RAFIQ, J. - (1.) THIS writ petition by way of public interest litigation has been filed by as many as twelve residents of Pilibanga township of district Hanumangarh with the prayer that the respondents be directed to remove illegal encroachments and unauthorized constructions raised by those mentioned in Annexure P/27 in the middle of the Kharlia Road and Nehru Dharamshala Road as shown in the enclosed map of the Pilibanga Agriculture Marketing Yard/shopping Area. It has been asserted in the writ petition that Krishi Upaj Mandi Samiti, Pilibanga set up an agricultural marketing yard ( for short " the Yard") as per the plan approved by the Chief Town Planner-cum-Architectural Adviser of the Public Works Department, Government of Rajasthan, Jaipur. The plan of the yard was approved in the year 1964 according to which sufficiently wide public roads were left open. One such road which was originally named as Hospital Road has now come to be known as Kharlia Road. THIS road starts from National Highway and while cutting across the yard, it runs upto village Kharlia. Apart from 80 feet wide road, 40 feet wide land alongside this road was left open for parking purposes. Thus total width of the land covered by road and parking slot was proposed to be 120 fts. Apart from the site plan of the new yard (Annexure P/1) for indicating the position of Kharlia Road, the petitioners have placed on record site plan of the old yard also to show location of Nehru Dharamshala Road as Annexure P/2.
(2.) CONTENTION of the petitioners is that the large number of traders/others have made encroachment in the middle of the Kharlia Road within 80 feet area of the land left for road thereby reducing width of the road to just 55 feet. It is stated that Kharlia road, being the main road of the yard, is very strategic on account of its location because on its both sides are located major shops of this grain market. In view of its importance, 40 feet wide land was deliberately left open for the purpose of parking. Those who have encroached upon part of this road have constructed shops mostly in the size of 10' x 16'. Farmers from the surrounding villages of the mandi and local residents of Pilibanga made number of complaints to the authorities for removing the encroachments from Kharlia Road. Sarpanch of Gram Panchayat , Sarawanwala also submitted written complaint to the District Collector, Hanumangarh on 20. 11. 2005 against such illegal encroachments. Similarly, Sarpanch of Gram Panchayat , Likhmisar has also submitted written complaint on 20. 11. 2005 to District Collector for removing these illegal encroachments/constructions from the middle of the Kharlia Road. Large number of residents of Pilibanga also made complaints regarding these encroachments. It was on account of so much persuasion that the municipal authorities took initiatives for removing illegal constructions/encroachments and proceeded to demolish such illegally constructed shops. Suddenly however the petitioners were shocked to learn that the Municipal Board instead of removing the encroachments has permitted the encroachers to raise new shops after leaving 65 feet wide area for the road. They have been permitted to raise construction of the shops in the size of 8' x 10' ostensibly to reduce the extent of encroachment as earlier their construction was to the extent of 10' x 16'. The Municipal Board has taken a decision to regularize such illegal constructions made in the middle of the road even though it had earlier demolished such illegal shops in the month of November, 2005. Surprisingly, the Municipal Board in its meeting held on 21. 11. 2005 vide resolution no. 2 and 8 decided to regularize such illegal constructions. A copy of the proceedings of the Board dated 21. 11. 2005 has been placed on record. The Municipal Board not only decided to regularize the illegal constructions but also permitted such encroachers to raise new constructions in the middle of the road. One of the encroachers, namely Shri Premchand Nahta filed a civil suit before the Civil Judge (J. D.) , Pilibanga in which the trial Court appointed a Commissioner to submit the exact status report of the Kharlia Road. The report submitted by the Commissioner to the said Court has been placed on record of the present petition. Other residents of the yard also complained to the Secretary, Department of Local Self Government on 21. 12. 2005 for removing illegal constructions on the road and maintain the roads as per the master plan. It has been submitted that apart from Kharlia Road, the original width of Nehru Dharamshala Road in the old yard was 50 feet whereas the encroachments have been made on that road upto the extent of 15 feet and practically the width of the road has been reduced to only 35 feet. CONTENTION of the petitioners is that the Municipal Board is an active collaborator in encouraging illegal encroachments and illegal constructions inasmuch as the Board has itself invited tenders for allotting the work of construction of wall in the middle of the road. A copy of the work order dated 12. 12. 2005 inviting tenders has been placed on record to substantiate this. The petitioners have placed on record photographs of the road in question which clearly indicate construction of a fresh wall in the middle of the road. The petitioners have explained with the help of site plans of the new yard and the old yard as to how important these roads are to these yards and surrounding localities and in what manner constructions are being permitted to be raised by the encroachers. It has been alleged that the functionaries of the Municipal Board are hand in gloves with the illegal occupants of the public land and have taken no steps to prevent illegal encroachments. Similarly, it has been asserted that illegal encroachments have been made on Nehru Dharamshala Road as well. The photographs showing such illegal constructions have also been placed on record. In spite of the fact that the petitioners made number of representations to the respondents one after the other, no action has been taken by the Municipal Board against such illegal encroachments. The respondents are rather proceeding to regularize such illegal encroachments. It has therefore been argued that the writ petition be allowed in terms of the prayer extracted above. The respondent Municipal Board in its reply has raised preliminary objection about the maintainability of the writ petition that it has been filed with the motive of gaining personal benefits inasmuch as many of the petitioners are having occupation and business in the Mandi area and therefore they have a personal interest in the matter. This matter therefore cannot be described as a public interest litigation. It has been stated that one of the petitioners Baltej Singh is having 8-9 shops in his ownership on the Kharlia Road itself and therefore he is more worried about the downfall that may be caused in the value of his shops because of the constructions on the road. It has been submitted that the encroachments on the land and the constructions raised thereupon are all quite old and such illegal encroachments have been persisting their for last about 20 years. Originally the yard was established by the Krishi Upaj Mandi Samiti and it was the Mandi Samiti which used to maintain the yard. In course of time however Municipal Board, Pilibanga came into existence by order of the government dated 22. 5. 2002 and therefore entire area of yard including its upkeep and maintenance came in the charge of the Municipal Board. It has been stated that the controversy with regard to the existing encroachments is pending consideration before this Court in S. B. Civil Second Appeal No. 181/96 titled as "tehbazari Mandi Union vs. Krishi Upaj Mandi Samiti & Ors. ". In the said second appeal also the appellant Union submitted an application for impleading Municipal Board as a party respondent. It is basically the Municipal Board, Pilibanga which is concerned with the dispute in question. It cannot be therefore be contended that it was Municipal Board which was responsible for encroachments on the land in question. Learned Single Judge of this Court in the aforesaid second appeal has passed an interim order against the respondents to the effect that they shall not interfere with the business activities of the members of the appellant union. It has been stated that in compliance of the interim directions issued by the learned Single Judge, the Municipal Board got a survey of the area conducted and found that there were 288 encroachments which have been made on public roads. It has been argued that in view of the interim stay order passed in the said second appeal, huge quantity of gravel, stones, concrete etc. were dumped on the road and this was causing inconvenience to the public because free flow of the traffic was adversely effected and routine life of residents of the area was disturbed. Since the encroachments were made much before handing over charge of the yards to the Municipal Board, it cannot be held responsible for the encroachments. The Municipal Board has admitted the correctness of the map prepared by the Chief Town Planner and Architectural Advisor, Public Works Department. It has been stated that according to this map original width of the Kharlia road was 80 feet and 40 feet space was left vacant for parking. Due to illegal constructions however width of the road was reduced to just 55 feet. It has been stated that since the encroachment of 288 trespassers was existing on the public road for about 20 years and dispute thereabout was pending litigation before various Courts, it was not possible for the Municipal Board to remove entire encroachments until and unless the disputes were is finally resolved by the Courts. It has been clarified that purpose of inviting tenders to raise wall within the limit of the road was to ensure that the encroachers were restricted from further advancing on to the land of the road and their encroachments were restricted upto only 10 feet. In fact, general public has been benefited by this decision of the Board because earlier encroachments made in the size of 10' x 16' have now been reduced to just 8' x 10'. And this is also subject to the decision of the learned Single Judge of this Court in S. B. Civil Second Appeal No. 181/1996. It has therefore been prayed that the writ petition be dismissed. The petitioners have filed rejoinder to the reply in which it has been denied that encroachments on the road are more than 20 years old. Most of the encroachments are recent ones and have been made in presence of the Executive Officer of the Board. So far as S. B. Civil Second Appeal No. 181/96 is concerned, it has got nothing to do with the encroachments/constructions on the Kharlia Road. The respondents are trying to sanctify the encroachments made on the Kharlia road as well as Nehru Dharamshala road only by taking shield of the interim order passed in the second appeal. Even otherwise, Civil suit was filed by the union with only 150 members and therefore under the garb of interim order passed in second appeal, encroachments made by as many as 288 persons cannot be perpetuated. Reference has been made to Section 92 and 302 of the Rajasthan Municipalities Act, 1959 ( for short the Act of 1959) according to which public roads are the property of the Municipal Board and it is responsible for their safety. Earlier than filing the aforesaid second appeal, Tehbazari Mandi Union with only 40 members filed a writ petition before this Court namely S. B. Civil Writ Petition No. 1543/91 in which their contention was that as per policy decision taken by the Government, unauthorised occupants were entitled to claim regularization. Since the members of their union were doing the petty businesses at `footpath', they cannot be thrown out from the yard. The Krishi Upaj Mandi Samiti which was then incharge of the yard contested the writ petition and submitted that it was under a legal obligation to carry out the aims and objectives of the Rajasthan Agriculture Produce Marketing Act, 1961. The land in question was alloted to Krishi Upaj Mandi Samiti which was utilised for construction of market yard, auction platforms, rest house etc. . The land therefore could not be allowed to be encroached upon by those who claim to run their business on footpath and the road. The learned Single Judge by his judgment dated 4. 7. 1996 directed the State Government for allocation of alternative land to the members of the petitioner union and not to disturb them till such alternative land was made available. Krishi Upaj Mandi Samiti filed a special appeal against the judgment of the learned single Judge being D. B. Civil Special Appeal (Writ) No. 468/1996 which was allowed by Judgment dated 01. 05. 1997. The Division Bench while reversing the judgment of the learned Single Judge directed as under :- " In this view of the matter, we set aside the judgment of the learned Single Jude and direct the State Government through the Collector of the District to consider individual applications of the members of the writ petitioner union for allocation of alternative lands. The State Government will also consider whether it will be possible for the Government to derequisition the land which has once been allotted to the KUMS only to regularise the individual members of the writ petition Union or, in the alternative, to allow continuance of the individual members of the writ petition Union at their present site without any preference to the claims of the KUMS. " According to the directions contained in the said judgment, the Additional Collector (Administration) and Administrator of the Krishi Upaj Mandi Samiti gave a proposal on 11. 3. 1998 in which 40 encroachments of all those persons who were doing the business were admitted. This place came to be known as `bhadu Market'. It was stated that at present 34 shops were constructed. In the survey also, it was found that there were 216 more encroachments which were fresh. In this way 256 encroachments were found as on 11. 8. 1998.
(3.) IT appears from the record that the injunction suit was filed before the Munsif Magistrate, Pilibanga which was decreed by that Court on 3. 2. 1993. The Krishi Upaj Mandi Samiti filed an appeal there against before the Additional District Judge, Hanumangarh who by his order dated 12. 2. 1996 set aside the judgment and decree passed by the Munsif Magistrate, Pilibanga and allowed the appeal thereby reserving the order of injunction passed in favour of the plaintiff union. A writ petition, being S. B. Civil Writ Petition No. 2088/96, was filed against both the aforesaid judgments by Tehbazari Mandi Union, Pilibanga and others. A learned Single Judge of this Court vide order dated 12. 7. 1996 dismissed the writ petition holding that writ petition was not maintainable against the aforesaid judgments. While dismissing the writ petition on the ground of alternative remedy, the learned single Judge permitted the petitioners therein to file second appeal and directed that the respondents not to interfere with the business activities of the members of the petitioner union for a period of two months only. IT was directed that after expiry of two months' period, the ad interim order would come to an end. IT was thereafter that Tehbazari Mandi Union filed the aforesaid second appeal before this Court on 17. 7. 1996. In that second appeal, an interim order was passed by the learned Single Judge on 25. 10. 1996 which was extended from time to time and lastly it was confirmed by order dated 3. 2. 1997. We have carefully scrutinized the records of the second appeal. What is significant to note is that when the writ petition No. 1543/91 was originally filed, Tehbazari Mandi Union claimed to be a registered union with only 40 members. When however the civil suit was filed in the year 1992, the union claimed that it had the membership of about 150 persons who are all traders engaged in the small time business activities. An application was thereafter filed by as many as 59 persons who claimed that they were also members of the plaintiff union and therefore they were impleaded as defendants in the civil suit so filed. The decree passed by the learned Munsif Magistrate, Pilibanga has included those persons as defendants no. 5 to 63 in the aforesaid civil suit. A perusal of the judgment passed by the learned trial Court in that civil suit indicate that the claim made by the plaintiff union and those defendants in that case was based on various policy circulars of the government whereby it decided to regularise encroachments over the government land for a long period of time. The learned trial Court issued a perpetual injunction against the respondents including the defendants which included the State of Rajasthan through Collector, Sri Ganganagar, Additional District Magistrate-cum-Secretary, Krishi Upaj Mandi Samiti, Hanumangarh, Deputy Town Planner, Bikaner and Secretary, Krishi Upaj Mandi Samiti, Bikaner to the effect that none of the members of the plaintiff union should be evicted from the place of present possession till an alternative site was allotted to them. The learned Additional District Judge, Hanumangarh in his judgment dated 12. 6. 1996 while allowing the appeal, set aside the judgment and decree holding that the defendants would be free to evict the members of the plaintiff union by due process of law. It is against that judgment of the learned Additional District Judge, Hanumangarh that the aforesaid second appeal has been filed by Tehbazari Mandi Union in which an interim order is operating till date. It is indeed a matter of concern that those who are members of the Tehbazari Mandi Union, in spite of the fact that admittedly they are rank tress passers are persisting with their illegal encroachment over the land, most of which is part of the road for last more than a decade. Municipal Board does not seem to be making any serious effort to get the interim order passed in the aforesaid second appeal on 25. 10. 1996 vacated. Although by order dated 23. 1. 2006 the matter was ordered to be listed on 14. 2. 2006 but from the order sheet of the second appeal it appears that the matter was not listed on that day and in fact has not been listed on any date thereafter. We find from the order dated 23. 2. 2006 passed by the learned Single Judge in the aforesaid second appeal that the Municipal Board belatedly applied to become a party to the appeal and on its application was allowed to be impleaded as a respondent therein. The Municipal Board has been directed to submit list of persons who according to it were not party to the civil suit because in that case no stay order would be operative in their favour. The appellant union was also directed to file a proper affidavit as to when was it constituted and if is registered , who were the members on whose behalf the suit was filed and whether all of them are in occupation of the land and further that if there was any change in the original composition of the Union, the same should be furnished with respective parties and properties also. ;