RADHEY SHYAM SAINI Vs. JAIPUR DEVELOPMENT AUTHORITY, JAIPUR

JUDGEMENT

(1.) THE appellant, Radhey Shyam Saini is aggrieved by the judgment dated 30.11.2012, passed by the learned Single Judge in S.B. Civil Writ Petition No.8579/2012- Raghunandan Bilochi Vs. JDA and Ors. This case has rather a chequered history,but we need not go into all the details. Suffice it to say that petitioner/respondent No.3, Raghunandan Bilochi had filed a Reference before the Jaipur Development Authority Appellate Tribunal, Jaipur, wherein he had claimed that on 07.06.2008, he was threatened by the Officers of the JDA that they are likely to demolish Shop No.11, Laxmi Nagar, Niwaru Road, Jhotwara, which belonged to him. According to him, originally the said shop was alloted to Mr. Rama Shankar Maurya by 'Jai Chamunda Grih Nirman Sahakari Samiti' on 05.03.1981. Subsequently, Mr. Bilochi had bought the said shop from Mr. Maurya, through his general Power of Attorney holder, Mr. Banshi Lal Sharma on 15.09.1998. However, according to JDA, on 16.06.2008 they had issued a notice to him under Section 72 of the JDA Act, whereby they had claimed that he was an encroacher, therefore, he was asked to remove his encroachments. Meanwhile, Mr. Radhey Shyam Saini, the appellant before this Court, had also filed a Reference before the JDA Tribunal, wherein he had claimed that he is the owner of Plot No.35. On the southern side of the said plot, Mr. Bilochi had tried to illegally encroach upon the land and had tried to construct a shop. Since Mr. Saini was aggrieved by the illegal action of Mr. Bilochi, he had filed certain representations and complaints, both before the JDA and before the Urban Development Minister. It was the case of Mr. Saini that although the road is supposed to be 160 feet wide, but Mr. Bilochi had encroached upon the said road. Both these References were heard and decided by the JDA Appellate Tribunal by a common order dated 09.01.2012, whereby the Tribunal had given certain directions to the JDA to hear Mr. Bilochi before passing any adverse order against him, and before removing his alleged illegal construction.

(2.) TWICE again appeals were filed by Mr. Bilochi before the JDA Appellate Tribunal. However, by order dated 23.05.2012, the appeal filed by Mr. Bilochi was dismissed. Since Mr. Bilochi, was aggrieved by order dated 23.05.2012, he filed a writ petition before this Court. By judgment dated 30.11.2012, the learned Single Judge directed as under:- "The petition is disposed of with liberty to JDA to uniformly widen the road on both sides to the extent of 160 feet. While the JDA proceeds to demolish all such shops, which have been constructed within the width of 160 feet of the complete road and without due permission from JDA and Municipal Corporation, the shop of the petitioner shall also be liable to be demolished, however, shop of petitioner alone shall not be singled out for being demolished. With that liberty, the writ petition is disposed of. " Hence, this special appeal before this Court.

(3.) THIRDLY , the concept of equality is not a negative one. Lastly, the encroachers cannot be given protection of law. Therefore, the impugned judgment deserves to be quashed and set aside. On the other hand, Mr. Inderjeet Singh, the learned counsel for respondent No.3, has strenuously contended that all encroachers upon the road form a homogeneous class. Since the JDA was threatening to demolish only the shop belonging to Mr. Bilochi, the JDA was following the policy of pick and choose. Therefore, the learned Judge was certainly justified in directing the JDA to treat all encroachers as a homogeneous class and not to be selective in its anti-encroachment drive. Therefore, the learned Judge had validly directed the JDA to uniformly widen the road on both sides and to demolish all such shops, which have been constructed within the width of 160 feet. Thus, in fact, according to the learned counsel the learned Single Judge had applied the concept of equality across the board. Therefore, the question of protecting a single encroacher does not even arise in the present case. Hence, the learned counsel has supported the impugned judgment. Heard the learned counsel for the parties and perused the impugned judgment as well as other documents, submitted along with the appeal.