite protest by the staff of the hotel, the demolition continued for three days i.e. from 22-4-06 to 25-4-2006. 14. Upon his return, the petitioner complained about the demolition and the sealing of the rooms to the higher authorities, including the Hon'ble Chief Minister of the State. The Hon'ble Chief Minister directed the Divisional Commissioner, Ajmer to enquire into the matter and submit his report. This report shall be referred to later in this judgment. 15. Since enquiry had been ordered against the officials of the Board, according to petitioner, on 28-4-06 yet another notice was issued purporting to be under bye-law 4(1) of Bye-laws 1991 and Act of 1959. According to the said notice those persons/ firms/ Institutions which fell within the area of 100 ft. from the Lake, they could not convert their house into hotel, restaurant and use it for other commercial activities. Moreover, further construction/ re-construction/ conversion/ addition/ alteration could not be carried out, without the permission of the Board and the recommendation of the Collector. The notice further informed that the owners of the hotels/ restaurants etc should stop the illegal activities with immediate effect. Notice also contained a list of twenty-six hotels, dharamshalas, restaurants against whom action under section 170 (11) and 203 of the Act of1959 was to be taken. Lastly, according to the notice, no permission for carrying out commercial activities within 100 ft. of the Sarovar area was granted and the persons were directed to stop such commercial activities. 16. The petitioner has specifically challenged the validity of the notice dated 28-4-06. However, as the earlier notices dated 14-4-06, 19-4-06 and 22-4-06 have merged in the notice dated 28-4-06, the petitioner has also questioned the validity of these notices. In fact, since the petitioner is aggrieved by the illegal action of the Board in demolishing part of his hotel and in sealing the rooms of his hotel, he has questioned the entire action of the Board before this court. Hence, in order to do substantial justice, this court is required to examine the legality of the four notices mentioned above and to consider the legality of the actions of the Board. 17. Mr. A.K. Sharma, the learned counsel for the petitioner, has raised plethora of contentions before this court: firstly, the actions of the Board in issuing notice, demolishing part of the hotel and in sealing the rooms are unreasonable, unjust and unfair. The Board has misinterpreted the scope and ambit of Bye-laws 1991. Bye-law 4 (1) and 4(2), in fact, operate in two different time-frames. While bye- law 4(1) deals with post-1991 period, bye-law 4(2) deals with pre- 1991 period. While the former contains an absolute embargo, the latter bestows a limited power on the Board to control, to supervise, and to issue directions for the functioning of hotels which were running prior to 1991. According to the learned counsel, since the petitioner's hotel was running prior to 1991 his hotel is covered only by bye-law 4(2), and not by bye-law 4(1). Therefore, notices in which power under bye-law 4(1) has been invoked, such notices are, ipso facto, inapplicable to the petitioner's hotel. Therefore, the impugned notice dated 28-4-06, ostensibly invoking the power under bye-law 4 (1), is inapplicable to the petitioner’s hotel. Therefore, the said notice suffers from the twin virus of non-application of mind, and from colorable exercise of power. 18. Secondly, the notice dated 22-4-2006, purported to have been issued under bye-law 4(2) of Bye-laws 1991, the said bye-law does not empower the Board demolish or to seal the hotel building. Further, according to the said notice three days time was granted to the petitioner to remove the alleged illegal construction. But without waiting for the stipulated period, the demolition was started by the Board on 22-4-2006 itself. Therefore, the giving of the notice is merely an eye-wash; it is a sheer formality. It places the entire law with regard to the giving of notice on its head. 19. Thirdly, according to the judgments of the civil courts, as mentioned above, the petitioner was the owner of the property situated in “Bangla Ghat” and “Kishangarh Kunj”. According to the judgments, the petitioner could neither be dispossessed, nor his peaceful possession be disturbed by the Board. However, the brutal action of demolition, on the part of the Board, had clearly made a mockery of the judgments passed by the civil courts in favor of the petitioner. 20. Fourthly, the petitioner's case does not fall within the provisions of Sections 170 and 203 of the Act of 1959. Therefore, the Board has wrongly invoked the said provisions. 21. Fifthly, even the report of the Commissioner is against the Board. Since the Report was prepared by the Divisional Commissioner, the State cannot disown the report. According to the Report, the action of the Board was held to be illegal. 22. Lastly, the notices issued and the action of the Board are clearly in violation of the fundamental rights of the petitioner under Articles 14, 19, 21 and 300A of the Constitution of India. 23. On the other hand, Mr.K.N.Gupta and Mr.R.P.Garg, the learned counsel for the Board, have raised a preliminary objection that the petitioner has already filed a civil suit for permanent injunction, bearing Civil Case No.36/2006, before the Additional District Judge No.1 Ajmer. The petitioner has prayed for identical reliefs both in the suit and in the writ petition. But, once a civil suit has been filed and is pending, the petitioner is pre-empted from filing the writ petition. Therefore, the writ petition is not maintainable. 24. Secondly, there is no distinction between the bye-law 4(1) and 4(2) of Bye-laws 1991. While bye-law 4(1) creates an absolute bar against running of hotels, bye-law 4(2) merely creates an exception for those hotels which were already running when the Bye- laws 1991 were brought into force. Moreover, bye-law 4(2) of Bye- laws 1991 bestows a discretionary power on the Executive Officer of the Board to decide as to how to control or supervise the functioning of the hotels/ restaurants/ houses. Since there is no distinction between the bye-laws 4(1) and 4(2), it is immaterial whether the impugned notices, as mentioned above, were issued under bye-laws 4(1) or 4(2) of Bye-laws 1991. 25. Thirdly, prior to issuance of notices, a survey report was prepared to demarcate those premises which fell within 100 ft. of the Pushkar Lake. In order to protect the lake from encroachment and pollution, the Executive Officer of the Board was within his power to issue notice and to demolish the encroachment/ illegal construction. 26. Fourthly, from 14-4-2006 till 28-4-2006, repeatedly notices were issued to the petitioner to stop his illegal construction and to seek prior permission of the Board. Since the petitioner did not pay any heed to the said notices, the Board had no other option, but to remove the illegal construction and seal the rooms of the hotel. 27. Fifthly, since ample opportunities were given to the petitioner, the demolition carried out by the Board on 22-4-2006 was absolutely justified and, therefore, legal. 28. Lastly, according to Mauka-report (Annexure R-3/13) the petitioner had illegally raised construction. The Board has ample power under Sections 170 and 203 of the Act of 1959 to remove the illegal construction/ encroachment done by the petitioner. Therefore, the Board was justified under Sections 170 and 203 of the Act of 1959 in demolishing the same. 29. While echoing the arguments of Mr.Gupta and Mr.Garg, Mr.G.S.Gill, the learned Additional Advocate General, has contended that whereas bye-law 4(1) of Bye-laws 1991 is a general provision, bye-law 4(2) is an exception. The petitioner's case is certainly covered by bye-law 4(2) of Bye-laws 1991. However, once the appropriate authority has decided not to permit the petitioner to run his hotel, his case falls within the general provision contained in bye- law 4(1). Thus the Board was justified in issuing notice under bye-law 4(1) of Bye-laws 1991. Secondly, the petitioner is a trespasser as the petitioner has carried out certain construction without the prior permission of the Collector. The petitioner could not have carried out renovation/ construction till the collector has expressed his opinion. Therefore, the petitioner's illegal construction/ encroachment could be demolished. 30. Heard learned counsel for the parties, examined the impugned notice, and perused the record. 31. The preliminary objection raised by the learned counsel for the Board is unacceptable. For, according to both the parties the civil suit was filed prior to issuance of the notice dated 28-4-2006. Therefore, in the civil suit the notice dated 28-4-2006 was not under challenge. However, in the present writ petition the said notice is under challenge. Thus, the relief prayed in the civil suit and the writ petition are not identical in nature. Moreover, since the State has violated the fundamental rights of the petitioner, as will be discussed herein below, the petitioner is certainly entitled to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India. Therefore, the preliminary objection is, hereby, rejected. 32. This case raises interesting legal issues which are as under:- 1. What is the scope and ambit of Bye-laws 1991? 2. How are bye-laws 4(1) & 4(2) to be interpreted? 3. What is the scope and ambit of Sections 170 and 203 of the Act of 1959? 4. Are these provisions applicable to the petitioner's case? 5. Does the Board have the power to seal rooms or to demolish illegal construction/ encroachments? 6. Under the principles of natural justice is the giving of notice an essential requirement? 7. What are the requirements dealing with giving of notice? 8. Can the Board demolish the alleged illegal construction within the period specified in the notice for removing the illegal construction/ encroachment? 9. Whether the brutal use of force by the State, in demolishing the building and sealing the rooms, has violated the petitioner’s fundamental rights under Articles 14, 19, 21 and 300A of the Constitution of India or not? 33. For centuries, the State, whether monarchial or dictatorial, feudal or oligarchies, have crushed the people. When “We the people” created the Constitution of India, we conferred the role of archangel on the Judiciary. The founding fathers bestowed vast powers on the High Courts under Article 226 of the Constitution of India. It is the duty of the High Court to protect the people from the might of the State. It is the duty of the High Court to promote the interest and the rights of the people. As the guardians of the people, it is the duty of the judiciary to be sensitive to the needs, the plight, the conditions of the people. This duty is not only a constitutional one, but also verges on being a sacred one. It is for this reason that the Hon’ble Supreme Court has observed that under Article 226 of the Constitution of India “the sky is the limit when injustice is being chased”. On the other hand, the failure to perform this duty would undermine the trust of the people in the judiciary. It would, also, weaken democracy as we know it. Plato in his book, The Republic, has warned that democracy degenerates into an anarchy. If anarchy is to be prevented, the judiciary must fulfill its constitutional role. The flames of Liberty, Equality, Justice and Fraternity have to be kept alive if we are to thrive as the largest democracy in the world. 34. With the 73rd Amendment of the Constitution, and the insertion of Part IX A into the Constitution, vast powers and responsibilities have been conferred on the municipalities. Undoubtedly, it is the duty of the municipality to create, maintain and improve the infrastructures of urban centers, to ensure clean environment, to guarantee quality of life to the people. At the grass root level, the municipality is the reflection of the State. Thus, while discharging its functions, it should be alive to the constitutional philosophy and mandates. The Constitution has created a relationship of trust between the State and the people. While the sovereignty lies with the people, the responsibility of protecting and promoting the interest of the people lies with the State. Hence, the State, too, should be sensitive to the needs, the interest and the rights of the people. In case the State were to act in