1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ------------------------------------------------------- SPL. APPL. WRIT No. 340 of 2000 TAPASI MAL SINGHVI V/S STATE & ANR. Mr. R.N. Upadhyaya and Mr. M.S. Singhvi, for the appellant / petitioner. Mr. Sawanand Jasmatiya, and Mr. S.G. Ojha for the respondents. Date of Order : 19.5.2009 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. J U D G M E N T This appeal by the petitioner seeks to challenge the order passed by the learned Single Judge dated 19.1.2000, dismissing the writ petition. The appellant filed the writ petition, alleging therein that his father purchased lease hold rights in plot No.72 in Bakhat Sagar Scheme in 1967, and the demarcation of the plot not being clear, construction came to be made over some excess land. However, the petitioner applied for completion certificate, and for the lease deed being executed. This application was moved in 1984, however, according to the petitioner, in the process of execution of lease deed, the petitioner was called upon by the respondent Urban Improvement Trust Jodhpur, hereafter to be referred to as “Trust”, to pay a sum of Rs.20,989/- by way of price for the area of land, possession over which was given beyond the permissible 2 limit, so also for the construction made in excess of the permissible grant. The petitioner has produced the receipt of depositing the said amount as Annexure-2, which shows that Rs.20,989/- did not include any element of price of the area of land, possession over which was given beyond permissible limit, rather this amount represented deviation charges. It is then alleged by the petitioner, that according to Section 75 of the Urban Improvement Act, 1959, regulations have come to be published in the year 1962, and according to Regulation 29, Rules regarding management, use and regulation of dwelling, constructed under any scheme, applicable under the Rajasthan Municipalities Act, shall apply mutatis-mutandis, to the dwelling, constructed under any scheme of the Trust. Then reference has been made to the Rajasthan Municipalities (Compounding and Compromising of Offences) Rules, 1966, in Rule 4 whereof the amount chargeable as compounding fees has been mentioned. Thus it is contended, in the first instance, that the petitioner has committed no offence, therefore, no question arises for petitioner being liable to pay any penalty or price. In the alternative it was submitted, that even if it is assumed that the petitioner did commit any offence, the amount mentioned in sub-clause (ii) and/or (iii) of Rule 4 could be charged, and nothing beyond that. Inter alia with these averments, the writ has been filed, with a prayer to direct the respondent-Trust to refund to the petitioner the sum of Rs. 20,989/-, after retaining the amount, which would be the 3 price of the land. Learned Single Judge dismissed the petition, on the ground, that such prayer cannot be granted in exercise of powers under Article 226 of the Constitution of India, rather, the petitioner had to approach the civil court, and also observed, that stay petition was dismissed in the year 1994, as such, there is no question of entertaining the matter after so many years, and that, for the grievance raised by the petitioner, he should have approached competent civil court. We have heard learned counsel for the appellant and have also gone through the record. In the first instance, learned counsel for the appellant submitted, that there are no rules of compounding, prevailing with the respondent-Trust, and therefore, the amount could not have been charged. To this it was observed by us, that if there are no rules of compounding, then the obvious consequence would be, that the construction made in violation of permission, which has been described by the Trust as deviation, would be liable to be demolished at the instance of the Trust, if the Trust so likes. Thereupon the, learned counsel for the appellant submitted, that Rules of 1962 referred above, are applicable to the Trust, and read to us the provision of Clause (ii) and (iii), and submitted, 4 that the compounding fees could be charged as per the rates prescribed. We have considered this submission. In our view from perusal of the writ petition it does not transpire, that the petitioner has ever disclosed, as to what is the cost of the said unauthorized construction, so as to enable us to come to any specific conclusion, about specified extent of amount, to be charged. Then, it would be really a seriously disputed question of fact, as to what is the cost of construction, for the purpose of arriving at the amount prescribed in said Rule 4. Such question cannot be gone into by this Court, under Article 226 jurisdiction. In these circumstances, no interference is required to be made, in the order of learned Single. The appeal, thus has not force, and the same is dismissed. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /jgoyal /