Dismissed

Shree Panchdev Shivalaya Maa Ji v. J D a and Ors.

Rajasthan HC8 Jul 2016CW/18273/2015

Case brief

AI extract

What is this about?

This writ petition challenged the Appellate Tribunal's order allowing the JDA to widen a road and relocate a temple. The High Court dismissed the petition, upholding the Tribunal's decision and holding that the JDA had jurisdiction to remove obstructions in the right of way of an approved road.

What did the court decide?

The writ petition was dismissed. The respondent JDA was directed to comply with the impugned Appellate Tribunal order to relocate the temple and widen the road.

Shree Panchdev Shivalaya Maa Ji Vs J D a and Ors. — Property and Title | Rajasthan HC (2016)

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S.B. Civil Writ Petition No18273/2015

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(1)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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S.B. Civil Writ Petition No.18273/2015

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Shree Panchdev Shivalaya

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vs.

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Jaipur Development Authority & Ors.

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Date of Order-::-8^th July, 2016

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HON'BLE MR. JUSTICE ALOK SHARMA

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Mr. Poonam Chand Bhandari, for petitioner. Mr. R.A. Katta, for respondents.

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Under challenge is the order dated 20.11.2015

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passed by the Appellate Tribunal, Jaipur Development Authority, Jaipur (hereinafter “the Appellate Tribunal”) in reference No.401/2014 as also the show cause notice dated 01.12.2015 issued by the Jaipur Development Authority, Jaipur to the petitioner-temple's Pujari. Vide order dated 20.11.2015, the appellate tribunal had disposed of the petitioner's reference under Section 83(8)(b) of the Jaipur Development Authority Act, 1982 (hereinafter “the Act of 1982”) seeking permanent injunction against the JDA from removing the Mandir and idols over 302 square yards land in khasra Nos.191/193 situate in Gram Hathroi Patwar Halka Bassi, Sitarampura, Jaipur, obstructing sewa puja therein and peaceful user of the temple premises.

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S.B. Civil Writ Petition No18273/2015

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(2)

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The grounds agitated in support of the reference aforesaid interalia were that the temple in issue was protected under Section 4(1) of the Places of Worship (Special Provisions) Act, 1991 (hereinafter “the Act of 1991”); its Pujari i.e. Pandit Raghunandan Sharma (hereinafter “the Pujari”) had the hereditary right of sewa puja at the Panch Shivalaya temple devolving from his ancestors; that in recognition of such rights of the father and predecessor in interest of the Pujari Late Shri Bihari Lal Sharma, the then Jaipur Municipal Council, (JMC) vide letter dated 20.11.1950 had allegedly granted permission for construction over the land in dispute. Further vide, JMC's order dated 06.07.1965, further permission to construct the second floor, had been granted reflective of the rights of the Pujari's. It was further submitted that in an earlier reference filed in personal capacity by one of the brothers of the Pujari i.e. Nand Kishore Sharma son of Late Shri Bihari Lal Sharma, vide order dated 20.03.2004, the Appellate Tribunal partially allowing the reference, directed that the Jaipur Development Authority not demolish the Panchdev Shivalaya Parisar as constructed over 270 square yards of land. It was further submitted

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S.B. Civil Writ Petition No18273/2015

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(3)

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that the JDA has no jurisdiction to demolish/damage the temple as the land on which it was situate, lay in the jurisdiction of the Jaipur Municipal Corporation. It was further submitted that a suit was pending before the civil court where a declaration as to the ownership of the land in dispute had been sought and the JDA could not therefore seek to forestall adjudication thereof present the civil court with a fail accompli by demolishing the temple and taking vacant possession of the land in dispute for purported widening of the alleged 100 ft road.

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JDA's defence before the Appellate Tribunal was that the land in dispute as per the revenue records was classified as Gair Mumkin Maidan/Sarak, the temple and the shops constructed for commercial activity as also residential premises thereon under the shield of the temple were in the middle of a 100 ft approved road obstructing free flow of traffic. Consequently, interalia in terms of the judgment of the Apex Court in case of Jaipur Municipal Corporation vs. Lekhraj Soni (SLP No.16668/2008) , the temple and other constructions falling in the right of way of a 100 ft approved road as reflected in the master plan of

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(4)

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S.B. Civil Writ Petition No18273/2015

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Jaipur 2011-2025 was to be necessarily

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relocated/re-sited to facilitate smooth flow of the traffic and remove a traffic hazard. It was stated that the Act of 1991 was not attracted to the case of the petitioner as the relocation/re-sitement of the temple in issue did not entail its conversion from belonging to one community to another. It was stated that JDA had the power to maintain roads over 100 ft wide in the Jaipur Region and that included the power of removing all structures falling within the right of way of an approved road. It was submitted that on site inspection made, it was found that aside of the temple, the 270 square yards in issue in khasra Nos.191-193, was being used for residential and commercial purposes by the three son of the Ex-Pujari Late Shri Bihari Lal Sharma. It was submitted that the empowered committee appointed by the Apex Court in case of Jaipur Municipal Corporation vs. Lekhraj Soni (supra), had directed to comply with the directions of the Apex Court and remove all structures of whatever nature (including temples) from the ROW, and relocate them were warranted, for the purpose of facilitating smooth flow of traffic. Reference was also made to

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S.B. Civil Writ Petition No18273/2015

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(5)

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the judgment of the Apex Court in case of Union of India versus State of Gujarat & Ors.(Special Leave to Appeal (Civil) No.(s)8519/2006 and that of the Court in D.B. P.I.L. Petition No.1091/2015 titled as Prof. Bhagwati Prasad Deswal & Anr. vs. State of Rajasthan & Ors., decided on 30.06.2015

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The Tribunal on the consideration of the matter vide its impugned order dated 20.11.2015 disposed of the reference petition with the following directions:-

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The JDA would be at liberty to widen the road as approved.

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The JDA before widening the road would resite the temple at an appropriate place by arranging and providing land in equal measure to the petitioner.

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Requisite information of action taken was to be sent to the Tribunal.

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The petitioner is aggrieved. Hence, this petition.

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On the matter coming up before this Court on 08.12.2015, counsel for the petitioner Mr. Dinesh Yadav on the instructions stated that “if suitable land in equal measure to one presently in the occupation of the petitioner and his brothers is allotted to them,

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S.B. Civil Writ Petition No18273/2015

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(6)

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they would have no objection to re-sitement and the widening of the road “in issue”. Thereon it was directed that the petitioner and his two brothers appear before the Additional Chief Engineer, JDA, Mr. Arvind Arya on 08.12.2015 itself and furnish all requisite documents in proof of their title over the land in dispute. Status quo was directed to be continued to the next date i.e. 10.12.2015. That status quo has since then continued from time to time for reason of the matter not being taken by this Court for paucity of time.

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Mr. Poonam Chand Bhandari, now appearing for the petitioner has however sought to challenge the legality of the impugned order dated 20.11.2015 as also the show cause notice dated 01.12.2015 issued by the JDA in pursuance thereof—the statement in Court of the petitioner's earlier counsel, Mr. Dinesh Yadav on 08.12.2015, notwithstanding. Mr. Bhandari has restated the objections before the Appellate Tribunal emphasizing the lack of jurisdiction of the JDA, to issue notice as the land in Khasra No.191/193 is stated to be within the jurisdiction of the Jaipur Municipal Corporation. He further submitted that the judgment dated 20.03.2004

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S.B. Civil Writ Petition No18273/2015

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(7)

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granting permanent injunction against the JDA by the Appellate Tribunal in reference No. 428/2002 albeit, at the instance of the Pujari's brother, one Nand Kishore Sharma, accrued to the advantage of all the brothers to whom the right had devolved on the death of their father i.e. Ex-Pujari Bihari Lal Sharma. It was submitted that the impugned judgment dated 20.11.2015 passed by the Appellate Tribunal circumvented the legal effect of the Tribunal's earlier judgment dated 20.03.2004 and is contrary thereto, hence perverse. Counsel also emphatically placed reliance on the Act of 1991 to submit that re-sitement of the temple was in its cross hairs and thus wholly illegal. It was finally submitted that the entire process of the widening the roads and the resultant re-sitement of the temple was malafide with the sole intent of benefiting the owners of the Rajmahal Palace Hotel.

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Mr. R.A. Katta supported the judgment of the Appellate Tribunal and prayed for the dismissal of the petition.

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Heard. Considered.

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On 08.12.2015, counsel for the petitioner had stated that the petitioner would have no objection to

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S.B. Civil Writ Petition No18273/2015

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(8)

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the re-sitement of the temple, presently situate on khasra Nos.191-193, to an appropriate place and the widening up the road to an extent of 100 ft—as approved by the JDA. That by itself sufficed for the dismissal of the writ petition and upholding the impugned order dated 20.11.2015. The consequent notice dated 01.12.2015 issued by the JDA would also then been liable to be sustained. That statement has now been sought to be reneged.

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Be as it may, on the submissions made by the counsel for the petitioner and the facts of the case, I am of the view that no case for interfering with the judgment dated 20.11.2015 passed by the Appellate Tribunal is made out. As such nothing illegal or arbitrary can be attributed to the consequent JDA notice dated 01.12.2015. There is nothing on record which establishes the ownership of the petitioner over the land in issue in khasra Nos.191-193. The said land as per the revenue records is recorded as Gair Mumkin Maidan/Rasta. Further under JDA Master Plan 2011-2025 for Jaipur, the road which connects Rajmahal Chauraha (crossing) to Sahakar Circle, is shown as 100 ft wide. But the said road near the Shree Panchdev Shivalaya is presently

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S.B. Civil Writ Petition No18273/2015

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(9)

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only about 59 to 61 feet—and an obvious point of obstruction to the free flow of traffic. Vide Appellate Tribunal's order dated 20.03.2004, the reference filed by the one Nand Kishore Sharma, the brother of the Pujari indeed was allowed on JDA's concession restraining JDA from demolishing or damaging the Shree Panchdev Shivalaya built over 270 square yards in khasra Nos.191-193. Yet the Tribunal categorically recorded that the petitioner before it i.e. Nandkishore had not been able to establish from any document filed, his ownership over the land in issue. The aforesaid judgment dated 20.03.2004 of the Tribunal in–therefore, in no way prevents the JDA in the exercise of its powers under the JDA Act to undertake development activities and widen the roads as approved and remove obstruction in the ROW. As a Temple obtains as an obstruction on the ROW, for the reason of the sentiments of the worshiping public, resitement is sought to the done. Moreover, the Apex Court in case of Union of India vs. State of Gujarat (supra), had directed as an interim measure that even in respect of constructions, even religious in nature, which have taken place on public places and obstruct traffic, the

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S.B. Civil Writ Petition No18273/2015

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(10)

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State Governments and the Union Territories review the same on case to case basis and take appropriate steps as expeditiously as possible. Similarly, the Division Bench of this Court following the directions of the Apex Court issued on 27.07.2010 in Union of India Vs. State of Gujrat & Ors. (supra) in the case of Prof. Bhagwati Prasad Deswal & Anr. vs. State of Rajasthan & Ors. (supra) directed removal of relegious structures in existence at the centre of the road junction which caused serious traffic problems at the Panchwati Circle, Raja Park, Jaipur. These temples were required to be relocated by the Division Bench noting that Raja Park was one of the busiest commercial areas in the Jaipur.

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The empowered committee appointed by the Apex Court in case of Jaipur Municipal Corporation versus Lekhraj Soni (supra) had also submitted an interim report to the Apex Court stating that the Collector Jaipur, Chief Executive Officers, Jaipur Nagar Nigam and Jaipur Development Commissioner, JDA were slow in taking steps for removing structures including religious one which were hazardous to traffic.

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S.B. Civil Writ Petition No18273/2015

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(11)

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In the facts detailed above, I find no traction in the submissions of P.C. Bhandari that the relocation/resitement of the temple in issue was a malafide exercise of power under the JDA Act with the sole intention of benefiting Rajmahal Palace Hotel. Besides, except for allegations of malafide casually made, there is no material before this Court in support thereof. Further to argue, as was done by Mr. P.C. Bhandari, as to why the temple in issue was being re-sited/relocated despite various other structures obstructing the right of way across the city continuing, is vacuous. It is settled that there is no negative equality and in any event it is not possible to visualize simultaneous removal of all obstructions of whatever nature in the right of way across Jaipur City and Region. Such exercise as of necessity is to be done on a case to case basis with reference to the urgency supplied in each case.

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The arguments on the counsel for the petitioner with regard to the jurisdiction of the JDA to relocate the Shree Panchdev Shivalaya is also untenable. For one under Section 16 of the Act of 1991, it is the duty of the JDA to secure the integrated development of the Jaipur Region. It is the specific case of the respondents that the road in issue, from Rajmahal Chauraha to Shakar Road is a 100 ft

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S.B. Civil Writ Petition No18273/2015

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(12)

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approved road. In the additional affidavit filed by Mr. Arvind Arya as Additional Chief Engineer, JDA, it has been categorically stated that as per administrative arrangements between JDA and JMC referable to Section 94 of the JDA Act as reflected in the meeting of 18.08.2010 a decision was taken in (Clause 4 of the minutes of meeting) that maintenance of the roads in the Jaipur City outside the city roads would be done by JDA. It has been stated that maintenance as referred to Clause 4 of the meeting of 18.08.2010 includes interalia the widening of the existing roads. A similar decision was taken at the meeting of 12.07.2011 (as per Clause 8 of the minutes of meeting) for the repair and maintenance of the roads of 80 ft wide or more in Jaipur City. It has been submitted that the road in question which falls in Khasra No.193 is recorded in the revenue records as Gair Mumkin Sarak and in Khasra No.191 recorded as Gair Mumkin Maidan. Both khasras stand in the name of the JDA as per the jamabandi 2050-55 and thereafter, (subsequent to alteration of the previous khasra Nos.191-193) in Khasra Nos.191/467 and 193/468—as reflected in the jamabandi (revenue record) for samwat 2068-2071.

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S.B. Civil Writ Petition No18273/2015

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(13)

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In the circumstances, JDA quite clearly has the jurisdiction to “maintain” approved roads over 80 ft in areas, otherwise falling in the jurisdiction of the Jaipur Municipal Corporation. I am of the considered view that the jurisdiction to maintain roads includes the power to remove/relocate obstructions of whatever nature falling within the ROW of an approved road. In the instant case it appears that three temples not one on the disputed parcel of land i.e. 270 square yards, a medical shop, a general store, a helmet centre and a travel agency by the name of Vinayak Tour and Travels also exist in the middle of a 100 ft approved road. And for reason set out hereunder or the temple/s are liable to be relocated/re-sited.

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Consequently, I find no force in the petition. Hence, it stands dismissed. The respondent-JDA is however directed to comply with the order dated 20.11.2015 passed by the Appellate Tribunal both in letter and spirit and relocate the Temple of Shree Panchdev Shivalaya as directed and comply with the direction of the Apex Court in case of Union of India vs. State of Gujarat & Ors. (supra) as also the principles enumerated by the Division Bench of this

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S.B. Civil Writ Petition No18273/2015

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(14)

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Court in case of Prof. Bhagwati Prasad Deswal & Anr.

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vs. State of Rajasthan & Ors. (supra).

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(ALOK SHARMA), J.

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R.Vaishnav/Himanshu

Shree Panchdev Shivalaya Maa Ji v. J D a and Ors.

Case brief

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Shree Panchdev Shivalaya Maa Ji v. J D a and Ors.

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