Arun Bhansali, J.

1. These appeals arise out of the same proceedings i.e. S.B. Civil Petition No. 6172/2006: Rajiv Gandhi Colony Hitkari Samiti & Ors. and were therefore heard together and are being decided of by this common judgment.

2. The appeal by Rajiv Gandhi Colony Hitkari Samiti (the Samiti) has been filed against order dated 21.04.2010 passed by learned Single Judge, whereby, certain directions were issued and the appeal by Jodhpur Development Authority, Jodhpur (the JDA) has been filed against order dated 29.04.2010 passed by learned Single Judge, whereby, certain further directions were issued.

3. The Samiti filed writ petition aggrieved against notices issued by erstwhile Urban Improvement Trust now JDA dated 22.9.2006, whereby, it was indicated that the UIT has taken decision to remove encroachments from Shyam Nagar Scheme area in the light of order passed in S.B. Civil Writ Petition No. 1159/2005 : Durga vihar Vikas Samiti v. State of Rajasthan and the encroachers were required to vacate the site within 72 hours; it was, inter alia, claimed in the writ petition that the notice was issued beyond the scope of the writ petition filed by Durga Vihar Vikas Samiti; the petitioners were in possession of the land in question from before 1991; it was prayed that the notice dated 22.09.2006 be quashed and the respondents therein be restrained from dispossessing the petitioners.

4. In the meanwhile, another public notice dated 30.4.2008 was published in newspaper again directing the petitioners to vacate the site in question.

5. The petitioners filed stay application seeking stay on the public notice, the same was dismissed by learned Single Judge by order dated 02.05.2008; it was observed as under:-

"9. Having heard learned counsel, this Court is of the opinion that no interference can be made out at this stage in the legal process undertaken by the respondent - UIT for removal of encroachment. The notice published in the newspaper clearly stipulates that said encroachments are being removed in pursuance of the directions of this Court in Civil Writ Petition No. 1159/2005- Durga Vihar Vikas Samitis case and also in view of the contempt matter No.33/2007 pending before the Dist. Consumer Forum against the Authorities of the respondent - UIT. Even otherwise the respondent - UIT is under legal obligation to remove illegal encroachments on the land belonging to the respondent - UIT. Since it is admitted by the learned counsel for the petitioners that the petitioners do not have any title over the land in question and they are rather encroachers over the land though for a long period, this Court is of the considered opinion that further prolonging encroachment of the petitioners over the public land does not subserve any public cause and it cannot be made an impediment in exercise of legal authority of public body like respondent - UIT. The encroachment of public land is a serious social problem which has faats on both sides, but misplaced sympathy with encroachers further aggravates this problem, rather than solving it. The law should, take its own course and therefore, if the respondent - UIT has notified that it will remove encroachment forcibly unless the same is voluntarily removed within 72 hrs. this Court finds no justification to interfere with such public notice of the respondent - UIT. Any interim order against implementation of order of this Court itself will be a contradiction, which deserves to be scrupulously avoided.

10. The stay application is, therefore, found to be devoid of merit and the same is accordingly dismissed."

6. Where after, the matter remained pending for a long time.

7. Where after, by the impugned order dated 21.04.2010 noticing that a detailed order was passed on 02.05.2008 (quoted hereinbefore) and two years have passed, and that there was no order of any Court preventing removal of encroachment from the disputed land and noticing that the applicants, who had filed applications seeking impleadment in the writ petition, who were lease holders and were long in waiting for possession, but on account of non-removal of encroachment by the competent authorities have failed to secure possession of their lands, observed and directed as under:-

"Despite expressing anguish by this Court as to why these encroachments have not been removed so far by the competent authority and machinery of the State Govt., except a stony silence from the Secretary, JDA present in the Court and his counsel, nothing could be drawn by this Court. It is indeed unfortunate and reflects very badly on the functionaries of the JDA, its encroachment team, who have failed to remove these illegal encroachments despite detailed order passed by this Court rejecting the stay application of the petitioners. It is not unusual that such inaction and omission on the part of Govt. authorities causes serious prejudice to the lease holders of the land in question and it is not even beyond the comprehension of this Court that this can happen on account of extraneous considerations. In order to take serious action against the respondents responsible for this, following directions are issued which are required to be meticulously and punctually complied with by the respondents:

(i) A list of officers/officials in JDA, Jodhpur right from top to bottom including the officers in encroachment removal team and the personnels of police department, who are attached to JDA, Jodhpur for such removal of encroachment be furnished to this Court by tomorrow i.e. 22/4/2010.

(ii) the respondents may show cause as to why their salaries be not stopped from being drawn on the next date for their negligent and sheer inaction in carrying out the public duty which is entrusted to them and despite rejection of stay application by this Court, their failure to remove these encroachments.

(iii) A period of one week is granted to them to remove these encroachments from the land in question by seeking help of Govt. Departments/Agencies, if necessary, and report back to this Court of such removal of encroachments.

(iv) If such encroachments are not removed within one week from today, this Court also proposes to initiate criminal action against aforesaid officials, whose list would be furnished within 24 hours in this Court.

Subject to aforesaid, interim directions, the application for impleadment by the lease holders i.e. I.A. No.16235/08 is allowed. These applicants, who are now added in the writ petition as respondents will also be entitled to file necessary pleadings in the writ petition in support of their cause.

The Secretary, JDA and Addl. S.P. Traffic Mr. Manish Agarwal will remain personally present on the next date.

Put up on 27/4/2010 at 7.30 am as first case."

8. Subsequent to the order passed on 21.04.2010, by another impugned order dated 29.04.2010, the Court noticed that the list of 28 officials was furnished, which was taken on record and, inter alia, directed as under:-

"7. The Court proposes to fix responsibility on such officials who have held their position for more than six months, more seriously even though other persons who have served there for a period less then six months, will also be dealt with separately if they fail to discharge their public duties even now. In pursuance of the said list of 28 persons submitted by the JDA it is directed that all these 28 persons will file their separate personal affidavits before the next date positively to the following effect:

(a) Whether they were made aware of the Court directions or are otherwise aware of their responsibility requiring them to remove the illegal encroachments from the land in question

(b) The affidavits should specifically outline and give details of the action taken by them for removal of such illegal encroachments from the land in question.

(c) The deponent of the affidavit will also specify if there has been any interference, political or bureaucrats higher up, which restricted or restrained from them to discharging their public duty of removing the illegal encroachments. If there is any such interference, direct or indirect, the persons so interfering in this process, should be named along with his/her present designation and address.

(d) Such deponent will also show cause before this Court as to why a symbolic or nominal cost of Rs. 100/- per day may not be imposed upon them and deducted from their salary from the month of May, 2010 onwards for their failure hitherto during their tenure to take effective steps or measures for removal of illegal encroachments from this land in question."

9. The direction regarding removal of encroachments were reiterated and it was expected to be followed with more vigor and force, if necessary and that the work of removal of illegal encroachments by rank trespassers would be undertaken by the officers responsible in right earnest and the report of removal of such encroachments would be furnished before the Court.

10. Both the above two orders dated 21.4.2010 and 29.4.2010 have been impugned in the present appeals filed by the Samiti and the JDA respectively.

11. It is submitted by learned counsel for the appellants that the entire dispute essentially arose on account of allotment of disputed land by JDA to 21 allottees and the said allottees have made repeated attempts to evict the appellants, who are in possession of the land for over long period of time; it is claimed that there are about 3000 poor families living over 30 years at the disputed site.

12. Earlier an attempt in D.B. Civil Writ Petition No. 462/2002 : Anil Chordiya v. State of Rajasthan & Ors. was made, which was rejected by order dated 01.11.2002 observing that in the peculiar facts and circumstances of the case, no direction can be given by the Court in exercise of powers under Article 226 of the Constitution of India to evict large number of families settled for number of years and that it was not a fit case to invoke extra ordinary powers of the Court under Article 226 of the Constitution of India; it was submitted that the writ petition filed by the Samiti for seeking protection against the notices of eviction/public notice based on directions issued in the case of Durga Vihar Vikas Samiti (supra), which directions were essentially not applicable to the present case, however, the stay application filed by the appellant Samiti was dismissed by order dated 02.05.2008; however, as the petitioner Samiti/its members were contesting its cause in the writ petition filed by Durga Vihar Vikas Samiti (supra), no action was taken pursuant to the notice; by the impugned order dated 21.04.2010, directions were issued for evicting the members of the appellant Samiti from the land in question by seeking help of Government departments/agencies and to remove them within a period of one week ignoring the fact regarding observations made by the Division Bench in the case of Anil Chordiya (supra); it was submitted that the order in the case of Anil Chordiya (supra) being a Larger Bench order was binding on the learned Single Judge and any order to the contrary could not have been passed; it was further submitted that the directions given by way of interim measure after the stay application filed by the appellant Samiti had already been rejected in a writ petition filed by the appellant Samiti against the notice issued / published by UIT was essentially beyond the scope of the writ petition and, as such, the order cannot be sustained.

13. Further submissions were made that in another writ petition being D.B. Civil Writ Petition No. 477/2002 Smt. Manju Jain v. State of Rajasthan & Ors., a report was summoned by the Division Bench from Secretary, Urban Development, which report has been discarded, wherein, various findings and recommendations have been made, which support the cause of the appellants; it was submitted that the appellants are in settled possession since 1989 onwards and voluminous evidence has been produced in support.

14. It was further submitted that the petition filed by Durga Vihar Vikas Samiti itself has been decided by order dated 01.08.2013 and the Divisional Commissioner has been directed to examine the entire issue and till its disposal status quo was ordered to be maintained; it was submitted that in view of the above order / submissions, the order dated 21.04.2010 deserves to be set aside.

15. Reliance was placed on Official Liquidator v. Dayanand & Ors. : (2008) 10 SCC 1 [LQ/SC/2008/2207] and V.K. Majotra v. Union of India & Ors. : (2003) 8 SCC 40 [LQ/SC/2003/895] .

16. Learned counsel for JDA submitted that the dispute raised in the writ petition filed by the Samiti was still pending and the status of the land in question is still in medio and large number of litigations qua the land in question are pending before various Courts/Forums, list whereof, has been produced as Schedule-A with its reply before the learned Single Judge. The Division Bench in the case of Anil Chordiya (supra) has already declined the prayer for removal of the encroachers and another writ petition filed by Smt. Mandu Jain is still pending consideration before this Court and, therefore, the learned Single Judge was not justified in passing the orders seeking the officers to file personal affidavits and further directing removal of the encroachments and, therefore, the order dated 24.09.2010 deserves to be set aside.

17. Vehemently opposing the submissions made by learned counsel for the appellants, learned counsel for the respondents allottees submitted that this Court in the case of Durga Vihar Vikas Samiti specifically directed that the roads and parks be cleared and as the appellant Samiti and its Members were rank trespassers over the land in question, the order was rightly passed. It is further submitted that the UIT/JDA is bound to remove encroachments and they cannot be heard to submit that the encroachments cannot be removed/should not be removed; time was granted to do the needful; the Pattas pertaining to the land in dispute were being regularly issued and it is incumbent on the UIT/JDA to formulate the scheme regarding the land which already stands set apart and placed at their disposal and it is not by choice for them; the appeal has been filed by the JDA, which is contrary to their own stand; the land in question is owned by the respondents allottees and they have surrendered the same, which in turn has again been allotted to them; regarding the report by the Secretary, it was submitted that the Secretary had no jurisdiction to observe that the Scheme is illegal and, therefore, the appeal filed deserves to be dismissed.

18. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.

19. At the outset it may be noticed that the appellant Samiti and its Members approached this Court by filing the writ petition aggrieved against the notice / public notice issued by the UIT/JDA directing them to vacate the land in question within a period of 72 hours and threatening removal on their failure to vacate the land. On issuance of public notice dated 30.4.2008, the petitioners filed stay application seeking stay against the notice and/or their removal fro the site; the petition was based on the claim that the petitioners were in possession of the land in question for over 30 years and should not be removed under garb of order passed in the case of Durga Vihar Vikas Samiti (supra).

20. After hearing the parties, by order dated 02.05.2008 the learned Single Judge on coming to the conclusion that the UIT irrespective of the orders passed in the case of Durga Vihar Vikas Samiti etc. is under legal obligation to remove illegal encroachments and as the appellants herein were encroacher over the land were not entitled to grant of any injunction and an interim order against implementation of order of this Court would be in contradiction, which is required to be avoided, rejected the stay application.

21. It would be noticed from the consideration and the operative portion quoted hereinbefore that nowhere in the order dated 02.05.2008 while rejecting the stay application any further direction was issued to remove the encroachments except noticing that the law should take its own course and there was no justification to interfere with such a public notice.

22. By the impugned order dated 21.04.2010, it was noticed that by order dated 02.05.2008 the stay application was rejected and that despite rejection of stay application as the petitioners were not removed, the directions as noticed hereinbefore were issued including direction for removal of the petitioners from land in question.

23. It would be noticed that the petitioners had approached the Court against the public notice directing their removal, the stay application had been already rejected and thereafter it was up to the UIT/JDA to take appropriate action, which aspect was already being taken care of pursuant to the order passed in the case of Durga Vihar Vikas Samiti (supra) and in a writ petition of the nature filed by the appellant Samiti and its members, there was apparently no occasion for passing further directions for implementation of orders passed in the case of Durga Vihar Vikas Samiti (supra).

24. There is substance in the contentions raised by learned counsel for the appellants that the order passed was essentially beyond the scope of the writ petition as even if the writ petition was to be dismissed in limine, the positive direction for removal of the petitioners within a period of one week with the help of Government departments/agencies and further direction regarding intention of the Court to initiate criminal action against the officers could not have been passed.

25. Further, it is well settled that directions, interim in nature during the pendency of the petition, should not be passed, which tends to either decide the lis itself and/or likely to put the parties in irretrievable position; admittedly, the writ petition is still pending consideration of the Court on merits and if the impugned order passed was to be implemented, the same would be prejudging the issue at the interim stage, which order cannot be sustained.

26. Further, the nature of directions, which have been passed directing eviction of the petitioners and further proposal to initiate criminal action against the Officers, also at the interim stage, goes beyond the very scope of the writ proceedings, wherein, the petitioners had only questioned the validity of the public notice and there was no counter writ and/or relief sought in the matter.

27. So far as the submissions made by learned counsel for the appellants and learned counsel for the respondents regarding the merits of the case are concerned, the writ petition is still pending consideration and all those issues need to be addressed before the learned Single Judge and the said issues at this stage do not call for any determination.

28. So far as the appeal filed by the JDA is concerned, the order dated 29.04.2010 is only consequential to the order dated 21.04.2010 and in view of our finding hereinbefore regarding the order dated 21.04.2010, the consequential order dated 29.04.2010 also cannot be sustained.

29. In view of the above discussion, the special appeals are allowed. The orders dated 21.04.2010 and 29.04.2010 passed by learned Single Judge are set aside, looking to the nature of dispute, it is directed that the writ petition be heard expeditiously. No order as to costs.

Appeals Allowed.