- (1.) The plaintiff/petitioner aggrieved of the order dated 8th January, 2014 passed by the learned Court below declining the application of the plaintiff/petitioner under Order 39 Rule 1 and 2 read with Section 151 of the Civil Procedure Code (hereinafter referred to as 'CPC', for short), has approached this Court praying for the following relief(s):- "It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this writ petition in the interest of justice and:- (i) by an appropriate writ, order or direction, the impugned order dated 8/1/2014 (Annex.6) may kindly be quashed and set aside and the Municipal Board may specifically be directed to follow strictly the due process of law in accordance with the directions given by this Hon'ble Court under the judgment and decree dated 24.10.2013, while removing the alleged encroachment; (ii) Any other order which this Hon'ble Court considers expedient, just and proper in the facts and circumstances of the case may kindly be granted in favour of the petitioner; and (iii) Cost of this writ petition may kindly be awarded in favour of the humble petitioner."
(2.) Briefly, the material facts necessary for appreciation of the controversy raised in the writ application are: That the plaintiff/petitioner instituted a civil suit along with an application for temporary injunction before the learned trial Court on 6th January, 2014. In the application under Order 39 Rule 1 and 2 read with Section 151 of the CPC, the petitioner prayed for temporary injunction against eviction in response to notice dated 4th December, 2013 under Section 245(1) of the Municipalities Act, 2009; keeping in view the directions issued by a Coordinate Bench of this Court in S.B. Civil Second Appeal No.277 of 2012 on 24th October, 2013, which reads thus:- "Therefore impugned judgment and decree dated 14-3-2012 by the first appellate court upholding the judgment and decree of the trial court passed on 25-8-2005 is set aside with the following directions:- 1. The municipality shall serve a show cause notice under Section 203 of the 1959 Act to the plaintiff as to why the shop and chabutara over what it states to be the municipal land/public street should not be removed therefrom. 2. Notice shall be served by registered post and/or by way of pasting on the premises in question held by the plaintiff. 3. The plaintiff would be obliged to file reply to the show cause notice within a period of four weeks of service of notice with all documentary evidence, he might have to protect his construction/possession. 4. On receipt of the reply from the plaintiff to the show cause notice issued by the Municipality, the Municipality shall take a decision thereon within a period of two months thereafter. 5. It is made clear that no adjournment except for unavoidable reasons shall be allowed. And any adjournment sought shall be considered only on a written application and disposed of by a reasoned and speaking order. In any event of the matter, when warranted, the maximum number of adjournment each not more than three days would be only two in number as the matter relates to alleged encroachment over a public street. 6. In the event of non cooperation and non participation by the plaintiff before the Municipality to defend the show cause notice under Section 203 of the 1959 Act, the Municipality shall be free to proceed ex-parte and determine the show cause notice by a speaking and reasoned order. 7. All aforesaid proceedings shall be completed within three months from the date of service of the show cause notice on the plaintiff. 8. On consideration of reply by the plaintiff to the show cause notice, the Municipality comes to a conclusion that the plaintiff is an encroacher over municipal land, the Municipality shall be entitled to remove the plaintiffs construction/encroachment found forthwith. The appeal stands disposed of accordingly."
(3.) The learned counsel for the petitioner has assailed the legality and validity of the impugned order dated 8th January, 2014, on the ground that he is in possession of a rented premises i.e., a platform 3 feet above the road and basement below the said platform as well as the adjacent shop situated in front of SBBJ Bank Banch Shiv Chowk, Choti Basti, Pushkar, Ajmer. The learned counsel would further submit that officials of the Municipal Board, Pushkar, in order to dispossess the petitioner at the instance of the landlord, issued a notice in the garb of directions issued by this Court in S.B. Civil Second Appeal No.277 of 2012 vide order dated 24th October, 2013. Further, a bare perusal of the directions issued by this Court would reveal that the Municipal Board is required to serve a show cause notice; obtained a reply and then take a decision in respect of ownership, possession and title. Only in the event of any encroachment being found; action may be taken. It is further contended by the learned counsel for the petitioner that the landlord and the authorities of the Municipal Board are hand-in-glove in order to dispossess the plaintiff/petitioner, and therefore, the impugned order dated 8th January, 2014, passed by the learned Court below declining the prayer for temporary injunction, is bad in eye of law and needs to be interfered with by this Court.;