PUJYA SINDHI PANCHAYAT Vs. C L MISHRA

JUDGEMENT

(1.) This review petition has been filed by Pujya Sindhi Panchayat (hereinafter referred to as the petitioner-Society") with the prayer that the judgment dated 8/05/2000 passed by the Division Bench of this Court in D.B. Civil Writ Petition No. 6051/97 filed by Prof. C.L. Mishra (respondent no. 1 in this review petition) be reviewed.

(2.) It arises in the following circumstances: Prof. C.L.Mishra (respondent no. 1 in this review petition) addressed a letter to Hon'ble Chief Justice M.G.Mukherjee (as he then was) on 4-11-1997 stating inter alia that in Malviya Nagar in Sector No.3 behind Sabzi Mandi adjacent to Bagla Mukhi Sadhna Kendra, two residents of Malviya Nagar, namely, Shyam Lal Gulani and Hargun Dass Motwani, who are respondents No. 5 and 6 respectively in this review petition, were constructing building on 1000 sq. yards plot left for park without any site plan or allotment. It was further alleged in that letter that the respondents No.5 and 6 of this review petition had dug a foundation of 72 yards in length, to make further construction and they were trying to instal idols on 11/11/1997 to cover up their illegal encroachment and construction and by doing so, they wanted to grab the park land. It was further alleged in that letter that information about the illegal encroachment and construction made by the respondents no. 5 and 6 of this review petition over the plot left for park was sent to the Rajasthan Housing Board (respondent No. 3 in this review petition), Jaipur Development Authority and Municipal Corporation (respondent No. 2 in this review petition). Thus, it was prayed in that letter that Rajasthan Housing Board (respondent No.3 this review petition ) and Municipal Corporation (respondent No. 2 in this review petition) be directed to remove all encroachments from the land adjoining the Bagla Mukhi Sadhana Kendra in Sector No. 3 Malviya Nagar, Jaipur, which was earmarked for park and it was further prayed that Rajasthan Housing Board (respondent No.3 in this review petition) be directed to develop the park on the said land for public use. The said letter of Prof. C.L.Mishra (respondent No.1 in this review petition) was treated as Public Interest Litigation by this Court and it was registered as D.B. Civil Writ Petition No. 6051/97. On 17-11-1997, notices of that writ petition were issued to the Municipal Corporation, Jaipur (respondent No.2 in this review petition), Rajasthan Housing Board (respondent No.3 in this review petition), Collector, Jaipur (respondent No.4 in this review petition), Shyam Lal Golani (respondent No.5 in this review petition) and Hargun Das Motwani (respondent No. 6 in this review petition). A reply to that writ petition was filed by the respondents No.5 and 6 of this review petition, namely, Shyam Lal Golani and Hargun Das Motwani respectively on 3-12-1997 stating inter alia that Prof. C.L. Mishra, respondent No.1 in this review petition,was himself unauthorised occupant on a piece of land which was otherwise earmarked and allotted for the purpose of temple. It was further averred in the reply that Prof. C.L.Mishra was using the land of the temple Bagla Mukhi Sadhna Kendra for his own residence illegally. It was futher averred in the reply that the temple was in existence for a long time and it was not a new construction and the temple existed even prior to the development and occupation of plots by people in Malviya Nagar. It was further averred in the reply that the allegations of illegal encroachment and construction over the land earmarked for public park were absolutely incorrect and false one. The Rajasthan Housing Board (respondent No. 3 in this review petition) also filed a separate reply on 10-2-1998 stating inter alia that an enquiry was conducted on the basis of the letter written to the Housing Commissioner, Rajasthan Housing Board by Mahesh Rajawat and Dinesh Pooniya wherein it was submitted that in Sector-III of Malviya Nagar opposite Satkar Shopping Centre on Government land certain persons were constructing a temple and for that, an enquiry be conducted. The enquiry was conducted by the Additional Chief Engineer-II of the Rajasthan Housing Board and the report was submitted by him on 23-8-1997. It was further averred in the reply that on 21-8-1997 site was inspected and it was found that near Bagla Mukhi Sadhna Kendra, on a piece of land a temple existed, but no work of a new construction was found. It was also noticed that the boundary wall was old and there was a gate. It was further reported in the inspection report that the premises were being maintained by the persons belonging to Pujya Sindhi Panchayat Sector No.3"(petitioner-Society). It was further averred in the reply that the premises had been shown as temple and the land adjacent had been shown as land marked for temple in the Municipal map. It was further averred in the reply that the entire piece of land including the Bagla Mukhi temple was left for being allotted to different institutions but at that time, the disputed land was not marked as land reserved for constructing temple. It was further averred in the reply that in the year 1994-95, the Municipal Corporation, Jaipur (respondent No.2 in this review petition) auctioned few plots for residential purposes. So far as the unauthorised construction was concerned, it was averred by the Rajasthan Housing Board that since the colony had been handed over to the Municipal Corporation, therefore, if there was any unauthorised construction, that was to be removed by the Municipal Corporation. It was further averred in the reply that the Rajasthan Housing Board had prepared a plan for Sector 3 of Malviya Nagar and the entire piece of land was marked as land for Community Centre and facilities" and that when Sector 3 of Malviya Nagar was handed over to Municipal Corporation, the land was handed over to the Municipal Corporation for Development of Community Centre and facilites but the Municipal Corporation auctioned two plots from the aforesaid land for residential purposes. The Municipal Corporation (respondent No.2 in this review petition) has also filed reply on 9-3-1998 stating inter alia that since the land vested in the Government and in the Rajasthan Housing Board, therefore, Municipal Corporation could not be said to have any concern in this connection. It was further averred in the reply that on 9-11-1992, the charge of certain sectors in Malviya Nagar was handed over to the Municipal Corporation by the Rajasthan Housing Board and in that charge report, it was mentioned that the Municipal Corporation shall henceforth look after the general maintenance and upkeep of the colony which shall include the work of maintenance and repairs of road, street lights etc. Thus, it was averred in the reply that apart from the above functions, all other functions were to be performed by the Housing Board and not by the Municipal Corporation. It was further averred in the reply that the Rajasthan Housing Board had not handed over the strip of land which remained vacant in the colony or in respect of which title is in dispute and has kept all such lands in its own ownership. Thus, the Municipal Corporation denied any responsibility in the matter of removal of encroachment on such land. On 20-1-1998, a rejoinder was filed by Prof. C.L. Mishra, respondent No.1 in this review petition. After hearing all the parties, the Division Bench of this Court through judgment dated 8-5-2000 disposed of the writ petition filed by Prof. C. L. Mishra, respondent No. 1 in this review petition, with the following obervations and directions:- (1) That both the institutions, namely, Rajasthan Housing Board (respondent No.3 in this review petition) and Municipal Corporation (respondent No. 2 in this review petition) are shifting their responsibilities to remove encroachments though both of them are public bodies and because of their negligence, encroachments had been made on the disputed land. (2) That whether the land in dispute is in charge of the Rajasthan Housing Board or in the charge of Municipal Corporation, it is immaterial, but it is of paramount imporatnce for the public that it should be saved from encroachments and illegal constructions so that the land could be utilised for the purpose for which it was set apart. (3) That the dispute between the Rajasthan Housing Board and the Municipal Corporation as to whether one has handed over possession of the land to the other or not, was not decided by this Court. However, this Court found that the Municipal Corporation admitted that the general maintenance and upkeep of the colony including the works of maintenance and repairs of road, street lighting, drains, sewer lines and general cleaning of the colony have been handed over to it by the Rajasthan Housing Board and general maintenance and upkeep of the colony shall also include saving it from unauthorised occupants and encroachers. Thus, Municipal Corporation will have ample authority to do all such things to keep the property intact for the use for which it was set part and left open. If there was any doubt about this, Rajasthan Housing Board shall hand over removal of encroachment" also to the Municipal Corporation. In any case, no person, who alleged to have encroached upon the public property, shall be allowed to take benefit of the confusion as to who between the two public bodies, was responsible for removing encroachments. 4. That in these circumstances, this Court directed that the Municipal Corporation, Jaipur (respondent No. 2 in this review petition) shall be responsible for removal of encroachment from the land handed over to it for maintenance etc. by the Rajasthan Housing Board. It was further directed that completion of the formalities of completely handing over land to the Municipal Corporation by the Rajasthan Housing Board shall also be expedited. 5. That it was made clear that this Court did not make any observations on the factual situation and rival contentions about the existence or otherwise of the encroachment and the rights of the parties. 6. That it was further made clear by this Court that when the Municipal Corporation takes action for removal of the encroachments, it shall naturally, in compliance with the law, afford adequate opportunity to the persons known to be in possession of the encroached portions or those who claim the encroached portions to be in their possession, before removing the encroachments. 7. That it was further observed by this Court that the Municipal Corporation shall discharge its functions expeditiously and if it finds that the public land was encroached upon, it shall take action for removal irrespective of whether the encroachment was under the garb of temple or a place of worship. If need be, the Municipal Corporation shall also entitle to take help from the local administration in order to see that the law and order was not disturbed during the removal of encroachment. 8. That the private respondents (respondents No.5 and 6 in this review petition) were directed to maintain status quo as to the construction on the land and they were further directed not to put up any new construction on it for a period of six months from today during which the Municipal Corporation, Jaipur shall decide whether a prima facie case of encroachment is made out and if it is of the opinion that the public land has been encroached upon, it shall take action for its removal by issuing the notices in compliance with law, to the encroachers and shall dispose of the matter within a period of six months from today. Aggrieved from the said judgment dated 8-5-2000 passed by the Division Bench of this Court, the present review petition has been filed by the petitioner-Society.

(3.) In this review petition, it was submitted by the petitioner-Society that over the disputed land, there is a public temple and the petitioner-Society was managing all the affairs of that public temple. It was further submitted that the said public temple, which was being utilized by the public at large, was neither in the possession of the respondents No.5 and 6 nor the respondents No.5 and 6 were at all having any personal interest and on the contrary, the petitioner-Seciety was managing all the affairs of that temple, but Prof. C.L.Mishra, respondent No.1 in this review petition and petitioner in the writ petition, knowingly and intentionally did not implead petitioner-Society as party to the writ petition. It was further submitted that on 22-3-2000, the petitioner-Society filed an applicationunder Article 226 of the Constitution of India read with Order 1, Rule 10 CPC before this Court in the Writ petition filed by Prof. C.L.Mishra, for impleading as party to that writ petition. However, that application was not considered and decided by this Court while deciding the writ petition on 8-5-2000. Hence, it was prayed that this review petition be allowed and the judgment dated 8-5-2000 passed by the Division Bench of this Court be reviewed and the application of the petitioner-Society dated 22-3-2000 filed under Article 226 of the Constitution of India read with Order 1, Rule 10 CPC be allowed and the petitioner-Society be ordered to be impleaded as party to the writ petition and the matter be ordered to be decided afresh after providing an opportunity of hearing to the petitioner-Society.