AI Structured Summary
Not yet generated for this judgment
Judgment
Dr. Vineet Kothari, J.
This first appeal is arising out of the judgment and decree dated 10.09.2008 passed by the learned Additional District Judge (Fast Track) No. 2, Udaipur in Civil Original Suit No. 29/2006 "Rajendra Kumar and Ors. Vs. State of Rajasthan and Ors." by which, the learned Additional District Judge (Fast Track) No. 2, Udaipur had dismissed the suit filed by the present appellants-plaintiffs-Rajendra Kumar and Ors. seeking injunction against the defendants-UIT, Udaipur in relation to the dispute of brick kilns of the plaintiffs-appellants which were sought to be shifted by the respondent-defendant-UIT, Udaipur out of city municipal limits.
The present first appeal has been filed by the plaintiffs industry aggrieved by the refusal of the injunction by the learned Trial Court by the order dated 10.09.2008 and rejection of their suit seeking injunction against the defendants-UIT, Udaipur not to interfere in their working of brick kilns. The suit (No. 29/2006) filed by the plaintiffs on 26.11.2005 in the Court of Additional District Judge (Fast Track) No. 2, Udaipur with the averments that the plaintiffs have their brick kilna at village Kanpur, Gram Bhoiyon Ki Pancholi, Gram Eklingpura, Gram Dangion Ki Pancholi and Gram Debari which were 10 to 13 kms. away from the municipal limits of Udaipur City. It was further averred by the plaintiffs in the plaint that because of pollution created by the brick kilns situated within the city of Udaipur, two residents of that locality namely, Dr. Jagdish Parsad Sharma and Shri Shoubhag Singh filed Public Interest Litigation raising their grievance against the brick kilns run within the city of Udaipur. The Division Bench of this Court in its PIL jurisdiction in D.B. Civil Writ Petition No. 3242/1998: Dr. Jagdish Prasad Sharma and Anr. Vs. State of Rajasthan and Ors. passed an order on 25.08.2003 and directed the respondents-State of Rajasthan and Ors. to shift the brick kilns situated and run within the city of Udaipur out of the city municipal limits. The said order dated 25.08.2003 is quoted herein below for ready reference:-
"In the instant public interest litigation, the grievance raised by the petitioner is that the existence of brick-kilns in the city of Udaipur particularly, in the Sikh Colony and Guru Nanakpura is adversely effecting the health of the inhabitants of the city because of the smoke pollution and noxious smell/gases spread by the said brick-kilns.
This Court by order dated 23.1.2002 directed the U.I.T., Udaipur to prepare a scheme for shifting of brick-kilns out of the city of Udaipur. Accordingly, the report was submitted whereby the brick-kilns are proposed to be shifted 13 kms. away from the city of Udaipur. However, it was submitted that the city of Udaipur is likely to be expanded by 10 kms. towards the proposed site of the brick-kilns by the year 2022. Thus, this Court by order dated 23.1.2002 directed to prepare a fresh scheme.
Today, affidavit has been filed by Mr. Rajendra Singh Shekhawat, ADM, City Udaipur stated that the gochar land of village Odwadia, Tehsil Mavli, District Udaipur has been considered a suitable site for shifting of brick-kilns of the Udaipur city. The Government has sanctioned theland vide Annexure-R/3 dated 23.8.2003, a land has been allotted vide Annexure-R/4 dated 23.8.2003. In view of the aforesaid, the U.I.T., Udaipur is directed to shift all the brick-kilns within the city of Udaipur to the said site within a period of four months.
It is submitted by Mr. Lalit Kawadia, learned counsel appearing for U.I.T., Udaipur that some owners of brick-kilns have obtained interim orders from different civil courts. It will be open for the U.I.T., Udaipur to approach the concerned Courts for vacation of the injunction order in view of the order passed by this Court.
The present suit (No. 29/2006) has been filed by the plaintiffs only after the aforesaid directions of this Court dated 25.08.2003 in the above-said PIL Petition No. 3242/1998. The plaintiffs were the owners of the brick-kilns situated 10 kms. from the municipal limits of Udaipur city and the plaintiffs claimed that their brick-kilns were not affected by the order dated 25.08.2003 passed by this Court in PIL Petition No. 3242/1998. The plaintiffs claimed (i) that the brickkilns of the plaintiffs were not situated within the city limits of Udaipur; and (ii) that they were governed by the Rajasthan Land-Revenue (Conversion of agricultural land for non-agricultural purposes in rural areas) Rules, 2007 (for short ''the Rules of 2007'') framed under the Rajasthan Land Revenue Act, 1956 and as per clause (6) of the Rules of 2007, the small industry which is established on plot of land less than 2500 square mtrs. were not required to apply for conversion of land use and the land will remain in their khatedari. The plaintiffs claimed that since their brick-kilns were established on an area less than 2500 square mtrs. and further they were not required to apply for land conversion and since their brick-kilns were not situated within the city limits of Udaipur, therefore, the defendants namely, the State of Rajasthan and the Urban Improvement Trust, Udaipur were required to be injuncted not to interfere with their running of the brick-kilns over the said lands.
The defendants led the evidence before the learned Trial Court and produced a Notification dated 26.04.1999 for establishing the fact that the aforesaid lands on which brick-kilns of the plaintiffs were situated, fell within the urban limits of Udaipur and, therefore, the said brick-kilns were required to be shifted out of the city limits of Udaipur in pursuance of the directions of the Division Bench issued in PIL Petition No. 3242/1998 quoted herein above.
The defendants have contested the suit of the plaintiffs and averred that the plaintiffs have not applied for conversion of land use from agricultural to industrial purpose and, therefore, the brickkilns operated by the plaintiffs on the aforesaid land were required to be checked for pollution caused by them and they were required to be shifted out of city limits of Udaipur to village Odwadiya, Tehsil Mavli, District Udaipur. The relevant portion of the discussion and the final order made by the learned Trial Court in its order dated 10.09.2008 is quoted herein below for ready reference:-
The learned counsel Mr. Sajjan Singh appearing for the appellants-plaintiffs submitted that the land in question where the brick-kilns of the plaintiffs were situated does not clearly fall within the city limits of Udaipur and the notification dated 26.04.1999 purportedly issued for shifting the brick-kilns out of city limits of Udiapur is not a notification but only a draft notification expressing the intention of the respondent Urban Improvement Trust, Udiapur that the brick-kilns situated within the city limits of Udiapur are proposed to be shifted to village Odwadiya, Tehsil Mavli, District Udiapur and for that purpose, a civic survey was conducted by the authorities of the State Government. He further submitted that the no final order with regard to shifting of the brick-kilns was passed by the respondents-State of Rajasthan after the aforesaid quoted directions of this Court, therefore, it is clearly established that the brick-kilns of the appellants were not situated within the prohibited urban limits of the Udiapur City. He further submitted that the Rules of 2007 would not apply to the plaintiff''s brick-kilns as the brick-kilns of the plaintiffs were established on an area less than 2500 square meter and as per the amended Rules of 2007, area less than 2500 square meter is not required to be converted, therefore, no land use conversion was required to be undertaken in relation to the brickkilns of the plaintiffs and, therefore, the brick-kilns of the plaintiffs were not hit by the directions of this Court issued on 25.08.2003 in PIL jurisdiction in D.B. Civil Writ Petition No. 3242/1998: Dr. Jagdish Prasad Sharma and Anr. Vs. State of Rajasthan and Ors.
On the other hand, the learned counsel Mr. Deelip Kawadia appearing for the respondent-Urban Improvement Trust, Udaipur submitted that the present suit for injunction was filed by the plaintiffs with an oblique motive in order to subvert and circumvent the directions of the Division Bench of this Court issued on 25.08.2003 in PIL jurisdiction in D.B. Civil Writ Petition No. 3242/1998 : Dr. Jagdish Prasad Sharma and Anr. Vs. State of Rajasthan and Ors. by which, the Division Bench had directed the respondents to shift the brick-kilns situated within the city of Udaipur and as per the notification dated 26.04.1999 produced by the Urban Improvement Trust, Udaipur before the learned Trial Court, the brick-kilns of the plaintiffs were clearly situated within the city limits of Udaipur and are liable to be shifted to village Odwadiya, Tehsil Mavli, District Udaipur and the Rules of 2007 did not apply to the facts of the present case. The learned counsel Mr. Deelip Kawadia further submitted that the plaintiffs were not entitled to seek injunction without first claiming any declaration that their land does not fall within the urban limits of Udaipur and, therefore, the present first appeal filed by the plaintiffs deserves to be dismissed.
I have heard both the learned counsels for the parties and perused the record of the case including the Notification dated 26.05.1999 and the orders passed by the Division Bench of this Court on 25.08.2003 in its PIL jurisdiction in D.B. Civil Writ Petition No. 3242/1998 : Dr. Jagdish Prasad Sharma and Anr. Vs. State of Rajasthan and Ors.
Prima facie, it appears that the present suit seeking injunction was filed by the plaintiffs on 26.11.2005 only with a view to subvert or circumvent the effect of the order passed by the Division Bench on 25.08.2003 in its PIL jurisdiction in D.B. Civil Writ Petition No. 3242/1998 : Dr. Jagdish Prasad Sharma and Anr. Vs. State of Rajasthan and Ors. It further appears that in pursuance of the directions aforesaid of this Court, the respondent-Urban Improvement Trust, Udaipur sought to close the brick-kilns of the appellants as the same were situated within the urban limits of city of Udaipur. This Court finds considerable force in the contention of the learned counsel Mr. Deelip Kawadia appearing for the respondent-Urban Improvement Trust, Udiapur that the plaintiffs were not entitled to seek any injunction against the defendant - Urban Improvement Trust, Udaipur without first claiming a declaration from the competent Court that their agricultural lands in question were not falling within the urban limits of Udaipur and, therefore, the respondent-Urban Improvement Trust, Udaipur had no authority to interfere with their brick-kilns.
Coming to the next point that the Notification dated 26.04.1999 was a statutory notification or merely a draft notification for expressing the intention of the respondent-Urban Improvement Trust, Udaipur to shift the brick-kilns to the proposed land situated at village Odwadiya, Tehsil Mavli, District Udiapur, this Court is of the opinion that the said Notification had no relevance in the present suit for injunction filed by the plaintiffs since no such suit for declaration was filed by the plaintiffs and the present suit was only for injunction. In the opinion of this Court, the suit was filed to undo the effect of the order/directions of this Court issued its PIL jurisdiction in D.B. Civil Writ Petition No. 3242/1998: Dr. Jagdish Prasad Sharma and Anr. Vs. State of Rajasthan and Ors. on 25.08.2003.
The learned counsel Mr. Deelip Kawadia also submitted before this Court that earlier the respondent-Urban Improvement Trust, Udaipur had explored the possibility to allot alternative land for shifting of the brick-kilns in village Odwadiya, Tehsil Mavli, District Udaipur and out of 174 of brick-kilns, most of them have already closed their brick-kilns and, therefore, they did not even apply for allotment of land at village Odwadiya, Tehsil Mavli and the present status of the land is that the same has been allotted by the State Government to the Rajasthan Vidhyut Vitaran Nigam Limited. The learned counsel also submitted that even the operation of the present brick-kilns were closed in pursuance of the aforesaid directions of this Court issued its PIL jurisdiction in D.B. Civil Writ Petition No. 3242/1998 : Dr. Jagdish Prasad Sharma and Anr. Vs. State of Rajasthan and Ors. on 25.08.2003.
There appears considerable force in the submissions made by the learned counsel Mr. Deelip Kawadia appearing for the respondent-Urban Improvement Trust, Udaipur, therefore, this Court is of the opinion that the injunction sought by the plaintiffs was rightly refused by the learned Trial Court on the ground that the plaintiffs failed to prove that their agricultural lands were falling outside the city limits of Udaipur and, therefore, establishment of their brick-kilns were not affected by the orders of the Division Bench of this Court. There is no reason for this Court to take a different view of the matter other than the one taken by the learned Trial Court.
In view of the above, the present first appeal filed by the plaintiffs-appellants is found to be devoid of merit and the same is liable to be dismissed.
Accordingly, the present first appeal filed by the appellants-plaintiffs-Rajendra Kumar S/o. Dal Chand Prajapat is dismissed. No orders as to costs. A copy of this order be sent to the learned Trial Court below and to both the parties concerned forthwith.
However, it is made clear that even the dismissal of the present first appeal will not prevent the plaintiffs from filing fresh suit seeking declaration in relation to their agricultural lands falling outside the city municipal limits of Udaipur.