1 D.B. CIVIL SPECIAL APPEAL No.623/2002 Harsh Paneri vs State of Rajasthan & Ors. Date of Order : 03.12.2009 HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE SANGEET LODHA Dr. Rakesh Sinha for Mr. Rajat Dave, for the appellant. Mr. Nikhil Dungawat ] Mr. GS Rathore ], for the respondents. <><><> Heard learned counsel for the parties. The appellant-writ petitioner challenged the notice Annex.8 dated 16th May, 2001, which is in fact, a notice issued to show cause why he should not remove the structure which according to the respondent UIT, Udaipur is encroachment on the part of the road. However, while dismissing the writ petition of the petitioner, the learned Single Judge not only rejected the petitioner's contentions, but has recorded the finding that the petitioner has encroached upon the part of the road and thereafter, even issued directions to petitioner to remove the encroachment in the road boundary within 15 days from the date of order passed by the learned Single Judge. The direction issued by the learned Single Judge on the face of it beyond the jurisdiction in view of the fact that the challenge in the writ petition was to only show cause notice and the petitioner had right to appear before the concerned authority to show that he has not encroached upon any part of the road. The petitioner already submitted reply to the said show cause notice. The respondents, thereafter, during the pendency of the writ petition passed the final order against the petitioner, but 2 that is not relevant because of the plain and simple reason that none of the disputed questions of fact as were involved could have been decided under Article 226/227 of the Constitution of India. The petitioner's contention was that he is owner of the plot measuring certain area in view of registered sale deed and by virtue of his possession over the excess land, may it be, in excess to the land mentioned in the sale deed, he became owner of the property. Whether petitioner became owner of the property which is in excess to the area, which he purchased is a question of fact, which could have been decided only by the civil court in properly instituted suit and not in the writ jurisdiction. It is made clear that UIT also has power to remove encroachment from the road, but the jurisdiction of civil court is not ousted and that depends upon the fact of the case. In view of the above reasons, the appeal of the appellant is allowed and the impugned judgment dated 4th Sept., 2002 is set aside. However, for all other reliefs, the petitioner will be free to avail the remedy available which includes the challenge to the final order passed by the UIT by way of filing appeal or revision as the case may be and by filing the civil suit in addition to above in accordance with law. Both the parties shall maintain the status-quo with respect to the property in dispute for one month from today. (SANGEET LODHA), J. (PRAKASH TATIA), J. cpgoyal/-