Bhagwan Singh v. The State of Raj.

Order

25/01/2011 HON'BLE MR. JUSTICE AJAY RASTOGI *** Mr.Bharat Vyas, for petitioner. Mr.AK Bhandari, Sr.Advocate with] Mr.Vaibhav Bhandari ] for Mr.Shyam Arya ] respondents By the instant petition, the petitioner is seeking mandamus commanding the respondents No.1 to 3 & 6 to act in accordance with sub- sec.10 & 11 of Sec.170 of the Rajasthan Municipalities Act, 1959 and further restraining the respondents No. 4 & 5 to raise any further construction over the property in question i.e. Duni Raoji Ka Gher, Film Colony, SMS Highway, Jaipur. It has come on record that the respondents No.4 & 5 (since deceased and now represented through legal representatives) purchased the plot in question through a registered sale deed executed on 26/12/1961 as alleged in the reply filed by the respondent No.4 and later on the building plans were submitted by the respondents No.4 & 5 to raise construction over the plot in question and after obtaining permission on certain terms and conditions by the Jaipur Municipal Corporation (JMC) dt. 22/08/2008 (Anx.2), they started raising constructions and at that stage, the petitioner 2 CWP-8289/2009 approached this court alleging to be resident of Film Colony, Chaura Rasta, Jaipur which is located on the northern side of SMS Highway on the premise that the respondents NO. 4 & 5 are raising construction in contravention of the building plans approved by the JMC and, as such, they are committing violation of Sub-Sec. 10 & 11 of Sec. 170 of the Act, 1959. After the notice being served upon the respondents, reply has been filed by the respondent JMC wherein it has been specifically averred in Para No. 7, 8 and 9 as under “7-That the content of para 7 of the writ petition are wrong, misconceived and are denied in the manner as stated by the petitioner. All the allegations levelled by the petitioner against the officials of the JMC are wrong and has been made after thought to make out a case in his favour. The petitioner has failed to disclose on what date he approached to the Zonal Commissioner of Jaipur Municipal Corporation. The petitioner has also failed to place any documentary proof that he approached to the concerned authorities. The officials of the answering respondent Corporation are continuously watching the construction raised by the respondents No. 4 and 5. That with regard to allegation of the 3 CWP-8289/2009 petitioner regarding some dispute about the ownership of the land is concerned, it is humbly submitted that it is not the subject matter of the writ petition. The petitioner has no concerned in this regard. It seems that the petitioner is acting and filed the instant writ petition on instance of those persons who have claimed the ownership on the land in question.

8.That the contents of para 8 of the writ petition are wrong misconceived and are denied with regard to construction of basement, rest of the contents are not admitted for want of knowledge. Further the petitioner has not placed any document on record in support of his contention.

9.That the contents of para 9 of the writ petition are wrong misconceived and are denied. The officials of the answering respondent Corporation are continuously watching the construction raised by the respondent No.4 and 5. That on 8 September, 2009 the Junior Engineer along with Assistant Engineer of the answering respondent inspected the site and found that there is some internal change in construction regarding size of the rooms, non opening of windows & doors at certain places, changing of location of stairs and 4 CWP-8289/2009 construction of place for providing lift in the building in place of toilet etc. On the report of engineer, a show cause notice is being given to the respondent No.4 and 5.” Further, it has been specifically averred that the JMC is continuously watching over the construction raised by the respondents and at one stage on 08/09/2009, the Engineers of the JMC inspected the site and there were minor internal changes in the constructions regarding size of the rooms, windows and doors for which proper action was also initiated. However, it appears from the reply filed by the JMC that there were no major changes being undertaken by the respondents No. 4 & 5 by raising constitution in terms of the approved plan (Anx.2) but at the same time, the respondents No. 4 & 5 have also filed their reply and have averred that they are raising constructions in terms of the approved plans for which they are within their right to raise and if at all, there is any violation, the JMC is always at liberty to take action permissible under law. Counsel for the petitioner submits that once the construction is being raised by the respondents in contravention of the approved building plan, it will certainly violate the rights of the petitioner available under 5 CWP-8289/2009 Article 21 of the Constitution of India and he further submits that if the respondents start to use the building for commercial purposes, it will create traffic hazards for the local residents and the JMC as usual will not take any action thereafter. The respondents have also raised objection regarding locus-standi of the petitioner and submit that the petitioner is residing in the rented premises at a distant place and is not even remotely concerned with the construction raised by the respondents and it is not a Public Interest Litigation or a writ in the nature of Habeas Corpus where the question of locus standi does not hold any signaficance.

Mr. Bhandari, Senior Advocate, appearing on behalf of respondent No.4 submits that since the petitioner is not holding any locus standi to question the construction raised by the respondents, the mandamus which he is seeking from this court, in the instant writ petition, is wholly misconceived and the writ petition deserves to be rejected. Counsel for JMC Mr.Shyam Arya further submits that once the draft plans of the building have been approved and they are independently inspecting the constructions raised at all stages and no major changes so far have been pointed out and if at all the 6 CWP-8289/2009 respondents No. 4 and 5 violate the approved building plans, action will certainly be taken against them as permissible under law. In the light of what has been contented by the JMC in its reply of which reference has been made supra, in the opinion of this court, no further action is required to be taken by this Court in the instant writ petition. However, it is made clear that if the respondents No.4 and 5 violate the approved building plans, the petitioner or any other person will certain be at liberty to avail remedy available under law. With these directions/observations, the writ petition stands disposed of. [AJAY RASTOGI],J. 7 CWP-8289/2009