POONAMCHAND Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) THIS is a writ petition under Article 226 of the Constitution directed against an order of the Revenue Appellate Authority, Kota, dated 6-5-64, whereby in exercise of its revisional powers under Section 300 of the Rajasthan Municipalities Act, 1959, hereinafter to be called the "1959 Act", it set aside an appellate order of the collector, Jhalawar and restored that of the Municipal Board, Jhalawar, by which the Board had ordered the demolition of two shops alleged to have been constructed by the petitioners in Bada Bazar, Jhalawar, in contravention of the permission granted by the Municipal Board.

(2.) THE petitioners were the owners of three shops in what is known as the Bada bazar in the town of Jhalawar. They wanted to construct two bigger shops in place of the three shops and, therefore, they applied to the Municipal Board on 18-6-63 for granting them permission for the same and by its order dated 15-7-63, the municipal Board granted the permission for the construction subject to the conditions imposed by its aforesaid order. Here, in the present writ petition, we are concerned with one condition which is alleged to have been contravened and it was to the effect that the petitioners shall maintain the existing distance of 4 feet between the proposed shops and the payed public drain on their eastern side, which was adjacent to the road leading to Dhan Mandi. The petitioners constructed the shops, but the Board was informed that in doing so the petitioners had not maintained the existing distance of 4 feet between the proposed building and the paved public drain and had made an encroachment on the municipal land. As the municipal Board was satisfied that the construction made by the petitioners was not In accordance with the permission granted to them, it ordered the demolition of the objectionable construction by its resolution dated 20-8-63, and due effect was given to the same immediately by demolishing the alleged objectionable construction. Feeling aggrieved by the order of the Municipal Board, the petitioners went up in appeal to the Collector, Jhalawar, under Section 170 (12) of 1959 Act, and the learned Collector by his judgment dated 19-3-64 held that there was no breach of the conditions of permission on the part of the petitioners and accordingly he reversed the order of the Municipal Board dated 20-8-63, and he permitted the petitioners to re-construct their shops in accordance with the permission of the municipal Board. The Municipal Board felt aggrieved by this order of the Collector and consequently it filed a revision application before the Revenue Appellate authority, Kota, who having heard the arguments of the parties, set aside the order of the Collector and restored that of the Municipal Board. The order of the revenue Appellate Authority is challenged before us mainly on the following three grounds:

(3.) THE writ petition has been opposed by the municipal Board, Jhalawar,. and it is urged on its behalf that the construction made by the petitioners was in clear contravention of the permission granted by the Municipal Board inasmuch as the petitioners had not left a clear span 4 feet wide between their building and the public drain on the eastern side adjacent to the road leading to the Dhan Mandi as required by the Board's order. It is, therefore, submitted that the Municipal Board was within its authority in ordering the demolition of the objectionable construction. As regards the alleged lack of jurisdiction in Revenue Appellate authority it is stated that Section 300 of the 1959 Act is wide enough to Invest that authority with the powers to interfere with the orders of the Collector passed under Section 170 (12) of the 1959 Act, notwithstanding that such orders of the collector have been characterised as final. According to the non-petitioner No. 1, the word 'final' should only result in denying any further right of appeal to a party, but it could never (sic) from the revisional jurisdiction of the Revenue Appellate authority under Section 300 of the 1959 Act.