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CASE NO.: Appeal (civil)  6588 of 2005

PETITIONER: Jaipur Municipal Corporation                             

RESPONDENT: C.L. Mishra                                                      

DATE OF JUDGMENT: 27/10/2005

BENCH: CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T (Arising out of Special Leave Petition (Civil) No.17693 of 2004)

G.P. Mathur, J.

       Leave granted. 2.      This appeal, by special leave, has been preferred against the  order dated 28.5.2004 of High Court of Rajasthan by which the  review petition filed by the appellant was dismissed.    

3.      It is necessary to mention some basic facts for the decision of  the appeal.     The respondent, C.L. Mishra, sent a letter to the  Rajasthan High Court that a temple had been constructed on a land  adjoining Bagla Mukhi Sadhana Kendra in Sector 3, Malviya Nagar,  Jaipur, a place which was earmarked for a park and the construction  had been made without prior approval of the competent authorities.   The letter was treated as a public interest litigation and was registered  as D.B. Civil Writ Petition No.6051 of 1997 at the Jaipur Bench of the  High Court.  Notices were issued to the Jaipur Municipal Corporation,  Rajasthan Housing Board, Collector Jaipur, and two private persons  namely Shyam Lal Gulani and Hargum Dass Motwani, who were  alleged to have raised the unauthorized construction.   These persons  filed a joint reply asserting that the writ petitioner himself was an  unauthorized occupant and he had forcibly taken possession of the  temple where he was residing.   They also submitted that a public  temple exists on the disputed land for a long time and was shown to  be land of temple in the maps and plans of Rajasthan Housing board  and that of Jaipur Municipal Corporation.  They denied that the  temple had been constructed by encroaching upon land, which was  earmarked for a park. The Rajasthan Housing Board filed a reply  stating, inter alia, that there was a temple on the land alleged by the  writ petitioner but no work of new construction was found.  On  enquiry from the residents of the area it was found that the temple was  being maintained by Pujya Sindhi Panchayat, Sector 3.   It was also  stated that in the municipal map it was shown as a temple and the land  had been earmarked for the same.   The other plea taken by the Board  was that after construction of the colony, the same had been handed  over to Jaipur Municipal Corporation and if any unauthorized  construction had been made, it was the responsibility of the Jaipur  Municipal Corporation to remove the same.   The Jaipur Municipal  Corporation also filed a reply stating, inter alia, that on 9.11.1992 the  charge of certain sectors in Malviya Nagar was handed over by  Rajasthan Housing Board to the Jaipur Municipal Corporation.  The  Housing Board had not handed over the strip of land which remained  vacant in the colony or in respect of which the title was in dispute and  has kept all such lands in its own ownership.  The Municipal  Corporation thus denied any responsibility in the matter of removal of  encroachment from the land.   

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4.      After noticing the pleas and contentions raised by various  parties, the High Court disposed of the writ petition by the order dated  8.5.2000 and the last two paragraphs thereof, which contain the  operative portion of the order, are being reproduced below :- "We would, therefore, dispose of this petition by  directing that the Municipal Corporation, Jaipur shall be  responsible for removal of encroachment from the land  handed over to it for maintenance etc.  by the Rajasthan  Housing Board.   We would also direct that completion  of the formalities of completely handing over land to the  Municipal Corporation by the Rajasthan Housing Board  shall also be expedited.   We are not making any  observations on the factual situation and rival contentions  about the existence or otherwise of the encroachment and  the rights of the parties. When the Municipal Corporation  takes action for removal of the encroachment it shall  naturally, in compliance with the law, afford adequate  opportunity to the persons known to be in possession of  the encroached portions to be in their possession, before  removing the encroachments.   We expect the Municipal  Corporation to discharge its functions expeditiously and  if it finds that the public land has been encroached upon,  it shall take action for removal irrespective of whether  the encroachment is under the garb of temple or a place  of worship.   If need be, the Municipal Corporation shall  also be entitled to take help from the local administration  in order to see that the law and order is not disturbed  during the removal of encroachment.           The private respondents shall maintain status quo  as to the construction on the land and not put up any new  construction on it for a period of six months from today  during which the Municipal Corporation, Jaipur shall  decide whether a prima facie case of encroachment is  made out and if it is of the opinion that the public land  has been encroached upon, it shall take action for its  removal by issuing the notices in compliance with law, to  the encroachers and shall dispose of the matter within a  period of six month from today.   If so requested, the  Municipal Corporation shall also afford hearing to the  Petitioner on the question as to whether a prima facie  case of encroachment is made out."

5.      The Commissioner of the Municipal Corporation, Jaipur, gave a  report on 14.9.2000 to the effect that encroachment over the land had  been made by Sindhi Panchayat.  The matter was thereafter  considered by a Committee for Regulations and Bye-Laws of Jaipur  Municipal Corporation which gave a detailed report running into  several pages on 15.2.2001.   The Committee held that it was not a  case of encroachment and the public temple had not been constructed  on the land earmarked for any park.  On the contrary, a garden had  been developed in front of the temple by members of public.  It was  also observed in the report that if the temple was being maintained by  Pujya Sindhi Panchayat, then it should be got registered under the  Rajasthan Public Trust Act.   A copy of this report has been filed as  Annexure P-2 to the Special Leave Petition.

6.        C.L. Mishra, thereafter, filed a contempt petition which was  registered as D.B. Civil Contempt Petition No.3 of 2001 in D.B. Civil  Writ Petition No.6051 of 1997.   The contempt petition was heard on  24.7.2001 when the Division Bench passed an order observing that  normally the satisfaction of the Commissioner as to whether there is  an encroachment or not is final and such dispute is not to be referred  to a Committee, but the said course was adopted in the present case.   After making the aforesaid observation, the following order was

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passed : "The learned counsel for contemnors seeks time to  comply with the order in the light of the observations  which are made today in this order. We grant one month’s time to comply with the  order in its true letter and spirit. List this case on 30.8.2001. The Mayor and the Chief Executive Officer  Municipal Corporation, Jaipur, need not remain present  on further dates of hearing unless so directed."

7.      The contempt petition was thereafter heard on 28.1.2002 when  the following order was passed : "The contempt petition dated 2.1.2001 is pending  before this Court since 2.1.2001.   The Respondent No.1  and 2 i.e. Shri Inderjit Khanna, Chief Secretary,  Government of Rajasthan and Shri G.S. Sandhu,  Secretary to the Government, Department of Urban  Development Housing and Local Self Government,  Government Secretariat, Jaipur had already been deleted  from the array of non-petitioners by the Court on  14.5.2001.   Respondent No.3 Smt. Nirmala Verma, the  then Mayor, Municipal Corporation, Jaipur has already  expired.   The only respondent who remains is the Chief  Executive Officer, Jaipur Municipal Corporation, Jaipur  who too is said to have been transferred somewhere else.    By the order dated 29.11.2001 eight weeks time from the  date of receipt of the certified copy of the order was  granted to carry out the earlier directions as were issued  in the judgment and order dated 8.5.2000.  It is submitted  that this eight weeks period from the date of receipt of  the certified copy of the Order is going to expire on  8.2.2002.   In this background, Mr. Ashok Gaur, learned  counsel for the petitioner seeks to withdraw this  contempt petition with liberty to file the contempt  petition afresh, if need be.         This contempt petition is accordingly dismissed as  withdrawn with the liberty as aforesaid in accordance  with law."

8.      The Jaipur Municipal Corporation thereafter filed a review  petition purporting to be under Article 226 of the Constitution read  with High Court Rules for reviewing the order dated 24.7.2001 passed  in D.B. Civil Contempt Petition No.3 of 2001, which was registered  as D.B. Civil Review Petition No.7 of 2002.   The review petition was  barred by limitation and accordingly notice was issued by the order  dated 4.2.2002 to the respondent (writ petitioner) to show cause why  delay may not be condoned.  After hearing counsel for the parties,  delay was condoned and leave was granted to Municipal Corporation  to file the review petition by the order dated 5.2.2002.   The D.B.  Civil Review Petition No.7 of 2002 was thereafter heard on 28.5.2004  and it was dismissed by the following order : "Since contempt proceedings were initiated against  contemnors in their individual capacity and Municipal  Corporation Jaipur was not the party in the contempt  proceedings, instant petition by the Municipal  Corporation, Jaipur is not maintainable and it stands  accordingly dismissed."

       The present appeal has been filed challenging the above quoted  order dated 28.5.2004.

9.      We have heard learned counsel for the parties.   It is important  to note that while disposing of the main D.B. Civil Writ Petition  No.6051 of 1997, the High Court did not record any positive finding

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on the question as to whether any encroachment has been made on  public land.  The High Court left it to the Jaipur Municipal  Corporation  to take a decision in that regard within six months and if  it came to a finding that public land had been encroached upon, it was  directed to take action for removal of the encroachment after issuing  notice to the parties and in accordance with law.  The Commissioner  of the Municipal Corporation, Jaipur, gave a report on 14.9.2000 that  there was encroachment over the land by Sindhi Panchayat.  However,  the Committee for Regulations and Bye-Laws of Jaipur Municipal  Corporation re-considered the matter and after a detailed discussion  held in its report dated 15.2.2001 that there was a public temple and  the same had not been constructed over any park and there was no  encroachment over public land.   It was further held that a garden had  been developed in front of the temple by the members of the public.    It was thereafter that the writ petitioner, C.L. Mishra, filed D.B. Civil  Contempt Petition No. 3 of 2001 wherein the High Court after making  an observation that "normally the satisfaction of the Commissioner as  to whether the occupation is an encroachment or not is final and  matter is not referred to a Committee" passed an order granting one  month’s time to comply with the order in its true letter and spirit.  It is  important to note here that while deciding the main writ petition, the  High Court had not recorded any finding that there had been  encroachment over public land by the construction of a temple nor it  gave any specific direction for its removal.   On the contrary, the  matter had been left to be decided by the Jaipur Municipal  Corporation within six months and if the Corporation came to a  finding that there was any encroachment, the same was to be  removed.   The important feature of the case is that when the contempt  petition came up for hearing on 28.1.2002, the counsel for the writ  petitioner made a prayer to withdraw the contempt petition with   liberty to file a fresh petition, if need be.   The contempt petition was  accordingly dismissed as withdrawn with liberty reserved to the writ  petitioner to file a fresh petition.   Normally, contempt is a matter  between the Court and the alleged contemnor.  The applicant who  files the contempt petition does so only for the purpose of bringing it  to the notice of the Court that the order passed by it has not been  complied by it.  However, in the present case, the counsel for the writ  petitioner (petitioner in the contempt petition) made a prayer for  withdrawing the contempt petition and the High Court passed a  specific order on 28.1.2002 by which D.B. Civil Contempt Petition  No.3 of 2001 was dismissed as withdrawn with liberty to file a fresh  contempt petition.   Once the contempt petition was dismissed as  withdrawn, the earlier order passed in the said petition on 24.7.2001,  wherein one month’s time was given to comply with the order, ceased  to be operative as all interim orders passed in a case ultimately get  merged with the final order.  The order dated 24.7.2001 cannot have  any independent existence and cannot survive once the contempt  petition itself was withdrawn and was dismissed. The Jaipur  Municipal Corporation was ill-advised to file a review petition  seeking review of the order dated 24.7.2001 when the main contempt  petition itself had been dismissed on the prayer made by the writ  petitioner (petitioner in the contempt petition).   As such there is no  occasion for review of the said order.

10.     With the clarification as above, the appeal is disposed of.