CHAUTHMAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a special appeal under Section 18(1) of the Rajasthan High Court Ordinance, 1949, against the Judgment and order of a learned single Judge of this Court dated 2.3.1966 dismissing the appellant's writ application No. 71 1964.

(2.) THE relevant facts are these on 22.9.1960 the respondent No. 4 Smt. Kanwari Bai submitted an application to the Municipal Board, Merta City praying that a plot of land of the dimensions : length 13' x 14' and width 3 x 10' contiguous to her godown in Ghosion ka mohalla in the town of Merta be sold to her on taking its price at the due rate and patta be issued to her. On this application a proclamation was published under the order of the Secretary, Municipal Board Merta City, inviting objection within one month. No one filed any objection. The papers were, however not put up by the Secretary either before the Board or before the Chairman for orders on the application, of Mst. Kanwari Bai On the contrary on 12 -11 -60 he order the sale of the plot by auction from 1.12.1960 to 3.12.1960 under his supervision without obtaining order of the Board or its Chairman. The sale proclamation was, however, signed by the Chairman At the auction, there were only two bidders, namely, Shri Chauthmal the appellant and one Shri Ramkumar. Shri Chauthmal's bid for Rs. 801 was the highest. The Secretary recommended that Shli Chauthmal' bid may be accented and the Chairman accordingly accepted the bid and executed a sale dead on 11. 2 1961. On 14.2.1961 before the sale dead was registered Shri Chauthmal applied for permission to fix slabs on the purchased land and permission was granted. When Smt. Kanwari Bai learnt about the sale, she filed an application before the Collector on 14.2.1961 pupating to be under Section 283 of the Rajasthan Municipalities Act, 19 59 (hereinafter referred to as the Act) praying that the sale in favour of Shri Chauthmal may be set aside and the said plot may be allotted to her under Section 97 of the Raj Land RevenueAt hereinafter referred to as L R A. on payment of the due price. The Collector after issuing notice to the Chairman and the Secretary of the Mun. Board and to Shri Chauthmal and after hearing the parties held, auction in the present case had not been held in accordance with the said rules published under notification No. F. 7(87) LSGG/58 dated 8.11.59 observing that under Section 80 of the Act, the Chairman is not competent to confirm the auction where the auction price exceeded Rs. 200, he held, 'in the present case as the land in question has been sold for Rs. 801 the chairman Municipal Board was not competent to, 'confirm the auction proceedings.' He, therefore, recommended that these sale should be declared void and the Municipal Board, Merta be directed not to proceed further in the case till the final decision given by the Government. He further recommended that since the land is attached to the godown of the applicant, the same should be disposed of as per Government notification No F.7 (187) LSG 58 dated 8.3.1961. 'The State Government accprted the recommendations of the Collector by its order dated 14.10. 63, quashed and set aside, the sale in favour of Shri Chauthmal and directed the Municipal Board, Mertacity, to sell the plot to Smt. Kanwari Bai in accordance with Government notification No. F. 7 (187) LSG/58 dated 8.3.1961. Aggrieved by the recommendations of the Collector and the order of the State Government, the appellant filed a writ application contending that the recommendations of the Collector and the order of the State Government were without jurisdiction. The learned single Judge who heard the writ application, held that the recommendation of the Collector vide his order dated 29 -6 -1961 and the order of the State Government dated 11 -10 -1963 suffer from a patent lack of jurisdiction as there were no allegations of Smti Kanwari Bai or finding by the Collector that the sale of plot to Shri Chauthmal was causing or was likely to cause injury or annoyance or breach of the peace or was unlawful However, observing that the sale could not be completed without taking the approval of Collector under Section 80(1) of the Act and as no such approval was taken, the sale of the disputed plot was null and void, he refused to quash the order of the State Govt., setting aside the 'void -sale' in favour of the petitioner in the exercise of the extra -ordinary power of this Court under Article 226 of the Constitution. He accordingly, dismissed the writ application. Shri Chauthmal has filed the present appeal.

(3.) THIS brings in the controversy whether the Nazul lands can be said to belong to Municipal Board or to the Government. The learned single Judge has taken the view that Nazul lands placed at the disposal of the Board vest in the Board but belong to the Government. In the Bench decision in Radha Kishan and Ors. v. State of Rajasthan and Ors. D.B. Civil Misc. writ petition No. 312 of 1962 decided by this Court on 8 -3 -1965 the same view appears to have been taken. We have also considered the scheme of the Land Revenue Act and Section 3(l)(lb) defining Nazul land, Section 97 providing for the disposal of Nazul land, Section 102 -A empowering the Government to place Nazul land at the disposal of the Local Authorities and Section 104 providing for the exercise of powers of Revenue Officers by the Local Authority and the notification dated 8 -10 -59 and are in agreement with the learned Single Judge that the Nazul lands do not belong to the Municipal Board but b long to the Government. In this connection, we may further refer to Local Self Government Department Notification No. F.7 (187) LSG/58 dated March 8, 1961, issued in the exercise of powers conferred by Section 102 -A of the Lord Revenue Act laying down further conditions and restrictions with regard to the Nazul lands placed at the disposal of the Municipal Authorities by the Department. Condition 2(b) states that save as otherwise provided, plots of land shall be sold in public auction and the Collector concerned in case of towns with a population of 50,000 and above and the Sub Divisional Officer concerned in other towns shall be associated, when the auction of plots takes place.' This removes doubts, if any, as to the ownership of the Government over Nazul lands and their jurisdiction to prescribe manner of the disposal of the land. While interpreting Section 92(2)(e) of the Act we have taken the view that Section 92(2)(e) refers to the property both vesting and belonging to the Municipal Board and the property not belonging to the Municipal Board cannot be treated as vesting in the Municipal Board in terms of Section 92(2)(e). The learned Single Judge, however, appears to have taken the view that all property belonging or not belonging to the Municipal Board can vest in the Municipal Board under Section 92(2)(e) of the Act. It appears to us that the main controversy before the learned single Judge was with regard to the vesting of the Nazul land in the Municipal Board and the controversy in the pointed form in which it has been raised before us does not appear to have been agitated and the learned single Judge had no occasion to analyse Section 92 of the Act in the manner in which he did. We are unable to endorse the view that the land not belonging to the Municipal Board can vest in the Municipal Board within the meaning of Section 92(2)(e) of the Act. Nazul land belonging to the Government and not to the Board, therefore, cannot vest in the Municipal Board. The Local Self Government Department Notification dated 8 -10 -1193, therefore, cannot have the effect of vesting Nazul lands in the Municipal Board under clause 2(e) of Section 92 of the Act.