MOOLCHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution, the petitioners Mool Chand, son of Khamma Rain, and Mst. Jawahari, widow of Khamma Ram, seek a writ of Certiorari for quashing the resolution of the Municipal Board, Neemka thana, dated July 21, 1972, the order of the Collector, 226dated December 18, 1972, and the order of the Director, Local Bodies', Rajasthan, Jaipur, Dated April 26, 1973 in so far as it maintains the allotment of certain plots of land out of Khasra Nos. 1014, 1015 and 1016 in favour of the respondents Nos. 5 to 10; and for a writ of Mandamus, for directing the Municipal Board, Neem -Ka -Thana, to make allotment of a plot of land in their favour out of land bearing khasra Nos. 1014, 1015 and 1016, as directed by the Land Acquisition officer by this order dated December 3, 1963. The facts are that predecessor -in title of the petitioners, namely, Khamma Ram, was the Khatedar tenant of Khasra Nos. 1014, 1015 and 1016 situate at Neem -Ka -thana. In 1963, the said land was acquired by the State Government of Rajasthan for the Municipal Board Neem -Ka -Thana. for extension of abadi under Section 6 of the Rajasthan Land Acquisition Act, 1953. The Land Acquisition Officer, by his order dated December 3 1963, made a conditional award for payment of compensation depending on classification of soils Rs 200/ -, Rs 160/ - and Rs. 450/ - per Bhgha, on condition that out of the land acquired a big plot shall be alloted to Khamma Ram for his residential purposes at half the price of the other plots. In case Khamma Ram did not want to take a plot, he was to be paid an amount equal to half the price. Thus the award of the Land Acquisition Officer for compensation, was a conditional award, and in terms thereof, the Municipal Board, Neem Ka -Thana, was bound to allot a big plot to Khamma Ram before making allotment of plots to others. The Land Acquisition Officer has indeed mentioned in the award that the fact that Khamma Ram was to be alloted one of the plots, had been taken into consideration in determining the market value of the land acquired. Thai being so, the Municipal Board was bound to allot a big plot to Khamma Ram before making allotment of plots to others.

(2.) CONTRARY to the condition imposed by the Land Acquisition Officer, the Municipal Board, by its resolution Dated July 21, 1972, made allotment of plots in favour of the respondents Not. 5 to 10, by ignoring the condition imposed by the Land Acquisition Officer. The petitioners, there fore, went up in appeal to the Collector, but the Collector, by his order dated December 18, 1972, maintained the resolution of the Municipal Board Thereafter, they preferred a revision to the State Government under Section 300 of the Rajasthan Municipalities Act, 195. The Director Local Bodies, Rajasthan, Jaipur, to whom the revisional powers had been delegated, parth allowed the revision preferred by the petitioners, by his order dated April, 26. 1973 to the effect: .........[vernacular ommited text]........... It appears that the second part of the order made on a representation by the Municipal Board before the Director, Local Bodies, Rajasthan, a here, that vacant plots were still available for allotment. It now appears that no such plots are available. When the petitioner applied for gram of ad -interim writ, the Municipal Board, in its reply dated December 3, 1973, stated in paragraph No. 1 of the additional pleas: The Municipal Board at this stage is prepared to keep a vacant piece of land for the allotment of a plot to petitioner succeeds.... In their rejoinder dated January 4, 1974 the petitioners disputed the fact that any plots are available. The rejoinder was supported by an affidavit. Learned Counsel appearing for the President Municipal Board, addressed to them (sic) that there are no plots.

(3.) THE decision in Ram Kishan and Ors. laying down the principle error crated that the dismissal of a suit as withdrawn disentitles the plaintiff to claim the relief from the same grounds in the writ petition, on general principles of res judicata at d on the principles of Order 23 Rule 1 of the Code of Civil Procedure, 1908, can hardly be disputed. The difficulty, however, lies in the application of those principles to the present case. In Ram Kishan's case , the writ petitioner claimed the same reliefs as in the suit based on the same grounds whereas here, the petitioner claims an altogether different relief. I have gone through the plaint in civil suit No. 27 of 1973. The suit brought by the petitioners was essentially a suit for perpetual injunction to restrain the Municipal Board from making any allotments, and in the event of such allotment for cancellation of them. There was no relief of mandatory injunction claimed by the petitioners directing the Municipal Board to allot a plot of land to them in conformity with the order of the Lalit Acquisition Officer dated December 3, 1963. When the petitioners found that allotments had already been made, they withdrew the suit as the relief claimed could not granted. That being so I fail to see how the withdrawal o the civil suit operates as a bar to the maintainability of the present writ petition.