HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

D.B. Spl. Appl. Writ No. 10/2020

Pyar Chand S/o Shri Vaktawar Mal, Aged About 65 Years, By

Caste Khatik, R/o Behind Old Hospital, Rajnagar, Tehsil And

District Rajsamand (Rajasthan).

----Appellant

Versus

1.

State of Rajasthan, Through The Secretary To The

Government, Urban Development And Housing

Department, Rajasthan Secretariat, Jaipur (Rajasthan).

2.

The Municipal Council, Rajsamand Through Its

Commissioner.

3.

Radhey Shyam S/o Shri Kanhaiya Lal, B/c Khatik, R/o

Behind Old Hospital, Rajnagar, Teh. And Distt. Rajsamand

(Raj.).

----Respondents

For Appellant(s)

:

Mr. Ashok Chhangani

Mr. Avin Chhangani

For Respondent(s)

:

Mr. Yashwant Mehta

Mr. Jayant Joshi

HON'BLE MR. JUSTICE SANDEEP MEHTA

HON'BLE MR. JUSTICE SAMEER JAIN

Order

15/12/2021

The instant special appeal (writ) has been preferred by the

appellant Pyar Chand being aggrieved of the order dated

22.10.2019 passed by learned Single Bench of this Court whereby,

the writ petition No. 15503/2019 preferred by the petitioner was

dismissed as being not maintainable.

Learned counsel Shri Ashok Chhangani and Shri Avin

Chhangani representing the appellant urged that the writ petition

was filed under Article 226 of the Constitution of India and the

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[SAW-10/2020]

learned Singh Bench without any justification treated it to be one

filed under Article 227 of the Constitution of India and dismissed

the same on totally unjustified grounds.

Shri Mehta and Shri Joshi, learned counsel representing the

respondents pointed out that the prayer which has been made by

the appellant in his writ petition is to direct demolition of the

construction raised by the respondent No.3 on his own land. Thus,

the controversy inter se between the parties is in the nature of a

pure private civil dispute. The appellant has already taken

recourse of the remedy of a civil suit with the very same prayer

which was made in the writ petition and the said suit has been

decided on the basis of compromise. They thus, urged that the

learned Single Bench was absolutely justified in refusing to

entertain the writ petition preferred by the appellant.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the material

available on record.

Copy of the civil suit filed by the appellant is available on

record and on perusal thereof, we find that the prayer which was

made in the suit is exactly the same which was made by the

appellant in the writ petition. The civil suit was decided on the

basis of compromise. The only issue which the petitioner raised in

the writ petition was that the construction being made by the

respondent is contrary to the directions given by this Court in the

case of Gulab Kothari, Editor, Rajasthan Patrika, Jaipur v.

State of Rajasthan & Ors : (2017) 2 RLW 1178. However,

what precisely is the violation has not been pointed out. Thus, on

facts also, the pleadings of the writ petition are absolutely vague

and uncertain. Indisputably, the construction which has been

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raised by the private respondent is on his own land and as such,

there is no merit in the contention of the appellant’s counsel that

the controversy is covered by the judgment passed in the case of

Gulab Kothari (supra).

As a consequence, we find no merit in this appeal, which is

dismissed as such. All pending applications are disposed of. There

shall be no order as to costs.

(SAMEER JAIN),J

(SANDEEP MEHTA),J

44-/Sudhir Asopa/Akshay/-