ISHWAR SINGH Vs. GANGA SINGH

JUDGEMENT

(1.) Petitioner by means of this writ petition has prayed that by an appropriate writ, order or direction, the order dated 6-8-1991 (Annex. 3) passed by the District Collector, Nagaur be quashed and respondents Nos. 1, 3, 4 and 5 be directed not to interfere in his possession and not to demolish construction raised by him on the disputed plot of land.

(2.) Succinctly stated the petitioner's case is that he purchased the disputed plot of land measuring 80 ft. x 35 ft. = 311 1/9 square yards situated in Ward No. 1, Nagaur vide registered sale deed dated 30-4-1991 (Annex. 1) from Shri Sag Ram Jat (respondent No. 2) and procured permission to raise construction thereon from the Municipal Board, Nagaur (respondent No. 3) vide permission letter dated 22-7-1991 (Annex. 2) and also started construction. That on 7-9-1991, Ganga Singh (respondent No. 1), who is now Chairman of the Municipal Board, Nagaur, along with his staff came to the said plot and wanted to demolish the construction raised thereon. respondent No. 1 also informed the petitioner that the sale deed Annex. 1 had been cancelled. It is further the case of the petitioner that thereupon he contacted respondent No. 2 and came to know that the District Collector, Nagaur (respondent No. 4) by his impugned order dated 6-8-1991 (Annex. 3) had cancelled the sale order dated 20-7-1985 (Annex. R/ 5) and the sale deed dated 30-7-1985 (Annex. R/6) executed in favour of respondent No. 2 by the Municipal Board under Section 80(2) of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as the Act), ordered for refund of the sale amount and for taking the possession of the disputed land. Aggrieved by the impugned order dt. 6-8-1991 (Annex. 3), respondent Sag Ram filed a revision petition before the State Govt. under Section 300 of the Act, which was later on dismissed as withdrawn with the observation that no such revision was maintainable. It is the case of the petitioner that during the pendency of the said revision petition, he had procured stay order against the respondent No. 1, who was his political adversary and who had tried to demolish the construction on the disputed plot of land, but due to the intervention of the Collector and the S.D.O. the construction could not be demolished. According to the petitioner, it was only through the impugned order Annex. 3 that he came to know that the Municipal Board, Nagaur had allotted one plot of land to Sag Ram in the year 1976 vide registered patta dated 24-1-1976 (Annex. 4) but since some other person was in possession thereof, the disputed land was allotted to Sag Ram in the year 1985 and that since the size of the disputed plot of land was larger than the earlier allotted plot of land, the Municipal Board had also charged extra price of land. According to the petitioner, the sale of plot of land vide patta Annex. 4 in favour of Sag Ram was complete. However, at the instance of respondent No. 1, proceedings before the Collector were initiated under Section 80(2) of the Act and it was alleged that the allotment of the disputed plot of land in favour of Sag Ram was illegal and without jurisdiction. The case of the petitioner is that since the subsequent allotment of the disputed plot of land in favour of Sag Ram was made in the year 1985 and that transaction was complete, the Collector had no jurisdiction under Section 80(2) of the Act to set aside the completed sale of the disputed land and that by virtue of sale deed Annex. 1, a civil right has also been created in his (petitioner's) favour. Since the Collector did not afford any opportunity of hearing to him and cancelled the subsequent allotment order dated 20-7-1985 as also the sale letter dt.30-7-1985 (Annex. R/6) executed by the Municipal Board in favour of Sag Ram, there was violation of the principles of natural justice therefore, impugned order dated 6-8-1991 Annex. 3 is without jurisdiction, which deserves to be quashed.

(3.) The Municipal Board (respondent No. 3) in its Counter has vehemently contested this writ petition and taken certain preliminary objections. Firstly, the petitioner has deliberately suppressed the material facts and not come with clean hands. Secondly, the petitioner has no legal right in his favour to enforce because the alleged subsequent allotment of the disputed land made in favour of respondent Sag Ram vide patta dated 20-7-1985 Annex. R/6 was patently illegal and against the specific provisions of the Act and the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 (in short "the Rules of 1974'J. Thirdly, the petitioner's revision petition filed under Section 300 of the Act challenging the impugned order Annex. 3 was pending before the State Government at the time of filing of this writ petition. Therefore, the writ petition was not maintainable. On merits, it has been pleaded that way back in the year 1976, the Govt. of Rajasthan through several Municipal Councils/ Boards including Municipal Board, Nagaur had made certain schemes for the benefit of low income group people, members of Scheduled Castes and Scheduled Tribes and landless persons for allotment of residential plots at concessional rates within municipal areas under R.17 of the Rules of 1974. That respondent Sag Ram had submitted an application dated 15-1-1976 Annex. R/ 1 to the Municipal Board, Nagaur, wherein he alleged that his annual income was Rs. 1500.00 only and prayed that a plot of land in the scheme outside Kumhari Gate, Nagaur be allotted to him. He had also submitted another application Annex. R/2 specifying the said Scheme Thereupon after due consideration, he was allotted plot No. 9 measuring 18 ft. x 36 ft. (equivalent to 72 square yards) situated outside Kumhari Gate, Nagaur for an amount of Rs.180.00 vide registered patta dated 25-1-1976 Annex. 4 on the terms and conditions mentioned therein. One of those conditions was that the allottee shall not have any right to transfer the allotted residential plot. Another condition was that the allottee shall have to construct the house or erect thatchet thereon within two years of the allotment. The possession of the said plot of land was also handed over to Sag Ram. It has been alleged that Sag Ram did not put any construction within the stipulated period. Therefore, the Municipal Board, Nagaur sent a notice dated 8-2-1979 Annex. R/3 asking him to make construction on the said land within three months failing which his allotment shall be cancelled. Sag Ram did not file any reply to the said notice. However, as late as on 30-7-1985, he filed an application Annex. R/4 before the Chairman, Municipal Board, Nagaur alleging that since the plot No. 9 allotted in his favour was in unauthorised possession of other person, he could not get the possession thereof and prayed that instead of plot No. 9, he may be allotted disputed plot of land situated in 'Sainik Basti', Nagaur, which was lying vacant. He further mentioned therein that since the disputed plot of land is bigger in size, he was also prepared to deposit the price of the excess land. Thereafter, he filed another application dated 20-7-1985 (Annex. R/ 5) before the then Chairman, Municipal Board, who passed an order on the said application that if the original plot of land was not available then in lieu of that, another plot of land may be allotted in favour of Sag Ram. It is is alleged that the said order was clearly against the provisions of the Act and the Rules of 1974. The then Chairman, Municipal Board, Nagaur also issued, subsequent order of allotment dated 30-7-1985 Annex. R/6 in favour of respondent Sag Ram pertaining to the disputed plot of land measuring 311 1/9 square yard for an amount of Rs. 2400.00 in exchange of the previously allotted plot No. 9. It is the case of the Municipal Board that allotment order Annex. R/6 was also issued in flagrant violation of the provisions of the Act and the Rules of 1974. Moreover, Annex. R/6 was not registered. Therefore, the said subsequent allotment order dated 20-7-1986 and 30-7-1986 Annex. R/6 are not binding on the Municipal Board being patently illegal and void. It is further the case of Municipal Board that the respondent No. 1 challenged the said allotment orders by filing revision petition under Section 80(2) of the Act before the Collector, Nagaur, wherein respondents Sag Ram and Municipal Board were also impleaded as non-petitioners. It is the case of the Municipal Board that the petitioner, who was also a Municipal Councillor, was fully knowing about the said revision petition, that in fact Sag Ram was a fictitious person; that moreover Sag Ram had no legal right to transfer/ sell the disputed plot of land as per terms and conditions of the allotment order Anex. R/ 6 and, therefore, the alleged sale deed dated 30-4-1991 Annex. I neither gives any title or right in favour of the petitioner nor the same is binding on it, that the Collector after due enquiry and hearing the parties by his impugned order dated 6-8-1991 has held that the impugned subsequent allotment order in respect of the disputed plot of land was against the provisions of the Act and the Rules of 1974 and that he accordingly exercising the powers of the State Govt. under Section 80(2) of the Act has legally cancelled the order dated 20-7-1985 Annex. R/ 5 as well as the allotment order dated 30-7-1985 Annex. R/6. It has also been pleaded on behalf of the Municipal Board that a notice Annex. R/7 was issued against Sag Ram and that same was also published in the newspaper and that in compliance of the order dated 4-9-1991 Annex. R/8 issued by the Executive Officer, Municipal Board, Nagaur, the Sanitary Inspector had demolished the construction raised on the disputed plot of land and taken over the physical possession of the plot and submitted his compliance report dated 7-9-1991 (Annex. 10). It has also been pleaded that the petitioner filed a revision petition before the State Govt. under Section 300 of the Act, which was legally not maintainable and that under the garb of the stay order, he has again illegally taken possession of the disputed plot of land. Thus, the petitioner has deliberately suppressed material facts and has not come with clean hands and as such he is not entitled to any relief.