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Chauthmal Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Special Appeal No. 29 of 1966
Judge
Reported in1971WLN213
AppellantChauthmal
RespondentState of Rajasthan and ors.
Cases ReferredRadha Kishan and Ors. v. State of Rajasthan (supra
Excerpt:
.....the government and not to the municipal board can not be covered by section 92 (2)(e) of the act.;nazul lands belonging to the government and not to the board, therefore, cannot vest in the municipal board. the local self government department notification dated 8.10.1968 there fore, cannot have the effect of vesting nazul lands in the municipal boards under clause 2(e) of section 92 of the act.;the decision of the learned single judge holding the sale void on account of non-compliance of section 80(1) proviso, therefore, cannot be sustained. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to..........same should be disposed of as per government notification no f.7 (187) lsg 58 dated 8.3.1961. 'the state government accprted the recommendations of the collector by its order dated 14.10. 63, quashed and set aside, the sale in favour of shri chauthmal and directed the municipal board, mertacity, to sell the plot to smt. kanwari bai in accordance with government notification no. f. 7 (187) lsg/58 dated 8.3.1961. aggrieved by the recommendations of the collector and the order of the state government, the appellant filed a writ application contending that the recommendations of the collector and the order of the state government were without jurisdiction. the learned single judge who heard the writ application, held that the recommendation of the collector vide his order dated 29-6-1961 and.....
Judgment:

L.N. Chhangani, J.

1. This is a special appeal under Section 18(1) of the Rajasthan High Court Ordinance, 1949, against the Judgment and order of a learned single Judge of this Court dated 2.3.1966 dismissing the appellant's writ application No. 71 1964.

2. The relevant facts are these on 22.9.1960 the respondent No. 4 Smt. Kanwari Bai submitted an application to the Municipal Board, Merta City praying that a plot of land of the dimensions : length 13' x 14' and width 3 x 10' contiguous to her godown in Ghosion ka mohalla in the town of Merta be sold to her on taking its price at the due rate and patta be issued to her. On this application a proclamation was published under the order of the Secretary, Municipal Board Merta City, inviting objection 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 Mst. Kanwari Bai On the contrary on 12-11-60 he order the sale of the plot by auction from 1.12.1960 to 3.12.1960 under his supervision without obtaining order of the Board or its Chairman. The sale proclamation was, however, signed by the Chairman At the auction, there were only two bidders, namely, Shri Chauthmal the appellant and one Shri Ramkumar. Shri Chauthmal's bid for Rs. 801 was the highest. The Secretary recommended that Shli Chauthmal' bid may be accented and the Chairman accordingly accepted the bid and executed a sale dead on 11. 2 1961. On 14.2.1961 before the sale dead was registered Shri Chauthmal applied for permission to fix slabs on the purchased land and permission was granted. When Smt. Kanwari Bai learnt about the sale, she filed an application before the Collector on 14.2.1961 pupating to be under Section 283 of the Rajasthan Municipalities Act, 19 59 (hereinafter referred to as the Act) praying that the sale in favour of Shri Chauthmal may be set aside & the said plot may be allotted to her under Section 97 of the Raj Land RevenueAt hereinafter referred to as L R A. on payment of the due price. The Collector after issuing notice to the Chairman & the Secretary of the Mun. Board & to Shri Chauthmal and after hearing the parties held, auction in the present case had not been held in accordance with the said rules published under notification No. F. 7(87) LSGG/58 dated 8.11.59 observing that under Section 80 of the Act, the Chairman is not competent to confirm the auction where the auction price exceeded Rs. 200, he held, 'in the present case as the land in question has been sold for Rs. 801 the chairman Municipal Board was not competent to, 'confirm the auction proceedings.' He, therefore, recommended that these sale should be declared void and the Municipal Board, Merta be directed not to proceed further in the case till the final decision given by the Government. He further recommended that since the land is attached to the godown of the applicant, the same should be disposed of as per Government notification No F.7 (187) LSG 58 dated 8.3.1961. 'The State Government accprted the recommendations of the Collector by its order dated 14.10. 63, quashed and set aside, the sale in favour of Shri Chauthmal and directed the Municipal Board, Mertacity, to sell the plot to Smt. Kanwari Bai in accordance with Government notification No. F. 7 (187) LSG/58 dated 8.3.1961. Aggrieved by the recommendations of the Collector and the order of the State Government, the appellant filed a writ application contending that the recommendations of the Collector and the order of the State Government were without jurisdiction. The learned single Judge who heard the writ application, held that the recommendation of the Collector vide his order dated 29-6-1961 and the order of the State Government dated 11-10-1963 suffer from a patent lack of jurisdiction as there were no allegations of Smti Kanwari Bai or finding by the Collector that the sale of plot to Shri Chauthmal was causing or was likely to cause injury or annoyance or breach of the peace or was unlawful However, observing that the sale could not be completed without taking the approval of Collector under Section 80(1) of the Act and as no such approval was taken, the sale of the disputed plot was null and void, he refused to quash the order of the State Govt., setting aside the 'void-sale' in favour of the petitioner in the exercise of the extra-ordinary power of this Court under Article 226 of the Constitution. He accordingly, dismissed the writ application. Shri Chauthmal has filed the present appeal.

3. It is a common case that the land is a 'Nazul Land' and that it was placed at the disposal of the Municipal Board, Merta City, by notification No. 7(187) LSG/58 II dated 8-10-1959 issued by the Government in the exercise of powers given by section on 102 A of the Land Revenue Act. The controversy, however, centers whether this notification has the effect of vesting the land in the Municipal Board in terms of Section 92(2) of the Act? Bench of this Court had an occasion to consider a similar question in Radha Kishan and Ors. v. State of Rajasthan and Ors. (D.B. Civil Miscellaneous writ petition No 312 of 1962) decided on 8-3-1965. In that case, it was argued that the land which was sold to the respondents did not belong to the Board. The Board was acting as agent of the Government and as the Nazul land belonged to the Government and, therefore, to such sale deeds provisions of Section 80 (vii; of the Act were not attracted as the Nazal land did not vest in the Municipal Bord. The Bench referred to the notification dated 8 10-1959 and emphasised that under the notification the Municipal Authorities are to take orders for the allotment of nazul land placed at the disposal for and on behalf of the State Government, The Cench further took note of condition No. 2 in the notification providing that '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 Government of Rajasthan by the Presiding Officer (Chairman or President) of the Municipal authority and inferred that the condition clarifies the position that 'the land did not vest in the Municipal Board and that it remained the Government land. The Municipal Board simply acted as an agent for the disposal of such Nazul land for and on behalf of the State Government.' Before the Bench, however, the observations of the Supreme Court in Fruit and Vegetable Merchant's Union v. Delhi Improvements Trust : [1957]1SCR1 were cited, as to the import of the word 'vest' holding 'that the word 'vest' is a word of variable import, as shown by provisions of Indian Statutes also. It has not got a fixed connotation, meaning in all cases that the property is own id by the person Or the authority in whom it vests. It may vest-

(a) in title; or

(b) in possession; or

(c) in a limited sense,

as indicated in the context in which it may have been used in a particular piece of legislation,' The Bench, however, did not record a finding whether or not Nazul land vests in the Municipal Board and observed:

Even if we accept the contention of Mr. Bhargava that by virtue of the notifications issued by the Government referred to above placing the Nazul land at the disposal of the Municipal Board for sale the land belonging to the Government vested in the Municipal Board, we cannot accept the argument that the sale could be effected only in accordance with the provisions of Section 80(vii) of the Rajasthan Municipalities Act, 1959,

proceeded to give reasons for their view, which it is unnecessary to reproduce. The Bench decision was relied upon by the counsel for the appellant before the learned single Judge for the contention that the Nazul lands to not vest, in the Municipal Board. The learned single Judge overruled the contention and observed-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 the Boards.

We have very carefully examined the Bench decision and agreeing with the learned single Judge, we are unable to find any categorical finding in the Bench decision that the Nazal lands do not vest in the Municipal Boards. Having regard to the observations of the Supreme Court in Fruit & Vegetable Merchants' Union v. Delhi Improvements Trust : [1957]1SCR1 regarding the import of the word 'vest' and the terms of the notification dated 8-10-59 issued in exercise of the powers conferred by Section 102-A of the Land Revenue Act, we have been persuaded to take the view that Nazul lands do vest in the Municipal Boards in possession or in limited sense for the purpose of disposal. The controversy, however, is whether the vesting in possession or in a limited sense can be treated as vesting of the Nazul lands in the Municipal Boards within the meaning of Section 92(2)(e) of the Act. An analysis of Section 92(2)(e) of the Act reveals that it seeks to specify all property that shall vest in and belong to the Board. The property has been specified in Sub-clauses (a) and (g) of the section. On a proper interpretation, it appears reasonable to hold that Section 92(2)(e) of the Act refers to property not only vesting in but al o belonging to the Municipal Board and the property belonging to the Government and not to the Municipal Board, can not be covered by Section 92(2)(e) of the Act.

4. This brings in the controversy whether the Nazul lands can be said to belong to Municipal Board or to the Government. The learned single Judge has taken the view that Nazul lands placed at the disposal of the Board vest in the Board but belong to the Government. In the Bench decision in Radha Kishan and Ors. v. State of Rajasthan and Ors. D.B. Civil Misc. writ petition No. 312 of 1962 decided by this Court on 8-3-1965 the same view appears to have been taken. We have also considered the scheme of the Land Revenue Act and Section 3(l)(lb) defining Nazul land, Section 97 providing for the disposal of Nazul land, Section 102-A empowering the Government to place Nazul land at the disposal of the Local Authorities and Section 104 providing for the exercise of powers of Revenue Officers by the Local Authority and the notification dated 8-10-59 and are in agreement with the learned Single Judge that the Nazul lands do not belong to the Municipal Board but b long to the Government. In this connection, we may further refer to Local Self Government Department Notification No. F.7 (187) LSG/58 dated March 8, 1961, issued in the exercise of powers conferred by Section 102-A of the Lord Revenue Act laying down further conditions and restrictions with regard to the Nazul lands placed at the disposal of the Municipal Authorities by the Department. Condition 2(b) states that save as otherwise provided, plots of land shall be sold in public auction and the Collector concerned in case of towns with a population of 50,000 and above and the Sub Divisional Officer concerned in other towns shall be associated, when the auction of plots takes place.' This removes doubts, if any, as to the ownership of the Government over Nazul lands and their jurisdiction to prescribe manner of the disposal of the land. While interpreting Section 92(2)(e) of the Act we have taken the view that Section 92(2)(e) refers to the property both vesting and belonging to the Municipal Board and the property not belonging to the Municipal Board cannot be treated as vesting in the Municipal Board in terms of Section 92(2)(e). The learned Single Judge, however, appears to have taken the view that all property belonging or not belonging to the Municipal Board can vest in the Municipal Board under Section 92(2)(e) of the Act. It appears to us that the main controversy before the learned single Judge was with regard to the vesting of the Nazul land in the Municipal Board and the controversy in the pointed form in which it has been raised before us does not appear to have been agitated and the learned single Judge had no occasion to analyse Section 92 of the Act in the manner in which he did. We are unable to endorse the view that the land not belonging to the Municipal Board can vest in the Municipal Board within the meaning of Section 92(2)(e) of the Act. Nazul land belonging to the Government and not to the Board, therefore, cannot vest in the Municipal Board. The Local Self Government Department Notification dated 8-10-1193, therefore, cannot have the effect of vesting Nazul lands in the Municipal Board under clause 2(e) of Section 92 of the Act.

5. There is yet another consideration which lends support to the view. The notification was issued on 8-10-1959 and was published in the Rajasthan Gazette dated 12-12-59. The Rajasthan Municipalities Act came into force from 17-10-1959. Naturally, the notification of 8-10-59 cannot be considered as a general or special order of the Government vesting Government lands in the Municipalities.

6. Now, Section 80(1) of the Act requires approval of the Collector only when the land has become vested in the Municipal Board under Clause (e) of sub-section (2) of Section 92 of the Act and not to lands otherwise vesting in the Municipal Boards. Section 80(1) proviso, therefore, could not be applicable in sale of Nazul lands. It may also be observed that condition 2(b) of the notification dated 8-3-61 requires the association of the Collector or the Sub Divisional Officer in respect of Nazul lands. The Government retaining ownership of the Nazal lands and retaining the competence to issue direction for the disposal of the Nazul lands and having issued directions requiring association of the Collector and the Sub Divisional Officer in the sale of Nazul lands we hold Section 80(1) proviso inapplicable to the sale of Nazul lands on the principle adopted in Radha Kishan and Ors. v. State of Rajasthan (supra) in connection with the persons competent to execute and sign the sale deed. The decision of the learned single Judge holding the sale void on account of non-compliance of Section 80(1) proviso, therefore, cannot be sustained.

7. The counsel for the respondents invited our attention to the observations made by the learned single Judge regarding the competence of the State Government to set aside the sale made in favour of the appellant in the exercise of powers under Section 83 of the Land Revenue Act, and contended that the decision of the State Government setting aside the sale with the aid of Sections 203 and 235 of the Act be sustained with reference to the powers of the State under Section 83. We are unable to accept this contention. As observed by the learned single Judge 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 and no order under Section 83 of the Land Revenue Act can be passed to the prejudice of any person unless such person has had an opportunity of being heard. The sale to the appellant being neither void with reference to Section 80(1) proviso nor having been set aside by the State Government under Section 83 of the Land Revenue Act and the decision of the Collector dated 29-6-61 recommending the setting aside of the sale under Section 283 of the Act and the order of the State Government under Section 235 of the Act setting aside the sale being without jurisdiction, the appellant is entitled to a writ quashing the orders of the State Government and the Collector.

8. We accordingly, accept the appeal, set aside the order of the learned single Judge dated 2-3-66 and issue a writ quashing the orders of the Collector dated 29-6-61 and the State Government dated 11-10-63. There will be no order as to costs.


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