Allowed

Prem Narain Gupta Son of Shri Hari Narain Gupta v. Jaipur Nagar Nigam

Rajasthan HC25 Jul 2023SAW/1349/2019

Case brief

AI extract

What is this about?

This Special Appeal challenged the dismissal of an earlier writ petition. The High Court held that the appellant was entitled to an opportunity of hearing before the notice regarding road encroachment was acted upon, as the measurement was made in the appellant's absence. The appeal was allowed, the impugned order was set aside, and the appellant was directed to be given a chance to respond to obj

What did the court decide?

Impugned order setting aside and stayed; Corporation directed to decide objection and pass appropriate order after giving opportunity to appellant.

Prem Narain Gupta Son of Shri Hari… — Constitutional and Fundamental Rights | Rajasthan HC (2023)

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[2023:RJ-JP:15518-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Civil Special Appeal (Writ) No. 1349/2019

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S.B. Civil Writ Petition No. 12092/2019

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Prem Narain Gupta Son of Shri Hari Narain Gupta, Resident of Plot No. 57, Devi Path, Kanota Bag, Jaipur.

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Jugal Kishore Gupta Son of Shri Hari Narain Gupta, Resident of Plot No. 57, Devi Path, Kanota Bag, Jaipur.

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----Appellants

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Versus

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Jaipur Nagar Nigam, Jaipur Through Commissioner, Jaipur Nagar Nigam, Lal Kothi, Jaipur.

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Jaipur Nagar Nigam, Jaipur Through Dy. Commissioner, Moti Doongri Zone, Jaipur Nagar Nigam, Jawahar Nagar Sector-4, Near MPS School, Jaipur.

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State of Rajasthan Through Pr. Secretary, Urban Development & Housing Department, Secretariat, Jaipur.

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----Respondents

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For Appellant(s) : Mr. M.M. Ranjan, Sr. Advocate with Mr. Lokesh Tiwari, Advocate For Respondent(s) : Mr. Anil Mehta, AAG with Mr. Yashodhar Pandey, Advocate

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HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Judgment / Order

25/07/2023

Heard.

This appeal is directed against the order dated 31.07.2019, whereby, the learned Single Judge has dismissed the appellants writ petition.

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[2023:RJ-JP:15518-DB]

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[SAW-1349/2019]

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(2 of 5)

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The appellants are in occupation/possession of a house constructed by them on one side of road called Devipath. A notice dated 28.06.2019 was issued by the Deputy Commissioner, Moti Doongri Zone, Nagar Nigam Jaipur for removal of construction giving reference to an order dated 27.07.2017 passed in D.B. Civil Writ (PIL) Petition No. 7700/2017. Though, the appellants submitted a reply to notice dated 28.06.2019, apprehending that their building may be demolished and they may be dispossessed, the appellants rushed to this Court by filing writ petition. However, the learned Single Judge was of the view that as the appellants in their reply to show cause notice have already raised various issues, they could not have availed the remedy of filing writ petition before this Court. Precisely, on this consideration, the writ petition was dismissed and a cost of Rs.50,000/- was also imposed upon appellants.

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Learned Senior Counsel appearing on behalf of the appellants would submit that the contents of the impugned notice dated 28.06.2019 would make it clear that a final decision has been taken in the matter yet the appellants have been asked to submit their reply. The appellants were justified in approaching this Court by filing writ petition because the notice reflected a prejudged mind. He would also submit that the appellants have constructed residential accommodation on the land in accordance with law after obtaining due approval including building permission and there is no allegation that they have violated the building plan. He further submit that width of the road in front of the house is not as claimed and recorded by this Court in its order dated 27.07.2017 passed in D.B. Civil Writ (PIL) Petition No. 7700/2017.

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[2023:RJ-JP:15518-DB]

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[SAW-1349/2019]

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(3 of 5)

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The appellants were entitled to a due and proper inquiry with reference to the records and respondents were under obligation to determine width of the road as provided under the applicable scheme. Moreover, the appellants were entitled to an opportunity of hearing before issuance of notice dated 28.06.2019 because that notice presupposes that the width of the road is 40 feet which is factually not correct.

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Learned counsel appearing for the Corporation submits that the notices were issued to the appellants and many other occupants of the area who had constructed their buildings by the side of Devipath road, in compliance of the order issued by this Court in D.B. Civil Writ (PIL) Petition No. 7700/2017, wherein, order was passed by this Court on 27.07.2017 to ensure that encroachment on the width of the road be removed. He would submit that in compliance of the order passed by the High Court, the Corporation in its appropriate body also determined on the basis of the material available on record that the width of the road under the scheme is 40 feet and according to the respondents, the width of the road in front of the plot of the appellants is 19 to 21 feet. Learned Senior Counsel would submit that as the notice requires the appellants to remove encroachment, therefore, this notice was a final notice for removal of encroachment. However, this was subject to any response that could be filed by the appellants.

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We have perused notice dated 28.06.2019. The contents of the notice are that the High Court in D.B. Civil Writ (PIL) Petition No. 7700/2017 has passed an order on 27.07.2017 to remove encroachments taking into consideration approved layout

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[2023:RJ-JP:15518-DB]

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[SAW-1349/2019]

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(4 of 5)

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plan/scheme plan in Devi Path, Kanota Bag, Jaipur. The notice further states that in front of the plot of the appellants, the width of the road is approximately 19 feet to 21 feet, whereas, as per approved layout plan, the width of the road is 40 feet. The notice culminates with the direction to the appellants to remove encroachment or in case any reply is to be submitted, they would submit the same failing which encroachment would be removed. The contents of the notice shows that the respondents had already made some kind of inquiry and come to the conclusion that the width of the road of the house of the appellants is 19 feet to 21 feet. There is no material placed to show that before making such measurement, any notice was given to the appellants or their representative was present at the time of the measurement. Consequently, the notice says that the width of the road is 40 feet. This aspect has been seriously disputed by the appellants. According to the appellants the width of the road is not 40 feet. However, this is a disputed question of fact.

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It appears that the appellants have submitted a reply to the notice wherein they have claimed to have raised construction over the land on the submission that the appellants are in occupation of their own land, they had not made any encroachment. According to them, they have made construction after obtaining due building permission. As far as width of the road is concerned, the appellants have disputed even that part. That apart, the width of the road in front of the house of the appellants is based on some material available with the respondents.

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In view of the above, we are of the view that the appellants are entitled to due and proper opportunity. An allegation of

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[2023:RJ-JP:15518-DB]

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[SAW-1349/2019]

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(5 of 5)

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encroachment based on an inspection report in the absence of party could not be acted upon. We also direct the Corporation to decide appellants’ objection on all aspects which have been raised in their reply and take an appropriate decision on the same and then pass an order both with regard to the width of the road as also the alleged encroachment made by the appellants. Till such decision is taken by the corporation, the appellants cannot be dispossessed. If in any case, ultimately a decision is taken by the Corporation against the appellants, the appellants would be free to avail such remedy as may be available to them under the law.

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In view of the above consideration, the appeal is allowed. The order passed by the learned Single Judge is set aside.

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Before parting with the case, we would hasten to add that we have not decided the case on both the issues with regard to width of the road or with regard to the alleged encroachment.

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(PRAVEER BHATNAGAR),J

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(MANINDRA MOHAN SHRIVASTAVA),J

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Mohita /24

Prem Narain Gupta Son of Shri Hari Narain Gupta v. Jaipur Nagar Nigam

Case brief

What is this about?

What did the court decide?

Prem Narain Gupta Son of Shri Hari Narain Gupta v. Jaipur Nagar Nigam

Case brief

What is this about?

What did the court decide?

What the court decided

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