- (1.) THE petitioner-Satram Das Gehri Mal Jewellers Pvt. Limited, Udaipur has filed this petition through Manohar Lal Mehta, who is one of the Directors of the petitioner company and challenged the impugned notice/order dated 29. 4. 98 (Annex. 7) whereby the Municipal Commissioner, Udaipur-respondent no. 2 ordered the petitioner to remove the construction on the site within 48 hours from the receipt of the notice failing which the same will be removed at the costs and consequences of the petitioner.
(2.) AS per the averments made in para 3 of the petition, it is stated that the petitioner applied for permission to construct a new building by demolishing the existing building of on a plot of land situated near Chetak Cinema, Udaipur by an application dated 29. 1. 98 and deposited the requisite fees prescribed by the Municipal Council, Udaipur and obtained a receipt of Rs. 1,050/-which is produced at Annex. 2. However, the petitioner has not annexed the application dated 29. 1. 98 along with the petition. It is stated in para 4 of the petition that the permission to construct a new building in place of old building along with the requisite site plan for approval of the Municipal Council, Udaipur was also submitted. Instead of annexing the site plan along with the petition, it has been stated in para 4 that, "the site plan shall be kept ready for the perusal of this Hon'ble Court at the time of hearing of the writ petition. " It appears from the averments made in para 5 of the petition that the predecessor-in-title of the petitioner had earlier applied for similar permission on 25. 1. 97 and also deposited the requisite fee for raising construction by demolishing the old building. The matter was referred to the Senior Town Planner by the Municipal Council, Udaipur who considered the site plan and gave its opinion in positive with some modifications to the Municipal Council, Udaipur. According to the petitioner, one such application was submitted for required decision within thirty days and if it is not granted then it is deemed to have been granted under Sec. 170 (8) of the Rajasthan Municipalities Act, 1959 (for short "the Act") in view of Sec. 170 (8) of the Act, the sanction for such plan deemed to have been granted. However, after stepping in the shoes of its predecessor, the petitioner applied before the Municipal Council, Udaipur on 27. 1. 98 and by way of reminder dated 26. 3. 98 that though the application for grant of permission was submitted by it on 29. 1. 98 together with all other necessary documents and fee, no decision was taken by the Municipal Council, Udaipur so far. Therefore, the said decision may be communicated to the petitioner forth with, failing which the provisions of Sec. 170 (8) of the Act will apply and it will be presumed that a deemed sanction has been granted in favour of the petitioner. Photostat copy of the reminder dated 26. 3. 98 (Annex. 5 ). It appears that on receiving the application dated 29. 1. 98 from the petitioner, the Municipal Council, Udaipur referred the matter to the Senior Town Planner on 3. 2. 98 who by his letter dated 20. 4. 98 informed the Municipal Council, Udaipur that if the permission is granted in terms of his earlier letter dated 2. 7. 97, he will have no objection. (Annex. 6 ).
(3.) IT is alleged in the petition by the petitioner that instead of acting on the opinion of the Senior Town Planner in granting necessary permission to the petitioner as laid down under Sec. 170 of the Act, no permission was granted even after expiry of thirty days after the application, therefore, the petitioner was obliged to submit a reminder/notice dated 26. 3. 98 (Annex. 5 ). The same was received on that very day i. e. 26. 3. 98 by the Municipal Commissioner. As provided under Sec. 170 (8) of the Act, if no decision is taken within fifteen days, then it means that the deemed permission is granted. The last date was 10. 4. 98 for taking such decision by the Municipal Council but as no decision was taken or communicated to the petitioner by that time, the petitioner started with the construction. However, within 19 days thereof i. e on 29. 4. 98, the petitioner has been served with the impugned notice from the Commissioner, Municipal Council,udaipur (Annex. 7) calling upon the petitioner to remove the construction from the site failing which the construction shall be removed at the costs and consequences of the petitioner. This has been challenged by the petitioner by way of this petition under Article 226 of the Constitution. This petition was filed on 4. 5. 98 before this Court and on the next day i. e. on 5. 5. 98, notice was ordered to be issued to the respondents making it returnable within two weeks. Till then, the respondents were restrained from demolishing any construction made by the petitioner. On 22. 5. 1998, the interim order was extended till 27. 5. 98. On 27. 5. 98, it was ordered to be put up in the second week of July and till then the interim order was extended. It appears that some how or the other, the respondents were not served, therefore, on 15. 7. 98 fresh notice was ordered to be issued and interim order was continued till then. It appears that on being served, the respondents no. 2. and 3 filed an application through their learned counsel Mr. Dinesh Maheshwari to restrain the petitioner from raising any construction on the land in question. A copy of the same was supplied to the learned counsel Mr. Joshi for the petitioner. On 4. 9. 98, it was ordered to be put up after two weeks. On 8. 10. 98, it was once again ordered to be put up on 12. 10. 98. On 12. 10. 98, it was ordered to be put up on 15. 10. 98 then on 16. 10. 98 and then on 22. 10. 98. On 22. 10. 98, my learned brother Hon'ble Dr. B. S. Chauhan , J. ordered to list this matter for final hearing on 27. 10. 98. Meanwhile, it was made clear that if the construction was raised then it will be subject to the decision of this writ petition. There after on 27. 10. 98, the matter was adjourned at the request of Mr. Maheshwari for three weeks for the purpose of filing the reply. Then on 1. 12. 98, it was adjourned oon 8. 12. 98. On 8. 12. 98, it was adjourned for three weeks as Mr. Joshi wanted to file rejoinder. Thereafter, the matter was adjourned from time to time to on 14. 1. 99, 27. 1. 99, 15. 2. 99, 3. 3. 99, 30. 3. 99, 21. 4. 99, 3. 5. 99, 17. 5. 99. On 5. 7. 99 at the request of the learned counsels for the parties, it was ordered to put up on 16. 7. 99 and it was ordered that till then the petitioner shall not proceed further with any construction. On 22. 7. 99, an application was filed by Mr. Maheshwari, learned counsel for respondents no. 2 and 3 that inspite of the interim order passed by this Court on 5. 7. 99, the petitioner was continuing with further construction and also completed the same. Learned Counsel Mr. Joshi for the petitioner stated that before the Court's order was served upon the petitioner, except the iron gate, the construction was completed and the said gate was only fitted after the Court's order. Both the learned counsels for the parties produced photographs in support of their contention. Thereafter the matter was kept on 23. 7. 99 at the request of the learned counsel for the parties. On 23. 7. 99, it was kept on 29. 7. 99. On 29. 7. 99, due to personal reasons of Mr. Joshi, it was ordered to be put up today i. e on 10. 8. 99. Accordingly, today this matter was heard at great length. ;