- (1.) PETITIONERS have preferred this writ petition for assailing the order dated 18th of October 2006 passed by the Divisional Commissioner, Jodhpur in Municipal Appeal No.1/2004, whereby the appeal laid by the third respondent under Section 170(12) of the Rajasthan Municipalities Act 1959 (Act of 1959) was allowed. By the order impugned, the learned Divisional Commissioner, while allowing the appeal of the third respondent, has upset the order dated 9th of January 2004 of Municipal Corporation, Jodhpur declining him permission to raise the construction, and remanded the matter back to the Municipal Corporation for deciding the application afresh in accordance with law. The learned Divisional Commissioner has further observed that for taking decision afresh on the application of the third respondent seeking permission to raise construction, the Municipal Corporation shall adhere to the observations made in the order impugned.
(2.) THE learned counsel for the petitioners at the outset has very candidly submitted that the petitioners are confining their grievances only to the extent of observations made by the appellate authority and are not keen to challenge the remand order. Mr. Salil Trivedi, learned counsel for the petitioners, in this behalf has submitted that the observations made by the learned Divisional Commissioner are touching the merits of the case and if the matter is examined afresh by the Municipal Corporation then grant of permission to the third respondent for raising construction would be fait accompli. Learned counsel for the petitioners would contend that, if the order impugned is upheld subject to the rider that the Municipal Corporation would decide the matter afresh without influenced by the observations made in the impugned order, no cause of grievance would survive to the petitioners. Learned counsel for the Municipal Corporation, Mr. Goswami, has not resisted this submission of the learned counsel for the petitioners.
(3.) MR . Jitendra Chopra, appearing for the third respondent has also agreed that the remand order be upheld and the matter may be left at the discretion of the Municipal Board, Jodhpur to examine the application of the respondent afresh and decide the same uninfluenced by the observations made by the learned Divisional Commissioner. However, Mr. Chopra has argued that a direction be issued to the Municipal Corporation to decide the application of the respondent, for grant of permission to raise construction, within a stipulated time.;