YADAV, J. - (1.) THE present writ petition has been filed by the petitioners, for quashing the impugned order dated 23. 11. 92, Annexure-4 to the writ petition, passed by the Committee constituted under Section 300 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as "the Act No. 38 of 1959"), with a direction to decide the issue of encroachments and demolition, afresh. It is further prayed that the notification dated 17. 7. 54, be declared void and inoperative. Alternatively, it is prayed that this Court may issue any other appropriate writ, order or direction, which this Court may deem proper in the facts and circumstances of the present case, to protect the rights and interests of the petitioners.
(2.) THE present writ petition is disposed of finally, at admission stage, without delineating the averments made in the writ petition on the basis of facts, which are not disputed before me. Indisputably the Civil Writ Petition (1), was filed before this Court, by one Prakash Chand Shukla against the State of Rajasthan and others, in which petition, the petitioner No. 2 was arrayed as respondent No. 6, whereas, respondent No. 5 was arrayed as respondent No. 5, in the array of respondents, in representative capacity, in which, subject-matter of dispute involved in the present writ petition was issued directly and substantially involved. In abundant caution, in the aforesaid writ petition, the Court directed the Office of Registry, to get the public notice published in `rajasthan Patrika' about the pendency of the aforesaid writ petition, inviting participation by general public, if so interested. A photostat copy of the judgment, rendered by the learned Single Judge, on 23. 7. 86, in the aforesaid writ petition, is filed by the petitioners, which is marked as Annexure-4/a to the writ petition. It is borne out from the perusal of the aforesaid decision, Annexure-4/a to the writ petition, on which the petitioners are placing reliance in support of their claim that on 28. 2. 85, the following ad interim stay order was passed on the stay application, which is reproduced for ready-reference:- " Heard learned counsel for the parties. None put appearance on behalf of the State. Mr. Tiwari Puts in appearance on behalf of the Municipal Council. It is obligatory duty of the Municipal Council to remove encroachments especially on the public thoroughfare. The Municipal Council is directed to remove the encroachments immediately in accordance with the provisions of law. " A close scrutiny of the aforesaid judgment, Annexure-4/a reveals that since encroachments were not removed in pursuant to ad interim stay order dated 28. 2. 85, by the Municipal Council, the petitioner in the aforesaid writ petition moved an application for contempt, upon which, notice was issued. On the contempt application, the learned Single Judge, Hon'ble Mr. Justice D. L. Mehta, the then Judge of this Court, passed the following order:- " The controversy is in respect of the encroachments, if any, made on the thoroughfare it is the duty of the concerned authority to determine whether there is any encroachments or not. At the same time if there is an encroachments the encroachments should be removed and the order of the court should be complied with. The Court while passing an order has specifically mentioned in accordance with the provisions of law and that order is very specific if the Municipal Authority cannot determine whether there is encroachments or not. If the authorities are silent spectators and they are not fulfilling their duty the court is bound to issue mandamus and take necessary action in the matter. The court cannot shut its eyes where there is public interest litigation. " A perusal of the aforesaid judgment, Annexure-4/a, upon which the learned counsel for the petitioners is placing reliance, reveals that in three orders, passed by Hon'ble D. L. Mehta, J. , on 28. 2. 85, 9. 10. 1985 and 11. 12. 1985, the petitioner in that writ petition namely Prakash Chand Shukla (supra) had achieved what was his prayer in the said main writ petition. The order passed by Hon'ble the then M. B. Sharma, J. , on 11. 4. 1986 is also relevant in this regard.
(3.) IN case of Prakash Chand Shukla (supra), the Court had emphasized that statutory duties must be performed by the State and the Municipal Council, by following the rule of law in this regard. It is held in the aforesaid judgment, Annexure-4/a to the writ petition that it is a primary duty of the Municipal Council, to remove the encroachments under the statute and the Municipal Council was found performing its statutory duties by passing order under Section 203 of Act No. 38 of 1959, after affording opportunity of hearing by giving individual and public notices. It was further found that State Government is also taking sincere efforts to remove encroachments from disputed Verandahs constructed on Municipal land connecting the footpaths by issuing notification in exercise of its powers under Section 300 of Act No. 38 of 1959 published in the Rajasthan Gazette (Extraordinary) dated 1. 7. 1986, constituting a Committee to decide revisions against the orders passed under Section 203 of the said Act. The aforesaid notification issued by State Government in exercise of its powers conferred under Section 300 of Act No. 38 of 1959 is reproduced hereinbelow:- " IN exercise of the powers conferred under Section 300 of the Rajasthan Municipalities Act, 1959 (Rajasthan Act No. 38 of 1959), the State Govt. hereby authorises the following Committee as authority to call for the record under the provisions of the aforesaid section for the purpose of being satisfied as to the correctness, legality or propriety of any order passed or purporting to have been passed regarding re-moval of encroachments of verandas in various markets of Jaipur, by or on behalf of Municipal Council, Jaipur, its Chairman, Vice Chairman, any member or officer and to pass final orders in this respect:- (1) Shri G. K. Bhanot (IAS Retired) -Chairman. (2) Secretary to the Government of Rajasthan, LSG Department.-Member. (3) Law Secretary, Government of Rajasthan.-Member. The State Government further orders that no other authority except the above Committee shall pass orders under the said section regarding removal of encroachments of verandas in various markets of Jaipur and all cases pending in this respect with them shall be transferred to the above Committee for decision. By order of the Governor, Sd/-K. L. Pareek Dy. Secretary to the Govt. " It is borne out from the perusal of the order passed in case of Prakash Chand Shukla (supra) that the learned Single Judge was satisfied that the State Government by issuing notification in exercise of its power under Section 300 of Act No. 38 of 1959, is performing its statutory duty to remove the encroachments over the public land and the Municipal Council is also taking sincere efforts in this direction. The learned Single Judge expressed his view that after constitution of Committee, under Section 300 of Act No. 38 of 1959, by the State Government, which is a quasi-judicial Tribunal, the revisions relating to encroachments of verandahs connecting footpaths constructed on Municipal land which are meant for use of public at large are to be decided by the said Committee, against the orders passed under Section 203 of the aforesaid Act. The learned Single Judge, in case of Prakash Chand Shukla (supra), declined to issue mandamus after recording a finding to the effect that since against the orders, passed under Section 203 of Act No. 38 of 1959, directing removal of encroachments over the verandahs, connecting footpaths, revisions are made maintainable before a Committee constituted under Section 300 of Act No. 38 of 1959, so, he did not think it proper to dictate to the said quasi-judicial Committee, in what manner, it had to decide the dispute relating to encroachments. It was so held by the learned Single Judge, as according to him, the Committee, constituted under the aforesaid Section by State Government, was found to be a quasi-judicial Tribunal of a judicial character. Indisputably, after hearing the aggrieved persons, who had filed revisions against the orders passed under Section 203 of Act No. 38 of 1959 before the aforesaid Committee constituted under Section 300 of Act No. 38 of 1959, had decided all the revisions by a composite order dated 23. 11. 1992, Annexure-4 to the writ petition, holding encroachments over the verandahs, connecting footpaths constructed over the Municipal land meant for use of public at large to be illegal by the Traders who alleged themselves to be members of petitioners' union. ;