Gopal Krishan Vyas, J.
1. This writ petition has been filed by the petitioners challenging order passed by respondent No. 3 Urban Improvement Trust dated 28.12.2007 (Annex.-9) and notice dated 11.06.2008 (Annex.-11), issued in pursuance thereof.
2. Brief facts of the case are that petitioner No. 1 Bal Kishan Gaur was allotted plot No. B-4, Shastri Nagar, Jodhpur by the U.I.T., upon which, petitioner No. 1 constructed residential house and he is residing there. Petitioner No. 2 is daughter-in-law of petitioner No. 1 and she is doctor being possessed of M.B.B.S. and MS. (Obstetrics & Gynaecology) degrees. Son of petitioner No. 1 is not party in this writ petition. He is also doctor and he is in the government service. The said plot allotted by the U.I.T. is regulated under the Rajasthan Urban Improvement Trust, Jodhpur (Urban Area & Building) Bylaws, 2001 (in short, hereinafter to be called 'the By-laws').
3. The petitioners have opened a medical clinic in the said house and petitioner No. 2, daughter-in-law of petitioner No. 1 is running the said clinic, therefore, a complaint was made by the next-door neighbour, residing in B-3, Shastri Nagar, Jodhpur; and, as per the petitioners, the said complaint was filed to harass them. In the complaint filed by respondent No. 4, it was mentioned that the land was allotted for residential purpose but the petitioners are using the said premises for commercial purpose and clinical hospital has been opened in the residential house which is causing total disturbance in the residential area. It is alleged in the complaint that the petitioners cannot use the plot/land for other use than residential purpose.
4. The case of the petitioners is that since the activity running in the clinic is not a commercial activity, it is not necessary for the petitioners to apply for conversion of the residential plot No. B-4 and an Advocate, Doctor, Astrologers, Chartered Accountants and Tax Consultants, by their profession, do not indulge in commercial activity and, therefore, they are allowed to do their profession in their residential premises. As per the petitioners, by-law 7.2 (v) of the By-laws framed by respondent No. 1 and approved by the State Government Advocates, Doctors, Engineers, Chartered Accountants/Tax Consultants are authorized to use 25% or 100 Sq Mtr of any floor, whichever is less, for their profession, therefore, the petitioners have right to enjoy the premises even if for their profession and no grievance can be raised to this fact. Likewise, the U.I.T'. cannot insist upon the petitioners for getting conversion of the land from residential to commercial purpose.
5. The contention of the petitioners in the writ petition is that respondent No. 4 is retired police officer and Advocate who made a false complaint, in which, he has made a prayer to the U.I.T. that the petitioners are using the said premises for commercial purpose whereas the land was allotted for residential purpose and it is creating not only pollution problem but also other problems like spreading of clinical waste around the neighbourhood. Respondent No. 4 not only made the said complaint to the U.I.T.; but, also filed criminal complaint under Section 133, Cr.P.C. and wife of respondent No. 4 filed a civil suit which is pending in the civil Court. The U.I.T. initiated proceedings against petitioner No. 1 under Section 90 and 91 of the Rajasthan Urban Improvement Trusts Act and, for the said purpose, a notice was issued to the petitioner No. 1 but, in his absence, on 08.04.2003, without hearing the petitioner, order Ex.-2 was passed by the U.I.T. in mechanical manner without considering as to whether the clinic is commercial activity or not and ordered for closure of the said clinic. As soon as petitioner No. 1 came to know with regard to the aforesaid order, he filed application on 06.05.2003 for cancellation of the order dated 08.04.2003. The application filed by petitioner No. 1 for review of order dated 08.04.2003 was rejected vide order dated 07.05.2003.
6. During the pendency of litigation, a public interest litigation petition was decided by this Court being D.B. Civil Writ Petition No. 3291/2003, decided on 17.11.2003, in which, following order was passed:
In this writ petition, the petitioner submits that the residential properties of Shastri Nagar area are being used for commercial purposes.
Learned Counsel for the State says that the respondents have identified the properties, which are being used for commercial purposes and action has been taken against them in accordance with law.
Having regard to the averments made in the writ petition and the statement of the learned Counsel for the respondents, this petition can be disposed of with the direction to the respondents to ensure that the residential properties are not used for commercial, purposes in violation of law. We order accordingly. The writ petition is disposed of. However, the respondents are directed to file report with regard to the compliance of the aforesaid order. The matter be listed on 04.12.2003 for perusal of the report.
7. On the basis of aforesaid order, a notice was issued to the petitioner on 26.03.2004 for closing the said clinic. The petitioner filed reply to the said notice on 15.04.2005. Respondent No. 4 was pressing hard upon the UIT authorities for closure of the clinic and also appeared in the above-noted writ petition for closing the said clinic. The petitioner No. 1, therefore, preferred an application in the above-said writ petition by way of filing an application for clarification on 23.08,2004. Upon the application filed by the petitioner for clarification before the Division Bench, this Court directed the UIT authorities to decide the matter after hearing the petitioner on the count whether any commercial activity, which is alleged to be going on at the, plot, comes under the definition of commercial activity or not. The Division Bench has passed following order on 09.12.2005:
However, the application which was moved for recalling the order dated 17.11.2003 was considered by the court which requires some consideration and therefore, notice of that application filed by Bal Kishan Gaur was issued.
Having considered the rival submissions and the situation arising from the order passed by this Court on 17.11.2003, it needs to be clarified that the directions of this Court does not prohibits the person again whom action has been taken inter alia on the ground that residential premises are used for commercial purposes, from raising defence against proposed action and does not take away the right of the person receiving such notices or against whom such complaints have been filed to raise all available defence to them to support their case that they are carrying on such alleged activity within the province of law or that the activity complained of does not fail within the ambit of commercial activity.
Apparently, whenever these objections are raised a lis between such person who is allegedly using the residential property for commercial purpose comes into existence between the authority and the person resisting such action of the authority concerned and that has to be decided by the Competent Authority. If any objections are raised that has to be decided in accordance with the law before any adverse action is taken against the person and person against whom such action is initiated is not precluded from availing the remedy as is available to him under the law for protecting his own interest. Such proceedings which can be decided after hearing the rival contentions whether alleged activity falls within the ambit of commercial activity or other activities which is not permissible to be carried on in residential premises or the activities which are carried on in the residential premises are within the permissible limits of law or for carrying on such activities, permission has been obtained as per law or that such person has been authorised by law to carry on such activity at the place. However no exhaustive list can be enumerated of the nature of issue that this may arise in individual cases for that matter commercial activity or any other activity. Finally, it is only the prima facie satisfaction about violation of law which enables the authority to proceed against any individual, but such prima facie satisfaction cannot be considered conclusive without affording an opportunity to affected parties.
8. The petitioner brought to the notice of the UIT the aforesaid order and respondent No. 3 decided the matter by order dated 28.05.2007 and rejected the complaint filed by respondent No. 4. In the order dated 24.05.2007, respondent No. 3 came to the conclusion after considering the provisions of law that the clinic does not come in the category of commercial activity.
9. Respondent No. 4 was not satisfied with the aforesaid order dated 24:05.2007, therefore, he filed a review petition and, as per the petitioner, respondent No. 3 without considering the by-laws and without looking to the order under review, in mechanical manner, ordered for closure of the clinic saying that it is commercial activity. The said order Was passed on 28.12.2007, against which, an appeal was preferred by the petitioner before the Divisional Commissioner but, respondent No. 2 rejected the appeal as not maintainable treating the order dated 28.12.2007 to have been made under Section 72 of the UIT Act despite the fact that the said order was made under Sections 90 and 91 of the Act. In this writ petition, the petitioners are challenging order dated 28.12.2007 and have prayed that the same may be quashed and consequential notice dated Annex.-11 be quashed. There is no prayer for quashing order dated 30.05.2008 passed by the Divisional Commissioner.
10. Learned Counsel for the petitioner vehemently argued that the order impugned Annex.-9 dated 28.12.2007 is void ab initio and without jurisdiction because this Court vide order dated 09.12.2005 observed that no order can be passed without examining the matter as to whether the alleged activity falls within the ambit of commercial activity or other activity not permissible to be carried on in residential premises. Further, whether the activity carried on within the residential premises is within the permissible limits of law, but, all these aspects were not taken into consideration while passing the impugned order, therefore, the Impugned order deserves to be quashed.
11. Learned Counsel for the petitioners further contended that the proceedings initiated against the petitioner is outcome of the complaint filed by respondent No. 4 who has not only filed the complaint in the UIT but also filed criminal complaint under Section 133, Cr.P.C. before the Addl. Collector, Jodhpur, so also, a civil suit has been filed by the wife of respondent No. 4 in the civil Court which is pending in the Court of Addl. District Judge (Fast Track) No. 3, Jodhpur.
12. Learned Counsel for the petitioner submits that as per the By-laws of 2001, there is provision under by-law 7.2 (v) that Advocates, Engineers, Doctors, Astrologers, Chartered Accountants and Tax Consultants are authorized to use 25% or 100 Sq mtr area, whichever is less, in their premises for their profession. In this case, argument of learned Counsel for the petitioner is that although the plot was allotted to petitioner No. 1 who is not doctor by his profession; but, his son is doctor and wife of his son is also a doctor, therefore, if is not necessary for him to get first the conversion of the land from residential to commercial and to start the hospital as per by-law 7.2 (v) of the Bylaws of 2001. While inviting attention of this Court towards the above facts, it is contended that all these facts were not considered by the U.I.T. and impugned order has been passed which is totally illegal and has no foundation to stand before the eye of law.
13. Per contra, learned Counsel for the U.I.T., so also, learned Counsel Shri Vijay Bishnoi, appearing for respondent No. 4, submit before this Court that first of all it is required to be seen whether any right of the petitioner No. 1 who was allotted the plot by the U.I.T. is infringed or not. Learned Counsel for the respondents vehemently argued that admittedly Shastri Nagar scheme was promulgated by the U.I.T. for residential purpose and all the plots were allotted for residential purpose and admittedly petitioner No. 1 was also allotted the said plot for residential purpose, therefore, contention of the petitioner has no substance that as per By-laws of 2001, doctor, engineer, Advocate, astrologer, Chartered Accountant and Tax Consultants are not required to get any conversion of the land if they are using certain part of the area for their profession. It is pointed out that in this case, the By-laws of 2001 are applicable upon the allottee only and the allottee cannot permit any person to start profession in the house which is constructed upon the plot as residential plot. By-law 7.2 of the By-laws of 2001 is as under:
7-2 vkoklh; Hkou % vkoklh; Hkouksa ds fy, Hkou fuekZ.k ckcr~ Hkw[k.M dk {ks=Qy] lsV cSad dh U;wure vko;'drk] vkPNkfnr {ks=] apkbZ] ,Q-,-vkj- dh lhek;sa rkfydk ^^d^^@^^[k^^@^^x^^ tSlk Hkh ykxw gks ds izko/kkuks ds vuqlkj gksxhA
rkfydk ^^d^^
vkoklh; Hkouksa gsrq ekun.MDz-la-
mi;ksx
vf/kdre vkPNkfnr {ks=
U;wure lsV ckDl eh-
Lkeus
Ikk'oZ
Ikk'oZ
fiNs
1
2
vf/kdre apkbZ
,Q-,-vkj-
1-
d IykVsM fodkl ds Hkw[k.Mksagsrq xSj ;kstuk {ks=
l{ke vf/kdkjh }kjk fu/kkZfjrfd;s x;s vuqlkj
EkkSds dh fLFkfr ds vuq:i vFkokfofu;e 7-8 ds vuq:Ik ,oa l{ke vf/kdkjh }kjk fu/kkZfjr
rkfydk [k ds vuqlkj
rkfydk [k ds vuqlkj
[k ;kstuk {ks=
;kstukuqlkj
;kstukuqlkj vFkok ugh gksus dhfLFkfr esa rkfydk ^^[k^^ ds vuqlkj vFkok fofu;e 7-8 ds vuqlkj tSlk l{kevf/kdkjh }kjk fd;k tk;s A
rkfydk [k ds vuqlkj
rkfydk [k ds vuqlkj
rkfydk ^^d^^ gsrq fVIi.kh % (i) ;kstuk {ks=ks esa ;kstuk ds ekun.M tSls lsV cSad ns; vkPNknu vkfn ykxw gksxs A ;kstuk {ks=ks rFkk xSj ;kstuk {ks=ks esa ns; apkbZ 12-00 ehVj rd lhfer gksxh A ;fn blls vf/kd apk Hkou cukuk izLrkfor gS rks rkfydk v ,oa rkfydk v dh fVIi.kh ds izko/kku ykxw gksxsA
(ii) vkoklh; Hkw[k.M ij ,d ls vf/kd fuokl bdkbZ ns; gSA
(iii) ;fn iqjkuk Lohd`r fuekZ.k ;Fkkor~ j[krs gq, dksbZ vfrfjDr fuekZ.k djuk pkgrk gS rks ;kstuk {ks= eas ;kstuk ds vuqlkj lsV cSad j[krs gq, fuekZ.k dh Lohd`fr nh tk ldrh rFkk xSj ;kstuk {ks= esa lsV cSad ,oa vkPNknu ekSds dh fLFkfr ds vuqlkj vFkok rkfydk [k ds izko/kkuks ds vuqlkj tSlk l{ke vf/kdkjh }kjk r; fd;k tk;s fn;k tk ldrk gSA
(iv) fofu;e 9-1 ds vuqlkj ikfdZx dk izko/kku djkuk vko;'d gksxkA
(v) Hkw[k.M es fdlh eafty ij ml eafty dk 25 izfr'kr vFkok 100 oxZ ehVj tks Hkh de gks fuEu izdkj Lofu;kstu O;olk; ds fy, mi;ksx eas fy;k tk ldrk gS
d ,MoksdsV [k bathfu;j x MkWDVj ?k okLrqfon M+ pkVZM ,dkmUVsaV@foRrh; lykgdkjysfdu xfrfof/k;ka vuqKs; ugh gksxh&
d [kqnjk nqdkus [k Fkksd O;kikj x ejEer gsrq nqdku ?k lfoZl 'kkWil M+ [email protected] p ,slh vU; xfrfof/k tks Hkou esa fuokldrkZvksa ds fy, gkfudkjd ,oa ladVe; gks tSlk fd Hkou ekufp= lfefr }kjk fu/kkZfjr fd;k tk;A
(vi) ;fn ikfdZx gsrq fLVYV cukuk izLrkfor gS ,oa vko;'d izfdz;k tSls 'kiFk i= rFkk uxj fodkl U;kl tks/kiqj ls vuqca/k fd;k x;k gS rks apkbZ 12 ehVj ds LFkku ij 15 ehVj ns; gksxh A ysfdu ;g ns; apkbZ lM+d dh pkSM+kbZ ds Ms<+ xquk ls vf/kd ugh gksxhA
14. It is contended by learned Counsel for the respondents that bare perusal of the provisions of by-law 7.2 clearly reveals that the said by-law is only meant for allottee's own profession and for none else. Here, in this case, admittedly, the petitioner's son is also doctor and he is in government employment and daughter-in-law of petitioner No. 1, who is also doctor, has opened the clinic where she is treating the patients of different categories. In this regard, learned Counsel for the respondents invited attention of this Court towards Annex.-R/VIII filed by respondent No. 4 which reads as follows:
fn QsMjs'ku vkWQ vkWUl xkWbuh lkslk;Vht vkWQ bf.M;k Qksxslh kjk ekU;rk izkIr jktLFkku dk loZizFke vR;k/kqfud fu%larkurk izca/ku izf'k{k.k dsUnz
lqfo/kk,aW %
1. fu%larku ifr ifRu dh iw.kZ tkap o mipkj dh lqfo/kk (I.U.I., I.V.F. & I.C.S.I)
2. 'kqdzk.kq cSad dh lqfo/kk A
3. nwjchu ls cPpsnkuh fudkyus dk vkijs'ku (LAVH)
4. xkbuh ,.MksLdksih ltZjh dh fo'oLrjh; lqfo/kk A
5. fcuk vkijs'ku jtkfuo`fRr ckn ds jDrL=ko dk bykt A
6. ekgokjh dh gj rjg dh leL;k dk bZykt A
7. Lru fDyfud o L=h jksx dSalj fDyfud A
8. ;qok yM+fd;ksa ds fy, fDyfud (Teenage Girl Clinic)
9. tks/kiqj 'kgj dh iw.kZr;k L=h fDyfud (Exclusive Ladies Clinic)mPp dksfV o xq.koRrkiw.kZ fpfdRldh; funku o mipkj ds fy, lefiZr
15. Meaning thereby, as per the arguments of learned Counsel for the respondents, the impugned order has rightly been passed by the U.I.T. after considering the directions given by the Division Bench of this Court. The petitioner cannot be permitted to. use the premises for any commercial purpose for the simple reason that the allotment was made in his favour and not in favour of his daughter-in-law, so also, his son is in government employment. It is contended that as is evident from Annex.-R/8, the daughter-in-law of the petitioner No. 1 while giving wide publicity invited patients for treatment, therefore, daughter-in-law of the petitioner No. 1 cannot be allowed to use the said premises for profession of doctor. According to the respondents, in this case it is not disputed that daughter-in-law of petitioner No. 1 is using the premises for the purpose of. clinic/hospital of Gynaecology/Obstetrics, therefore, admittedly the person other than the allottee is using the premises for treatment by way of having opened her clinic there.
16. On the aforesaid facts, learned Counsel for the respondents submit that even if it is accepted that the Bylaws are applicable and a doctor can use part of the residential premises for his/her profession, then too, no case is made out in favour of petitioner No. 1 who himself is allottee of the premises for residential purpose, therefore, the order impugned passed by the U.I.T. dated 28.12.2007 does not require to be interfered with. Learned Counsel for the respondents further argued that initially an order was passed against the petitioner for closure on 08.04.2003 and application for review of that order was rejected by the U.I.T. on 07,05.2003 and, that order was not challenged by the petitioners; and, later on, in pursuance of the directions issued by the Division Bench, the matter was again decided by the U.I.T., however, opportunity of hearing was not provided to the petitioner and, therefore, the matter was again decided by the U.I.T. but, without even giving any notice to respondent No. 4, therefore, in the situation, respondent No. 4 submitted application for review of the order which was passed at his back. It is also submitted that there is no assertion made in the order dated 24.05.2007 with regard to earlier order dated 08.04.2003 which was passed against the petitioner, therefore, the review petition was filed by the petitioner and, during the course of argument, on 24.05.2007, son of the petitioner No. 1, Pradeep Gaur appeared before the U.I.T. and submitted that the complaint is false; meaning thereby, the petitioners are using the residential plot and house for the purpose of commercial activity by way of opening clinic and it has resulted into total disturbance in the area. The main objection of the respondents is that without any conversion from residential to commercial, no commercial activity can be allowed and, for that purpose, the impugned order has been passed, in which, no interference is required. Hence, this writ petition may be dismissed.
17. I have considered the rival submissions advanced before the Court by both the parties.
18. In this case, admittedly, first of all, order dated 08.04.2003 was passed against the petitioners, in which, a review petition was filed. The said order was never challenged by the petitioners. Later on, when order was passed by the Division Bench of this Court in the PIL writ petition in the case of Mahandra Lodha (D.B. Civil Writ Petition No. 3291/2003), then, an application was filed by the petitioner for clarification. The said application was decided vide order dated 09.12.2005, in which, the Division Bench of this Court gave direction to the U.I.T. that before taking action for the purpose of any commercial activity being carried out in the residential premises, the U.I.T. shall give opportunity of hearing to the affected parties and after deciding the matter with regard to use of the plot/house for commercial activity, action can betaken.
19. After passing of the order by the Division Bench, an application was filed by the petitioners before the U.I.T. in which it was prayed that although Shastri Nagar is a residential colony but as per the By-laws they can use the premises for profession of doctor and complainant cannot object to the use of the premises for the purpose of the profession of doctor also. Upon the said application, the U.I.T. passed order on 24.05.2007. On that date, the complaint of respondent No. 4 was rejected. Against that order, an application was filed by respondent No. 4 and it was prayed that as per the Division Bench order the matter was to be decided after providing opportunity of hearing to both parties, therefore, he should be granted opportunity of hearing and order passed in favour of the petitioner on 24.05.2007 may be revised and petitioners should be restrained from using the premises for commercial purpose.
20. I have perused the order dated 28.12.2007 which is impugned in this writ petition. In my opinion, admittedly the plot was allotted for residential purpose to petitioner No. 1 Bal Kishan Gaur who is not a doctor. Admittedly, as per petitioners also, a clinic was opened by petitioner No. 2, daughter-in-law of petitioner No. 1; meaning thereby, as per the language of by-law 7.2(v), the original allottee if he is doctor by profession can use the premises for the said purpose; hut, here, in this case, son of petitioner No. 1, Pradeep Gaur is in employment of the Government; but, the daughter-in-law of petitioner No. 1 who is having M.B.B.S. and M.S. degrees has opened the clinic, in which, large number of patients of different problems of gynaecology come for treatment; meaning thereby, daughter-in-law of the petitioner No. 1 is using the premises for treating patients and for the same she has opened the clinic and wide advertisement is given to her clinic in the news-papers, which is placed on record by respondent No. 4. Therefore, undisputedly, the original allottee who is petitioner No. 1 is not using the premises for treatment as a doctor but, in fact, his daughter-in-law has opened the clinic in the residential area, therefore, the U.I.T. passed order that no residential premises in the colony shall be used for commercial purposes. In my opinion, petitioner No. 1 and petitioner No. 2 do not fall in the category specified in by-Jaw 7.-2 (v), whereby, doctors, engineers, advocates, chartered accountants/tax consultants and astrologers are granted relaxation to use the part of the premises for their respective profession. But, at the same time, there is no relaxation given in the by-laws that any family member can use the premises for his/her profession. Here, in this case, the clinic has been opened by petitioner No. 2 and obviously, whole of the day, patients are regularly taking treatment in the clinic which has resulted into pollution and so also other problems for the residents of the area. Therefore, the U.I.T. has rightly exercised the jurisdiction while passing the impugned order, in which, no interference is required.
21. Further, it is also very important to observe that petitioner No. 1 himself filed application before the Nagar Nigam, Jodhpur for conversion of the land and, upon his application, objections were invited by the Nagar Nigam which is placed on record as Annex.-14; meaning thereby, petitioner No. 1 is of the opinion that the said plot in which commercial activity of his daughter-in-law is going on requires conversion for commercial purpose. Petitioner No. 1 himself has filed the application narrating all the facts which are not disputed in this case and a report was also submitted before the Division Bench by the U.I.T. in D.B. Civil Writ Petition No. 3291/2003, in which, it was brought to the notice of the Division Bench by the U.I.T. that 23 properties are being used for commercial activity in the area and a list was also presented before the Division Bench, in which, the name of Dr. Kirti Gaur is also appearing; meaning thereby, in the residential area the original allottee Bal Kishan Gaur, first of all, filed an application for conversion of the land before the Municipal Corporation and, upon his application, objections were invited which is evident from the advertisement itself; and, later on, he took stand that it is not necessary for him to get conversion of the land under the by-laws. In my opinion, such type of stand taken by the petitioner in this writ petition is totally untenable and has no force of law. Moreover, the By-laws of 2001 are applicable for the purpose of relaxation to the original allottee and none else. In this view of the matter, the writ petition is devoid of any force.
22. This writ petition is, therefore, accordingly dismissed.