Skip to content


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

LegalCrystal Citation
SubjectConstitution;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1651 of 1972
Judge
Reported in1978WLN(UC)271
AppellantLikhmichand
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredBhaironlal v. Bhagawat Dutt Thakur and Ors. (sic). In
Excerpt:
.....the present case. the order of the collector, churu, dated 14th march, 1972 and the order of the state government dated 14-9-1972/28-9-1972 are, therefore, not sustainable.;writ allowed; - 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 have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of..........that he had no authority to alter or revise his order dated 14th march, 1972 and that the state government alone was competent to rescind or confirm that order. in his order dated 10th april, 1972 the collector also observed that shri ram swarup khemka had brought to his notice that the patta dated 25th october, 1966 granted in favour of the petitioner along with 23 others patta had been cancelled by the order of the state government dated 6th march, 1968 and that this fact strengthened the order dated 14th march, 1972 posed by him. the state government by its order dated september 14/28, 1972 passed in the purported exercise of its powers under section 285(2) of the act, confirms d the order of the collector dated 14th march, 1972 and further directed that no construction shall.....
Judgment:

S.C. Agrawal, J.

1. The petitioner Likhmichand owns a residential house in a blind lane in Churu Town. There is a strip of land measuring 21' x 6' (14 Sq. yds) in front of the aforesaid house of the petitioner. In 1961 the petitioner applied to the Municipal Board, Churu for grant of patta to him in respect of the aforesaid strip of Land & on his depositing the sum of Rs. 210/-towards the price of land at the rate of Rs. 15/- per sq. yd. The patta was granted to the petitioner on 25 the October, 1966, by the Municipal Board, Churu on 5th February, 1972, the petitioner gave notice to the Municipal Board under Section 170(1) of the Rajasthan Municipalities Act, 1959, of his intention to make construction on his land including the newly purchased strip of land and the Chairman of the Municipal Board by his letter dated 24/25 February; 1972 sent an intimation to the petitioner giving him permission to make construction in respect of which notice had been given by the petitioner to the Municipal Board. After the receipt of the said permission, the petitioner started construction on the newly purchased strip of land. Ram Swarup Khemka, respondent No. 4 herein who happens to be a neighbor of the petitioner sent a telegram to the Collector, Churu, informing him that the petitioner was making unauthorized construction over Government land and the same should be stopped. After receipt of the said telegram, the Collector, Churu, in the purported exercise of his power under Section 285(1) of the Rajasthan Municipalities Act, 1959 passed an order dated 14th March, 1972 suspending the execution of the order of the Chairman Municipal Board, Churu dated 24th February 1972, on the view that the Chairman of the Municipal Board was not competent to grant the permission under Section 170 of the Act and that under Section 170 the power to grant such a permission is vested in the Municipal Board only. In pursuance of the aforesaid order pissed by the Collector, Churu, dated 14th March, 1972, a notice dated 17th Mates 1972 was served on the petitioner by the Executive Officer of the Municipal Board, Churu, whereby the petitioner was directed to stop the construed as work immediately. After the receipt of the said notice, the petitioner moved an application before the Collector, Churu, requesting him to reconsider his order dated 14th March, 1972 which had been passed exporter with flout notice to the petitioner. The Collector by his order dated 10(h April 1972, rejected the said application with the observation that he had no authority to alter or revise his order dated 14th March, 1972 and that the State Government alone was competent to rescind or confirm that order. In his order dated 10th April, 1972 the Collector also observed that Shri Ram Swarup Khemka had brought to his notice that the Patta dated 25th October, 1966 granted in favour of the petitioner along with 23 others Patta had been cancelled by the order of the State Government dated 6th March, 1968 and that this fact strengthened the order dated 14th March, 1972 posed by him. The State Government by its order dated September 14/28, 1972 passed in the purported exercise of its powers under Section 285(2) of the Act, confirms d the order of the Collector dated 14th March, 1972 and further directed that no construction shall be made on the land in dispute. Aggrieved by the aforesaid order, the petitioner has filed this writ petition for the issue of a writ quashing the order of the State Government dated September 14/28, 1972, and all the orders on the basis of which the said order had been passed.

2. In the writ petition the case of the petitioner is that the order of the Collector dated 14th March, 1972 and the order of the State Government dated 14-9-1972/28-9-1972 were illegal and wholly without jurisdiction in as much as Section 285 of the Rajasthan Municipalities Act, 1959 does not empower the Collector and the State Government to pass the said orders and that the power under the said section could be invoked only in a case where the execution of any order or a resolution of the Municipal Board, or the doing of anything which is about to be does or has been done by or on behalf of the Board, is causing or likely to case injury or annoyance to the public or breach of peace or is unlawful. The case of the petitioner is that in the present case permission to construction had already been granted to the petitioner by the Municipal Board through its Chairman and nothing had to be done by the Municipal Board at the time when the Collector posed the order and that it was net a case of execution of any order or resolution of the Board or doing of the anything which was about to be done or was being done by or on behalf of the Board. The case of the petitioner is further that there was no illegality in the order of the Chairman, Municipal Board, granting permission to the petitioner to make the construction over the land in dispute and that even assuming that there was some immaturity in grant of the sanction by the Chairman of the Municipal Board, the said action of the Chairman had been ratified by the Municipal Board by a resolution passed un impiously at the meeting of the Municipal Board held on June 6, 1972 whereby the permission for constructions granted by the Chairman from time to time to 39 persons, including the petitioner, was confirmed. As regards the order of the State Govt. dated 6th March, If 68, whereby the Patta granted in favour of the petitioner was cancelled, the case of the petitioner is that no notice was given to the petitioner prior to the passing of the said order of cancellation of the Patta and that the petitioner learnt about said order of cancellation for the first time during the course of arguments before the Collector the application submitted by the petitioner for the review of the order dated 14th March, 1972. The case of the petitioner that the said order of the State Government dated 6th March, 1968, in so far as it purports to cancel the patta granted in favour of the petitioner, is null and void having passed in violation of the principles of natural justice.

3. No reply to the writ petition has been filed on behalf of Respondents Nos. 1 and 2, viz. the State Government and the Collector, Churu. A reply to the writ petition has been filed on behalf of the Municipal Board whereby the petition is opposed on the ground that in view of the order of the State Government dated 6th March, 1968 canceling patta granted in favour of the petitioner, which order has become final, the petitioner hrs no locus standi to maintain the petition The averment in the writ petition that no notice was tent to the petitioner before the passing of the order dated 6th March, 1968; canceling the patta are not denied but it is claimed that the notice about the said order of the cancellation of the patta was sent to the petitioner by the Municipal Board by notice dated 22nd June 1968 and that as the petitioner refused to accept the said notice, the same was affixed on the walls of the house of the petitioner on 24th June, 1968, In the said reply filed on behalf of the Municipal Board it is not disputed that the petitioner had submitted an application for grant of permission to make the construction on 1-2-1972, that the Chairman of the Municipal Board gave the necessary permission by his order dated 24-2-1972 and that the said order of the Chairman was rectified by the Municipal Board by its resolution dated 6-6-1972. It is, however, asserted that the order of the Chairman dated 24-2-1972 was unlawful and that the Collector as well as the State Government were justified in suspending and prohibiting the execution of the said order.

4. In the course of his arguments the counsel for the petitioner has submitted that the assertion in the reply filed on behalf of the Municipal Board that a notice dated: 22nd June 1968 was served on the petitioner by pasting oil the wall of the house on 24th June, 1968 is belied by the conduct of the parties. In this contest he has submitted that if the notice; had been served as alleged there was no point in the petitioner applying for permission to construct in 1972 and in making constructions on the land thereafter and in the Municipal Board granting permission to the petitioner to make or constructions on land, the patta for which had already been cancelled. It cannot be said that the aforesaid contention of the counsel for the petitioner is without any substance. In my view, however, it was not necessary to enter into the controversy with regard to the service of the notice about the order dated 6th March, 1968, canceling patta of the petitioner. In as much as there is no dispute that no notice vas given to the petitioner by the State Government prior to the passing the order dated 6th March, 1968, canceling the patta dated 25th October, 1966, granted to him by the Municipal Board. Thus on the basis of the record it has to be held that the order dated 6th March 1968, was null and void, having been passed in contravention of the principles of the natural justice, without affording any opportunity to the petitioner of showing cause against the proposed action viz. cancellation of the patta granted to the petitioner by the Municipal Board.

5. An objection has been raised on behalf of the respondents that there is no challenge to the order of the State Government dated 6th March, l968in the writ petition & that the said order cannot be quashed A perusal of the record shows that this objection is not well founded. In paragraph 19 of the writ partition the petitioner has raised the specific plea that order of 6-3-1968 has no legal validity as it was passed exporter without hearing the petition is and reliance is placed on the decision of this Court reported in 1971 Weekly Law Notes 213 In the writ petition the petitioner has prayed for the quashing of the order of the State Government dated 14-9-1972/28-9-1972 and all other orders on the basis of which the impugned order has been passed. In my view the relief sought by the petitioner has to be read in the light of allegations contained in the main body of the petition, and, if thus read the relief's prayed are quite comprehensive to include the prayer for quashing of the order dated, 6th March, 1968. There is thus no merit in this objection raised by the respondents and the same is therefore, rejected

6. Another objection that has been raised on behalf of the respondent is that the petitioner should not be permitted to assail the validity of the order dated 6-3-1968 in a writ petition filed after a lapse of 4 years in 1972. This objection proceeds on the assumption that the petitioner had received the notice dated 22nd June, 1968 sent by the Municipal Board. I have already held that in view of the subsequent conduct of the petitioner as well as the officers of the Municipal Board, it is not possible to arrive at a categorical finding that the petitioner had received the notice dated 22-6-1968 and that the petitioner was guilty of laces. Moreover in the present case the rights of any third party have not intervened during this period and the order dated 6th March, 1968 is clearly an order passed in violation of the principles of natural justice I, therefore, over rule this objection urged on behalf of the respondent

7. Hiving found that the order dated 6th March 1968 canceling the Patta of the petitioner was null and void, I now proceed to deal with the question as to the validity of the order of the Collector, Ghuru dated 14th March, 1972 and the order of the State Government dated 14-9-1972/28-9-I972

8. In so far as the order of the Collector dated 14th March, 1972 and the order of the State Government dated September 17/28, 1972 are concerned, I am in agreement with the contention of the petitioner that the said orders could not have been passed in exercise of the powers conferred by Section 285 of the Rajasthan Municipalities Act, 1959. Section 285 reads as under:

285. Power of suspending execution of order etc. of Board - (1) If in the opinion of any such officer as may be appointed or authorized by the State Government in this behalf the execution of any order of resolution of the Board, or the doing of anything which is about to be done or is being done by or on behalf of the 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 be ordered in writing under his signatures to suspend the execution or prohibit the doing there of.

(2) When any such officer makes any order under this section, he shall forth with 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 Govt, to rescind the order or to direct that it shall continue in force with or without modification permanently or for such period as it think 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.

The provisions of the Section 285 of the Rajasthan Municipalities Article, 1959, are in pari materia with the provisions contained in Section 195 of the Rajasthan Town Municipalities Article, 1951 which came up for consideration Ors this Court in Bhaironlal v. Bhagawat Dutt Thakur and Ors. (sic). In the said case the court was required to pronounce on the validity of the order passed by the Collector, staying construction which was being made by the petitioner in that case on the basis of the permission granted to him by the Municipal B3ard, Kota The Court, while striking down the said order of Collector, has observed:

The power to interfere under the aforesaid section is restricted to suspending the execution of any order of resolution of the Municipal Board or the doing of anything which is about to be done by or on behalf of the Municipal Board or prohibiting the execution thereof. In the present case permission had been granted by the Municipal Board and nothing remained to he done by it. Further the interference is only authorized in oases where carrying or the order was likely to cause injury or annoyance to the public or was unlawful

9. The aforesaid case is on all fours with the present case in as much as much as here also after the grant of the permission to the petitioner to make the construction nothing remained to be done by it and, therefore, the powers conferred by Section 285 of the Rajasthan Municipalities, Act, 1959 could not be invoked in the present case. The order of the Collector, Churu, dated 14tti March, 1972 and the order of the State Government dated 14-9-1972/28-91972 are, therefore, not sustainable and have to be quashed.

10. The result is that the writ petition is allowed and the order of the Collector, Churu, dated 14th March 1972, and the order of the State Government dated 14-9-1972/28-9-1972 as well as the order of the State Government dated 6-3-1968 are quashed. There will be no order as to costs.


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