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

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 672 of 1979
Judge
Reported in1979WLN689
AppellantGaneshmal
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Cases Referred and Rasbihari v. State of Orissa A.I.R.
Excerpt:
.....the board, and respondents nos. 3 and 4 and by the impugned order ex. 3, it was decided by the state government. the petitioner did not offer to purchase the plot at any time before the date of the order (ex. 3).;no right of the petitioner has been affected and as such, be has no locus standi. he is neither a party nor a person aggrieved or affected and consequently his writ petition is not maintainable.;writ dismissed - 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..........was to be sold to respondent no. 3. the reserve price was as recorded rs. 7.00 per sq. gaj.3. the state government, by its order dated august 5, 1970 directed the municipal board, bhinmal to sell the entire plot measuring 5344 sq. gaj to respondents nos. 3 and 4 @ 21 paisa per sq gaj. the administrator, municipal board, bhinmal, in pursuance of the order of the state government executed two sale-deeds dated october 27, 1970 in respect of the plot in favour of respondents nos. 3 and 4. the municipal board, bhinmal, filed a writ petition entitled municipal board, bhinmal v. state of rajasthan and ors. s.b. civil writ petition no. 359 of 1971 decided on september 14, 1973 challenging the orders of the collector, jalore dated october 24, 1967 and the state government dated august 5, 1970......
Judgment:

S.K. Mal Lodha, J.

1. This is a petition under Article 226 of the Constitution of India by Ganeshmal who is resident of Bhinmal and is a voter and tax-payer. There is a plot of land measuring 5344 sq. Gaz (the sq. Gaz referred to in this judgment bears the dimension 2' x 2'), situate at Badlawala Choraya, Bhinmal within the limits of Bhinmal Municipality. The case of the petitioner is that respondents Nos. 3 and 4 (Keshrimal and Ganpatlal) claimed their title in respect of the aforesaid plot on the basis of two sale-deeds dated March 14, 1958 which they obtained from certain Bhambies. The vendor-Bhambies, according to respondent No. 2 Municipal Board Bhinmal ('the Board' hereafter) had no right or title to transfer the plot in favour of respondents Nos. 3 and 4. The Board initiated proceeding for ejectment against respondents Nos. 3 and 4. On March 12, 1967, an order for ejectment was passed against respondents Nos. 3 and 4 on the ground that they were trespassers. This order was executed on March 15, 1967 and, according to the petitioner, respondents Nos. 3 and 4 were dispossessed from the plot. Respondents Nos. 3 and 4 moved the Collector, Jalore, under Section 285 of the Rajasthan Municipalities Act (No. XXXVIII of 1959) (hereinafter referred to as the Act'). The Collector, Jalore, passed the order dated October 24, 1967 for suspending the execution of the order of eviction against respondents Nos. 3 and 4. The material portion of the order passed by the Collector is as under:

I heard both the parties and carefully examined the record. It is evident from the record that this is purely a civil matter in which parties have target declared their respective titles from the proper court. Both the parties claim their possession, applicant on the basis of the sale deeds, and this respondent on the basis of its being a Nazul land But under Section 203(2) of the Rajasthan Municipalities Act, 1969, the Municipal Board can remove the encroachment from the open space. But whether land is an open spice, or in possession of the applicants have to be decided first by the Civil Court. This has also been held by the Commissioner, Jodhpur in his judgment dated 27-2-59 that the dispute hanges (sic hinges?) on the title of the land and it can only be decided by the proper form.

In the above circumstances, the order passed by the Municipal Board Bhinmal under Section 203 of the Rajasthan Municipalities Act 1959 is illegal and therefore, its execution is suspended.

He also sent a copy of the order dated October 24, 1967 to the Secretary to the Government, Local Self Government Department, Rajasthan, as provided under Section 285(2) of the Act.

2. One more fact that needs to be mentioned here is that the Municipal Board, by its resolution dated December 16, 1968 (a copy of which was filed in S.B. Civil Writ Petition No. 359 of 1971 marked as Ex. 3) agreed on certain terms to settle the matter with respondent No. 8 Kesharimal. According to that resolution, land measuring 4971-50 sq. Gaj was to be sold to respondent No. 3. The reserve price was as recorded Rs. 7.00 per sq. Gaj.

3. The State Government, by its order dated August 5, 1970 directed the Municipal Board, Bhinmal to sell the entire plot measuring 5344 sq. Gaj to respondents Nos. 3 and 4 @ 21 paisa per sq Gaj. The Administrator, Municipal Board, Bhinmal, in pursuance of the order of the State Government executed two sale-deeds dated October 27, 1970 in respect of the plot in favour of respondents Nos. 3 and 4. The Municipal Board, Bhinmal, filed a writ petition entitled Municipal Board, Bhinmal v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 359 of 1971 decided on September 14, 1973 challenging the orders of the Collector, Jalore dated October 24, 1967 and the State Government dated August 5, 1970. By order Ex. 1 dated September 14, 1973, this Court allowed the writ petition in part and set aside the other No. F. 2(23) LSG/67/Lit dated August 5, 1970 and consequent sale by Keshrimal was also quashed. In that writ, the Board was represented by Mr. H.M. Parekh who is counsel for the petitioner in this writ petition. DB Special Appeal No. 161 of 1973 was preferred by respondents Nos. 3 and 4 against the Municipal Board, Bhinmal and others. The Division Bench, by its order dated January 14, 1977, dismissed the appeal. It was held therein as under:

We are in complete agreement with the reasons given by thelearned Single Judge for holding the order passed by the State Government under Section 285(2) of the Rajasthan Municipalities Act, 1959 to be ultra vires the Government. That being so, the learned Single Judge was right in striking down the impugned order of the State Government under Section 285(2), so also the consequential sale deeds executed by the Administrator.

It will be pertinent here to excerpt the following observations made by the learned Judge in the penultimate paragraph:

We must, however, make it clear that nothing stated by the learned Single Judge in the order appealed from, shall prejudice the right, title and interest and possession, if any, of the appellant Keshrimal. Nor, shall the order act to the prejudice of the respondent, the Municipal Board, Bhinmal, to take recourse to such legal remedies as may be available to it under law. As a result of this, the parties would be relegated to the position that obtained on October 24, 1967.

The matter that was pending before the State Government under Section 28(2) of the Act, revived. The Collector, by his order dated October 24, 1967 suspended the execution of the order by which respondents Nos. 3 and 4 were sought to be ejected and both the parties were directed to get their respective claims decided by seeking declaration from proper court In regard to this dispute, a compromise (copy of which has been filed marked as Ex. R/1) dated November 21, 1978 was presented before the State Government On December 8, 1978, the State Government passed the order (Ex. 3) under Section 285(2) and confirmed the order of the Collector, Jalore dated October 24, 1967. While confirming it, it expressed its agreement with the terms mentioned in the compromise (Ex A/1) which was submitted before it. It is clear from the order Ex. 3 that the dispute which was going on in respect of the plod between respondents Nos. 3 and 4 on the one hand and the Board, on the other, was decided. The case of the petitioner further is that the plot is a public land and he applied to the Board to auction it so that he may have an opportunity to offer his bid. A registered notice is said to have been sent to the Administrator and to the State Government on April 9, 1979. The petitioner has challenged the order (Ex 3) of the State Government in this writ petition.

4. It may be mentioned here that the petitioner has not stated in the writ petition that a review petition Ex. 5 was filed by the petitioner and the State Government by its order Ex. A6 dated April 13, 1979 rejected it and maintained the order dated December 8, 1978.

5. A show cause notice was issued to the respondents. The State Government, the Board and respondents Nos. 3 and 4 have filed separate replies The writ petition is opposed on behalf of the respondents.

6. At the hearing of the writ petition, a preliminary objection was raised by the learned Counsel for respondents Nos. 3 and 4 to the effect that the petitioner has no locus standi to file the writ petition and thus, is not entitled to maintain it. I propose to deal with this preliminary objection, first.

7. It is not in dispute that the petitioner was not a party to the proceedings which were held prior to the filing of the present writ petition. The dispute was between the Board, and respondents Nos. 3 and 4 and by the impugned order Ex. 3, it was decided by the State Government. The petitioner did not offer to purchase the plot at any time before the date of the order (Ex 3). In these circumstances, the question that arises is whether the petitioner has locus standi to present the writ petition. After notice Stat a of Orissa v. Madan Gopal A.I.R. 1952 S.C. 12, Calcutta Gas Co. (Proprietory) Ltd. v. State of West Bengal A.I.R. 1962 S.C. 1044, Gadde Venkateswara Rao v. Government of Andhra Pradesh A.I.R. 1933 S.C. 828, State of Orissa and Ors. v. R.C. Indrakumar A.I.R. 1972 S.C. 2112, and Dr. Satyanarayana Singha v. S. Lal and Co. A.I.R. 1973 S.C. 2720, the Supreme Court in J.M. Desai v. Roshan Kumar A.I.R. 1976 S.C. 578 observed as under:

This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject-matter of the application, though in the case of some of the writs likes habeas corpus or qua warranto this rule is relaxed or modified. In other words, as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter....

Three categories have Been specified in the aforesaid decision : (i) 'person aggrieved', (ii) 'stranger' and (iii) busybody of meddlesome interloper.

8. The contention of Mr. Parekh is that the petitioner is a 'person aggrieved' against the order of the State Government In the alternative, he submitted that even as a stranger', the petitioner being a resident of Bhinmal and interested in the purchase of the plot in auction can maintain the writ petition. It has, therefore, become necessary to find out the distinction between a 'person aggrieved and a stranger. I am tempted here to quote their Lordship in J.M. Desai's case A.I.R. 1976 S.C. 578,-

The distinction between the first and second categories of applicants though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be 'persons' aggrieved.

To distinguish such applicants from 'strangers' among them, some broad tests may be deduced from the conspectus made above. These testes are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are : Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong, or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority of? Is he a person who has suffered a legal grievance, a person 'against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurption of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words 'person aggrieved' is being considered, a special welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?'.

The petitioner cannot be said to have any personal or individual right in the plot in question. I quite agree with Mr. Parekh that it is not necessary that personal right need be in respect of a proprietary interest, but at the same time, the petitioner is squired to show that he has been prejudicially and directly affected by the act or omission of the authority There was a dispute between the Board and respondents Nos. 8 and 4. Respondents Nos. 3 and 4, because of the purchase of the land from the Bhambies were claiming title to the land in dispute and were asserting their possession also on it. Under Section 203 of the Ac the Board had initiated proceedings for removal of the encroachment on the land in question. The Commissioner, vide Municipal Revision No. 13/58, Keshrimal v. Collector, Jalore and Chairman. Municipal Board, decided on February 27, 1959, recorded the following findings:

1. Neither the Municipality nor the Collector were competent to go into the question of title of the land and the parties aggrieved should have approached the civil court for determination of their rights;

2. The order for removal of the building material could only be given in respect of the land which is not a private one as required under Section 130(2) of the Act, therefore, before such an Order can be upheld, it has to be seen that the applicant (Keshrimal's) material would not be disturbed fill the Municipality is able to get the title of the land determined by a proper forum that it was not of the petitioners.

9. Thus, after October 24, 1967, in order to little the dispute regarding the possession of the plot, the Board entered into a compromise with respondents Nos. 3 and 4 which was submitted to the Stale Government. It was open to the Board as well as respondents Nos. 3 and 4 to do so in as much as the parties had already been relegated to the position which obtained on October 24, 1967 when the order of the State Government was set aside by the learned Single Judge in the writ petition which judgment was maintained in Special Appeal by the Division Bench. In these circumstances, considering the tests laid down by their Lordships of the Supreme Court, I have no hesitation in holding that the petitioner is not a 'person aggrieved'.

10. The next contention of Mr. Parekh is that the petitioner is a resident of Bhinmal and is a tax payer and as such, if the land is sold in public auction, he will get an opportunity to give his bid. According to the petitioner, the market price of the plot prevalent present is Rs. 200/- per sq. Gaj which the Board, as is dear from the compromise, agreed to sell @ Rs. 7/- per sq. Gaj. Learned Counsel suggested that right to give bid in a public caution is his legal right and when the State Government has passed the order under Section 285(2) on the basis of the compromise that right has been infringed. In support of his submissions, learned Counsel referred to Municipal Corporation, Bombay v. Govind Laxman A.I.R. 1949 Bom. 229, K.N. Guruswamy v. The State of Mysore and Ors. A.I.R. 1954 S.C. 592, Ramrao v. State of Bombay A.I.R. 1963 S.C. 827 and Rasbihari v. State of Orissa A.I.R. 1939 S.C. 1381. While considering the provisions of Section 45 of the Specific Relief Act, it was held in the Municipal Corporation Bombay's case A.I.R. 1949 Bom. 229 that a ratepayer is undoubtedly interested in the application of the Municipal fund both as a rate-payer who has actually contributed to that fund and also as a beneficiary who is entitled to the various benefits which accrue to the citizens by the application of that fund It was held in para 2 of the report that under Section 45, Specific Relief Act, in order to satisfy the first proviso a party must have some interest in property, franchise Or personal right, the injury to which alone would entitle firm to maintain a petition under that section. Thereafter it was observed in para 5 as under,-.With very great respect, we see no warrant for holding that a special, injury has got to be established by the petitioner before he can come under Section 45, Specific Relief Act. If he shows any injury and he also shows a title to his property which is likely to be injured that is sufficient to satisfy the first proviso to Section 45, Specific Relief Act.

Guruswamy's case A.I.R. 1954 S.C. 592 was in regard to the sale of a liquor contract for the year 1953-54 in the State of Mysore. It was held in that the appellant was interested in the contracts and thus had a right under the laws of the State to receive the same treatment and the same chance as anybody else. In Ramrao's case A.I.R. 1963 S.C. 827, the appellant instituted a suit for declaration that the sale of certain lands which were held by the Revenue Authorities, in circumstances was void, and he prayed for recovery of possession of the lands from the defendants who had purchased his lands in Revenue auction. As the sale was sought to be declared invalid, the Province of Bombay was also impleaded as a party. It was held that a purchase by the Government at a nominal price of Rs. 1/-, what ever its market value, is not a sale by public auction within the meaning of Section 167, Bombay Land Revenue Code and that such a sale is void and no title could pass to the Government by reason of such a sale. In regard to the nature of auction, it was held that an auction has been described as the proceedings at which the people are invited to compete for the purchase of property by successive offers of advancing sums and a sale by auction is a means of ascertaining what the thing is worth, viz. its fair market price and if at the sale there are no bids, there cannot be a sale. In Rasbihari's case A.I.R. 1969 S.C. 1381 while exercising powers under Section 10 of the Orissa Kendu Leaves (Control of Trade) Act, the State Government of Orissa decided to invite offers of advance purchase of Kendu leaves only from persons who purchased these leaves from individual units during the previous years and who acted as purchasers without default and to the satisfaction of Government and the method of sale by open competition was given up. The Government also turned down an offer made by the petitioner in that case. In these facts and circumstances, it was held that the action of the Government was not valid in law and the fundamental rights of the petitioner were violated. The aforesaid four decisions cited by the learned Counsel for the petitioner are of little assistance. In Satyanarayan Sinha's case A.I.R. 1973 S.C. 2720, it was observed as follows-.In respect of persons who are strangers and who seek to invoke the jurisdiction of the High Court or of this Court, difficulty some times arises because of the nature and extent of the right or interest which is said to have been infringed, and whether, the infringement in some way affects such persons. On this aspect there is no clear enunciation of principles on which the Court will exercise its jurisdiction.

In England also the Courts have taken the view that when the application is made by a party or by a person aggrieved the Court will intervene ex debito justitiae, in justice to the applicant, and when it is made by a stranger the Court considers whether the public interest demands its intervention. In either case it is a matter which rests ultimately in the discretion of the Court....

Here, it will be pertinent to excerpt the following from J.M. Desai's case A.I.R. 1976 S.C. 578:

While a Procrustean approach should be avoided, as a rule, the Court should not interfere at the instance of a 'stranger' unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests....

Assuming that the petitioner is a stranger, still I am not satisfied that there are exceptional circumstances which would justify the issue of writ of certiorari at the instance of the petitioner.

11. It, therefore, follows that no right of the petitioner has been affected and as such, he has no locus standi. He is neither a party nor a person aggrieved or affected and consequently his writ petition is not maintainable. The preliminary objection raised by the learned Counsel for respondents Nos. 3 and 4, thus, prevails.

12. In view of the above conclusion, I need not go into the merits of the writ petition.

13. From 'he discussion made here in above, it is clear that the writ petitioner has no locus standi to maintain the writ petition. It is, accordingly dismissed without any order as to costs.


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