// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.4671/2004 Smt. Chander Kala W/o Shri Babu Lal Gupta ...Petitioner Versus State of Rajasthan and Others ...Respondents Date of Order ::: 25.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri P.S. Sharma, Counsel for petitioner Ms. Manju Dave, Addl. Govt. Advocate, for respondents State Shri Rajneesh Gupta, Counsel for respondent No.4 #### By the Court:- Heard learned counsel for the parties. Petitioner preferred this writ petition challenging the impugned order dated 10th May, 2004 passed by the Divisional Commissioner, Kota Division, Kota, allowing the revision petition filed by respondent No.4 Shyam Lal Gupta against the order dated 31st May, 2003 passed by the Additional District Collector, Karauli. The learned counsel for the petitioner contended that the Nagar Palika, Hindauncity granted permission dated 28th October, 2002 to raise construction in favour of the petitioner, which was challenged by the respondent No.4 by way of an appeal, which was barred by limitation. The Additional Collector dismissed the appeal by holding that the // 2 // respondent No.4 cannot be said to be an aggrieved person and the appeal is also barred by limitation. The learned Divisional Commissioner, without considering the reasons assigned by the Additional Collector, wrongly set-aside the order passed by the Additional Collector, therefore, the order passed by the Divisional Commissioner is liable to be set-aside. The learned counsel for the respondent No.4 contended that the Divisional Commissioner has only remanded the matter to the Municipal Board, Hindauncity, and has left the matter open for decision by the Municipal Board, Hindauncity, which will be decided in pursuance of the directions given by the Divisional Commissioner after hearing both the parties, therefore, there is no illegality in the impugned order passed by the Divisional Commissioner and the writ petition deserves to be dismissed. The learned counsel for the petitioner, in rejoinder, contended that the Divisional Commissioner has made some observations/findings on merits of the case about violation of terms and conditions of the lease- deed, therefore, unless those observations/findings are set-aside by this Court, it will not be possible for the Municipal Board to decide the matter afresh independently, therefore, even if the matter is to be decided by the Municipal Board then at-least the order of Divisional Commissioner may be set-aside and matter may be left open to the Municipal Board to decide afresh after hearing both the parties. I have considered the submissions of learned counsel for both the parties. There is no dispute that a permission to raise construction was // 3 // granted in favour of the petitioner on 28th October, 2002 by the Municipal Board, Hindauncity, which was not challenged by the respondent No.4 within a period of limitation by way of appeal but it was challenged by him after some delay. The Additional Collector dismissed the appeal of the respondent No.4. However, the order of the Additional Collector as well as the order passed by the Municipal Board, Hindauncity, both, have been set-aside by the Divisional Commissioner and the matter has been remanded back to the Municipal Board, Hindauncity to decide the matter afresh after hearing both the parties. I find that there are certain observations/findings by the Divisional Commissioner in its order which may prejudice the case of the petitioner, therefore, it is necessary to set- aside the order of the Divisional Commissioner also. Consequently, the writ petition is allowed. The impugned orders dated 10.05.2004, 31.05.2003 and 28.10.2002 passed by the Divisional Commissioner, Kota, Additional Collector, Karauli, and the Municipal Board, Hindauncity, are set-aside and the matter is remanded back to the Municipal Board, Hindauncity, to decide the matter afresh after hearing both the parties in accordance with the law. There will be no order as to costs. Both the parties are directed to appear before the appropriate authority of the Municipal Board, Hindauncity, on 29th April, 2008. (Narendra Kumar Jain) J. //Jaiman// // 4 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.3971/2004 In S.B. Civil Writ Petition No.4671/2004 Smt. Chander Kala W/o Shri Babu Lal Gupta ...Petitioner Versus State of Rajasthan and Others ...Respondents Date of Order ::: 25.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri P.S. Sharma, Counsel for petitioner Ms. Manju Dave, Addl. Govt. Advocate, for respondents State Shri Rajneesh Gupta, Counsel for respondent No.4 #### By the Court:- In view of the order passed in the writ petition, the stay application also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//