LIKHMICHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner Likhmichand owns a residential house in a blind lane in Churu Town. There is a strip of land measuring 21' x 6' (14 Sq. yds) in front of the aforesaid house of the petitioner. In 1961 the petitioner applied to the Municipal Board, Churu for grant of patta to him in respect of the aforesaid strip of Land and on his depositing the sum of Rs. 210/ -towards the price of land at the rate of Rs. 15/ - per sq. yd. The patta was granted to the petitioner on 25 the October, 1966, by the Municipal Board, Churu on 5th February, 1972, the petitioner gave notice to the Municipal Board under Section 170(1) of the Rajasthan Municipalities Act, 1959, of his intention to make construction on his land including the newly purchased strip of land and the Chairman of the Municipal Board by his letter dated 24/25 February; 1972 sent an intimation to the petitioner giving him permission to make construction in respect of which notice had been given by the petitioner to the Municipal Board. After the receipt of the said permission, the petitioner started construction on the newly purchased strip of land. Ram Swarup Khemka, respondent No. 4 herein who happens to be a neighbor of the petitioner sent a telegram to the Collector, Churu, informing him that the petitioner was making unauthorized construction over Government land and the same should be stopped. After receipt of the said telegram, the Collector, Churu, in the purported exercise of his power under Section 285(1) of the Rajasthan Municipalities Act, 1959 passed an order dated 14th March, 1972 suspending the execution of the order of the Chairman Municipal Board, Churu dated 24th February 1972, on the view that the Chairman of the Municipal Board was not competent to grant the permission under Section 170 of the Act and that under Section 170 the power to grant such a permission is vested in the Municipal Board only. In pursuance of the aforesaid order pissed by the Collector, Churu, dated 14th March, 1972, a notice dated 17th Mates 1972 was served on the petitioner by the Executive Officer of the Municipal Board, Churu, whereby the petitioner was directed to stop the construed as work immediately. After the receipt of the said notice, the petitioner moved an application before the Collector, Churu, requesting him to reconsider his order dated 14th March, 1972 which had been passed exporter with flout notice to the petitioner. The Collector by his order dated 10(h April 1972, rejected the said application with the observation that he had no authority to alter or revise his order dated 14th March, 1972 and that the State Government alone was competent to rescind or confirm that order. In his order dated 10th April, 1972 the Collector also observed that Shri Ram Swarup Khemka had brought to his notice that the Patta dated 25th October, 1966 granted in favour of the petitioner along with 23 others Patta had been cancelled by the order of the State Government dated 6th March, 1968 and that this fact strengthened the order dated 14th March, 1972 posed by him. The State Government by its order dated September 14/28, 1972 passed in the purported exercise of its powers under Section 285(2) of the Act, confirms d the order of the Collector dated 14th March, 1972 and further directed that no construction shall be made on the land in dispute. Aggrieved by the aforesaid order, the petitioner has filed this writ petition for the issue of a writ quashing the order of the State Government dated September 14/28, 1972, and all the orders on the basis of which the said order had been passed.

(2.) IN the writ petition the case of the petitioner is that the order of the Collector dated 14th March, 1972 and the order of the State Government dated 14 -9 -1972/28 -9 -1972 were illegal and wholly without jurisdiction in as much as Section 285 of the Rajasthan Municipalities Act, 1959 does not empower the Collector and the State Government to pass the said orders and that the power under the said section could be invoked only in a case where the execution of any order or a resolution of the Municipal Board, or the doing of anything which is about to be does or has been done by or on behalf of the Board, is causing or likely to case injury or annoyance to the public or breach of peace or is unlawful. The case of the petitioner is that in the present case permission to construction had already been granted to the petitioner by the Municipal Board through its Chairman and nothing had to be done by the Municipal Board at the time when the Collector posed the order and that it was net a case of execution of any order or resolution of the Board or doing of the anything which was about to be done or was being done by or on behalf of the Board. The case of the petitioner is further that there was no illegality in the order of the Chairman, Municipal Board, granting permission to the petitioner to make the construction over the land in dispute and that even assuming that there was some immaturity in grant of the sanction by the Chairman of the Municipal Board, the said action of the Chairman had been ratified by the Municipal Board by a resolution passed un impiously at the meeting of the Municipal Board held on June 6, 1972 whereby the permission for constructions granted by the Chairman from time to time to 39 persons, including the petitioner, was confirmed. As regards the order of the State Govt. dated 6th March, If 68, whereby the Patta granted in favour of the petitioner was cancelled, the case of the petitioner is that no notice was given to the petitioner prior to the passing of the said order of cancellation of the Patta and that the petitioner learnt about said order of cancellation for the first time during the course of arguments before the Collector the application submitted by the petitioner for the review of the order dated 14th March, 1972. The case of the petitioner that the said order of the State Government dated 6th March, 1968, in so far as it purports to cancel the patta granted in favour of the petitioner, is null and void having passed in violation of the principles of natural justice.

(3.) IN the course of his arguments the counsel for the petitioner has submitted that the assertion in the reply filed on behalf of the Municipal Board that a notice dated: 22nd June 1968 was served on the petitioner by pasting oil the wall of the house on 24th June, 1968 is belied by the conduct of the parties. In this contest he has submitted that if the notice; had been served as alleged there was no point in the petitioner applying for permission to construct in 1972 and in making constructions on the land thereafter and in the Municipal Board granting permission to the petitioner to make or constructions on land, the patta for which had already been cancelled. It cannot be said that the aforesaid contention of the counsel for the petitioner is without any substance. In my view, however, it was not necessary to enter into the controversy with regard to the service of the notice about the order dated 6th March, 1968, canceling patta of the petitioner. In as much as there is no dispute that no notice vas given to the petitioner by the State Government prior to the passing the order dated 6th March, 1968, canceling the patta dated 25th October, 1966, granted to him by the Municipal Board. Thus on the basis of the record it has to be held that the order dated 6th March 1968, was null and void, having been passed in contravention of the principles of the natural justice, without affording any opportunity to the petitioner of showing cause against the proposed action viz. cancellation of the patta granted to the petitioner by the Municipal Board.