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Ganesh Mal Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberD.B. Special Appeal No. 153 of 1979
Judge
Reported in1979WLN(UC)508
AppellantGanesh Mal
RespondentThe State of Rajasthan and ors.
DispositionAppeal dismissed
Cases ReferredIn Rasbihari v. State of Orissa
Excerpt:
.....equal to rs. the minister, who was seized of the matter, considered the compromise as fair fur the state government as well as for the board, and the respondents and, consequently ordered that as settled between the board and the respondents, the dispute with respect to the land may be finally settled. gaz by the respondents in respect of the land in question was not consideration for sale but was a consideration for the compromise for the compromise by which the state government as well as the board recognised the respondent' title to the land in dispute on the basis of the sale-deed executed by the bhambhis the result would not have been different if on the (institution of a suit by the board or the respondents a similar compromise had been submitted before the civil court. 7/-,per sq..........the petitioner filed the present writ petition on april 23, 1979, alleging that the order of the state government dated december 8,1978, (marked ex 3) is illegal and without jurisdiction in as much as the state government had no authority to direct sale of the land in favour of the respondents in disregard of the earlier decision of this court in s.b. civil writ petition no. 359 of 1971. it was stated that the petitioner is a voter and a tax payer within the limits of the municipal board, bhinmal, and was prepared to give a bid of rs. 200/-, per sq.gaz if the land was sold by public auction as required by law.5. the writ petition was opposed by all the respondents including kesbri mal and ganpat lal inter alia on the preliminary ground that the petitioner had no locus standi to.....
Judgment:

C.M. Lodha, C.J.

1. This is a special appeal under Section 18 of the Raj. High Court Ordinance against the judgment by a learned Single Judge of this Court dated September 13. 1979, in S.B. Civil writ Petition No. 672 of 1979, where by the learned Single Judge dismissed the writ petition filed by the appellant against the respondents.

2. The case has a chequered history and this its third inning to this Court. The facts giving rise to the writ petition are as follows : There is a plot of land measuring about 334 Sq Gaz (1 Sq Gaz :4 Sq ft) situated at Badlonwala Choraya, in the town of Bhinmal. A big building on a part of this plot was admittedly constructed by respondents No. 3 Kesbrimal and his son respondent No. 4 Ganpat Lal (who will hereinafter be referred to as respondent) some time in the year 1970-71. The construction is alleged to be worth Rs. 2 1/2 lakhs by the respondents whereas the estimated value of the construction according to the appellant is about a lakh & a half. It appears that some Bhambhis (members of Scheduled Caste) had taken possession of this land many years ago and built their huts on it. They claimed to be its owners by virtue of their long and uninterrupted possession. The respondents made application before the Municipal Board, Bhinmal, on April 9, 1957, that Bhambhis were taking undue advantage of their possession over the Government land as they were trying to sell it to Mahajans of Bhinmal and get other Government land for their residence. They also stated that they were prepared to purchase this land at the rate of Rs. 2/-, per square Gaz. About an year after, on March 14, 1958, the respondents themselves obtained two registered sale-deeds in their favour in respect of this land from Bhambhis. One was for 4477 1/2 Sq. Gas for a consideration of Rs. 10,000/-, and the other for 494 Sq. Gaz for Rs. 1500/-. Having come to know of this fact, the Municipal Board. Bhinmil, ordered on April 10, 1958, that since the Bhambhis had only a limited right to the land in dispute and the sale by them was unauthorised, proceedings may be taken under Section 130 of the Rajasthan Town Municipalities Act, 1951, for removal of encroachment made by the said respondents on the land in question. Thereupon, the respondents moved an application before the Collector, Jalore, under Section 195 of the Act of 1951 for suspending the execution of the order of the Municipal Board, Bhinmal. But, by his order dated July 8, 1958, the Collector, Jalore, rejected the respondents' application. Against the Collector's order, the respondents filed a revision application before the Government of Rajasthan, which transferred the same to the Commissioner, Jodhpur, who by his order dated February 5, 1959, allowed the revision application holding that the Municipal Board, Bhinmal, was not justified in asking She respondents to remove the building material from the land in question till the Municipality got the question of title to the land in question determined by a competent court. After seven years of the order of the Commissioner, the respondents mida an application to the Municipal Board to grant them permission for raising construction on the land The Board, however, by its order dated January 14, 1966 refused the permission and further directed that the encroachment made by them on the land be removed Aggrieved by the order of the Board, the respondent filed two separate appeals before the Collector, Jalore, one in respect of permission for construction and the other In respect of direction to remove encroachment. The appeal regarding permission for construction was refused by the Collector on October 24,1967, but by a separate order of the same date the Collector stayed the operation of the Board's order directing dispossession of the respondents from the land. Dissatisfied by the Collector's orders dismissing their appeal in respect of permission for construction, the respondents filed appeal before the Government and also a writ petition before 'his Court. The writ petition was registered as No. 104 of 1966. The Government allowed the appeal on November 7, 1966, and consequently, the respondents withdrew the writ petition filed by them on November 11, 1966 The matter did not rest here & again on March 12, 1967, the Municipal Board resolved to serve a notice upon the respondents to vacate the land in question in pursuance of its earlier resolution dated November 4, 1966.

3. The appellant's case is that on March 15, 1967, the Board's order was executed and the building material of the respondents lying on the plot was removed from the site. There appears to be a dispute between the parties whether in fact the respondents were dispossessed from the plot on March 15, 1967. The respondents' case is that they were never dispossessed whereas the appellant's case is that were once dispossessed but again took possession and, therefore, a fresh notice was issued to them on May 6, 1968, but by its resolution dated December 16, 1968, the Board decided to compromise the matter with the respondents by selling away the land to them at the rate of Rs. 7/-, per square Gaz. The resolution was, however, not given effect to. Meanwhile since the proceedings had been submitted by the Collector under Section 285 of the Rajasthan Municipalities Act, 1959 (which will hereinafter be referred as the Act of 1959) to the Government of Rajasthan, the Minister Incharge, Local Self Government by his order dated August 5, 1970, directed that in order to put an end to the whole dispute, the land may be sold to the respondents at the rate of 21 P per Sq. Gaz. In accordance with the direction of the Minister, Administrator, Municipal Board executed the sale-deed on October 26, 1970. But thereafter when the elected Board came into existence, it filed a writ petition in (his Court against the order of the Minister dated August 5, 1970, which was registered as S.B. Civil Writ Petition No. 359 of 1971. The writ petition was decided by a Single Bench on September 14, 1973. The learned Judge held that the Government's order dated August 5, 1970, directing sale of the land to the respondents was not valid. Consequently, he set aside the order of the Minister dated August 5, 1970, and also the tale of the land by the Administrator, Municipal Board, Bhirmal, to the respondents in pursuance thereof. Aggrieved by the decision of the learned Single Judge the respondent filed Special Appeal before a Division Bench of this Court which was registered as D B. Special Appeal No. 261 of 1978, but the Special Appeal was dismissed. The Division Bench, however, directed that the patties we old be relegated to the position as it existed on October 24, 1967, i e. the Collector's order staying the operation of the Bond's resolution dated March 12, 1967, under Section 285(1) of the Act of 1959. When the matter again came up before the Government under Section 285 (2) of the Act of 1959, a compromise petition was submitted before the Minister on behalf of both the parties stating that it had been agreed between the Board and the respondents that the land measuring 5344 Sq. Gaz may be allowed to remain with the respondents provided they paid its price at the rate of Rs. 7/- per Sq. Gaz, On the basis of the aforesaid compromise the Government by its order dated December 8, 1978, adopted the compromise and set aside the order of the Board directing dispossession of the respondents hum the land is dispute. In other words, the Collector's recommendation dated October 24, 1967, was accepted under Section 285(2) of the Act of 5959. This is how the long drawn battle between she Board and the respondents came to an end. But even then, all was not well with the respondents.

4. The petitioner filed the present writ petition on April 23, 1979, alleging that the order of the State Government dated December 8,1978, (marked Ex 3) is illegal and without jurisdiction in as much as the State Government had no authority to direct sale of the land in favour of the respondents in disregard of the earlier decision of this Court in S.B. Civil Writ Petition No. 359 of 1971. It was stated that the petitioner is a voter and a tax payer within the limits of the Municipal Board, Bhinmal, and was prepared to give a bid of Rs. 200/-, per Sq.Gaz if the land was sold by public auction as required by law.

5. The writ petition was opposed by all the respondents including Kesbri Mal and Ganpat Lal inter alia on the preliminary ground that the petitioner had no locus standi to maintain the writ petition. After hearing the learned Counsel for the parties, the learned single by his order dated September 13. 1979, upheld the preliminary objection and dismissed the writ-petition. Hence, this special appeal.

6. We have heard the learned Counsel for the parties at length on the question of maintainability of the writ petition by the appellant. It may be pointed out that even according to the appellant himself he has figured in this long drawn out litigation for the first time by filing this writ petition. He was not a party to this dispute at any stage of the litigation right from April 9, 1957 when the respondents Nos. 3 and 4 applied for the first time to she Municipal Board for getting this land upto the date of filing of the writ petition. It is an admitted case of the appellant himself that the land belongs to the State Government and is a 'Nazul land' and he has no right, title or interest in it except that of a prospective bidder, if the land were auctioned. His sole contention is that the 'Nasul land' could not have been sold to the respondent by private sale but it should have been put to auction thereby giving opportunity to the public at large to give bid. According to him, the land had been sold away for a very low price thereby causing loss to the State exchequer. Mr. Hasti Mal, on behalf of the appellant has strenuously contended that by the judgment of this Court dated September 14, 1973, the respondents were left free to establish their title to the land on the basis of the sale-deeds executed in their favour by the Bhambis but the Municipal Board could not have sold it away in the garb of a compromise and the Government could not have directed sale of the land in favour of the respondents in defence of the order of this Court in S.B. Civil writ petition No. 359 of 1971. It is argued that it is not a dealing between private parties but a dealing between the State Government through the Municipal Board and a private citizen and, therefore, different considerations would apply. Ha has pressed upon us that even though the petitioner may have no personal or individual right in the land in question, yet as it is a public property and he is interested in purchasing it by giving a bid, the writ petition is maintainable by him In support of his contention, the learned Counsel has relied upon Raman v. I.A. Authority of India AIR 1979 SC 1928 Ramrao v. State of Bombay 0043/1962 : [1963]48ITR108(SC) Rasbihari v. State of Orissa : [1969]3SCR374 and Guruswamy v. State of Mysore : [1955]1SCR305

7. It may be pointed out that the respondents derived title in respect of the land in question by virtue of the sale-deeds In their favour by the Bhambhis It is pertinent to point out that even the learned Single Judge, while deciding writ petition No. 259 of 1971, observed that he would refrain from examining the validity and effect of the two sale-deeds which Keshri Mal (respondent No. 3) had obtained from the Bhambhis on March 14, 1958, & the party concerned would net get the matter abjudicated in the competent court of law, if so advised. When the matter was brought in special appeal, the learned Judges constituting the D. B. also observed that nothing stated by the learned Single Judge in the order appealed from would prejudice the right, title and interest of Keshri Mal with respect to the land in dispute nor the decision in the writ petition would operate to the prejudice of the Municipal Board, Bhinmal, to take recourse to such legal remedy as may be avail-able to it under the law. Thus, it is clear that the respondents' title to the land in question by virtue of the sale-deeds executed in their favour by the Bhambhis had not been negatived so far. The utmost that can be said against them is that it remained a disputed fact between the Board and the respondents. In the view of the matter, the respondent cannot be said to be said to be rank trespassers. All that was envisaged by the decision in the writ petition No. 359 of 1971 by the Board was that the parties may establish their respective rights in a court of competent jurisdiction. But when the matter was remanded to the Government for decision under Section 285 of the Act of 1959 by virtue of the decision of this Court in writ petition No. 359 of 1971, the Board as well as the respondents thought it fit to finally end the dispute by entering into a compromise by which it was settled that the respondents would pay an amount equal to Rs. 7/-, per Sq Gaz in respect of the land in question so that their title to the land may be recognised by the Board and the State Government and the dispute may be resolved once for all. The Minister, who was seized of the matter, considered the compromise as fair fur the State Government as well as for the Board, and the respondents and, consequently ordered that as settled between the Board and the respondents, the dispute with respect to the land may be finally settled. Thus it appears to us that the payment at the rate of Rs. 7/-, per Sq. Gaz by the respondents in respect of the land in question was not consideration for sale but was a consideration for the compromise for the compromise by which the State Government as well as the Board recognised the respondent' title to the land in dispute on the basis of the sale-deed executed by the Bhambhis The result would not have been different if on the (institution of a suit by the Board or the respondents a similar compromise had been submitted before the civil court. In this view of the matter, ft would cot be correct to say that the Municipal Board or the State Government sold away the land in question in defiance of the decision of this Court in S.B. Civil writ petition No. 359 of l971.

8. In this connection, we may also point out that even the Board in the various resolutions passed by it for removing the alleged encroachment by the respondents from the land in question had conceded that the Bhambhis had only a limited right to the land in question. Section 95(5) of the Rajasthan Land Revenue Act, 1956, provides inter alia that where at the commencement of this Act any person is in occupation of some portion of the land with limited lights he may acquire full proprietary rights over such land upon payment of such premium as may be fixed under this Act. There is some force in the respondents' contention that the payment of Rs. 7/-, per Sq Gaz for the land in question by the respondents to the Municipal Bord, Bhinmal, may in any case be considered as premium for the acquisition of full proprietary rights as the respondents had derived limited rights to the land from the Bhambhis Be that as it may, the fact remains that in order to put an end to the whole dispute the respondents compromised the matter with the State Government as well as the Board by payment of further sum in respect of the land in question at the rate of Rs. 7/-, per Sq Gaz in addition to what they bad paid to the Bhambhis This is how we are inclined to look at the matter. Neither the State Government, who is alleged to be the owner of the land, nor the Board, in whom the land is vested, nor the Bhambhis among whom the dispute arose regarding ownership and possession ever the land have made any complaint and it is only the petitioner who at this belated stage has come forward to take up an old dispute which had been amicably settled between the parties concerned.

9. There is yet another aspect of the matter which cannot be lost sight of. As already stated above, the petitioner never came forward to raise any dispute regarding the land before filing this writ even though the question with regard to its ownership had arisen as far back as April 9, 1957. It is candidly conceded on behalf of the petitioner that a huge edi6ce at a cost of about Rs. 1 1/2 lakhs bad been raised by the respondents on the land in question as far back as in the year 1970-71. As such it would be most inequitous to treat the subject-matter of dispute as an open plot of 'Nazul land'. The petitioner has no doubt come forward with an allegation that the land can fetch high price and he has offered a bid of Rs. 200/-, per Sq. Gaz in his petition but that appeals to us to be out of sheer anxiety of the petitioner to jeopardise the interests of the respondents who have invested a huge amount in raising constitution on the land That is another reason why this Court should refuse to exercise its extraordinary jurisdiction in favour of the petitioner in a matter like this.

10. Learned Counsel for the petitioner has urged that in the course of proceedings in S.B. Civil Writ Petition No. 359 of 1971, the respondents had given an undertaking that if ultimately it found that the construction has been raised on the land which does not belong to the respondents, there would be nothing to prevent the Municipal Board from, removing the construction and the respondents would not claim any compensation on that account. In our opinion, the petitioner cannot take advantage of such an undertaking given by the respondents in that case. That undertaking was in favour of the Municipal Board and if the Municipal Board does not want to keep the dispute alive, it is not for the petitioner to claim any right under such an undertaking, particularly when the Municipal Board has compromised the matter and as recognised the title of the respondents

11. The learned Counsel for the petitioner has also urged that the order passed by the Commissioner on February 5, 1959 on a revision application filed by the respondents is nonest in as much as the Commissioner had no jurisdiction in the matter. In support of this contention, the learned Counsel for the petitioner has relied upon Municipal Board, Rajgrah v. State of Rajasthan 1957 RLW 146. We are of opinion that nothing substantial turns upon the Commissioner's cider in as much as much water has flown under the bridge since the Commissioner passed the order dated February 5, 1S59 and we are at this stage mainly concerned with the order passed by the Government on Dec 8, 1978 (Ex. 3). .

12. Learned Counsel placed great reliance on Ramana v. LA. Authority of India 1957 RLW 146 (supra) in support of his contention that the petitioner has focus standi to maintain the writ petition. That was a case where the tender notice stated in clear terms that sealed tenders in the prescribed form are invited from registered Second Class Hoteliers having at least five years' experience for putting up and running a Second Class Restaurant & two Snack Bars at the Air Port for a period of three years It was held that the acceptance of the tender of the fourth respondents was invalid and was liable to be set aside as he did not satisfy the conditions for eligibility It was condended on behalf of the respondent that the appellant had no locus standi to maintain the writ petition since no tender was submitted by him and he was a mere stranger This argument was repelled by their Lordships on the ground that the appellants was differently treated and denied equality of opportunity with the fourth respondent in submitting the tender. It was observed that the grievance of the petitioner that if it were known that ton-fulfilment of the condition of the eligibility would be no consideration for a tender he also would have submitted a tender and competed for obtaining the contract, was justified in law. It was observed that It if well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. In our opinion, the rationale of that decision has no application to the facts and the circumstances of the present case. Moreover, their Lordships non-suited the appellant on the ground that the appellant bad no real interest in the result of the litigation, but had been put up by some body else for depriving the fourth respondents of the benefits of the contract secured by him. The Court observed that the writ petition was filed by the appellant more than 5 months after the acceptance of the tender and during that period the respondents had Incurred considerable expenses aggregating to about Rs. 1, 25,000/-, in making arrangements for putting up the restaurant and snack bars.

13. The learned Counsel for the petitioner contended that the action of the Municipal Board, Bhinmal, and the Government in selling away the land in question to the respondents in disregard of the rules on the subject, the 'Nazul land' could be sold only by auction, is not valid in law and the petitioner's fundamental rights have been violated. In this connection, the learned Counsel has relied upon Guruswamy v. State of Mysore : [1955]1SCR305 (Supra), Rasbihari v. State of Orissa : [1969]3SCR374 (supra), and Ramrao v. State of Bombay 0043/1962 : [1963]48ITR108(SC) (supra).

14. In Curuswamy v. State of Mysore (supra) it was observed that matters of consequence to the public revenue cannot be dealt with arbitrarily and in the secrecy of the office Whatever is done must be done under the rules or under the notification which would receive like publicity and have like force and of which the people at large would have like notice Aribtrary improvisation of an 'ad hoc' procedure to meet the exigencies of a particular case is ruled out. Similarly in Ramrao v. State of Bombay 0043/1962 : [1963]48ITR108(SC) (supra) It was held that a purchase by the Government at a revenue sale for a predetermined nominal price of Rs. 1/- of the property of defaulter whatever its market value is not a sale by public auction within the meaning of Section 167, Bombay Land Revenue Code. Such a sale is void and no title would pass to the Government by reason of such a sale. It was held that such a sale cannot be described as an auction. In Rasbihari v. State of Orissa : [1969]3SCR374 (supra) the State Government of Orissa in exercise of the powers conferred by Section 10 of the Orissa Kendu Leaves (Control of Trade) Act decided to invite offers for advance purchase of Kendu leaves only from persons who purchased these leaves from individual units during the previous year 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 these circumstances it was held that the action of the Government was not valid in law and the petitioner's fundamental rights were violated.

15. We are of opinion that the cases relied upon by the learned Counsel for the petitioner and the principles laid down therein have no application to the facts and the circumstances of the present case which we have narrated in detail. Here is a case where the title of the respondents to the land in question, which was doubted at certain stage by the Municipal Board, has been set at rest by a sort of compromise between the parties. The learned Single Judge has rightly held that the appellant has neither any personal nor Individual right In the land in question, nor can he be said to be a 'person aggrieved. In the circumstances narrated above, the learned Single Judge was justified in holding that the appellant has no locus standi to maintain the writ petition. We may also add that in any view of the matter no case has been made out for interference in the writ jurisdiction of this Court.

16. The net malt of the foregoing discussion is that we do not see any force in this special appeal and hereby dismiss it, but make no order as to costs.


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