Jagat Singh Rathore vs State of Rajasthan

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(Raj) 1263

[Citation : 2009(2) RLW 2195 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Jagat Singh Rathore Vs. State of Raj. & Ors. (Chauhan, J.)
HON'BLE R.S. CHAUHAN, J.
Jagat Singh Rathore
Versus
State of Rajasthan & Ors.
S.B. Civil Writ Petition No.3683 of 2006, decided on 12.12.2008

Advocates Appeared
A.K. Sharma, for Petitioner;
G.S. Gill, Addl. Advocate General, for State;
K.N. Gupta with R.P. Garg, for Respondent No.3

Headnote:(a) Constitution of India, 1950, Arts. 14, 19, 21 and 226; Rajasthan Municipalities Act, 1959, Secs. 170 and 203; Pushkar (Pushkar Sarowar Swachhata, Pavitrata Evam Saundaryakaran) Bye-laws, 1991, Bye-law 2(10) and (11), 2 and 4(1) — Notice for removal of illegal constitution — Validity — Petitioner established a hotel — Hotel building was constructed with the approved building plan — Sanction for Construction was given by committee in the year 1983 — Temporary injunction order passed in favour of petitioner by competent Court — Ultimetly suit decreed in favour of petitioner — On 22.4.2006, the petitioner was served a notice to stop commercial activities and close down the hotel within 3 days — The officers of the Board armed with bulldozers and demolishing sqad and started demolishing parts of the hotel on 22.4.2006 — Validity of notices and action of Municipal Board challenged — Held — Municipal Board, which is an embodiment of State, has to be alive to the Constitutional mandate — Board cannot ignore, circumvent or violate the constitutional dicta — Notice is silent on point of nature and extent of illegal construction and encroachment — Time of 24 hours is highly inadequate for the petitioner to remove alleged illegal construction and encroachment — The said notices suffer not only from vagueness but also from unreasonableness — In case where time has been given to a person to comply with a notice, no coercive action can be taken by the authority during that period — Board could not have used force against petitioner and is expected to take recourse to legal remedies available to it — Board has ignored constitutional dicta — Action of Board declared illegal and notices were set aside. (Paras 68, 70, 71, 73, 75 to 77)
        ¼d½ Hkkjr dk lafo/kku] 1950] vuqPNsn 14] 19] 21 ,oa 226( jktLFkku uxj ikfydk vf/kfu;e] 1959] /kkjk 170 ,oa 203( iq"dj ¼iq"dj ljksoj LoPNrk] ifo=rk ,oa lkSna;Zdj.k½ mi-fu;e 1991] mi-fu;e] 2¼10½ o 11] 2 ,oa 4¼1½ & voS/k fuekZ.k dks gVkus gsrq uksfVl & fof/k ekU;rk & gksVy Hkou vuqeksfnr Hkou ;kstuk ds rgr fufeZr fd;k x;k & lfefr }kjk fuekZ.k gsrq vuqefr foxr o"kZ 1983 esa nh xbZ Fkh & l{ke U;k;ky; }kjk izkFkhZ ds i{k esa vLFkk;h O;knsk dk vknsk ikfjr fd;k x;k & varr% okn izkFkhZ ds i{k esa fMØh gqvk & lfefr ds vf/kdkjh cqyMkstj vkSj rksM+us okyk nLrk ds lkFk vk;s vkSj Lo;a 22-4-2006 dks gksVy ds Hkkx dks rksM+uk vkjEHk dj fn;k & uksfVl ,oa uxj ikfydk lfefr fd dk;Zokgh dh fof/k ekU;rk dks pqukSrh & vfHkfu/kkZfjr & lfefr] tks ,d jktdh; fudk; gS] laoS/kkfud vkKk dks thfor j[krk gS & lfefr laoS/kkfud vknsk dh voKk] vfHkoapuk ;k vfrØe.k ugha dj ldrk & uksfVl vfrØe.k vkSj voS/k fuekZ.k ds foLrkj vkSj izd`fr ds fcUnq ij ekSu gS & voS/k fuekZ.k vkSj vfrØe.k dks gVkus gsrq 24 ?kaVksa dk le; izkFkhZ ds fy, vR;ar vi;kZIr gS & bl izdkj mDr uksfVl u dsoy vLi"Vrk cfYd v;qfDr;qDrrk ls Hkh xzflr gS & O;fDr dks uksfVl dh ikyuk gsrq le; fn;s tkus dh nkk esa izkf/kdkjh }kjk ml vof/k ds nkSjku izihM+d dkjZokbZ ugha dh tk ldrh gS & lfefr izkFkhZ ds fo:) cy iz;ksx ugha dj ldrk Fkk vkSj mlls vkkk dh tkrh Fkh fd og miyC/k fof/kd mipkj dh lgk;rk ysxk & lfefr us laoS/kkfud vkKk dh vogsyuk dh & lfefr dh dkjZokbZ voS/k ?kksf"kr dh vkSj uksfVl Hkh vikLr fd;sA
        ¼in la- 68] 70] 71] 73] 75 ls 77½

       (b) Pushkar (Pushkar Sarowar Swachhata, Pavitrata Evam Saundaryakaran) Bye-laws 1991, Bye-laws, 4(1) and 4(2) — Scope and ambit — Classification — Applicability — Held — First part of Bye-laws deals post period and second part deals pre-period — Bar contained in Bye-law cannot be applied to those houses which were running as hotel etc prior to 1991, hence not applicable in present matter — Executive officer does not have power to absolutely ban the running of hotel — Such an interpretation is an artificial one having no legal basis. (Para 36)
        ¼[k½ iq"dj ¼iq"dj ljksoj LoPNrk] ifo=rk ,oa lkSUn;Zdj.k½ mi-fu;e] 1991] mi-fu;e 4¼1½ ,oa 4¼2½ & foLrkj ,oa ifjf/k & oxhZdj.k & ykxwrk & vfHkfu/kkZfjr & mi-fu;e dk izFke Hkkx ckn dh vof/k ,oa f}rh; Hkkx igys dh vof/k dks of.kZr djrh gS & mi-fu;e esa varfoZ"V otZu mu Hkouksa ij ykxw ugha fd;k tk ldrk tks gksVy bR;kfn ds :i esa o"kZ 1991 ls iwoZ ls py jgs Fks vr% orZeku ekeys esa ykxw ugha gksrk & dk;Zikyd vf/kdkjh dks gksVy pykus esa iw.kZ ikcanh yxkus dh kfDr ugha gS & ,slk fuoZpu d`f=e gS tks fof/kd vk/kkj ugha j[krkA ¼in la[;k 36½
       (c) Natural Justice — Principle of — Granting — Maxim of "audi alteram partem" — Meaning of — Explained. (Paras 52)
       Objection rejected.
        ¼x½ izkd`frd U;k; & dk fl)kUr & iznku fd;k tkuk & ^^nwljs i{k dks Hkh lquks** dk lw= & dk vFkZ & of.kZr fd;kA ¼in la[;k 52½
       vk{ksi fujLrA

Judgment

Hon'ble CHAUHAN, J.—Like the Biblical story of David and Goliath, this is a case of an individual pitted against the colossal State. Having bought some properties at Pushkar, an ancient and a holy city in Rajasthan, the petitioner has been running a hotel in the name and style of “Hotel Pushkar Palace” since 1981. There were certain legal battles fought between the petitioner and the Municipality Board (‘the Board’, for short), Pushkar—the respondent No. 3 before this court. The Board lost these battles. The Board claims to have served a notice on the petitioner on 22.4.06 directing him to remove the illegal constructions/encroachments made by him, within three days. But notwith-standing the said notice, on 22.4.06 itself, the Board demolished a part of the hotel and sealed thirty-eight rooms of the hotel. When the petitioner protested against the illegal action of the Board, the Board issued yet another notice on 28.4.06. Stunned by the demolition, aggrieved by the notice dated 28.4.06, the petitioner has knocked at the gates of this court and has sought refuge.

2. This case has a long and chequered history. However, the history is pertinent for appreciating different aspects of the issues which would emerge in this case. Hence, it is essential to narrate the details of running battles and skirmish between the petitioner and the Board.

3. Near Ajmer, nestled among the Aravali Hills, lies the ancient and holy city of Pushkar. According to Puranic mythology, Lord Brahma performed a Yagyna at the Pushkar lake (Pushkar Sarover). However, as his consort, the Goddess Saraswati was not ready to join him in the Yagyna, according to the story, Lord Brahma created another Goddess. Taking her to be his lawful-wedded wife, he performed the Yagyna with her. Upon knowing that another Goddess had substituted her, Goddess Saraswati cursed Lord Brahma that he shall not be worshiped anywhere else in India, except at Pushkar. Hence, the only known temple of Lord Brahma in India exists in Pushkar. According to another Puranic mythology, when the fight ensued between the Gods and the demons over the pot of nectar, Lord Vishnu, in the form of Mohini, stole the pot of nectar from the demons. While Mohini ran with the said pot, drops of nectar fell into the Pushkar Lake (Pushkar Sarovar). Thereafter, Hindus believe that a bath in the Pushkar Sarovar would free the soul from the cycles of births and deaths. In Rajasthan it is common for the people to submerge the ashes of those who have expired in their family in the Pushkar Lake. Thus, like Allahabad and Varanasi, Pushkar is a favorite site for performing the last rites for the dead. Because of these religious stories, Pushkar has held special significance in the minds of Hindus since time immemorial.

4. In modern days, Pushkar is famous for its Cattle Fair which is generally held in the months of October-November. The Pushkar fair has attracted the attention the world-over. Not only the villagers come to sell their cattle, but foreign tourists descend on Pushkar to enjoy, the sites, the sounds & the colors of Rajasthan. Thus, the town is one of the favorite destinations for tourists in Rajasthan; it is vital to the economy of the State.

5. Wanting to establish a hotel business, wanting to cater to the needs of the tourists, both national and international, on 26.10.1980, the petitioner and one Smt. Harminder Kaur purchased an estate on “Bangla Ghat” through a registered sale-deed. Subsequently, Smt. Harminder Kaur sold her share to the petitioner. Hence, the petitioner became the owner of the estate. In 1981, the petitioner established a hotel in the name of “Hotel Pushkar Palace”. In order to expand the premises of the hotel, on 18.2.1983, the petitioner purchased a property lying on the southern side of “Bangla Ghat”, popularly known as “Kishangarh Kunj”. The petitioner submitted building plans before the Notified Area Committee (`the Committee', for short) Pushkar (presently the Municipal Bo

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2008 Supreme(Raj) 1263

[Citation : 2009(2) RLW 2195 (Raj.)](Rajasthan High Court)Jaipur BenchJagat Singh Rathore Vs. State of Raj. & Ors. (Chauhan, J.)HON'BLE R.S. CHAUHAN, J.Jagat Singh RathoreVersusState of Rajasthan & Ors.S.B. Civil Writ Petition No.3683 of 2006, decided on 12.12.2008

Cases Referred (4)

[Citation : 2009(2) RLW 2195 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Jagat Singh Rathore Vs. State of Raj. & Ors. (Chauhan, J.)
HON'BLE R.S. CHAUHAN, J.
Jagat Singh Rathore
Versus
State of Rajasthan & Ors.
S.B. Civil Writ Petition No.3683 of 2006, decided on 12.12.2008