Full Judgment Text
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CASE NO.:
Appeal (civil) 6588 of 2005
PETITIONER:
Jaipur Municipal Corporation
RESPONDENT:
C.L. Mishra
DATE OF JUDGMENT: 27/10/2005
BENCH:
CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
(Arising out of Special Leave Petition (Civil) No.17693 of 2004)
G.P. Mathur, J.
Leave granted.
2. This appeal, by special leave, has been preferred against the
order dated 28.5.2004 of High Court of Rajasthan by which the
review petition filed by the appellant was dismissed.
3. It is necessary to mention some basic facts for the decision of
the appeal. The respondent, C.L. Mishra, sent a letter to the
Rajasthan High Court that a temple had been constructed on a land
adjoining Bagla Mukhi Sadhana Kendra in Sector 3, Malviya Nagar,
Jaipur, a place which was earmarked for a park and the construction
had been made without prior approval of the competent authorities.
The letter was treated as a public interest litigation and was registered
as D.B. Civil Writ Petition No.6051 of 1997 at the Jaipur Bench of the
High Court. Notices were issued to the Jaipur Municipal Corporation,
Rajasthan Housing Board, Collector Jaipur, and two private persons
namely Shyam Lal Gulani and Hargum Dass Motwani, who were
alleged to have raised the unauthorized construction. These persons
filed a joint reply asserting that the writ petitioner himself was an
unauthorized occupant and he had forcibly taken possession of the
temple where he was residing. They also submitted that a public
temple exists on the disputed land for a long time and was shown to
be land of temple in the maps and plans of Rajasthan Housing board
and that of Jaipur Municipal Corporation. They denied that the
temple had been constructed by encroaching upon land, which was
earmarked for a park. The Rajasthan Housing Board filed a reply
stating, inter alia, that there was a temple on the land alleged by the
writ petitioner but no work of new construction was found. On
enquiry from the residents of the area it was found that the temple was
being maintained by Pujya Sindhi Panchayat, Sector 3. It was also
stated that in the municipal map it was shown as a temple and the land
had been earmarked for the same. The other plea taken by the Board
was that after construction of the colony, the same had been handed
over to Jaipur Municipal Corporation and if any unauthorized
construction had been made, it was the responsibility of the Jaipur
Municipal Corporation to remove the same. The Jaipur Municipal
Corporation also filed a reply stating, inter alia, that on 9.11.1992 the
charge of certain sectors in Malviya Nagar was handed over by
Rajasthan Housing Board to the Jaipur Municipal Corporation. The
Housing Board had not handed over the strip of land which remained
vacant in the colony or in respect of which the title was in dispute and
has kept all such lands in its own ownership. The Municipal
Corporation thus denied any responsibility in the matter of removal of
encroachment from the land.
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4. After noticing the pleas and contentions raised by various
parties, the High Court disposed of the writ petition by the order dated
8.5.2000 and the last two paragraphs thereof, which contain the
operative portion of the order, are being reproduced below :-
"We would, therefore, dispose of this petition by
directing that the Municipal Corporation, Jaipur shall be
responsible for removal of encroachment from the land
handed over to it for maintenance etc. by the Rajasthan
Housing Board. We would also direct that completion
of the formalities of completely handing over land to the
Municipal Corporation by the Rajasthan Housing Board
shall also be expedited. We are not making any
observations on the factual situation and rival contentions
about the existence or otherwise of the encroachment and
the rights of the parties. When the Municipal Corporation
takes action for removal of the encroachment it shall
naturally, in compliance with the law, afford adequate
opportunity to the persons known to be in possession of
the encroached portions to be in their possession, before
removing the encroachments. We expect the Municipal
Corporation to discharge its functions expeditiously and
if it finds that the public land has been encroached upon,
it shall take action for removal irrespective of whether
the encroachment is under the garb of temple or a place
of worship. If need be, the Municipal Corporation shall
also be entitled to take help from the local administration
in order to see that the law and order is not disturbed
during the removal of encroachment.
The private respondents shall maintain status quo
as to the construction on the land and not 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 month from today. If so requested, the
Municipal Corporation shall also afford hearing to the
Petitioner on the question as to whether a prima facie
case of encroachment is made out."
5. The Commissioner of the Municipal Corporation, Jaipur, gave a
report on 14.9.2000 to the effect that encroachment over the land had
been made by Sindhi Panchayat. The matter was thereafter
considered by a Committee for Regulations and Bye-Laws of Jaipur
Municipal Corporation which gave a detailed report running into
several pages on 15.2.2001. The Committee held that it was not a
case of encroachment and the public temple had not been constructed
on the land earmarked for any park. On the contrary, a garden had
been developed in front of the temple by members of public. It was
also observed in the report that if the temple was being maintained by
Pujya Sindhi Panchayat, then it should be got registered under the
Rajasthan Public Trust Act. A copy of this report has been filed as
Annexure P-2 to the Special Leave Petition.
6. C.L. Mishra, thereafter, filed a contempt petition which was
registered as D.B. Civil Contempt Petition No.3 of 2001 in D.B. Civil
Writ Petition No.6051 of 1997. The contempt petition was heard on
24.7.2001 when the Division Bench passed an order observing that
normally the satisfaction of the Commissioner as to whether there is
an encroachment or not is final and such dispute is not to be referred
to a Committee, but the said course was adopted in the present case.
After making the aforesaid observation, the following order was
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passed :
"The learned counsel for contemnors seeks time to
comply with the order in the light of the observations
which are made today in this order.
We grant one month’s time to comply with the
order in its true letter and spirit.
List this case on 30.8.2001.
The Mayor and the Chief Executive Officer
Municipal Corporation, Jaipur, need not remain present
on further dates of hearing unless so directed."
7. The contempt petition was thereafter heard on 28.1.2002 when
the following order was passed :
"The contempt petition dated 2.1.2001 is pending
before this Court since 2.1.2001. The Respondent No.1
and 2 i.e. Shri Inderjit Khanna, Chief Secretary,
Government of Rajasthan and Shri G.S. Sandhu,
Secretary to the Government, Department of Urban
Development Housing and Local Self Government,
Government Secretariat, Jaipur had already been deleted
from the array of non-petitioners by the Court on
14.5.2001. Respondent No.3 Smt. Nirmala Verma, the
then Mayor, Municipal Corporation, Jaipur has already
expired. The only respondent who remains is the Chief
Executive Officer, Jaipur Municipal Corporation, Jaipur
who too is said to have been transferred somewhere else.
By the order dated 29.11.2001 eight weeks time from the
date of receipt of the certified copy of the order was
granted to carry out the earlier directions as were issued
in the judgment and order dated 8.5.2000. It is submitted
that this eight weeks period from the date of receipt of
the certified copy of the Order is going to expire on
8.2.2002. In this background, Mr. Ashok Gaur, learned
counsel for the petitioner seeks to withdraw this
contempt petition with liberty to file the contempt
petition afresh, if need be.
This contempt petition is accordingly dismissed as
withdrawn with the liberty as aforesaid in accordance
with law."
8. The Jaipur Municipal Corporation thereafter filed a review
petition purporting to be under Article 226 of the Constitution read
with High Court Rules for reviewing the order dated 24.7.2001 passed
in D.B. Civil Contempt Petition No.3 of 2001, which was registered
as D.B. Civil Review Petition No.7 of 2002. The review petition was
barred by limitation and accordingly notice was issued by the order
dated 4.2.2002 to the respondent (writ petitioner) to show cause why
delay may not be condoned. After hearing counsel for the parties,
delay was condoned and leave was granted to Municipal Corporation
to file the review petition by the order dated 5.2.2002. The D.B.
Civil Review Petition No.7 of 2002 was thereafter heard on 28.5.2004
and it was dismissed by the following order :
"Since contempt proceedings were initiated against
contemnors in their individual capacity and Municipal
Corporation Jaipur was not the party in the contempt
proceedings, instant petition by the Municipal
Corporation, Jaipur is not maintainable and it stands
accordingly dismissed."
The present appeal has been filed challenging the above quoted
order dated 28.5.2004.
9. We have heard learned counsel for the parties. It is important
to note that while disposing of the main D.B. Civil Writ Petition
No.6051 of 1997, the High Court did not record any positive finding
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on the question as to whether any encroachment has been made on
public land. The High Court left it to the Jaipur Municipal
Corporation to take a decision in that regard within six months and if
it came to a finding that public land had been encroached upon, it was
directed to take action for removal of the encroachment after issuing
notice to the parties and in accordance with law. The Commissioner
of the Municipal Corporation, Jaipur, gave a report on 14.9.2000 that
there was encroachment over the land by Sindhi Panchayat. However,
the Committee for Regulations and Bye-Laws of Jaipur Municipal
Corporation re-considered the matter and after a detailed discussion
held in its report dated 15.2.2001 that there was a public temple and
the same had not been constructed over any park and there was no
encroachment over public land. It was further held that a garden had
been developed in front of the temple by the members of the public.
It was thereafter that the writ petitioner, C.L. Mishra, filed D.B. Civil
Contempt Petition No. 3 of 2001 wherein the High Court after making
an observation that "normally the satisfaction of the Commissioner as
to whether the occupation is an encroachment or not is final and
matter is not referred to a Committee" passed an order granting one
month’s time to comply with the order in its true letter and spirit. It is
important to note here that while deciding the main writ petition, the
High Court had not recorded any finding that there had been
encroachment over public land by the construction of a temple nor it
gave any specific direction for its removal. On the contrary, the
matter had been left to be decided by the Jaipur Municipal
Corporation within six months and if the Corporation came to a
finding that there was any encroachment, the same was to be
removed. The important feature of the case is that when the contempt
petition came up for hearing on 28.1.2002, the counsel for the writ
petitioner made a prayer to withdraw the contempt petition with
liberty to file a fresh petition, if need be. The contempt petition was
accordingly dismissed as withdrawn with liberty reserved to the writ
petitioner to file a fresh petition. Normally, contempt is a matter
between the Court and the alleged contemnor. The applicant who
files the contempt petition does so only for the purpose of bringing it
to the notice of the Court that the order passed by it has not been
complied by it. However, in the present case, the counsel for the writ
petitioner (petitioner in the contempt petition) made a prayer for
withdrawing the contempt petition and the High Court passed a
specific order on 28.1.2002 by which D.B. Civil Contempt Petition
No.3 of 2001 was dismissed as withdrawn with liberty to file a fresh
contempt petition. Once the contempt petition was dismissed as
withdrawn, the earlier order passed in the said petition on 24.7.2001,
wherein one month’s time was given to comply with the order, ceased
to be operative as all interim orders passed in a case ultimately get
merged with the final order. The order dated 24.7.2001 cannot have
any independent existence and cannot survive once the contempt
petition itself was withdrawn and was dismissed. The Jaipur
Municipal Corporation was ill-advised to file a review petition
seeking review of the order dated 24.7.2001 when the main contempt
petition itself had been dismissed on the prayer made by the writ
petitioner (petitioner in the contempt petition). As such there is no
occasion for review of the said order.
10. With the clarification as above, the appeal is disposed of.