ABDUL QAIYUM Vs. ADDITIONAL DIVISIONAL COMMISSIONER & OTHERS

JUDGEMENT

(1.) In this writ petition, under Article 226/227 of the Constitution of India, the petitioner challenges the judgment dated February 16,1993 (Annex. 6), passed by the Additional Divisional Commissioner, Jaipur and the judgment dated April 4, 1989 (Annx. 5), passed by the Collector, Jhunjhunu.

(2.) In brief, the facts of the case are that the Municipal Board, Khetri (Jhunjhunu) sold Nazul land, measuring 264.7 sq.yds., which is equivalent to 221 sq.mts., to the petitioner-Adbul Qaiyum and a sale deed was executed on June 22, 1987. This order was challenged by Basanti Lal Harijan-respondent No. 4, before the Collector, Jhunjhunu. The Collector, Jhunjhunu, vide impugned order dated April 4, 1989, set aside the aforesaid sale made in favour of the petitioner. The aforesaid order of the Collector was also confimed by the Additional Divisional Commissioner, Jaipur, vide impugned order dated February 16, 1993. In his petition, the petitioner has alleged that the aforesaid disputed plot is situated adjoining to his house in Ward No. 13, in the town of Khetri and the disputed land was in his possession since 1978. It is further alleged that after issuing public notices, the Administrator, Municipal Board, Khetri passed orders to issue a 'Patta' of the aforesaid land in favour of the petitioner, on depositing Nazrana, at the rate of Rs. 18/- per sq.mt., which was paid and a 'Patta' was issued on June 22, 1987, which was subsequently got registered on July 15, 1985. The learned counsel challenged the order of the Collector, as well as, the Additional Divisional Commissioner on various grounds. The first contentions that the petitioner was in possession of the land and after due notice and enquiry, it was ordered to be allotted to him and a 'Patta'/sale deed was executed. Another submission is that the impugned order of the Collector is based on his site inspection, but the site inspection was not made by the Collector in the presence of the petitioner or after notice to him. It was also submitted that the Collector could not have passed his finding on the basis of site inspection and that the Collector acted illegally in exercising power u/s. 80 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act, 1959'). I have given my careful consideration to the above submission. It may be stated that the Collector scrutinised the concerned file. It may also be stated that the Collector has mentioned in his impugned order that the site inspection was made by him in the presence of the petitioner. Therefore, the submission of the learned counsel for the petitioner that the site inspection was made by the Collector in his absence is not tenable. The Collector has also observed in the impugned order that on the site in question, the respondent-Basantilal Harijan was residing, where his two old 'Jhompas' are erected. In other words, the Collector found that the petitioner was not in possession on the disputed land. The Collector also found that in collusion with the petitioner, the concerned officers/employees of the Municipal Board, did not take any proceeding to allot the land to the poor Harijan, but, in order to deprive him from his land, it was sold to the petitioner, without following the procedure. It was also observed that the persons, whose statements were recorded by the Administrator before issuing 'Patta' to the petitioner, did not belong to the Mohalla, where the land in question is situated. Some other infirmities were also pointed out to show that the entire action to sell the land was malafide. The Additional Divisional Commissioner also agreed with the view of the Collector. It is true that the Collector did not prepare a site-plan, but, by itself, I am not prepared to accept the contention of the learned counsel for the petitioner that whatever the Collector has observed about the plot in question, regarding the possession over it, is false or incorrect. It may be stated that any urban land, which vests in a Board under cl. (c) of sub-sec. (2) of S. 92 or which is a Nazul land as defined in S. 3 of the Rajasthan Land Revenue Act and which is placed at the disposal of the Board by the State Government, can be sold/allotted under the provisions of the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 (for short, 'the Rules, 1974'). According to the said Rules, all residential plots not reserved for allotment can be disposed of through public auction in the manner prescribed in Annexure A and the Collector concerned or his nominee is to be associated when the auction takes place. Under R. 10, residential plots can be reserved for allotment at concessional rates to specified categories of persons. Then, a strip of land has been defined to mean a piece of land adjoining an existing plot, which cannot be put to independent use and which shall in no case exceed 100 sq. yds. in area. Then R. 24 provides that all Stray plots, which are lying vacant, shall be disposed of by public auction in accordance with the procedure laid down in R. 14 and subject to the conditions mentioned in the Rules. Admittedly, the plot in question is not a strip or land, as it exceeds 100 sq. yds. The petitioner was not in possession of the land. If that is the position, the Administrative could not have sold the said land to the petitioner on his mere application without following the procedure laid down in the Rules of 1974. When the sale is ab initio void, and it was found by the Collector that the petitioner was/is not in possession of the same, I am not inclined to grant any relief to the petitioner under Art. 226 of the Constitution, which is an extra-ordinary remedy. In view of this fact, I need not examine the contention of the learned counsel for the petitioner as to whether S. 80 of the Act applies or not or whether the Collector could have set aside the sale or not. The Municipal Board is a statutory public body and it is expected to function in accordance with law. Its Administrator, Chairman or other Officers cannot be permitted to act arbitrarily to sell any land in favour of any person without following the procedure. When the entire action of the Board is found to be collusive and arbitrary, no relief can be given to the petitioner, especially when the other claimant is a poor Harijan.

(3.) Consequently, I do not find any merit in this writ petition and it is, therefore, dismissed summarily.