GANESHMAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India by Ganeshmal who is resident of Bhinmal and is a voter and tax -payer. There is a plot of land measuring 5344 sq. Gaz (the sq. Gaz referred to in this judgment bears the dimension 2' x 2'), situate at Badlawala Choraya, Bhinmal within the limits of Bhinmal Municipality. The case of the petitioner is that respondents Nos. 3 and 4 (Keshrimal and Ganpatlal) claimed their title in respect of the aforesaid plot on the basis of two sale -deeds dated March 14, 1958 which they obtained from certain Bhambies. The vendor -Bhambies, according to respondent No. 2 Municipal Board Bhinmal ('the Board' hereafter) had no right or title to transfer the plot in favour of respondents Nos. 3 and 4. The Board initiated proceeding for ejectment against respondents Nos. 3 and 4. On March 12, 1967, an order for ejectment was passed against respondents Nos. 3 and 4 on the ground that they were trespassers. This order was executed on March 15, 1967 and, according to the petitioner, respondents Nos. 3 and 4 were dispossessed from the plot. Respondents Nos. 3 and 4 moved the Collector, Jalore, under Section 285 of the Rajasthan Municipalities Act (No. XXXVIII of 1959) (hereinafter referred to as the Act'). The Collector, Jalore, passed the order dated October 24, 1967 for suspending the execution of the order of eviction against respondents Nos. 3 and 4. The material portion of the order passed by the Collector is as under: I heard both the parties and carefully examined the record. It is evident from the record that this is purely a civil matter in which parties have target declared their respective titles from the proper court. Both the parties claim their possession, applicant on the basis of the sale deeds, and this respondent on the basis of its being a Nazul land But under Section 203(2) of the Rajasthan Municipalities Act, 1969, the Municipal Board can remove the encroachment from the open space. But whether land is an open spice, or in possession of the applicants have to be decided first by the Civil Court. This has also been held by the Commissioner, Jodhpur in his judgment dated 27 -2 -59 that the dispute hanges (sic hinges?) on the title of the land and it can only be decided by the proper form. In the above circumstances, the order passed by the Municipal Board Bhinmal under Section 203 of the Rajasthan Municipalities Act 1959 is illegal and therefore, its execution is suspended. He also sent a copy of the order dated October 24, 1967 to the Secretary to the Government, Local Self Government Department, Rajasthan, as provided under Section 285(2) of the Act.

(2.) ONE more fact that needs to be mentioned here is that the Municipal Board, by its resolution dated December 16, 1968 (a copy of which was filed in S.B. Civil Writ Petition No. 359 of 1971 marked as Ex. 3) agreed on certain terms to settle the matter with respondent No. 8 Kesharimal. According to that resolution, land measuring 4971 -50 sq. Gaj was to be sold to respondent No. 3. The reserve price was as recorded Rs. 7.00 per sq. Gaj.

(3.) IT may be mentioned here that the petitioner has not stated in the writ petition that a review petition Ex. 5 was filed by the petitioner and the State Government by its order Ex. A6 dated April 13, 1979 rejected it and maintained the order dated December 8, 1978.