Jagat Narayan, J.
1. This is a petition under Article 226 of the Constitution challenging the validity of an order of the State Government under Section 285 of the Rajasthan Municipalities Act 1959 setting aside the sale of a plot of Nazul land situated within the Municipality of Merta to the petitioner.
2. 'Nazul land' as defined under Section 3 (1) (b) of the Rajasthan Land Revenue Act 1956 means abadi land within the limits of the municipality or a panchayat circle or a village, town or city, vesting in the State Government. Such land is sold in accordance with the provisions of the Rajasthan Land Revenue Act 1958 or the rules made thereunder. Section 97 provides that in all cases where there are more than one applicant for the same piece of land it shall be sold to the highest bidder at a public auction. This is subject to the following provisions :--
(i) it shall be open to the Collector to refuse the highest bid for reasons to be recorded;
(ii) small strips of lands adjoining existing buildings shall with the previous sanction of the Sub-Divisional Officer, be given at the rates fixed under Sub-sections (i) and (ii) of Section 96; and
(iii) auctions under this section shall be regulated by rules made by the State Government in this behalf.
Section 102-A gives power to the State Government to place any Nazul land at the disposal of a local authority. In exercise of the powers under this section the State Government issued notification No. F. 7(187) LSG-58-II dated October 8, 1959, which was published in the Rajasthan Gazette dated October 12, 1959. Under this notification all Nazul lands lying within the jurisdiction of municipalities were placed at the disposal of the Municipal Boards and directions were issued as to how the land was to be allotted or sold.
3. The plan at page 81 shows the location of the plot in dispute. It abuts the Nohra of Smt. Kanwari Bal, respondent No. 4, towards the front side. Its dimensions are as follows :--
Length 131/2 x 14'
Width 81/2' x 10'
Smt. Kanwari Bai filed an application (annexure 1 at page 14) on 22-9-60 to the Municipal Board Merta praying that the above plot of land which adjoins her Kota may be sold to her on taking its price at the due rate. On this application a proclamation was published under the orders of the Secretary inviting objections to the sale of the plot to Smt. Kanwari Bai within one month. No one filed any objection. The papers were however not put up by the Secretary either before the Board or before the Chairman for orders on the application of Smt. Kanwari Bai. On the contrary he ordered the sale of the plot by auction on 1-12-60 to 3-12-60 under his supervision without obtaining the orders of Board or the Chairman (annexure 4 page 19). The sale proclamation was however signed by the Chairman (annexure 5, page 20). Chauthinal petitioner and one Ram Kumar were the only bidders for the plot and the highest bid of Rs. 801 was offered by Chauthmal. The Secretary recommended that this bid may be accepted and the Chairman accepted the bid and executed a sale-deed on 11-2-61. On 14-2-61 before the sale deed was registered Chauthmal applied for permission to fix stone slabs to enclose the land which had been sold to him and this permission was granted. When Smt. Kanwari Bai learnt about the sale she filed an application to the Collector on 14-2-61 purporting to be under Section 283 of the Rajasthan Municipalities Act 1959 praying that the sale in favour of Chauthmal may be set aside and the plot may be allotted to her under Section 97 of the Land Revenue Act on payment of the due price. The Collector issued notices to the Chairman, and the Secretary of the Municipal Board and to Chauthmal and after hearing the parties made a recommendation to the State Government that the sale in favour of Chauthmal may be set aside and the plot may be sold to Smt. Kanwari Bai in accordance with Government Notification No. F. 7 (187) LSG/58 dated March 8, 1961, which was also issued in exercise of the powers under Section 102-A of the Rajasthan Land Revenue Act and which came into force on March 14, 1961.
4. The best interpretation which can be put on the order of the Collector is that the plot of land should have been sold without auction to Smt. Kanwari Rai under Section 97 of the Land Revenue Act and in not doing so the Municipal Board committed a breach of the rules. Further that the proviso to Section 80(i) of the Rajasthan Municipalities Act 1959 was attracted as the plot was sold for more than Rs. 200 and no sale could take place without the approval of the Collector. He was of the opinion that without such approval the sale was void.
5. The State Government accepted the recommendation of the Collector, set aside the sale in favour of Chauthmal and directed the Municipal Board Merta to sell the plot to Smt. Kanwari Bai in accordance with the Government notification dated 8-3-61, Both the Collector and the State Government purported to act under Section 285 of the Rajasthan Municipalities Act 1959 which runs as follows :--
'Power of suspending execution of order etc., of board.--(i) If in the opinion of my such officer as may be appointed or authorised by the State Government in this behalf the execution of any order or resolution of a board, or the doing of anything which is about to be done or is being done by or on behalf of a board, is causing or is likely to cause injury, or annoyance to the public or a breach of the peace or is unlawful, he may, by order in writing under his signature suspend the execution or prohibit the doing thereof.
(ii) When any such officer makes any order under this section, he shall forthwith forward to the State Government and to the board affected thereby a copy of the order, with a statement of the reasons for making it, and it shall be in the discretion of the State Government to rescind the order or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit.
Provided that no order of such officer passed under this section shall be confirmed, revised or modified by the State Government without giving the board reasonable opportunity of showing cause against the said order.'
6. It is contended on behalf of the petitioner that the Collector or the State Government had no jurisdiction to act under Section 285 as there was no material before them from which it could be inferred that the sale of the plot to him was causing or was likely to cause injury or annoyance to the public or a breach of the peace or was unlawful and further that the sale of the plot having been completed there was no question of suspending the execution of any order or resolution of the board or the doing of anything which was about to be done or was being done by or on behalf of the board. Reliance is placed on the decision of a Division Bench of this Court in Bhairon Lal v. Bhagwat Dutt Thakur, ILR (1955) 5 Raj 234. That decision was given under Section 195 of the Rajasthan Town Municipalities Act 1951 the provisions of which were similar to those of Section 285 of the present Act.
7. On behalf of Smt. Kanwari Bai respondent No. 4 it was contended that as the question of jurisdiction in the present case depends on proof of facts it cannot be allowed to be raised for the first time in this writ petition as it was not raised before the Collector. Reliance is placed on the following observations made at page 882 in Badridass Kanhaiyalal v. The Appellate Tribunal of the State Transport Authority, ILR (1959) 9 Raj 869: (AIR 1960 Raj 105) :--
'In Dholpur Co-operative Transport and Multi-purpose Union Ltd. v. Appellate Authority Rajasthan, ILR (1953) 3 Raj 931: (AIR 1955 Raj 19), a petition for a writ of certiorari was filed on the ground that the decision of the lower Court was without jurisdiction for the reason that the Chairman of the Appellate Authority acted as such without being appointed in accordance with law and the constitution of the Tribunal, therefore, was illegal. A preliminary objection was raised by the opposite parties that the petitioners having acquiesced in running their vehicles by rotation in accordance with the orders of the Tribunal, and not having challenged the jurisdiction of the tribunal before it were not entitled to a writ of certiorari. It was held that as the constitution of the Tribunal was illegal its decision was a nullity and no amount of consent or acquiescence could confer jurisdiction upon the Tribunal, we may refer to the following observations in the judgment of that case : 'Coming to the third objection, it is true that if a party does not raise any objection to the jurisdiction of a Court or tribunal, which depends upon the allegations and proof of certain facts, that party will not be allowed to raise objections about jurisdiction in an application under Article 226. Where however, the lack of jurisdiction is patent, the mere fact that no objection was taken before the statutory authorities would not disable the applicant from raising such question in an application under Article 226.'
I am of the opinion that the above observations do not help respondent No. 4 as the lack of jurisdiction is patent in the present case. A copy of the application filed by respondent No. 4 as well as a copy of the order of the Collector are on record. There is no allegation by Smt. Kanwari Bai or finding by the Collector that the sale of the plot to Chauthmal was causing or was likely to cause injury or annoyance to the public or a broach of the peace or was unlawful.
8. On behalf of respondent No. 4 it was contended that the order of the Chairman selling the plot to the petitioner was unlawful as the land should have been sold to her without auction under proviso (if) to Section 97 of the Land Revenue Act. I am unable to accept this contention. It cannot be said that this proviso prohibits the sale of land to anyone else by auction. A thing is unlawful only if it ii prohibited by law.
9. It was also contended that the sale was not completed as the approval of the Collector was not taken as required under the proviso to Section 80 (1) of the Rajasthan Municipalities Act. I shall deal with this question later. Even if the sale was not completed the impugned order of the State Government is without jurisdiction as the conditions prescribed under Section 285 for passing such an order were non-existent. There was no danger of the sale causing injury or annoyance to the public or a breach of the peace. It was not unlawful either.
10. On behalf of Smt, Kanwari Bai it was urged that this Court should not interfere with the order in the exercise of its extraordinary powers under Article 228 of the Constitution for a number of reasons, which I shall deal with one by one.
11. It is contended that under the notification of October 8, 1959 which was in force at the time of the impugned sale the auction was to be held only under the orders of the municipal authority concerned at whose disposal the Nazul land had been placed and neither the secretary nor the Chairman could order the sale. It is no doubt true that the Secretary had no power to sell the land. But in the present case the sale proclamation was signed by the Chairman and the sale was confirmed by him. The sale-deed was also executed by him. From this it is clear that the Chairman ratified the act of the Secretary ordering the sale of the disputed plot. The Chairman is authorised under Section 67(d) of the Rajasthan Municipalities Act 1959 to perform an executive functions on behalf of the board subject to the provisions of Section 7,8. That section deals with delegation of powers. It has not been shown that the power to sell Nazul land had been delegated by the Board under Section 78 to any one.
12. My attention was drawn to a resolution of the Board dated 1-2-58 (annexure R. 1 at page 58) appointing an advisory committee of 3 members of the Board to take all preliminary steps for the sale of Nazul land. This committee however was not authorised to pass any final order in any matter. Failure to refer any case of sale of Nazul land to this committee could not therefore make any executive act of the Chairman on behalf of the Board invalid. There can be no doubt that the sale of land by the Board is an executive function.
13. I may refer to the decision of a Division Bench of this Court in Ratanlal v. State, 1963 Raj LW 634: (AIR 1964 Raj 123), in this connection. It was held in that decision that the Chairman is entitled to perform even executive function of the board in the absence of any specific delegation not only under the Rajasthan Municipalities Act 1959 but also under any other law. The sale of the land by the Chairman is therefore not invalid on the above ground.
14. The next contention is that under proviso (ii) to Section 97 of the Land Revenue Act the Board was bound to allot the disputed plot to Smt. Kanwari Bai as it was a small strip of land adjoining her existing building and the power of the Sub-Divisional Officer under this proviso was exercisable by the Board under Section 104 of the Land Revenue Act. It was argued that the sale of the plot to Chauthmal by auction was in these circumstances void. Reading Section 97 with Section 104 the relevant provision contained in it runs as follows:
'In all cases where there are more than one applicant for the same piece of land in the abadi area it shall be sold to the highest bidder at a public auction;
Provided that :--
. . . . . . . . . . . .. . . . . . .. . . .. .
(ii) Small strips of lands adjoining existing buildings shall with the previous sanction of the municipal board, be given at the rates fixed under Sub-sections (1) and (2) of Section 96.'
It will thus be seen that a plot of land can be sold otherwise than by public auction if there is only one applicant for it. Further under proviso (ii) it is obligatory to sell small strips of lands adjoining existing buildings at fixed rates without auction provided that such sale is sanctioned by the Municipal Board. The question which arises is as to whether the sale of land for which there is only one applicant by auction or the sale of small strips of land adjoining existing buildings by auction is void. In my opinion it is not so. A perusal of Section 97 and the notification dated October 8, 1959 goes to show that the ordinary mode of sale is by public auction and exceptions are only permissible. I think that if in case there is only one applicant for a plot of land and the Municipal Board thinks that higher price would be fetched by public auction it can sell the plot by public auction. So far as proviso (ii) is concerned previous sanction of the Board is prescribed before small strips can be sold at fixed rates. That means that to grant sanction or not to grant it, is discretionary with the Board and a sale of a small strip of land adjoining an existing building by auction cannot be held to be void.
15. Next ft was contended that the sale in the present case could have been set aside by the State Government in exercise of its powers under Section 83 of the Land Revenue Act and this Court should not set aside the order merely because it was passed under Section 285 of the Rajasthan Municipalities Act considering that in the circumstances of the present case it would have been a proper order under Section 83 of the Land Revenue Act.
16. I am of the opinion that the State Government could have set aside the sale in favour of the petitioner in exercise of its powers under Section 83 of the Land Revenue Act. Sales and auctions under the Act are listed as judicial matters in the First Schedule. But Section 23 makes it clear that if the sale is held by a revenue Court or officer then alone it is a judicial matter. The sale of Nazul land by the Board is a non-judicial matter and the State Government has power to revise orders passed in non-judicial cases under Section 83. But Section 85 provides that no order under Section 83 shall be passed to the prejudice of any person unless such person has had an opportunity of being heard. There is no material on record from which it can be ascertained whether or not Chauthmal was given a hearing before the State Government passed the impugned order. I do not therefore consider it proper to refrain from setting aside the impugned order on the ground that the State Government could have set aside the sale under Section 83 of the Land Revenue Act. Even if I had not set aside the impugned order in this writ petition it would not have precluded the State Government from exercising its powers of revision under Section 83 of the Land Revenue Act after giving a hearing to the petitioner.
17. Next it is contended that the sale in favour of Chauthmal is void as the approval of the Collector as required under the proviso to Section 80(i) of the Rajasthan Municipalities Act 1959 was not taken. Section 80(i) runs as follows :--
'Provisions relating to contracts.--(1) Every board shall be competent, subject to the restrictions contained in Sub-section (2) to lease, sell or otherwise transfer any movable or immovable property which may have, for the purposes of this Act, become vested in or been acquired by it, and, so far as is not inconsistent with the provisions and purposes of this Act, to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the said provisions and purposes:
Provided that subject to the rules made by the State Government in this behalf, no Government land which has become vested in a board under Clause (e) of Sub-section (2) of Section 92 shall be sold, leased or otherwise transferred except with the approval of the Collector if the value of such land exceeds five hundred rupees in the case of a city or two hundred rupees in the case of any other municipality or if the sale, lease or other transfer thereof is effected otherwise than by public auction in the prescribed manner.'
18. The above proviso will only apply if the Nazul lands placed at the disposal of the Municipal Board under notification dated October 8, 1959 can be treated as having become vested in the Board under Clause (e) of Sub-section (2) of Section 92 which runs as follows :--
'Section 92. Power to acquire and hold property.
(1) Every board may acquire and hold property both movable and immovable whether within or without the limits of the municipality.
(2) All property of the nature hereinafter in this section specified and not being specially reserved by the State Government shall vest in and belong to the board, and shall, together with all other property of whatsoever nature or kind not being specially reserved by the State Government, which may become vested in the board, be under its direction, management and control, and shall be held and applied by it as trustee subject to the provisions and for the purposes of this Act, that is to say- (e) such Government lands within a municipality as the State Government may by general or special order vest in the municipal board;
The contention on behalf of the petitioner is that they have not so vested. Reliance is placed in this connection on the decision of a Division Bench of this Court in Radhakishen v. State of Rajasthan, Civil Misc. Writ Petn. No. 312 of 1962, D/-8-3-1965 (Raj). I have carefully gone through the judgment in the above case and I find that the question whether the proviso to Section 80 (1) is applicable to sale of Nazul lands by municipal boards was not considered in that case at all. Nor was a categorical finding given that Nazul lands placed at the disposal of the boards under the notification dated 8-10-59 do not vest in this boards.
19. The learned Judges first referred to Clause 2 of the notification dated 8-10-59 which runs-
'For every allotment or sale made under Clause 1 of this notification, a document evidencing the same shall be prepared in an appropriate form, which shall be signed for and on behalf of the Governor of Rajasthan by the presiding officer (Chairman or President) of the Municipal authority and shall be duly stamned and registered at the expense of the allottee or purchaser.'
and inferred that the land did not vest in the Municipal Board as it remained the property of Government. Then they referred to the decision of their Lordships of the Supreme Court in The Fruit and Vegetable Merchants Union v. The Delhi Improvement Trust, AIR 1957 SC 344 and quoted the following observation from the judgment:
'That the word Vest' is a word of variableimport is shown by provisions of Indian Statutes also ........ .... . ...... ..... ............. .......... ......... ........ It would thin appear that the word 'vest' has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation.'
20. They went on to say that even if they were to accept the contention that by virtue of the notification of 8th October 1959 Nazul lands vested in the municipal boards they were unable to accept the argument that the sale could be effected only in accordance with the provisions of Section 80 (7). The only question which was raised before them was whether the sale deed of Nazul lands was to be executed in accordance with Section 80 (7) or in accordance with Clause 2 of the notification dated 8-10-59. They held that as a special provision had been made for the execution of sale deeds of Nazul lands under the notification it must override the general provision relating to the execution of contracts on behalf of the municipal boards contained in Section 80 (7) of the Rajasthan Municipalities Act.
21. Section 92 (2) divides properties managed and controlled by the board into two classes (i) properties which vest in and belong to the board and (ii) properties which vest in the board but do not belong to it. Nazul lands placed at the disposal of the board under the notification of 8-10-59 belong to the second class. They vest in the board but belong to Government. In view of the decision of their Lordships of the Supreme Court referred to above there is no reason to hold that these Nazul lands do not vest in the municipal boards.
22. I accordingly hold that Nazul lands placed at the disposal of the municipal boards under the notification dated 8-10-59 vest in the municipal board but do not belong to it. As was held by the Division Bench in the above case the sale-deeds of such Nazul lands should be executed in the manner provided under Clause 2 of the notification dated October 8, 1959.
23. The proviso to Section 80 (1) is thus applicable to the sale of Nazul lands by the board. This proviso lays down that no Government land shall be sold, leased or otherwise transferred except with the approval of the Collector in the following cases:
(1) If the sale is by public auction then only in those cases approval will be necessary where the value of the land exceeds Rs. 500 in the case of a city, or Rs. 200 in the case of any other municipality.
(2) If the sale is otherwise than by public auction then the approval is necessary in every case whatever the value of the land.
The above provision is mandatory firstly because it is couched in mandatory language and secondly because there is a public policy behind it. That policy is that the Collector should get an opportunity of examining whether the land is being sold or allotted in accordance with the rules prescribed by the State Government, that bigger plots are sold for adequate consideration and that land which should be sold by public auction is not being allotted without auction.
24. In the present case the plot was sold for Rs. 801 by the Municipal Board, Merta, by public auction, The sale could not be completed without taking the approval of the Collector under Section 80 (i) of the Rajasthan Municipalities Act 1959. As such approval was not taken the sale of the disputed plot is null and void. It would not be proper for me to quash the order of the State Government setting aside the void sale in favour of the petitioner in exercise of the extraordinary powers of this Court under Article 226 of the Constitution.
25. I accordingly dismiss the writ petition. In the circumstances of the case, I leave the parties to bear their own costs of this writ petition.