HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Writ Petition No. 9767/2022

1.

Zulfiquar Ul Haq S/o Late Shri Inam Ul Haq, Aged About

49 Years, R/o 2527 Baitul Fazal Dargah Miskin Shah,

Ghatgate, Jaipur.

2.

Sami Ul Haq S/o Late Shri Anwar Ul Haq, Aged About 31

Years, R/o 2527 Baitul Fazal Dargah Miskin Shah,

Ghatgate, Jaipur.

3.

Rafay Ul Haq S/o Late Shri Anwar Ul Haq, Aged About 31

Years, R/o 2527 Baitul Fazal Dargah Miskin Shah,

Ghatgate, Jaipur.

4.

Ahsan Ul Haq S/o Late Shri Ikram Ul Haq Shah, Aged

About 75 Years, R/o 2527 Baitul Fazal Dargah Miskin

Shah, Ghatgate, Jaipur.

----Petitioners

Versus

1.

Commissioner, Nagar Nigam, Heritage Jaipur, Old PHQ

Behind Hawa Mahal, Badi Chaupar, Jaipur, 302003.

2.

Deputy Commissioner, Adarsh Nagar Zone, Heritage

Nagar Nigam, Jawahar Nagar Sector No. 4, Near MPS

School, Jaipur.

----Respondents

For Petitioner(s)

:

Mr. Akshay Bhardwaj with

Mr. Hemant Sharma and

Mr. Vedant Agarwal

For Respondent(s)

:

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

08/07/2022

The petitioners have filed this writ petition assailing the

legality and validity of the notice dated 24.06.2022 issued by the

respondent no.2 requiring them to either submit their reply to it or

to remove the construction being raised on the public way.

(2 of 3)

[CW-9767/2022]

Learned counsel for the petitioners submitted that the

aforesaid notice is without jurisdiction inasmuch as the petitioners

are raising construction on their private land which is not part of

the public way. Drawing attention of this Court towards the

provision of Section 245 of the Rajasthan Municipalities Act, 2009,

learned counsel submitted that jurisdiction of the municipal

corporation to issue notice alleging illegal construction does

extend over private property. He submits that the Rajasthan Board

of Muslim Waqf has also written to the district collector and police

authorities seeking stoppage and removable of the construction

being raised by the petitioners on their private property alleging

the same to be on the waqf property. He submits that under

Section 54 of the Waqf Act, 1995, it is the Waqf Board only which

has got jurisdiction in the matter. Learned counsel submits that

the Rajasthan Board of Muslim Waqf has also filed a suit in the

Waqf Tribunal, Jaipur for permanent injunction qua the same

property wherein, the Municipal Corporation Heritage, Jaipur has

also been impleaded as defendant no.7; but, the respondents-

Corporation instead of appearing in the aforesaid suit, has issued

them the impugned notice without jurisdiction. He, therefore,

prays that the notice dated 24.06.2022 be quashed and set aside.

Heard. Considered.

It is trite law that disputed question of facts cannot be

entertained in the writ petition under Article 226 of the

Constitution of India. The notice impugned in the writ petition,

contains a specific allegation that the petitioners, while raising

construction in the subject plot, have encroached upon and have

obstructed the public way. This Court is not persuaded on the

(3 of 3)

[CW-9767/2022]

basis of material on record to record a finding that the averment

contained in the notice are factually incorrect and the petitioners

are raising construction on their private property.

Since, this writ petition involves disputed question of facts,

the same is dismissed accordingly.

(MAHENDAR KUMAR GOYAL),J

MADAN/64