GANESH MAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a special appeal under Section 18 of the Raj. High Court Ordinance against the judgment by a learned Single Judge of this Court dated September 13. 1979, in S.B. Civil writ Petition No. 672 of 1979, where by the learned Single Judge dismissed the writ petition filed by the appellant against the respondents.

(2.) THE case has a chequered history and this its third inning to this Court. The facts giving rise to the writ petition are as follows : There is a plot of land measuring about 334 Sq Gaz (1 Sq Gaz :4 Sq ft) situated at Badlonwala Choraya, in the town of Bhinmal. A big building on a part of this plot was admittedly constructed by respondents No. 3 Kesbrimal and his son respondent No. 4 Ganpat Lal (who will hereinafter be referred to as respondent) some time in the year 1970 -71. The construction is alleged to be worth Rs. 2 1/2 lakhs by the respondents whereas the estimated value of the construction according to the appellant is about a lakh and a half. It appears that some Bhambhis (members of Scheduled Caste) had taken possession of this land many years ago and built their huts on it. They claimed to be its owners by virtue of their long and uninterrupted possession. The respondents made application before the Municipal Board, Bhinmal, on April 9, 1957, that Bhambhis were taking undue advantage of their possession over the Government land as they were trying to sell it to Mahajans of Bhinmal and get other Government land for their residence. They also stated that they were prepared to purchase this land at the rate of Rs. 2/ -, per square Gaz. About an year after, on March 14, 1958, the respondents themselves obtained two registered sale -deeds in their favour in respect of this land from Bhambhis. One was for 4477 1/2 Sq. Gas for a consideration of Rs. 10,000/ -, and the other for 494 Sq. Gaz for Rs. 1500/ -. Having come to know of this fact, the Municipal Board. Bhinmil, ordered on April 10, 1958, that since the Bhambhis had only a limited right to the land in dispute and the sale by them was unauthorised, proceedings may be taken under Section 130 of the Rajasthan Town Municipalities Act, 1951, for removal of encroachment made by the said respondents on the land in question. Thereupon, the respondents moved an application before the Collector, Jalore, under Section 195 of the Act of 1951 for suspending the execution of the order of the Municipal Board, Bhinmal. But, by his order dated July 8, 1958, the Collector, Jalore, rejected the respondents' application. Against the Collector's order, the respondents filed a revision application before the Government of Rajasthan, which transferred the same to the Commissioner, Jodhpur, who by his order dated February 5, 1959, allowed the revision application holding that the Municipal Board, Bhinmal, was not justified in asking She respondents to remove the building material from the land in question till the Municipality got the question of title to the land in question determined by a competent court. After seven years of the order of the Commissioner, the respondents mida an application to the Municipal Board to grant them permission for raising construction on the land The Board, however, by its order dated January 14, 1966 refused the permission and further directed that the encroachment made by them on the land be removed Aggrieved by the order of the Board, the respondent filed two separate appeals before the Collector, Jalore, one in respect of permission for construction and the other In respect of direction to remove encroachment. The appeal regarding permission for construction was refused by the Collector on October 24,1967, but by a separate order of the same date the Collector stayed the operation of the Board's order directing dispossession of the respondents from the land. Dissatisfied by the Collector's orders dismissing their appeal in respect of permission for construction, the respondents filed appeal before the Government and also a writ petition before 'his Court. The writ petition was registered as No. 104 of 1966. The Government allowed the appeal on November 7, 1966, and consequently, the respondents withdrew the writ petition filed by them on November 11, 1966 The matter did not rest here and again on March 12, 1967, the Municipal Board resolved to serve a notice upon the respondents to vacate the land in question in pursuance of its earlier resolution dated November 4, 1966.

(3.) THE petitioner filed the present writ petition on April 23, 1979, alleging that the order of the State Government dated December 8,1978, (marked Ex 3) is illegal and without jurisdiction in as much as the State Government had no authority to direct sale of the land in favour of the respondents in disregard of the earlier decision of this Court in S.B. Civil Writ Petition No. 359 of 1971. It was stated that the petitioner is a voter and a tax payer within the limits of the Municipal Board, Bhinmal, and was prepared to give a bid of Rs. 200/ -, per Sq.Gaz if the land was sold by public auction as required by law.