GORDHAN LAL Vs. MUNICIPAL COUNCILS KOTA

JUDGEMENT

(1.) THIS is an application for revision under sec. 300 of the Rajasthan Municipalities Act, 1959 in respect of the orders of the Additional Collector, Kota, dated 24. 11. 62 whereby the appeal of the applicant against the order of the Municipal Council Kota dated 27. 6. 62 refusing to grant permission to construct Chabutries was dismissed.

(2.) I have heard the counsel for the parties and have also carefully examined the record. The Municipal Council Kota by its order dated 27. 6. 62 refused to grant permission to the applicant for constructing Chabutries on a piece of land within the municipal limits of Kota city on the ground that the land on which the applicant wanted to construct Chabutries did not belong to him. In appeal the Additional Collector Kota upheld the order of the Municipal Council and dismissed the claim of the appellant as he did not produce any Patta or other documentary evidence or show the law under which the property belonged to him by adverse possession. In the application before me the applicant vehemently contested that since he had been in possession of the land under dispute for several years, the Municipal Council could not now deny his title to the land simply because he did not have any Patta or other documentary evidence with him and that he had produced oral evidence in support of his claim which had been discarded by both the lower courts. He contended that the objection raised by the municipal counsel was not a ground covered by the provisions of sec. 170 which dealt with the question of erecting new constructions and that the Municipal Council had acted illegally in rejecting his application for making. construction on a ground not covered by the law. In support of his contention he referred to a ruling of the Bombay High Court in A. I. R. 1960 Bombay Vyara Municipality versus Fulchand Ganpatlal Shah reported at pages 99 to 101, and he argued that the Municipal authorities could only impose conditions prescribed under the law, namely sec. 170. It was further argued that a municipality could refuse to grant permission only if it proposed to acquire the land on which any building is proposed to be erected. The analogy cited by the learned counsel for the applicant is not on all fours with the present case. Here the Municipal Council, Kota has refused to grant permission on the ground that the land on which the Chabutries are proposed to be constructed did not belong to the applicant. Therefore the question involved is one of the ownership of the land. As the learned Additional Collector has said, this is clearly a matter of dispute between the Municipal Council and the applicant and it is for the applicant to get a proper decree from a competent court establishing his title to the land in question. Even the appeal before the Additional Collector, Kota in its context was invalid and therefore naturally dismissed by that court as it was not competent to give a decision as regards the title of the land. The present proceedings are concerned with only the construction of a building, but when as the Municipality has held the very land on which the applicant desires to construct is held by the Municipality not to belong to the applicant it was open to the applicant to get a proper decree from a competent court instead of challenging the orders of the Municipal Council in this manner. In the Bombay ruling cited above, the question of the title to the land was not at all in dispute and therefore that ruling can easily be distinguished from the present case. It is no doubt clear that even the Municipal Council is not in a position to give a final decision as regards the title to the land but when the land is open it is presumed to belong to the Municipal Council and when such title is contested by the Municipal Council it is for the aggrieved party to get a proper decree in support of his claim.