1 S.B.CIVIL WRIT PETITION NO.1614/2009 (Sohan Lal & ors. Vs. State of Rajasthan & ors.) Date of Order :: 3rd March 2009 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Rohitash Singh for the petitioners BY THE COURT: The petitioners herein filed a civil suit for perpetual injunction while raising dispute against construction of a road connecting the abadi of Chak 22 AS (A) to Kupli road. The case of the plaintiffs-petitioners has essentially been that the attempt on the part of the defendants to construct such road from Murraba No.144/9 to 144/13 and 143/8 was illegal and wrong particularly for the reason that sanctioned way in the said Chak was already existing at Kilas Nos.1,10,11,20, and 21 of Murraba Nos.124/61, 124/60, 124/59, 124/58, and 124/57. While emphasizing that construction of the road only at the existing way would be proper and convenient for the use of the residents of the locality, the petitioners alleged that in order to extend illegal advantage to certain vested interests, some proposal was made for construction of the road at Murraba No.143/8; and submitted that such an attempt was required to be injuncted against. The petitioners also filed an application for temporary injunction with the prayer that the 2 defendants be restrained from constructing the road at the disputed place. The learned Trial Court, after considering the facts and circumstances of the case found prima facie case in favour of the plaintiffs-petitioners particularly with the finding that there was no sanctioned way in Murraba No.143/8 and on the other hand, the way as shown by the petitioners in Murraba Nos.124/57 to 124/61 was the sanctioned one; and there was no impediment in construction of the road at the said sanctioned way where steps had also been taken for clearing the way; and there was no evidence that such an existing way was closed at any place. The learned Trial Court also found the aspects of balance of convenience and irreparable injury in favour of the petitioners again with the finding that the construction was attempted to be carried out at a place where no way was sanctioned as such. On the considerations aforesaid, by its order dated 02.02.2009, the learned Trial Court though proceeded to allow in part the application for temporary injunction as made by the petitioners but directed that until final decision of the suit, the defendants Nos.1 and 3 would not construct a road at Murraba No.143/8 as per the proposal of the Gram Panchayat unless a way was sanctioned thereat. The learned Trial Court directed 3 the said defendants to construct the road at any sanctioned way so as to provide a main road link to the abadi of Chak 22 AS (A); and clarified that defendants Nos.1 and 3 would be entitled to construct the road at Murraba No.143/8 after the requisite sanction. From the material placed on record, it appears that immediately after passing of the aforesaid order dated 02.02.2009, the learned Sub-Divisional Officer, Gharsana proceeded to pass an order on 03.02.2009 on the recommendation as made by the Tehsildar for sanctioning the way at Kila Nos.21 to 25 of Murraba No.143/8. The said land was found to be recorded in the name of Uda Ram son of Dayal Ram and being in mortgage with the Punjab National Bank, Branch New Mandi, Gharsana; a consent letter from the said Bank was also produced; and the said Uda Ram surrendered 2 biswas of land in each of the said Kila Nos.21 to 25. Taking note of all these facts and finding it proper, the Sub-Divisional Officer proceeded to sanction the way at the said Kila Nos.21 to 25 of Murraba No.143/8. On the other hand, the petitioners filed an appeal against the order dated 02.02.2009 before the Additional District Judge, Anoopgarh on 04.02.2009. The learned Appellate Court examined the facts of the case and also took 4 note of the order passed by the Sub-Divisional Officer on 03.02.2009 and found the matter calling for no interference particularly for the way having been sanctioned at Murraba No.143/8. The learned Appellate Court, accordingly, proceeded to dismiss the appeal by its order dated 10.02.2009. Seeking to challenge the orders so passed by the learned Trial Court and the learned Appellate Court on 02.02.2009 and 10.02.2009 (Annex.6 and Annex.8 respectively) and so also the order dated 03.02.2009 (Annex.7) as passed by the Sub-Divisional Officer, the petitioners have filed this writ petition on 27.02.2009. It has strenuously been contended by the learned counsel for the petitioners that the orders impugned disclose errors apparent on the face of record and being contrary to the interests of the residents of the locality, deserve to be interfered with. Learned counsel submitted that in the present case, the learned Trial Court was not justified in permitting construction of the road at the disputed place in Murraba No.143/8 even after finding all the essential ingredients for grant of temporary injunction namely, prima facie case, balance of convenience, and irreparable injury in favour of the plaintiffs-petitioners. Learned counsel referred to the fact situation of the case and 5 strenuously contended that the authorities have acted in hot haste obviously at the instance of the vested interests and the very next day after passing of the order by the Trial Court on 02.02.2009, the Sub-Divisional Officer proceeded to sanction a way at Murraba No.143/8 without regard to the relevant facts. Learned counsel submitted that the construction of road at the disputed place being attempted for extraneous reasons and considerations rather than for providing adequate way to public at large, the impugned orders deserve to be set aside. Learned counsel further submitted that the sanctioned way already exists at Murraba No.124/61 and even preliminary work had been carried out at the said sanctioned way as is apparent from the documents Annexure 4 & 5, which show that some obstructions on the way were indeed removed on 22.01.2009; and now, if the road would not be constructed thereat, the work so done would go waste, resulting in loss of public money. Learned counsel also submitted that the new way as attempted to be laid at Murraba No.143/8 would be longer and inconvenient; and all the facts were not even placed before the Sub-Divisional Officer who proceeded to pass the order on 03.02.2009 in hot haste. Having given a thoughtful consideration to the submissions made on behalf of the petitioners and having 6 examined the material placed on record, this Court is clearly of opinion that this writ petition remains bereft of substance and does not merit admission. Having examined the facts of the case, learned counsel for the petitioners was posed a question if the order as passed by the Sub-Divisional Officer on 03.02.2009 was otherwise put to question in the suit as filed by the petitioners, to which learned counsel responded with the submissions that the said order has also been challenged in this writ petition. Such submissions have their own shortcomings. It is noticed that the application for temporary injunction as moved by the petitioners was decided on 02.02.2009 and therein, the defendants were restrained from constructing the road at any place that was not a sanctioned way but it was left open for them to construct the road at Murraba No.143/8 after the requisite sanction. Thereafter, on 03.02.2009, the Sub- Divisional Officer sanctioned the way at Murraba No.143/8. If the petitioners were at all aggrieved against the said order dated 03.02.2009, in the opinion of this Court, appropriate challenge ought to have been placed in appropriate proceedings. The petitioners, however, chose to file an appeal on 04.02.2009 before the Additional District Judge, Anoopgarh 7 against the order passed by the Trial Court on 02.02.2009; and having regard to the order dated 03.02.2009 and the overall circumstances of the case, the learned Additional District Judge cannot be said to have committed any illegality or irregularity in rejecting the appeal so filed by the petitioners. In this writ petition, essentially filed under Article 227 of the Constitution of India challenging the orders passed by the learned Trial Court and the learned Appellate Court in disposal of the application for temporary injunction and the appeal, the petitioners do not appear justified in seeking to put forward a challenge to the order dated 03.02.2009 as passed by the Sub-Divisional Officer that is not the subject matter of challenge in the main suit. Even while leaving such shortcoming in the frame of this writ petition aside, when the matter is examined in its totality, this Court is unable to find any reason to consider any interference with the impugned orders as passed by the learned Trial Court and the learned Appellate Court or even with the impugned order as passed by the Sub-Divisional Officer on 03.02.2009. As to at which particular place the road should be constructed has to be examined and decided by the authorities after taking into account comprehensively all the 8 facts and factors and merely because there had been a sanctioned way at Murraba No.124/61, it cannot be said that the road is required to be laid at such sanctioned way alone. The fact about some clearance work having been carried out at Murraba No.124/61 on 22.01.2009 under the order of Forest Department hardly leads to the conclusion that it was for the purpose of laying of the road thereat. Even if carried out, such a work had been to clear the sanctioned way and cannot be said to be leading to any wastage of public money, if a road is not constructed thereat. The learned Sub-Divisional Officer while passing the order dated 03.02.2009 has also taken note of the fact that the proposed way at Murraba No.143/8 was proper and straighter avoiding the requirement of going above the canal. It cannot be said that the authorities have proceeded totally oblivious to the situation at site or in ignorance of the relevant factors. The allegations of vested interest prevailing and leading to extraneous reasons remain hollow and baseless. No such person has even been joined as a party to the suit against whom the petitioners intend to level such allegations. The writ petition turns out to be totally bereft of substance and does not merit admission. 9 The writ petition stands rejected. (DINESH MAHESHWARI),J. MK