01 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- 1. SPL. APPL. WRIT No. 1081 of 1999 THE MUNICIPAL BOARD NOKHA V/S STATE OF RAJ AND ORS 2.SPL. APPL. WRIT No. 1105 of 1999 MUNICIPAL BOARD NOKHA V/S STATE OF RAJ. Mr. ANIL BHANDARI for Mr. NM LODHA, for the appellant / petitioner Mr. ANIL VYAS for Mr. SD VYAS, for the respondent Date of Order : 8.8.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER Both these appeals arise out of identical orders of the learned Single Judge, passed on 3.7.1999 and 9.7.1999, in the two writ petitions. However, the controversy arises in identical circumstances, and involves identical question for consideration; therefore, both the appeals are being decided by this common order. The facts of Appeal No. 1081 are, that the writ 02 petitioner Babulal filed a writ petition, alleging interalia, that like 20 more persons the petitioner was granted land by Municipal Board measuring 7' x 7' adjacent to the backside of the wall in the side lane of various persons, and the land was granted since seventees or so. On the said land the petitioner is carrying on business by establishing modern structure or wooden almirah for the last 40 years without any disturbance. It is then alleged that the petitioner had been paying rent, and some of the receipts had been filed as Ex. 1 and 2. It is then alleged, that the State Government directed the Municipal Board to remove all encroachment, and in that garb the Municipal Board is adamant to demolish the shop of the petitioner, with the help of police force, without giving any notice, and without taking any proceedings under the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964, hereafter referred to as the Act of 1964, and without following due process of law. The representation made to the Chairman went in vein, and a notice Ex. 5 has been issued directing to give possession. Therefore, the writ petition has been filed, for quashing the notice Ex. 5, and praying, that the respondent be restrained from demolishing the shop, or removing same, without due process of law, or in the alternative, to direct the Municipal Board to provide suitable size of land for their business, or the size of the present land be reduced by 2 ft. 03 Reply has been filed by the respondent, raising certain preliminary objections, contending that the petitioner has been in unauthorised occupation and is occupying a part of public street/road, causing inconvenience and creating hurdle to public at large, that the petitioner wanted to have the land near the boundary wall of the hospital, and the land was given on rent in the year 1971. At that time a deed was also executed, whereby he gave undertaking, that he will vacate the land on asking by Municipal Board. Thereafter the petitioner was given notice on 7.5.74, and he removed the cabin accordingly. Thereafter again in 1977, the petitioner made an application for allotting the land on rent outside the boundary wall of the hospital, and on 27.9.1977 the petitioner was allowed to have a cabin on rent. At that time he entered into an agreement on 1.10.1977, undertaking to handover vacant possession, whenever Municipal Board require the land. It was then pleaded, that upto March, 1978, the petitioner deposited the amount of rent, but thereafter did not make any payment. Then it is pleaded, that the width of the road has been reduced by encroachment, and the petitioner being trespasser, was given notice to vacate, but instead of fulfilling the commitment, he has filed writ petition. Then, in para-wise reply it is pleaded, that the land was given in the year 1977, and not in the year 1970, and since 1978 onwards the petitioner is in un-authorised occupation. The substance of 04 the reply is, that since 1978 the petitioner has not paid rent, and the width of the road has been reduced. Therefore he was sought to be dispossessed. Apart from the fact, that the land occupied is part of public road. Appeal No. 1105 arises out of the Writ Petition No. 536, filed by Bansi Lal, also alleging interalia, that he had been granted land somewhere since 1960, or so, and is carrying on business for the last 40 years. Then, some of the rent receipts have been produced as Ex. 1 to 3. Identical other averments, as made in Babulal's petition, have been made, and identical prayer has been made. In this case also, in the reply, in the preliminary objection, it is contended, that the receipt Ex. 1 does not relate to land in question, as it relates to land near Krishna Mandir, which is about half km. away from the land in question. It is pleaded that initially the petitioner prayed for the land so that he can put up the cabin, and land near Krishna Mandir was given to him, but subsequently that was cancelled, and cabin was also removed in the year 1975. Thereafter he again applied for being given land, undertaking to vacate, whenever asked. Accordingly the petitioner was put into possession of the land in question under the agreement, and now the petitioner wants to wriggle out from the said agreement, which cannot be permitted. Other identical pleadings, taken in the reply in Babulal's petition, have been taken in the present case 05 also, by the respondent. The learned Single Judge by the impugned orders disposed of the writ petition, directing status quo to be maintained, and it was held, that the petition is pending before the Court since 1997 (the judgment is dated 9.7.1999), and the possession of the petitioner is protected so far, under interim order of the Court, and solely on that basis, it has been concluded, by using the word “therefore”, the interest of justice would be served by directing the petitioner to make a proper and detailed representation to the Municipal Board, praying that he may not be dispossessed, in view of the fact that he is having a small shop of 7'x7' since 1970, and except that he had no other source of livelihood. Not only this, with this it has further been directed, that in case if it is impossible for the Municipal Board, then before evicting him, he may be provided alternative suitable place, at the prevalent market rate. Likewise it has further been directed, that if the decision of the Board is adverse to the petitioner, then the same shall not be implemented for a period of one month from the receipt thereof by the petitioner, so as to enable him to approach the appropriate forum, by way of appropriate proceedings. Assailing the impugned judgment it is contended that the judgment proceeds with basic misconception about 06 the petitioner being there since 1970. There is nothing on record to substantiate that, apart from the fact, that the averments in the writ petition are ex-facie misstatement of facts. It is also contended, that in any case the only consideration that prevailed before the learned Single Judge was, that the possession of the petitioner was protected by interim order of the Court since 1997, while the writ petition was decided in July 1999 itself, and that could hardly be any ground to issue the impugned directions. May be that the Municipal Board could be directed to sympathetically consider the possibilities of making available alternative land at the prevalent market rate, but that could not be made a condition precedent for dispossessing the encroachers, with the safeguards, as incorporated. It is contended, that there had been a Public Interest Litigation also before the Division Bench of this Court, wherein general directions were given to remove the encroachments. According to the learned counsel, in view of the above, the impugned judgment is liable to be set aside. Learned counsel for the respondents, on the other hand, supported the impugned judgment, by contending, inter alia that the mention of the petitioner Babulal carrying on business for the last 40 years is only an accidental error, and may be that the petitioner is below 40 years age, but before that his father was carrying on business petitioner Bansilal is of 65 years, and that, in any case since the 07 width of road has not been reduced, and that since the petitioner is carrying on business for such a long time, and when admittedly both the petitioners had been given the land on rent, and rent had been received, as is clear from the receipts, the petitioners could not be evicted without taking appropriate action under the provisions of the Act of 1964, and that there is nothing wrong on the part of the learned Single Judge in directing the Municipal Board to provide suitable alternative place at the prevalent market rate. We have considered the submissions. In our view, since as admitted by the counsel for the appellant, that the petitioners were put into possession under an agreement, and the rent had been paid, and that, in the agreement it was stipulated, that they would vacate the land in certain eventualities; In our view, that being the position, it cannot be said, that the petitioners are encroachers. May be that the land might have been granted under the agreement, which might be felt to be not in accordance with law by the Municipal Board, but then, consequent upon grant, the petitioner established business, and paid rent, as such that grant is required to be terminated in accordance with law, and thereafter they can 08 be dispossessed, by following the prescribed procedure. Learned counsel for the Municipal Board invited our attention to the judgment of the Hon'ble the Supreme Court in Ashok Caterers Vs. Municipal Corporation of Greater Bombay, reported in (1997) 9 SCC-220. In that judgment, in such circumstances, the provisions of Section 105 of the Bombay Municipal Corporation Act, was held to be applicable in that case. In our view analogous provisions are contained in the Act of 1964. Obviously therefore, the Municipal Board was/is required to follow the procedure prescribed by the said Act, and can dispossess the petitioners, only by taking proceedings under the said Act of 1964. In that view of the matter, these appeals are dismissed. However it is clarified, that it would be open to the appellant, to initiate appropriate proceedings under the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964, for dispossessing the petitioners, and at the same time, if the petitioners submit representation, for being given suitable alternative place of land, at the prevalent market rate, that representation may also be sympathetically considered. There shall be no order as to costs. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /Sushil/