Skip to content


Jagdish Prasad and anr. Vs. Smt. Maya Wati Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 324 of 1980
Judge
Reported in1981WLN(UC)11
AppellantJagdish Prasad and anr.
RespondentSmt. Maya Wati Devi and ors.
DispositionAppeal dismissed
Cases Referred and R. Varedarajan v. Salem Municipal Council
Excerpt:
.....and failure on the part of the municipality to consider relevant rules while according permission. budhi devi and the nature of the original plan as well as the revised plan was not known. budhi devi of the facts stated by the petitioners in their grounds at para 7(g) of the writ petition regarding the encroachment, or the permission being against the government order referred to therein it was for the petitioners to have made out a case to that effect, which they have failed to do. 15. because the writ petition was dismissed on these grounds it would not be out of place to mention that the perusal of the record of the case clearly indicates slackness on the part of the appellants for a period of about nine years at the initial stage in filing the writ petition as well as the filing of..........at the request of smt. maya devi the sale deed was executed jointly in her name and that of smt. budhi devi, respondent no. 2 smt. budhi devi started construction on the said plot after seeking permission from the administrator municipality. against that permission, the appellants filed an appeal before the collector, sirohi. they also filed a writ petition in this court which was dismissed in limine on 9-7-1969 with the observation that the petitioner should first approach the authority under section 285 of the rajasthan municipalities act, 1959 (hereinafter to be referred as 'the act). the appellants filed an application under section 285 of the act which was dismissed on 3-2-1970 on the ground that the alleged infirmities were only irregularities which could be waived and the sale.....
Judgment:

Kanta Bhatnagar, J.

1. This Special Appeal Under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment of a learned single judge of this Court dated 25-8-1980 whereby he dismissed the appeallants' writ petition Under Article 226 of the Constitution o, India.

2. Briefly stated, the facts of the case giving rise to this Special Appeal are as under: A plot of land measuring 2916 sq. ft in Khasra No. 421 at Mt. Abu was auctioned in 1960. The highest bidder was Smt. Maya Devi. The sale was approved by the Administrator. On 2-11-1960 at the request of Smt. Maya Devi the sale deed was executed jointly in her name and that of Smt. Budhi Devi, respondent No. 2 Smt. Budhi Devi started construction on the said plot after seeking permission from the Administrator Municipality. Against that permission, the appellants filed an appeal before the Collector, Sirohi. They also filed a writ petition in this Court which was dismissed in limine on 9-7-1969 with the observation that the petitioner should first approach the authority Under Section 285 of the Rajasthan Municipalities Act, 1959 (hereinafter to be referred as 'the Act). The appellants filed an application Under Section 285 of the Act which was dismissed on 3-2-1970 on the ground that the alleged infirmities were only irregularities which could be waived and the sale has become more than ten years old. The appeal filed before the Collector, Sirohi against the permission accorded to Smt. Budhi Devi was also dismissed on the same date on the ground that they have no locus standi to file the appeal as they were not the aggrieved persons. Against that order passed in the appeal, the appellants preferred a revision petition before the Revenue Appellate Authority which was dismissed on 29-6-1974. In the writ petition filed in this Court which has given rise to this Special Appeal, the appellants have challenged the sale of the land as well as the permission for raising construction on it. The sale of the land to Smt. Maya Deyi was challenged on the ground that she is the wife of the then Executive Officer, Bhagirath Sharma who obtained the approval for the sale of the aforesaid land from the Administrator without disclosing that the sale was being made by him in favour of his wife. That, Smt. Budhi Devi to whom half of the share was sold at the time of the execution of the sale deed was the wife of the President, District Congress Committee, Mt. Abu Another attack was that the sale deed was not executed by the Administrator and fictitious sale proceedings were shown and the auction was not conducted in the presence of the Sub Divisional Officer. It was averred that this has prejudicially affected the interest of the petitioners, who are residents and tax-payers of Mt. Abu, as they have been deprived of the right to bid at the auction which was not conducted according to the regular procedure. With these grounds of attack the prayer for quashing the order passed by the Collector, Sirohi on 3-2-1970 dismissing the application Under Section 285 of the Act has been made.

3. While making the prayer for setting aside the order passed by the Collector, Sirohi in an appeal against the order of the Municipality Mt. Abu dated 26-6-1969 granting permission to Smt. Budhi Devi to raise construction and that of the Revenue Appellate Authority dated 26-6-1974 setting aside the revision petition against the order of the Collector, Sirohi it was contended in the writ petition that the findings of the two courts about the petitioners having no locus-standi to challenge the permission deserves to be quashed because they were the residents of Mt. Abu and tax-payers.

4. Out of the six respondents, who were non-petitioners in the writ petition, Smt. Budhi Devi alone filed a reply to the writ petition and participated in the proceedings. The learned single judge by his order dated 25-8-1980, which is under challenge in this Special Appeal, observed that the petitioners had kept quite for a considerable period of about nine years after the sale and started agitating the sale only when the permission for construction was granted to Smt. Budhi Devi in June, 1969. It was also observed that even after petitioner's application under Section 285 of the Act was rejected, there had been great delay on their part in not availing of any remedy whatsoever for a period of more than four years. In view of these findings the learned single judge held that the petitioners are not entitled to any relief, regarding the sale of the land, from this Court in exercise of its extra ordinary jurisdiction Under Article 226 of the Constitution.

5. As regards the second relief regarding permission for construction, the learned single judge held that the petitioners could not substantiate the grounds taken in para 7(g) of the writ petition and therefore, they were not entitled to the relief of quashing the permission for construction granted to Smt. Budhi Devi. The learned judge did not consider it necessary to decide the preliminary objection raised by the learned Counsel for Smt. Budhi Devi that the petitioners had no locus-standi to file the present writ petition pn the ground that the relief regarding the matter of sale was refused on the ground of laches and that about the permission for construction on other grounds.

6. In this Special Appeal Mr. S.L. Mardia has entered a caveat on behalf of Smt. Budhi Devi, respondent No. 2 and desired to be heard at the stage of admission. We, threfore, heard Mr. H.M. Lodha, learned Counsel for the appellants and Mr. S.L. Mardia, learned Counsel for Smt. Budhi Devi respondent No. 2 at the stage of admission.

7. Mr. H.M. Lodha strenuously contended that the learned single judge has not properly appreciated the circumstances of the case and therefore, the finding of there being delay in filing the writ petition is not justifiable. According to him, it was for the first time in the year 1969 that the petitioners had come to know about the sale when the permission for construction was granted to Smt. Budhi Devi by the Municipality, Mt. Abu and therefore, there was no occasion for them to approach any authority proir to that. It has been contended that immediately after having come to know about the sale in the year 1969 the appellants approached this Court in a writ petition Under Article 226 of the Constitution and also filed on appeal before the Collector, Sirohi against the order of the Municipality, Mt. Abu giving permission for construction. It has been next argued that the revision petition in the matter of permission for construction was dismissed by the Revenue Appellate Authority on 29th June, 1974 and without any loss of time, the appellants approached this Court by filing the present writ petition on 31-8-1974.

8. Mr. Mardia controverting these arguments submitted that the permission for construction was sought in the year 1961 which was renewed in 1963 and in the year 1969 there was further renewal of the sanction because the construction could not be completed by that time.

9. The auction had taken place in the year 1960. The allegations of the appellants are that Smt. Maya Devi the highest bidder was the wife of Bhagirath Sharma, the then Executive Officer who without disclosing his interest in Smt. Maya Devi sought an approval about the sale from the Administrator and it has been observed by the Collector in the impugned order that role of Bhagirath Sharma was not above board in the case. Hence the learned Counsel for the respondent No. 2 stressed that the sale should have been considered void on that count alone.

10. Another grievance is that there was no notice issued for the auction of the plot nor any formal auction had taken place therefore, the appellants were deprived of participation in the bid.

11. It is significant to note that all these points have been elaborately dealt with by the Collector, Sirohi, in the impugned order dated 3-2-1970. He has referred to the relevant draft notice and the approval of the Administrator and the notice issued regarding the sale and has held that there was no force in the contention of the petitioners that the auction was held in a surreptitious manner. He has also observed that two thousand copies of the notice were got printed and six persons had participated in the auction bid. The observation of the Collector that it has not been alleged by the petitioners that any one or more of these six persons were not present at the time of the auction or that their signatures were not genuine is also noteworthy. All these questions of fact having been finally decided by the Collector, Sirohi, as early as on 3-2-1970, there was no reason for the appellants to keep quite till 31st August, 1974, the date of filing the writ petition. We are not impressed by the submission of Mr. Lodha that this period of four years should not be taken into consideration because the appellants were persuing the matter before the Revenue Appellate Authority The reason is that what they agitated before the Revenue Appellate Authority was the matter regarding the permission for construction granted by the Municipality. That permission was challenged on the ground of encroachment of certain portion of land and failure on the part of the Municipality to consider relevant rules while according permission.

12. The above discussion make it abundently clear that the Appellants were not vigilant for their rights, even if they had any, up to 1969 and even thereafter when the Collector, had dismissed the application uncer Section 285 of the Act they did not rush to this Court and waited for four years without there being any just excuse for the same.

13. We are, therefore, of the opinion that the learned single judge was justified in refusing any relief regarding the sale on the ground of inordinate, unexplained delay in invoking the writ jurisdiction.

14. Regarding the matter of permission for construction, the learned single judge has gone into the merits of the case also and observed that the petitioners have not produced the permission granted to the non-petitioner Smt. Budhi Devi on 26-6-1969 and it appears that the permission had been granted on that date as per revised plan submitted by Smt. Budhi Devi and the nature of the original plan as well as the revised plan was not known. The learned single judge has rightly observed that when there was a denial by Smt. Budhi Devi of the facts stated by the petitioners in their grounds at para 7(g) of the writ petition regarding the encroachment, or the permission being against the Government order referred to therein it was for the petitioners to have made out a case to that effect, which they have failed to do. The learned single judge has discussed the implications of the Government Order No. F(38) Mise(2) LSG/68 dated 1-12-1968 and has rightly concluded that there being lack of clear averments in the writ petition that the land sold to Smt. Maya Devi and Smt. Budhi Devi was situated on the State road maintained by the Public Works Department of the State, the order is not applicable to the present case.

15. Because the writ petition was dismissed on these grounds it would not be out of place to mention that the perusal of the record of the case clearly indicates slackness on the part of the appellants for a period of about nine years at the initial stage in filing the writ petition as well as the filing of the appeal before the Collector challenging the permission for construction granted to Smt. Budhi Devi. Devi Sahai, husband of Smt. Budhi Devi respondent has filed an affidavit before us stating that some construction had already been made by Smt. Budhi Devi and she has spent an amount of Rs. 50,000/- during the period between 1963 and 1969 and today the construction is worth Rs. 75,000/ approximately. The original sanction of 1961, the renewed sanction of 1963 and of 1969 given by the Administrator Municipality, Mt. Abu have also been placed on record by Mr. Mardia. There is no rebutial to it. In the stay application filed in this Court, the appellants have come with a specific case that the respondent No. 2 Smt. Budhi Devi have constructed the part of the house, but in case injunctition is not granted, she should construct the first storey also with the result that there would be a lot of complications in case the sale or the permission of construction is set aside. This negatives the contention advanced by Mr. H.M. Lodha that no substantial investment has been made by Smt. Budhi Devi and in case the appeal is accepted she will not loose much.

16. Courts have always been vigilant to protect the rights of the persons accured to them on account of laches on the part of their opponents without any reasonable explanation for the same. In this connection reference may be made to the case of Ramana Dayaram Shetty v. The International Airport Authority of India and Ors. : (1979)IILLJ217SC In that case the International Air Port Authority had issued notice inviting tenders for putting up and running a IInd Class Restaurant and two Snack Bars at the International Air Port, at Bombay. Notice inviting tenders mentioned that only persons running registered IInd Class hotel or restaurant and having at least five years experience as such would be eligible to submit the tender. The person whose tender was accepted also did not fully conform to the condition laid down in the notice and their Lordships while holding that the standard or norm was reasonable and non-discriminatory were pleased to observe that the authority concerned was not entitled to act arbitrarily in accepting the tender. It was held that the authority concerned was not entitled to depart from it and to award the contract to the person who did not satisfy the condition of eligibility prescribed by the standard or norm While laying down that principle, their Lordships were pleased to observe that ordinarily they should have set aside the decision accepting the tender of the person concerned and the contract resulting from such acceptance but in view of the peculiar facts and circumstances of that case, they did not think it a sound exercise of discretion to upset that decision and void the contract. The reason for that opinion was that their Lordships had grave doubts whether the writ petition was commenced by the appellant bona fide with a view of protecting his own interest. Besides that their Lordships have also considered the fact that the writ petition was filed by the appellant more than five months after the acceptance of the tender of the 4th respondent and during that period the 4th respondent incurred considerable expenditure aggregating to about Rs. 1,25,000/- in making arrangements for putting up the restaurant and the snack bars and in fact set up the snack bars and started running the same.

17. The principle kept in view by their Lordships in that case is applicable with full force to the case before us. The auction sale having taken place in the year 1960, construction having been raised without there being any timely challenge by the appellants are factors that have been rightly taken into consideration by the learned single judge.

18. Mr. H.M. Lodha next argued that the learned single judge should have considered the argument that the Collector, Sirohi and Revenue Appellate Authority have erred in holding that the appellants had no locus-standi to challenge the permission given to Smt. Budhi Devi. According to him the appellants being the residents of the locality and the tax-payers had every interest to challenge any illegal act by the concerned Municipality. To substantiate his contention Mr. Lodha has referred to the cases of the Municipal Corporation for the City of Bombay and Anr. v. Govind Laxman Savant AIR 1949 Bom 229; Narendra Nath Chakravarty v. Corporation of Calcutta and Ors. : AIR1960Cal102 ; Mishri Mal and Ors. v. The State of Rajasthan ILR 1960 Raj 273; Krishna Kali Malik v Babulal Shaw and Ors. : AIR1965Cal148 ; and R. Varedarajan v. Salem Municipal Council by its Commissioner, Salem and Anr. : AIR1973Mad55 .

19. We are not inclined to enter into any discussion regarding the question of locus-standi of the appellants to challenge the sale or the permission given to Smt. Budhi Devi for construction, for the reason that even assuming that the appellants have locus-standi that would not make any difference because we are of the opinion that there was inordinate, unexplained delay on the part of the appellants in approaching this Court. We are also impressed by the reasoning given by the learned single judge for dismissing the writ petition on the ground of delay no far as sale is concerned and also on merits so far as the permission for construction is concerned.

20. In this view of the matter, the appellants not being vigilant for their rights for such a long period the learned single judge has rightly refused to grant any relief to the appellants in exercise of his extra ordinary jurisdiction Under Article 226 of the Constitution.

21. Consequently, the appeal having no force is dismissed summarily.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //