DURGA VIHAR SAMITI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner, a society registered under the Societies Registration Act, has approached this Court to have an appropriate writ, order or direction for respondent Municipal Corporation, Jodhpur to remove the encroachments made by certain persons on the land earmarked for park in the residential colony known as Durga Vihar. As per the averments made in petition for writ the Durga Vihar colony is established on a land that was initially an agricultural land and was converted into abadi in the year 1984. A lay out plan was submitted to Town Planning Department for developing a colony on the land aforesaid by making necessary sub division of plots. The sub division was approved by the authority competent with certain changes. By communication dt. 01.05.1985 it was also conveyed that the land earmarked for public utility shall vest with Urban Improvement trust, Jodhpur (now Jodhpur Development Authority, Jodhpur). The land said to be left for park was said to be encroached in the year 1995 by certain individuals and that was removed in the year 1997, however, after lapse of some time encroachment was again made and that was creating unhygienic conditions in the surroundings. The petitioner society agitated the cause of the residents of Durga Vihar relating to encroachment made on public land by submitting several representations but of no consequence. According to the petitioner, Section 98 of the Rajasthan Municipalities Act specifies duties of municipalities including to clean the municipal area i.e. kept open for enjoyment of public at large, but the Municipal Corporation failed to discharge its statutory duty.

(2.) UNDER an order dt. 01.03.2005 a notice was issued to the respondents for final disposal of the writ petition. After service of notices the matter was heard at length and by an order dt. 06.04.2005 the Municipal Corporation, Jodhpur was directed to furnish the number of persons having encroachment upon the land of park. It was also made clear that if the encroachments on the land concerned would have been made prior to coming within the jurisdiction of Municipal Corporation, Jodhpur then the Corporation may avail necessary information from Urban Improvement Trust, Jodhpur. By an another order dt. 19.04.2005 the Municipal Corporation, Jodhpur was directed to submit a tentative list of all properties earmarked for parks in Jodhpur municipal area. The Corporation was also directed to make the Court acquaint about the scheme for development of parks in the residential colonies by getting involvement of public at large. A list indicating 265 sites earmarked for parks was placed on record on 26.04.2005. Out of 265 sites referred in the list, 208 are within the jurisdiction of Municipal Corporation and remaining 57 are within the area under the control of the Jodhpur Development Authority. Suffice to mention here that nine persons preferred applications before this Court to become party to the writ proceedings in the instant matter with assertion that they were having possession on the land in question from last number of years. The applications came to be rejected under order dt. 23.05.2005 on the count that the applicants if having any right on the land in question, may agitate the same by availing appropriate remedy before appropriate forum, but the writ petition to have direction against local bodies for removal of encroachments cannot be converted into a litigation for deciding their rights.

(3.) THE respondents were also directed to take immediate action for removal of the encroachment which they are supposed to remove by following procedure under the Rajasthan Municipalities Act and the Urban Improvement Trust Act. Pertinent to mention here that during pendency of the writ petition an scheme was framed by the Government of Rajasthan to regularise certain "kacchi bastis" and that scheme was also examined by the Court under the order dt. 16.05.2005 and 02.06.2005. Looking to the scheme made by the Government of Rajasthan the Court permitted the respondents to start the process for regularisation of land in light of the policy dt. 30.09.2005, but not to issue any title deed or patta in favour of any person whosoever.