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Jagdish Sharan Vs. the Revenue Appellate Authority - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petition No. 1129 of 1964
Judge
Reported in1969WLN9
AppellantJagdish Sharan
RespondentThe Revenue Appellate Authority
DispositionPetition allowed
Cases ReferredBhairondan v. The Chairman
Excerpt:
.....geegraj.;(b) rajasthan municipalities act, 1959 - section 300--revisional powers--order passed by municipal board--whether the revenue appellate authority can revise.;a plain reading of this section shows that is is only the correctness legality or propriety of any order passed by a collector or other officer appointed by the state government in that behalf which can be examined. the section does not empower the revisionai authority to revise the orders of the municipal board. - - p/3) as well as the order of the revenue appellate authority dated 13.2.64 dismissing the revision application of the petitioner against the additional collector. (11) whoever beigns, continues for completes the erection or re-erection of, of any material alteration in, a building or a part of building or..........against the additional collector. the petitioner has also prayed for a direction to restrain the municipal board, kotputli from giving effect to the order of the additional collector or that of the revenue appellate authority. the relevant facts of the case are these:2. the petitioner is the resident of kotputli and he has a house there. in front of the house there was a strip of land, which the petitioner claimed to be his own. on this land the petitioner wanted to raise certain construction. his case is that he applied for permission to make the construction to the municipal board, kotputli. he proceeds to say that after hearing the objections that were made against the petitioner's application, the municipal board accorded sanction to the petitioner for the construction. the order.....
Judgment:

Kansingh, J.

1. This is a writ petition by one Jagdish Sharan and he seeks a writ direction or order quashing the order of the Additional Collector dated 8.10 63 (Ex. P/3) as well as the order of the Revenue Appellate Authority dated 13.2.64 dismissing the revision application of the petitioner against the Additional Collector. The petitioner has also prayed for a direction to restrain the Municipal Board, Kotputli from giving effect to the order of the Additional Collector or that of the Revenue Appellate Authority. The relevant facts of the case are these:

2. The petitioner is the resident of Kotputli and he has a house there. In front of the house there was a strip of land, which the petitioner claimed to be his own. On this land the petitioner wanted to raise certain construction. His case is that he applied for permission to make the construction to the Municipal Board, Kotputli. He proceeds to say that after hearing the objections that were made against the petitioner's application, the Municipal board accorded sanction to the petitioner for the construction. The order for the construction has been placed on record and marked as Ex P/1. The Petitioner maintains that in pursuance of the aforesaid order he constructed a latrine towards the south of the land in question, besides raising other constructions as per permission. After the petitioner had constructed the -latrine, respondent No. 4 Geegraj had put in an objection before the Municipal Board complaining. that the latrine constructed by the petitioner was causing nuisance. On Geegraj's objection the Municipal Board again considered the question and inspected, the site. The petitioner states that the objections of Geegraj were dismissed by the Board's resolution No. 8 dated 5.7.62 and in accordance with that resolution the petitioner's latrine was maintained. A copy of the relevant resolution of the Board has been placed on record as Ex P/8 Aggrieved of this order o the Municipal Board Geegraj went up in appeal to the Collector and the appeal came to the heard and decided by the Additional Collector The Additional Collector allowed the appeal by the impugned order holding that latrine-was a source of nuisance. The Additional Collector ordered the removal of the latrine from its present site and directed that, it could be constructed at another place. Aggrieved of this order of the Additional Collector, the petitioner went up in revision under Section 300 of the Rajasthan Municipalities Act 1959 (hereinafter to be referred to as the 'Act'). The Revenue Appellate Authority, however, dismissed the revision on 13.2.64. After the dismissal of the petitioner's revision, the Municipal Board, Kotputli, issued notice to the petitioner calling upon him to remove the latrine from its site as directed in the orders of the Additional Collector and the Revenue Appellate Authority. It is in these circumstances that the petitioner has moved the present writ petition.

3. Challenging the order of the Additional Collector it was contended that he had no jurisdiction to entertain and hear the appeal as the same was not maintainable under Section 170(12) of the Act. It was urged that the order dated 5.7.62 was not an order for granting permission for construction of the latrine. It was further contended that Geegraj had no right to file any appeal as he was not a person who could be said to be aggrieved by the impugned order of the Municipal Board. As regards the order of the Revenue Appellate Authority it is pointed out that if the order of the Collector falls to the ground, the order of the Revenue Appellate Authority too goes away along with it.

4. The writ petition has been opposed on behalf of respondent No. 4 Geegraj though he had not filed any reply to the writ petition At the time of hearing, Shri M.M. Tiwari, who appeared for Geegraj, argued that the order dated 13.7.61 was not an order granting permission for the construction of the latrine and consequently the petitioner had no right to file the writ petition. As regards the order dated 5.7.1962 Shri Tiwari argued that this order was one, which should be construed as an order granting permission. If it were so construed then Geegraj had a right of appeal according to Sub-section (12) of Section 170 of the Act. In the alternative it was contended that if this order dated 5.7.62 cannot be taken to be an order granting the permission then the petitioner has no permission for the construction of the latrine in his favour and this Court should not hear a party, who has himself committed a wrong by acting in contravention of law. Shri Tiwari also urged that the writ petition-raised a dispute about a question of fact relating to grant of permission for the latrine and as the alternative remedy of the civil suit was available, this Court should not hear the petitioner in exercise of its extra-ordinary jurisdiction. Lastly, it was submitted that the petitioner had not placed on record the proceedings which resulted in the order of 13.7.61 and thus the petitioner had kept back the material facts and on this ground also this Court should not hear him.

5. The main question that falls for consideration is whether the Additional Collector had acted with jurisdiction in entertaining and hearing the appeal. I will come to other points a little later. It will be convenient to refer to the relevant provisions of the Act. Section 170 of the Act contains provisions relatings to erection of buildings in a Municipal area. The Section inter-alia provides that before beginning to erect a new building or new part of a building, or to re-erect or make a material alteration in a building, or to erect or re-erect any projecting portion of a building in respect of which the Board is empowered by Section 166 to enforce a removal or set-back, the person intending so to erect or re-erect shall give a notice of his intention to the Board. Sub-section (2) of this Section provides that such notice shall only be necessary where the building abuts on, or is adjacent to public street or place or property vested in the State Govenment or place or property vested in the State Government or in the Board. Sub-section (4) provides that where a bye-law has been made prescribing and requiring any information and plans in addition to a notice, no notice under Sub-section (1) shall be considered to be valid until the information and plans, if any, required by such bye-law have been furnished to the satisfaction of the Board. The stand of the petitioner is that there was no bye-law for this in the Municipal Board Kotputli. Sub-section (5) empowers the Board, where there is no such bye law, to require the person who has given such notice to furnish a plan and specification of any existing or proposed building. Then comes Sub-section (6), which is reproduced below, as the impact of this Sub-section will have to be considered on the question of appealability of the order of the Municipal Board:

(6) Save as otherwise provided in this Act or the rules or bye-laws thereunder, the Board may:

(a) Give permission to execute any work of which notice has been given under Sub-section (1), or

(b) Impose in writing conditions in accordance with this Act and the rules and bye-laws thereunder as to level drainage, sanitation, design, materials and cubical capacity of rooms, doors, windows, and apertures for ventilation or as to the number of storeys to be erected or with reference to the location of the building in relation to any existing building or existing street or as to the purpose for which the building is to be used, or

(c) Direct that the work shall not be proceeded with, unless and until all questions connected with the respective location of the building and any public street have been decided to the satisfaction of the Board.

Sub-section (7) empowers the Municipal Board to issue any provisional order directing that for a certain period not longer that one month from the date of such order the intended work shall not be proceeded with. Sub-section (8) provides that if no action is taken by the Board within the time specified then it shall be deemed that the construction has been sanctioned as proposed in the notice. Sub-section (9) lays down the period for which the sanction will continue to be enforced. Sub-section (10) provides for inspection of the construction by Chairman and other employees of the Municipal Board. Then come Sub-sections (11) to (15) and it will be convenient to re-produce these sub-sections;

(11) Whoever beigns, continues for completes the erection or re-erection of, of any material alteration in, a building or a part of building or the erection or re-erection of any projecting portion of a building in respect of which the Board is empowered by Section 166 to enforce a removal or set-back or the construction or enlargement of a well without giving the notice required by Sub-section (1) or in contravention of any provision of this Section or of an order of the Board made under Sub-section (6) or Sub-section (7) shall be liable on conviction to a fine which may extend to two hundred rupees and the Board may at any time by written notice:

(a) direct the owner or occupier to stop the erection, re-erection or alteration of a building or any projecting portion thereof, or of any part of such building or projecting portion or the construction of enlargement of a wall, and

(b) require such building, projecting portion, alteration or wall to be demolished.

(12) any person aggrieved by an order of a Board under Clause (a) or Clause (b) or Clause (c) of Sub-section (6) or Clause (a) or Clause (b) of Sub-section (11) may, within thirty days from the date of such order, exclusive of the time requisite for obtaining a copy thereof, appeal to the Collector and no such order shall be liable to be called in question otherwise than by such appeal.

(13) The appellate authority may, if it thinks fit, extend, the period allowed by Sub-section (12) for appeal.

(14) The order of the appellate authority shall be final.

(15) No order passed by the Board shall be modified or set aside in appeal under Sub-section (12) until the appellant and the Board have had a reasonable opportunity of being heard.

7. A perusal of Sub-section (12) shows that the right of appeal is given to a person aggrieved by an order of a Board under any of the Clauses of Sub-section (6) or which falls under Clause (a) or Clause (b) of Sub-section (11). Such appeal has to be filed to the Collector within the prescribed period of thirty days and then what is important to notice is that no such order shall be liable to be called in question otherwise than by such appeal. The question is whether the order dated 5.7.62, against which the appeal was taken by Geegraj before the Collector falls under any of the aforesaid provisions. That order-lays down as follows:

dkxtkr is'k gq, A cksMZ+ dh xr ehfVax fnukad 28-5-62 es bl fo'k; dsk mtjnkjku dh mifLFkfr esa fy, tkus dk r; fd;k x;k FkkA Qjhdsu gkftj gS A Jh txnh'k 'kj.k pkS/kjh }kjk tks rgkjr cuok;k x;k gS ml lECkU/k es Jh xhxjkt pkS/kjh o vU; eksgYys nkjku dh rjQ ls mtjnkjh is'k gqbZ gS A fd ;g rgkjr cs ekSdk gS A xunxh dk ck;l jgsxk AJh xhxjkt Hkh gkftj gS A ekSdk Hkh djhc&djhc; lHkh esEcj lkgcku dk ns[kk gqvk gS A bl fo'k; esEcj lkgcku ls jk; dh xbZ rks Jh Hkwjsyky 'kekZ] Jh jkethyky gfjtu] Jh ?ku';ke 'kekZ ] Jh rstukjk;.k pksiM+k o Jh jktdqekj vxzoky dh jk; rgr T;ks dk R;ks j[ks tkus dh jgh A izHkq'kj.k th us dksbZ jk; ugh nh A Jh Hkwjs yky lksuh dh ;g jk; jgh fd rgkjr Jh txnh'k izlkn dks gVkuk gh gS rks Jh t;ukjk;.k pkS/kjh ds rgkjr lfgr nksuks gVok;s tk;s A ojuk nksuks gh j[ks tkoas A esEcj lkgcku us ;g Hkh crk;k fd ekSds ij dksbZ xUnxh ugh jgrh A Ddu yxk gqvk gSA vke jkLrk Hkh ugh gS Abl izdkj jk; vkus ij cgqer dh jk; ls ;g r; fd;k x;k fd rgkjr T;ks dk R;ks j[kk tkos A Jh txnh'k 'kj.k dks jksc: fgnk;r dh xbZ fd lQkbZ dk iwjk /;ku j[kk tkos rFkk Ddu ges'kk j[kk tkos A gqDe lquk;k x;k A Qjhdu dks jksc: lwfpr fd;k x;k A

Sd@&ukFkw; yky 'kekZ

5&7&62

v/;{k uxjikfydk] dksViqryh

This order cannot be construed to be one falling under Sub-section (6). Sub-section (6) contemptates the order giving permission to execute any work of which notice has been given under Sub-section (1). Since this order is admittedly not one in relation to any notice given under Sub-section (1), this cannot be construed to be an order contemplated by Sub-section (6). Also this order does not fall under Clauses (a) or (b) of Sub-section (II), because it does not contain any direction as mentioned there in. A perusal of this order shows that the latrine was already existing when this order was passed. The concluding part of Sub-section (12) specifically lays down that no such order shall be liable to be called in question otherwise than by such appeal. Therefore, the Collector could have interfered with such order only if it was appealable. Sub-section (6) as already observed does not contemplate giving of permission for construction where no notice had been given under Sub-section (1) thereof Sub-section (1) already deals with a situation where a building had been constructed without the requisite permission from the Board In such a case the person making the construction is liable on conviction to a fine which may extend to Rs. 200/--(two hundred) and it is in such a case that the authority will direct the owner or the occupier to demolish such building or to alter it in the way the Municipal Board directs him to do. The order dated 5.7 62 is only an order condoning the default committed by the petitioner in making the construction without permission. Section 266 of the Act empowers the Board to compound the offences and the Board may compromise with any person who in the opinion of the Board has committed an offence punishable under this Act or any bye-law thereunder and on such compromise no proceeding shall be taken against such person in my view, is nothing, but an order of condonation of f the default and it is one in the nature of the compounding of the offence committed by the petitioner. Against such an order, in my view, Sub-section (12) of Section 170 does not apply and consequently under this Section there is no right of appeal to Geegraj. The order of the Collector dated 8.10.63 (Ex. P/3) was thus without jurisdiction. Likewise the order of the Revenue Appellate Authority dated 13 2.64 was without any effect.

8. Learned Counsel for the respondent argued that Section 300 of the Act gave power to the Revenue Appellate Authority to revise the order of the Board independently even if the appeal of Geegraj before the Additional Collector is held incompetent. Section 300 of the Act runs as follows:

Section 300 : Power to call for records : Any Officer or authority authorised in this behalf by the State Government, for the purpose of being satisfied as to the correctness, legality or propriety of any order passed under this Act by a Collector or other officer appointed by the State Government in that behalf, call for the relevant record and may, in doing so, direct that pending the examination of the records, such order shall be held in abeyance.

9. The Revenue Appellate Authority is authorised in this behalf by the State Government. A plain reading of this Section shows that it is only the correctness, legality or propriety of any order passed by a Collector or other officer appointed by the State Government in that behalf which can be examined. In these terms this Section does not empower the revisional authority to revise the orders of the Municipal Board. I may refer to Bhairondan v. The Chairman, Board of Revenue, Rajasthan 1966 R.L.W. 509. It was a division bench case to which I was a party In that case the question was whether an order passed by the Administator of a Municipal Board could be revised under Section 300 of the Act. It was held that even though an administrator may be an officer, yet once he has been appointed as an administrator he works as Municipal Board with the result that his orders are not revisable under Section 300 of the Act. The relevant observations from that judgment may be cited:

It would would appear from the perusal of Section 293A that the State Government may by notification in the official gazette, appoint an administrator for such period as may be specified in the notification. It is note worthy that this Section does not require that the administrator must be an officer of the State Government. Secondly, it may be pointed out that according to Sub-section (2) of Section 293A when an administrator is appointed all the powers and duties of Board may and should be exercised and performed by him. It is expressly laid down that the administrator would be deemed to be a duly constituted Board for the purposes of the Act. In other words the administrator enjoys all the powers of the Board and is required to discharge all the duties of the Municipal Board and he is equated with the Board for the purpose of the Act. We may now turn to Section 300 of the Act. A bare perusal of that Section would show that it empowers an officer or authority, authorised by the State Government, to call for the relevant records for the purpose of being satisfied as to the correctness, legality or propriety of any order passed under the Act by the Collector or other officer appointed by the State Government in that behalf. Since the Chairman Revenue Board, was authorised by the State Government to exercise his powers under Section 300 of the Act, he would certainly revise the order of a Collector or other officer appointed by the State Government in that behalf. It is obvious thus he could not under this section, call for the record of the Municipal Board or the Municipal Council and revise its order, because it does not fall within the ambit of the words, 'Collector or other officer appointed by the State Government in that behalf.

10. Mr. Tiwari contended that this judgment proceeded on basis of a concession made by the the learned Counsel in that case. It is true it was conceded who appeared for the respondent that the order of the President, Municipal Council could not be revised but even so it was strongly contended that the order of the Administrator was revisable as he was an officer appointed by the State Government. The case, therefore, did not rest on any concession as such and the court considered the relevant provisions and came to the conclusion that an order of the Municipal Board was not revisable under Section 300 of the Act. The point stands concluded in my view, by this case.

11. I may now turn to the other points argued by Shri Tiwari. There is no substance in the submission of Shri Tiwari that the petitioner misrepresented that the latrine was constructed without the permission of the Board. The petitioner placed reliance on order Ex. p/1. Ex. p/1 does say that the permission for construction was being accorded. It is not disputed that at the time this permission was accorded there was no bye law in force in the Municipal Board prescribing and requiring any information or plans in addition to a notice for construction, nor it is clear that the Board called for any plan or specification in accordance with Sub-section (5) of Section 170 of the Act. In these circumstances it is difficult to reach a conclusion that the petitioner had indulged in any deliberate misstatement or misrepresentation in saying that the latrine was constructed with the permission of the Board.

12. Also there is no force in the submission that if the order dated 5.7.62 was not an order of permission that then this Court could not hear the petitioner. Order Ex. P/2 which is dated 5.7.62, as I have already observed is an order condoning the default on the part of the petitioner, in making the construction of the latrine. The Board had the authority to compound the offence according to Section 266 of the Act as I have already pointed out. In these circumstances after the order of 5.7.62 the petitioner had every right to see that an authority which had no jurisdiction in the matter does not interfere with the continuance of the latrine. As I have already held the Collector has no jurisdiction whatsoever to entertain an appeal against this order Ex. P/2. In these circumstances on the basis of the order Ex. P/2 which has regularised the continuance of the latrine as a result of the condonation of the default even if there was no permission for construction of the latrine at the outset the petitioner can maintain this writ petition for challenging the order of the Collector, which was one, without jurisdiction.

13. Further, there is no merit in the contention that the writ petition raises any disputed question of fact and the petitioner should be asked to pursue the remedy by way of a civil suit. In the face of the order Ex. P/2 date 5.7.62 there remains no longer any dispute about the permission. The matter stands clinched by the affidavit of the Municipal Secretary dated 9.10.68. In this affidavit the Municipal Secretary states that Shri Jagdish Sharan had constructed the latrine without first taking permission from the Municipal Board and the Board, at its meeting dated 5.7.62, decided that the latrine, which was already in existence, may be allowd to stand as it was. I ought to mention that this affidavit was called by the Court along with the relevant records when it was felt that there was an inaccuracy about the date in the order of the Additional Collector as also that of the Revenue Appellate Authority. The case came up for hearing before me on 18.4. 68 and on that date a detailed order was passed and the Executive Officer of the Board was asked to put in an affidavit. It appears that there is only a Municipal Secretary at Rotputli and he has produced the affidavit in pursuance of the order of the court dated 18.4.68. Therefore, after this order of the Municipal Board dated 5.7.62 the petitioner has a legal right to see that his property viz. the latrine, is not demolished under orders of any authority if it lacks the sanction of law There is no force also in the submission that proceedings which resulted in the grant of permission on 13 7.61, were not produced. The order of the Municipal Board dated 5.7.62 regularised the position about the latrine. This order as I have already held, was not appealable under Section 170(12) of the Act. In these circumstances there is no force in any of the contentions of the learned Counsel for the respondent.

14. For the above reasons, I allow this writ petition with costs and hereby set aside the order of the Additional Collector dated 8.10.63 (Ex. P/3) and the order of the Revenue Appellate Authority, Jaipur, dated 13.2.64. The respondent Nos. 1 to 3 are restrained from giving effect to these orders.


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