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Judgment
This Court passed an order on 31st July, 2018 in Writ Petition No. 390/2015 and other connected matters listed on that date, directing the respondent-
State to remove the encroachments from Shastri Nagar Kabristan, Jaipur. It was directed that land for the Kabristan has been admitted to be 33
bigha, 15 biswa, which is required to be vacated immediately. It was also observed that there were also encroachments on the balance land of 6
bigha and 13 biswa. This Court therefore directed that unless possession holders show their title, they will not be allowed to remain in possession
and would be removed from the land of Kabristan.Â
Learned counsel appearing on behalf of the petitioners in Civil Writ Petition Nos. 827/2017, 1629/2017, 1689/2017, 1690/2017, 10104/2017, 12453/2018
and 12828/2018 submitted that it was in the context of encroachments of Shastri Nagar Kabristan that this Court directed that all the matters of
Kabristan be listed before the Division Bench and no matter will be placed before the Single Judge. Office has also listed matters of Kabristan
pertaining to different parts of the State, rather than listing matters pertaining to Shastri Nagar Kabristan only before the Division Bench.
In view of above, Civil Writ Petition Nos. 827/2017, 1629/2017, 1689/2017, 1690/2017, 10104/2017, 12453/2018 and 12828/2018 are ordered to be
detached/de-linked from the bunch of petitions listed today before the Court and the same may be listed before the regular Single Bench as the
intention of this Court is only to ensure compliance of it’s order dated 31st July, 2018 and to see that matter pertaining to Shastri Nagar Kabristan
is listed before the Single Bench to avoid the possibility of any conflicting orders.Â
Mr. N.M. Lodha, learned Advocate General has produced compliance report before the Court and submitted that encroachments of 416 persons have
been removed. However, encroachments of two persons namely; Nand Kishore son of Late Shri Laddu Gopal and Kalu Prajapat son of Late Shri
Gopal Lal could not be removed as in their case, injunction order was passed by the Court of Additional Civil Judge cum Metropolitan Magistrate No.
2, Jaipur Metropolitan, Jaipur in a Civil Suit No. 255/2018 on 14.08.2018.Â
Mr. P.K. Sharma, learned counsel appearing on behalf of the petitioner in Writ Petition No. 390/2015 submitted that aforesaid two persons had
already earlier approached this Court along with 38 other persons by filing Writ Petition No. 17946/2017 on 9th October, 2017. Single Bench of this
Court, while issuing notice in that writ petition on 11th October, 2017, directed that encroachment on the land belonging to Kabristan was to be
removed as per directions of the Division Bench. Dispute was raised whether the construction raised by the petitioners in that writ petition was
existing on the land belonging to Kabristan or outside. Therefore, a direction was issued by the Single Bench to comply with the direction of Division
Bench to remove the encroachments from Kabristan, but it would be only of the land belonging to the Kabristan as per the record. The Single
Bench of this Court further directed that while taking the action, khasras allotted to Kabristan and location of those khasras will be taken note of.Â
Mr. N.M. Lodha, learned Advocate General submitted that both the parcels of land (admeasuring 33 bigha 15 biswa and 6 bigha 13 biswa) are part of
same khasra.Â
It is really surprising that even though the plaintiffs in the aforesaid suit namely; Nand Kishore son of Late Shri Laddu Gopal and Kalu Prajapat son of
Late Shri Gopal Lal were Petitioners No. 26 and 18 respectively in the aforesaid Writ Petition No. 17946/2017 and were fully aware of the order
passed by Division Bench as well as Single Bench of this Court, yet they concealed this fact from the Civil Court. Copy of the plaint and temporary
injunction application in the aforesaid suit has been produced by learned Advocate General for perusal of the Court. The Court, after going through
the pleadings in the plaint and temporary injunction application, finds that no mention about the order of this Court and filing of writ petition whatsoever
has been made by the aforesaid two plaintiffs (writ petitioners) in that plaint or temporary injunction application. In fact, the plaintiffs in the aforesaid
plaint have enclosed list of residents of Adarsh Prajapat Colony, Opposite Hanuman Kunj, Nahri Ka Naka, Jaipur along with the suit, which contains
40 names, 38 of which are writ petitioners before this Court in Writ Petition no. 17946/2017. Learned Advocate General submitted that due to
aforesaid injunction order, authorities of the State were unable to remove the encroachments of those two persons, even though they also failed to
produce any title documents.
Mr. R.K. Mathur, learned Senior Counsel and Mr. Ved Prakash Sogarwal, learned counsel who had earlier appeared on behalf of the writ petitioners
in Writ Petition No. 17946/2017 submitted that the petitioners have taken away the file from them and they have no instructions now to appear on their
behalf.Â
Resultant situation is that on one hand while there is specific order passed by Division Bench of the High Court for removal of encroachments of
those, who fail to produce the title documents and on the other hand, while encroachments of 416 trespassers have been removed, but owing to
aforesaid injunction order dated 14.08.2018 passed by the Court of Additional Civil Judge cum Metropolitan Magistrate, No. 2, Jaipur Metropolitan,
Jaipur, which is in direct conflict with the order passed by this Court on 31st July, 2018, the respondents-State authorities could not remove
encroachments of these persons. In the face of the specific order passed by this Court on 31st July, 2018 and considering the fact that those
plaintiffs, who were also party before this Court in Writ Petition No. 17946/2017, were aware of the order passed by the Single Judge, concealed this
fact and thereby succeeded in moving the Court of Additional Civil Judge cum Metropolitan Magistrate, No. 2, Jaipur Metropolitan, Jaipur into passing
of order dated 14.08.2018, such order has to yield to the order of this Court and operation of the said order is therefore hereby stayed, which in view
of order of this Court would be ineffective. The respondents are directed to remove the encroachments of those two persons also.Â
Mr. Syed Saadat Ali, learned counsel appearing on behalf of Rajasthan Board of Muslim Waqf submitted that after removal of the encroachments,
near about 65 families with 300 persons have again erected temporary shelters on the disputed land and have come back to occupy the place of
Kabristan. State authorities had earlier assured to construct boundary wall to protect the land of Kabristan. Such trespassers should be
immediately removed and further encroachments should be stopped. Mr. Syed Saadat Ali, learned counsel may bring the necessary facts on record
by way of affidavit/application, with supporting documents, if any.
Learned Advocate General may enquire about the aforesaid fact. The District Administration is directed to ensure that no new or fresh
encroachment takes place over the land of Kabristan and if it so happens, the same are removed immediately. They may in this connection
requisition necessary police help.Â
Let these matters may come up before the Court on 24.09.2018.Â
A copy of this order be provided to learned Advocate General for compliance.