- (1.) THESE two appeals have been filed against the identical orders passed by the learned Single Judge, and involve identical factual matrix, and are therefore, being decided by this common order.
(2.) THE facts of Appeal No. 1079, which arises from S.B. Civil Writ Petition No. 538 of 1997 are, that the petitioner Bhagwan Das filed a writ petition, alleging inter alia, that the petitioner and 20 more persons were granted land by the Municipal Board measuring 7' x 7' since seventees or so, which land is neither part of the road, nor part of the footpath, but is a vacant side. Then, it is alleged, that all the persons are doing business on the land by establishing modern structure or wooden almirah, and all the persons are carrying on their business for the last 40 years without any disturbance. It is also alleged, that the petitioner had been paying rent but receipt is not available. However, the petitioner has produced notice of the bank demanding repayment of loan, and a notice of the Municipal Board issued in the year 1982, under Section 203 under the Rajasthan Municipalities Act, 1959 as Ex. 1 & 2. It is then alleged, that the State Government directed the Municipal Board to remove all encroachments, and in that garb Municipal Board wants to demolish the construction with the police help, without giving any notice, and without taking proceedings under the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964, hereafter referred to as the Act of 1964, and without following due process of law, to terminate the tenancy. Representation made to the Chairman went in vein, and a notice has been issued being Ex. 5, to remove the construction, which is under challenge. inter alia with these factual averments, it is prayed, that the notice Ex. 5 be quashed, and the Municipal Board be restrained from demolishing the shop, and removing same, or in the alternative Municipal Board be directed to provide suitable size of land to them, or the size of the present land be reduced by 2 ft.
(3.) A reply to the writ petition has been filed, contending inter alia , that the writ petition is replete with misstatement of facts. It was contended, that originally the width of the road was 40 ft. but on both sides encroachments have been made for about 10 ft. reducing the width of road to 20 ft. only. The road is hospital road, and there is market as well. Then it is alleged, that it is wrong to contend that the petitioner or the like 20 persons were given any lease. The averment of giving lease was specifically denied. It was also contended that a wrong statement has been made that the land is neither part of the road, nor of footpath. Then, it is alleged, that the petitioner is a rank trespasser, and encroacher, who is not entitled to invoke 226 jurisdiction.;