S.B. Civil Writ Petition No.10511/2009 Rajeev Dhadda Vs. ADJ No.8, Jaipur City, Jaipur & ors. Dated : 25.11.2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. Ajeet Bhandari, for the petitioner. Mr. Harbans Lal Gupta, respondent No.5 present in person. *** By way of this writ petition, the petitioner has beseeched to quash and set aside the order dated 18th August, 2009 whereby the learned Additional District Judge No.8 Jaipur City, Jaipur set aside the order dated 29th May, 2009 wherein the learned trial Court had allowed the application of temporary injunction of the petitioner and restrained the respondents-defendants from dispossessing the petitioners from disputed property sans observing due process of law and dismissed his application of temporary injunction. 2. Heard the learned counsel for the petitioner as also respondent No.5 present in person and carefully perused the relevant material on record. 3. Learned counsel for the petitioner canvassed that the learned trial Court had rightly restrained the respondents from dispossessing the petitioner sans observing the due process of law and there was no reason for the appellate Court to set aside the same. He further canvassed that firstly the petitioner had -2- not violated the bye-laws and for arguments' sake, even if it is assumed that the set backs prescribed under law were violated, it was compoundable under the provision of Regulations of 1989. Learned counsel submitted that in the whole colony, the majority of houses have been constructed on the same pattern as the petitioner has done. Hence, there was no reason for the Municipal Corporation to act arbitrarily and discriminate him with other residents of the colony. The impugned order is not in accordance with the facts available on record, hence, the same deserves to be dismissed. 4. E converso, respondent No.5 himself argued the case and contended that initially the petitioner purchased a constructed house which he demolished in toto and raised construction from zero level without getting the plans approved and seeking permission from the Municipal Corporation, Jaipur. Thus the whole construction is illegal. This construction has been raised violating the bye-laws prescribed under Rules. Hence, there being no prima facie case in favour of the petitioner, the impugned order is just which is not required to be interfered with. 5. Having reflected over the submissions made by the parties and carefully scanned the impugned order, the petitioner is found to have raised the -3- construction without seeking permission from the Municipal Corporation, Jaipur. The plans are also not found to have been approved by the petitioner. Thus, there being no prima facie case in favour of the petitioner, the learned appellate Court dismissed the application of temporary injunction. The learned trial Court is found to have granted injunction against the respondent on the ground that the petitioner was in possession of immovable property and no person could be dispossessed from any immovable property sans observing the due process of law. The learned trial Court found a prima facie case, made out in favour of the petitioner and thus granted injunction against the respondents. It is an admitted fact that the petitioner is in possession of immovable property. This Court is not required to observe as to whether the construction was raised by the petitioner legally or illegally. Even if it is assumed that the construction was raised illegally by the petitioner, he cannot be dispossessed of the property without observing the due process of law, but the petitioner also cannot be permitted to undertake any further construction sans taking prior sanction from the Municipal Corporation or Jaipur Development Authority as the case may be. In the facts and circumstances of the case, the impugned order cannot be said -4- to be just and proper and the same deserves to be set aside. 6. For the reasons stated above, the writ petition is allowed. The impugned order dated 18th August, 2009 passed by the learned Additional District Judge No.8, Jaipur City, Jaipur is set aside. However, both the parties are directed to maintain the status quo till the suit pending before the trial Court is finally decided. 7. With the aforesaid observations, the writ petition stands disposed of accordingly. (MAHESH BHAGWATI)J. Pcg item no.S-6.