M.L. Joshi, J.
1. The facts out of which these petitions arise, may be stated in brief as under :
2. According to facts averred in the petitions, both the petitioners purchased one plot each situate in Ratanada, Jodh-pur, out of a big plot of land belonging to Man Singh, from Man Singh. The site plan of the whole land out of which these petitioners have purchased the plots is annexed with the petitions. The site plan in S. B. Writ Petition No. 8 of 1978, is Annexure 4, whereas the site plan in S. B. Writ Petition No. 14 of 1978 is Annexure I. The petitioner Mohan Lal purchased plot No. 1 shown in the site plan and the petitioner Krishna Ram purchased plot No. 2. Both these plots are adjacent to each other. Both the petitioners after the purchase of the plots obtained permission for construction over them in the year 1969, The permissions in both the cases were accorded on 6-9-1969. After obtaining permissions from Municipal Council, Jodhpur, both petitioners raised constructions over the plots in-eluding the boundary walls, The plot Nos. 3 and 4, which formed part of the same piece of land, were purchased by Shri Mohan Lal, Shri Jaya Ram and Smt. Pari Bai, respectively from Man Singh. In all the sale-deeds executed by Man Singh in respect of plots Nos. 1, 2, 3 and 4, it was provided that the purchaser shall leave seven feet open landfor air and light. In the sale-deed in favour of Mohan Lal it was stated that Mohanlal would leave seven feet open land towards northern side of the plot and Krishna Ram would also leave seven feet open land for purpose of air and light, but both of them shall have full proprietary right over the land and shall have full right of enjoyment over it. The owner of the plots Nos. 3 and 4, who had purchased the plot from Man Singh, further sold their plots to different persons. It is alleged in both these petitions that the new vendees of plots Nos. 3 and 4 with a view to grab the lands of the owners of the plots Nos. 1 and 2, and to have a right of way on the open land left by the petitioners initiated proceedings under Section 133, Cr. P. C., by way of application before the City Magistrate, Jodhpur, which is still pending. At the same time the new vendees of plots Nos, 3 and 4 got manipulated to get notices served under Section 203 of the Rajasthan Municipalities Act, 1959, by the Urban Improvement Trust, Jodhpur (hereinafter called the U. I. T.') upon both Mohan Lal and Krishna Ram. Both the petitioners gave reply to the notices and it is alleged that the proceedings were dropped, Again the Secretary to the U. I. T. issued notices to both the petitioners under Section 91-A of the Rajasthan Urban Improvement Act, 1959 (hereinafter called the Act). Both the petitioners submitted reply to the said notices stating therein that the entire construction including the fixation of 'patties' has been done after obtaining permission from the competent authority. The Secretary to the U. I. T. did not raise any objection as to the construction over the plots, but took objection as to the fixation of the 'patties' on the boundaries and without giving any opportunity of being heard to the respective petitioners ordered demolition of the stone 'patties' by his order dated 22-9-1977 (vide Ex. 6 in both the petitions.)
3. Both the petitioners felt aggrieved by the order of demolition dated 22-9-1977 and moved the Additional Collector, Jodhpur, by way of appeal under Section 91-A (2) of the Act. The learned Additional Collector, Jodhpur rejected the appeals by his order dated 31-12-1977. The order of the Additional Collector in both the cases has been marked Ex. 7. Both the petitioners have challenged the validity of the order dated 22-9-1977 (Ex. 6) of the Secretary to the U. I. T. directing the demolition of stone 'patties' and theorder of the Additional Collector dated 31-12-1977 (Ex. 7) by way of writ petitions under Article 226 of the Constitution of India and have prayed that the aforesaid orders of the Secretary to the U. I. T. dated 22-9-1977 (Ex. 6) and the Additional Collector dated 31-12-1977 (Ex. 7) be quashed, They have further prayed that direction or order be issued directing the U. I. T. to restore the status quo ante by fixing the 'patties' at the boundaries of the plots from where they were removed. It is not disputed before me that the stone 'patties' of the petitioners were removed forcibly under the orders of the Secretary to the U. I. T.
4. The petitions have been opposed by the U. I. T. The U. I. T. has alleged that the permission obtained by both the petitioners from the Municipal Commissioner, are of no avail, as they were not in accordance with the provisions of tha Rajasthan Improvement Trust (Co-ordination between Municipalities and Improvement Trusts with regard to construction of Buildings) Rules, 1964. It has been further averred in the reply that the plans annexed to the sale-deeds of the respective petitioners have not been produced and if they would have been produced it would have been established from the plans that between all the four plots sold by Man Singh the purchasers were required to keep seven feet land open on southern side of plots Nos. 1 and 3 and on the northern side of the plots Nos. 2 and 4, so as to make a passage of 14 feet wide between plots Nos. 1 and 2 and plots Nos. 3 and 4, It has been admitted by the U. I. T. that the proceedings initiated under Section 203 of the Rajasthan Municipalities Act, 1959, were once dropped by the U. I, T, It has however been contended in the reply that further action was initiated by the U. I. T, under Section 91-A of the Act, because the stone 'patties' were fixed on the open land by the petitioners without permission of the U. I. T. and so it is within the competence of the U. I. T. to take action under Section 91-A of the Act. The U. I. T. has also supported the order of the Secretary passed on 22-9-1977 as well as the order of the Additional Collector dated 31-12-1977 and has inter alia contended that the order of removal of 'patties' was passed by the competent authority as the Secretary to the U. I, T. is authorised to exercise the powers conferred under Section 91-A. It has also been alleged in the reply that the sale-deeds of the holders of the plots Nos. 3 and 4 clearlyshow the existence of the passage of fourteen feet wide between plots Nos. 1 and 2 and also in plots Nos. 3 and 4.
5. The facts and the points involved in both these writ petitions are identical and, therefore, both these petitions are being disposed of by a common order,
6. Mr. Kashi Nath Joshi, who appeared on behalf of both the petitioners hasraised the following contentions beforeme :-- .
(1) That the stone 'patties' on the boundary of the plots were raised after obtaining permission as back in the year 1969. The Secretary to the U. I. T. has committed manifest error in holding that the stone 'patties' were recently constructed without permission although there was no evidence worth the name for arriving at such a conclusion,
(2) Even raising of stone 'patties' by the petitioners on their 'pattasud' land does not amount to an improvement within the meaning of Section 2 (1) (vi) of the Act, as raising of the 'patties' do not amount to making any material change in the building or the land and, therefore, no permission was required from the U. I. T.
(3) The Secretary to the U. I. T. has no jurisdiction to pass order for the removal of the 'patties' as the powers of ordering removal under the Act vests in the Trust and the same could not be delegated in favour of the Secretary to the U. I. T. under the word of the Act.
7. On the other hand Mr. S. R. Singhi learned counsel for the U. I. T. has contested all the contentions raised by Mr, Kashi Nath Joshi
8. Before I deal with the contentions of Mr. Kashi Nath Joshi, it will be useful to extract some of the relevant provisions of the Act, which have bearing on the controversy raised before me.
9. Section 2 (1) (vi) of the Act defines the term 'improvement' as followps :--
'S. 2 (1) (vi) 'improvement' with its grammatical variations means the carrying out of building, engineering, mining or other operations in one, over or under land or the making of any material change in any building or land or making provision for any amenity in, on, over or under any building or land and includes re-improvement'.
10. Section 20 deals with the constitution of committees and reads as under :--
'Constitution of committees -- (1) The trust may from time to time appoint committees consisting of a Trustee orTrustees and such other person of any of the following classes as it may think fit, namely :
(i) Persons associated with the Trust under Section 19:
(ii) other persons whose assistance or advice the Trust may desire as Members of a committee :
Provided that no committee shall consist of less than three persons.
(2) The Trustees appointed to a committee or where two or more than two trustees are so appointed such one of them as may be nominated by the Trust shall be the Chairman of such committee.'
11. Section 21 deals with the functions of the committees and is as under;--
'21. Functions of committees -- (1) The Trust may-
(a) refer to a committee appointed under Section 20, for inquiry and report, any matter relating to any of the purposes of this Act, and
(b) delegate to such committee by specific resolution and subject to any regulation made under this Act any of the functions of duties of the Trust.
(2) Every such committee shall conform to any instructions from time to time given to it by the Trust.'
'Section 27. Delegation of Chairman's functions-
(1) The Chairman may, by general or special order in writing, delegate to any officer of the Trust, any of his powers, duties or functions under this Act or under the rules made thereunder except the power to preside over the meetings of the Trust
(2) The exercise of discharge by any officer of any power, duties or functions delegated under Sub-section (1) shall be subject to such conditions and limitations, if any, as may be specified in the said order and also to control and revision by the Chairman.'
12. Then comes Section 47 upon which much reliance has been placed by Mr. Singhvi, learned counsel for the U. T. T. That section may be reproduced here-under :--
'Section 47. Powers under the Municipal Laws vested in the Trust: (1) Such provisions of the Municipal law for the time being in force in any part of the State as may be prescribed in the case of each Trust, shall so far as may be consistent with the tenor of this Act, apply to the urban area for which the Trust is established under this Act and all references in the said provisions to the MunicipalBoard, Council or Corporation shall be construed as references to the Trust Act which, in respect of any such urban area may alone exercise and perform all or any of the powers and functions which under any of the said provisions might have been exercised and performed by the Municipal Board, Council and Corporation or by the Chairman or President or by any Officer thereof.
Provided that the Trust may delegate to the Chairman or to any Officer of the Trust all or any powers conferred under this section,
(2) to (5) xxxxx
13. Section 75 deals with the power of Trust to make regulation. The relevant portion of it may be reproduced herein below :--
'Section 75. Power of the Trust to make regulations.
(1) Every Trust may, from time to time make regulations consistent with this Act and with any rules made under this Act by the State Government-
(a) to (c) .....
(d) for regulating the delegation of powers or duties of the Trust to Committees or to the Chairman,..........'
14. Section 91A relates to order of demolition of building etc, and is as follows :
'Section 91-A. Order of demolition of buildings. -- (1) Where the erection of any building in any urban area has been commenced or is being carried on, or has been completed in contravention of the master plan or of any scheme sanctioned and notified by the State Government or of the sanction of the Trust under Sub-section (1) of Section 72, or without the permission obtained under Section 73, or in contravention of any rules or conditions subject to which such permission has been granted, the Trust may, in addition to any prosecution that may be instituted under this Act, make an order directing that such erection shall be demolished by the owner thereof within such period not exceeding two months as may be specified in the order, and on failure of the owner to comply with the order, the officer may himself cause the erection to be demolished and the expenses of such demolition shall be recoverable from the owner as arrears of land revenue.
Provided that no such order shall be made unless owner has been given areasonable opportunity to show cause why the order should not be made.
(2) Any person aggrieved by an order under Sub-section (1) may appeal to the Collector against the order within 30 days from the date of the order of the Trust and the Collector may after hearing the parties to the appeal either dismiss the appeal or may reverse or vary the whole or any part of the order.
(3) The decision of the Collector in the appeal shall be final and shall not be questioned in any Court.'
15. It will be useful here to extract Section 78 from the Rajasthan Municipalities Act which deals with the powers, duties and functions which may be delegated reads as under 5
'S. 78. Powers, duties and functions which may be delegated. -- (1) Any powers, duties or executive functions which may be exercised or performed by or on behalf of the Board may (subject to such restrictions, limitations and conditions as may be prescribed) be delegated, by the Board to the Chairman or to the Vice-Chairman or to the Executive Officer or to the Secretary or the Chairman of any Committee or to one or more stipendiary or Honorary Officers, without prejudice to any powers that may have been conferred on any Committee by or under Section 73; and each person, when exercises any power or performs any duty or function so delegated shall be paid all expenses necessarily incurred by him therein.
(2) When the Office of a Chairman becomes vacant and there is no Vice-Chairman to take over, the Board shall (at a meeting to be called in the prescribed manner) delegate the powers duties, and executive functions of the Chairman to such member of the Board as it thinks proper to be exercised by him till a Chairman is elected in accordance with the rules in force.'
16. I now deem it appropriate to take up first point of the competency of the Secretary U.I.T. in regard to passing of the order of removal of the 'patties' as it is a jurisdictional point and in my opinion goes at the very root of the matter. From the reading of Section 91-A it will be evident that the power to order removal vest in the Trust. The Trust may delegate any of its functions or the duties to any of the Committees consti-tuted under Section 21 of the Act. It may further delegate such of the functions as may be permissible under the regu-lation framed_under Section 76 of the Act tothe Chairman of the Trust and there is no provision in the Act empowering the Trust to delegate its power in regard to the order of removal of construction in favour of an Officer of the Trust. It is true that under Section 27 of the Act the Chairman may by general or special order in writing delegate to any Officer of the Trust any of his power, duties or functions under this Act or under the Rules made thereunder except the power to preside over the meetings of the Trust. Such delegation by the Chairman is in regard to his own functions only, There is, however, no provision of such delegation in favour of Officer so far as the Trust Is concerned. It, therefore, follows that the functions of the Trust can be delegated either in favour of the Committee or in favour of the Chairman. In the case of Chairman delegation will be to the extent the regulation framed under Section 75 of the Act permits. It may be observed here that the delegation of power is permissible with the legislative permission and in absence of such legislative permission there can be no delegation of the function of the Trust in favour of the Officer of the Trust or its Secretary. Any delegation made by the Trust under its resolution in regard to the removal of unauthorised construction cannot be said to be in consonance of the provision of the Act. I am, therefore, firmly of the opinion that the resolution of the Urban Improvement Trust dated 7-5-1976 so far it delegates power of removal under Section 91-A Cn favour of its Secretary is beyond the competence of the U. I, T. As a natural corollary thereof the Secretary of the Trust derives no power for ordering removal of unauthorised construction and is therefore wholly incompetent to pass the impugned order under Section 91 of the Act. It may be that the Trust may empower any Officer for the purpose of Section 91-C and authorise any Officer to stop the unauthorised building operations but from that it cannot be inferred that the Trust can by its resolution authorise its Officer u/s. 91-C of the Act to order removal of unauthorised construction. The impugned order of the Secretary to the U.I.T. dated 22-9-1971 is, therefore, wholly without jurisdiction and is bad In law. As a natural consequence thereof the order of the Additional Collector dated 31st of Dec., 1977, upholding the void order of the Secretary to the U.I.T, automatically falls to the ground and is, therefore, invalid in law. Both the im-pugned orders, therefore, deserve to be quashed.
17. Mr. Singhvi, however, placed heavy reliance on Section 47 of the Act for supporting the impugned orders. I have read Section 47 very carefully and have given my anxious consideration over it. This section provides that such provisions of Municipal Law which are consistent with the tenor of U.LT. Act may as far as possible apply to the urban area for which the Trust is established, The true import of Section 47 in my opinion is that the provisions of Municipal Law which are in force for the time being may be availed of by the Trust in discharge of its power and functions provided those provisions of the Municipal Law are not inconsistent with the tenor of the U.I.T. Act, Now under Section 78 of the Municipalities Act the power to order removal of an unauthorised construction can be delegated to any of the Officer of the Municipality. On the basis of Section 78 read with Section 47 it has been strenuously urged by Mr, Singhvi that the power of demolition can be likewise delegated by the U.I.T, to the Secretary of the Trust. This argument is fallacious, as under the U.LT, Act the power of removal vests in the U.I.T. which cannot be delegated In favour of its Officer. Section 47 on the basis of which Mr. Singhvi wants to support the impugned orders of the Secretary and the Additional Collector, Is really of no assistance to him and, therefore, cannot be legitimately pressed into service for supporting the impugned orders. That being the position, the impugned orders cannot be sustained any more and will have to be quashed and are, accordingly quashed. In view of this finding I need not deal with other points.
18. In the result, the petitions of both the petitioners Mohan Lal and Kishna Ram are allowed. The impugned orders of the Secretary, Urban Improvement Trust, Jodhpur, dated 22-9-1977 (Ex. 6) and the learned Additional Collector, Jodhpur, dated 31-12-1977 (Ex. 7) are quashed. The respondent Urban Improvement Trust, Jodhpur is directed to restore the status quo ante by the fixing the 'patties' at the boundaries of the plots from where they were removed at its own expense within one month from today. It is further ordered that the Urban Improvement Trust shall pay Rs. 200/- (Rupees Two Hundred) as costto each of the petitioners in these writpetitions,