- (1.) THIS petition has been filed with the following prayers : (i) By issue of an appropriate writ, order or direction, the order dated 20.08.2011 may kindly be declared arbitrary, discriminatory, illegal and same may kindly be quashed and set aside. The action of respondents in sealing the shops of the petitioner situated at 124/183, Thadi Market, Agarwal Farm, Mansarovar, Jaipur may kindly be held illegal and the respondents may kindly be directed to remove seal and lock from the aforesaid shops of the petitioner and to allow him to run shops at the aforesaid premises. (ii) In the alternative, the respondents may kindly be directed to maintain parity between all the citizens and to take similar action of sealing the shops, offices, banks, liquor shops, showrooms and other commercial activities in Mansarovar, Jaipur, which are being run in residential premises.
(2.) WITH regard to first prayer, Ms. Naina Saraf appearing for respondent Nos.3 and 4 has pointed out that the petitioner himself had filed an affidavit on 23.08.2011 before the Municipal Corporation, Jaipur stating that his plot No.124/183, Agarwal Farm, Mansarovar, Jaipur is a residential house in which commercial activities were being illegally undertaken consequent to which the officers of the Municipal Corporation had seized the premises and that in future he would not undertake any commercial activities out of his residential premises. It was further stated in the affidavit that the Municipal Corporation should allow him to use the residential house and he would not undertake commercial activities therefrom until a formal conversion of the property in issue was made from residential to commercial in accordance with the extant laws. Counsel for the respondents would submit that in view of the aforesaid affidavit nothing remains for the petitioner to argue on merit. Counsel further submits that in any event the seizure under Section 194(7)(f) of the Rajasthan Municipalities Act, 2009 (hereinafter 'the Act of 2009') on 20.08.2011 was consequent to the judgment of the Division Bench of this Court in D.B. Civil Writ Petition No.4783/2004 titled Suo Moto Vs. State. It is submitted that even otherwise the order of seizure dated 20.08.2011 is an appealable order under Section 194(12) of the Act of 2009. With regard to second prayer, counsel for the petitioner has submitted that the petitioner is being targeted merely because he is a man of small means who is operating a shop out of his residential premises for reasons of necessity to make a livelihood even while similarly situate persons in the entire area where the petitioner's shop is situate who were carrying out large scale businesses have not been targeted. According to the petitioner, this is discriminatory action on part of the Municipal Corporation and in violation of Article 14 of the Constitution of India. Ms. Naina Saraf appearing for the respondents would submit in rebuttal that the Municipal Corporation on its part cannot undertake the entire action against all in breach of law in compliance with the order of the Division Bench in "a single day" and the stopping/seizing of residential premises from which commercial activities are being carried out without a proper conversion of the land use is an ongoing process. She submitted that over a thousand notices have been issued to the various owners of the residential houses who were in breach of law in undertaking commercial activities out of residential premises. She further submits that the Municipal Corporation is bound even otherwise to comply with the order of the Division Bench in DBCWP No.4783/2004 on the one way or the other and in the event, any person is aggrieved of non-compliance therewith, he is free to take appropriate proceedings for contempt of the orders of the court. The further submission is that even otherwise, right to equality is a positive concept and there can be no negative equality in the sense that merely because others are engaged in unlawful commercial activities out of their residential premises, a person approaching this court cannot be allowed to be similarly engaged by order of this Court. It is submitted that this Court does not have any such power to pass an order as sought by the petitioner on the basis of negative equality. I have heard the counsel for the petitioner as also the respondents and perused the writ petition as also reply thereto. At the outset, the affidavit filed by the petitioner before the Municipal Corporation, Jaipur on 23.08.2011 which is on record of the petition as annexure 5, is conclusive of the petitioner running a commercial shop out of his residential premises contrary to law. The petitioner has also undertaken in the said affidavit to desist from undertaking commercial activities out of his residential premises. In this view of the matter, I do not find any substance in the case of the petitioner seeking a direction that his shop situated at plot No.124/183, Agarwal Farm, Mansarovar, Jaipur, seized by the Municipal Corporation, be "de-seized". Further, it is not in dispute that apart from the breach of statutory provisions by the petitioner, the action of the Municipal Corporation was also founded upon the judgment of the Division Bench of this Court in DBCWP No.4783/2004. In these circumstances, there is no occasion whatsoever for this Court to quash the order dated 20.08.2011 seizing the petitioner's shop under Section 194(7)(f) of the Act of 2009.
(3.) EVEN while dismissing the petitioner's petition in holding that the petitioner cannot argue his case on the basis of negative equality, it is directed that the Municipal Corporation shall take all requisite steps with reasonable dispatch to ensure that all the commercial activities out of residential plots in Mansarovar, Jaipur are stopped. The Municipal Corporation is further directed to file an affidavit before this Court with regard to the time frame in which the commercial activities from residential plots in Mansarovar will be completely stopped and also state therein as to the number of plots which have been seized for violation of law under the order of the Division Bench referred above. Let the affidavit be filed within two weeks from today. Consequently, the writ petition is disposed of. Registry is directed to list the matter before this Court for ensuring the compliance of the orders of this Court by the Municipal Corporation, Jaipur as directed. Place before the Court on 30.04.2012. ;