Rajasthan High Court - Jodhpur
S.B. Civil Writ Petition No.803/1998 vs . on 20 February, 2015
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:ORDER:
S.B. CIVIL WRIT PETITION NO.803/1998
LRs. of Late Sagar Mal
Vs.
Board of Revenue & Ors.
Date of Judgment :: 20.02.2015
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Sunil Beniwal, for the petitioner.
Mr. O.P. Boob, Govt. Counsel, for the respondents.
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BY THE COURT:
This writ petition is directed against the judgment dated 01.02.1996 passed by the Board of Revenue, Ajmer ('the Board'), whereby the revision petition filed by the respondents under Section 84 of the Rajasthan Land Revenue Act, 1956 ('the Act of 1956') against the order of the Revenue Appellate Authority (Second), Jodhpur ('the RAA') dated 13.01.1989 has been accepted.
Sagar Mal was allotted a strip of land by the Municipal Board, Kuchaman City vide a resolution dated 20.07.1984, the permission to sell the land was granted on 28.05.1985, demand in this regard was raised on 01.07.1985 and the amount of demand was deposited on 06.07.1985 and 19.09.1985, whereafter, the permission to raise construction was granted on 20.09.1985; a Patta dated 30.10.1985 was issued by the Municipal Board, which was registered on 02.11.1985. 2
In the meanwhile, on a complaint dated 21.09.1985, made by the Dy. Engineer, Public Works Department, Kuchaman City ('the Dy. En.') to the Assistant Engineer, Public Works Department, Nawa (Nagaur) ('the Asst. En.') alleging trespass within the limits of the road and construction, a notice was issued to the petitioner under Section 91 of the Act of 1956 to show cause; the petitioner produced material regarding the resolution passed by the Municipal Board, the sale permission, the demand raised and the amount deposited by the petitioner. The Asst. En. Found that by Notification dated 19.12.1968, all the Municipalities were bound not to lease out, sale or transfer land to the extent of 15 meters on both sides on State Highway. The authority further found that the petitioner has trespassed on the land and despite the fact that the land does not belong to Municipal Board, he was bent upon raising construction and that as the land belongs to the PWD directed demolition of the construction raised by the petitioner by his order dated 18.11.1985.
Feeling aggrieved, the petitioner filed appeal under Section 75 of the Act of 1956 before the District Collector, Nagaur ('the Collector'), the appeal came to be rejected by order dated 01.09.1986 on the Collector coming to the conclusion that the land could not be transferred by the Municipal Board.
The second appeal under Section 76 of the Act of 1956 was filed by the petitioner before the RAA, who by his order dated 13.01.1989, came to the conclusion that the construction was raised after seeking permission and, therefore, it was 3 expected of the Asst. En. to first get the transfer cancelled, without which, the procedure under Section 91 of the Act of 1956 could not be justified and allowed the appeal and set aside the orders passed by the Asst. En. and the Collector.
The State preferred revision against the order dated 13.01.1989 before the Board, the Board after condoning the delay, came to the conclusion that the Municipal Board had no right to dispose of the land as it did not have any legal title to the same and any action of the committee, therefore, in disposing of the land is void and does not confer any legal title on the purchaser and allowed the revision and set aside the order passed by the RAA.
It is submitted by learned counsel for the petitioner that the Board was not justified in allowing the revision, inasmuch as, the title of the land was admittedly vesting in the Municipality and the Municipality had issued Patta dated 30.10.1985, which was registered on 02.11.1985 and the order under Section 91 of the Act of 1956 was passed by the Asst. En. on 18.11.1985 and on the said date, it cannot be said that the petitioner was a trespasser as he was holding a valid registered lease-deed (Patta) in his favour and, therefore, the Board was not justified in setting aside the reasoned order passed by the RAA. It was also submitted that power under Section 91 cannot be exercised qua Abadi land and it is only the Tehsildar, who is empowered to exercise jurisdiction under the said Section and it cannot be said that the Asst. En. had any power to exercise jurisdiction in this regard. It was further submitted that subsequent to the filing of 4 the writ petition, a by-pass has been constructed and the reason for exercise of jurisdiction about obstructing the State Highway, do not survive any more and has produced a communication from the Executive Engineer, PWD, Division Kuchaman City, indicating that a by-pass from Kuchaman City for Kishangarh via Kuchaman City-Hanumangarh Mega Highway is in operation.
Learned counsel for the petitioner with reference to the photographs produced alongwith the writ petition also contended that the construction of the petitioner was singled out under Section 91 of the Act of 1956 and it cannot be said that the building line has been disturbed by the construction of the petitioner as certain other constructions beyond the petitioner's building line are already in-existence.
Reliance was placed on judgment of this Court in Smt. Bachan Kaur & Anr. v. Executive Engineer, RCP & Anr.:1978 WLN (UC) 211.
Learned counsel for the respondents-State duly supported the judgment passed by the Board. It was submitted that the land in question could not have been allotted to the petitioner as the same was part of the road and as the allotment itself was bad in law, no right accrued in favour of the petitioner and, therefore, the authorities below were justified in ordering for removal of the petitioner's construction under Section 91 of the Act of 1956.
I have considered the rival submissions.
It is not in dispute that the petitioner had applied for a strip of land and the Municipal Board after undertaking the 5 required procedure i.e. passing of the resolution by the Board, issue of sale permission and on deposit of the amount, issued Patta dated 30.10.1985, which was registered on 02.11.1985 and based on the permission by the Municipal Board, the petitioner raised construction.
It appears that as soon as the petitioner started raising construction, a report in this regard was made and procedure under Section 91 of the Act of 1956 were initiated. The relevant provisions for exercise of jurisdiction reads as under:-
"Sec. 91. Unauthorised occupation of land - (1) Any person who occupies or continues to occupy any land without lawful authority shall be regarded as a trespasser and may be summarily evicted therefrom by the Tehsildar at any time of his motion or upon the application of a local authority at whose disposal such land has been placed and [any crop standing, or] any building or other construction erected, or anything deposited on such land shall if not removed within such reasonable time as the Tehsildar may from time to time fix for the purpose be liable to be forfeited to the State and to be disposed of [in the case of any such crop in the manner he thinks fit and in other cases] as the Collector may direct:
Provided that the Tehsildar may, in lieu of ordering the forfeiture of any such building or other construction, order the demolition of the whole or any part thereof."
Further provisions of Section 95 of the Act of 1956 deals with Abadi land. The relevant provisions in this regard reads as under:-
"Sec. 95. Development of abadi. - (1)...................... .................................................................................................. (2) No person shall occupy any land in the 'abadi' area and without first paying therefor such sums by way of premium as may be fixed under this Act.
................................................................................................... ................................................................................................... ................................................................................................... (6) Any person who after the commencement of this Act occupies any land in the abadi area otherwise than in accordance with the provisions of sub-section (2) or any rules made under sub- section (1) or without proper authority makes any 6 construction on such land separately or by way of extension of a previously existing building or construction of his adjoining land or who after such commencement makes otherwise than under proper authority any construction on any land referred to in sub-section (5) or on such land and other land in his occupation lawfully or otherwise shall be regarded as a trespasser and dealt with as if he were a person occupying or continuing to occupy land without lawful authority.
(7) The provisions of Section 91 shall apply to the person, land and construction referred to in sub- section (6);
Provided that-
(i) The powers exercisable by a Tehsildar under sub-sections (1), (2), (3) and (4) of Section 91 shall be exercised by him in the case of any land in the abadi or any land set apart for free pasturage of cattle or for development of abadi or for any other public or municipal purpose, which has been placed at the disposal of a local authority [under Section 102-A] or otherwise upon application made to him by such local authority [or suo motu, and where the Tehsildar proposes to act suo motu, he shall give notice of such intention to the local authority concerned];
(ii) the assessment and penalty imposed under these sub-sections upon the trespasser shall be credited to the fund of such local authority; and
(iii) the powers exercisable by a Tehsildar under sub-section (5) of Section 91 shall be exercised, in case of any such land placed at the disposal of a local authority as aforesaid, by such local authority itself without the approval of any officer."
The proviso (i) to Sub-section (7) of Section 95 of the Act of 1956 provides that the power under Section 91 of the Act of 1956 exercisable by a Tehsildar can be exercised by him for any land in the Abadi even suo motu subject to requirement that where the Tehsildar proposes to act suo motu, he shall give notice of such intention to the local authority concerned.
It would be noticed from the order dated 18.11.1985 (Annex.-1) passed by the Asst. En. that a notice dated 04.10.1985 was sent to the Municipal Board regarding the 7 proceedings proposed by the authority. Therefore, the plea raised by counsel for the petitioner that the land in question being Abadi, the provisions under Section 91 of the Act of 1956 could not have been initiated has no basis.
So far as the plea raised by the counsel for the petitioner that the Asst. En. was not authorized to initiate proceedings as a Tehsildar under Section 91 of the Act of 1956 is concerned, it would be seen that the order dated 18.11.1995 is titled as "अज अद लत सह यक अभ यनत स .न .व ., ( ग र)", which clearly indicates a prima facie authority. Further the said aspect was not raised by the petitioner before any of the authorities below and not even in the present writ petition, the argument that a legal plea can be raised at any stage cannot be countenanced as whether the order was passed by the Asst. En. based on any authority under the law, the other side cannot be taken by utter surprise after lapse of almost 30 years.
Section 2 (44) of the Rajasthan Tenancy Act, 1955 defines trespasser as under:-
"Sec.2 (44) "Trespasser" shall mean a person who takes or retains possession of land without authority or who prevents another person from occupying land duly let out to him."
The requisite for alleging the person to be trespasser is that the person must take or retain possession of land without authority.
Further Section 91 of the Act of 1956 indicates that any person, who occupies or continues to occupy any land without lawful authority is regarded as trespasser and, therefore, the requisite condition for exercise of power under Section 91 is the 8 fact as to whether the person is in occupation under any lawful authority.
In the present case, the petitioner has placed reliance on the Patta issued by the Municipal Board in his favour, for indicating his lawful authority to remain in possession.
However, provisions of Rule 22 of the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 ('the Rules of 1974') provides as under:-
"22. Reservation of land on either side of National and State High way. - Following lands vesting in and belonging to the Board shall be reserved in the public interest :-
(1) Land laying within 100 feet on both sides or centre line of any national highway when passing through the Municipal limits.
(2) Land laying within 50 feet on both side from centre line of any State highway falling within the Municipalities and maintained by the PWD of the State and/or the Board, provided that land so reserved shall neither be sold, leased or otherwise transferred nor shall be let out to any person by Board."
(Emphasis supplied) The Sub-rule 2 of Rule 22 of the Rules of 1974 clearly stipulates that the land reserved on either side of National and State Highway shall neither be sold, leased or otherwise transferred nor shall be let out to any person by the Board.
The action of the Municipal Board in allotting/transferring the strip of land to the petitioner, which admittedly falls within the area prohibited under Rule 22 of the Rules of 1974 cannot be said to be valid transfer and the same therefore does not confer a lawful authority on the petitioner to remain in possession of the land in question. The Asst. En. had issued notice to the Municipal Board on 04.10.1985 and besides the fact that nobody 9 appeared before the Asst. En., the Patta was issued on 30.10.1985 and was registered on 02.11.1985 apparently ignoring the pending proceedings under Section 91 of the Act of 1956, which had already been initiated by the authority.
In view thereof, it cannot be said that the petitioner was in possession under any lawful authority.
So far as the judgment of this Court in Bachan Kaur (supra) is concerned, this Court relied on earlier judgment in Asharam & Anr. v. Union of India, wherein based on the fact that the property vested in the custodian and was alloted by the managing officer held that a person cannot be regarded as trespasser.
As in the present case, it has been found that the Municipal Board has no right under provisions of the Rules of 1974 to execute the lease/transfer of the strip of land falling within the 50 feet of the State Highway, it cannot be said that the transfer was valid and, therefore, the judgment has no application.
So far as the submissions made by learned counsel for the petitioner regarding by-pass having been constructed, and that the construction is within the building line, the submissions are of no consequence as the land admittedly falls within the 50 feet of the centre of the road.
The Board while deciding the revision observed as under:-
"5. I considered the arguments of the learned counsels for the parties and examined the record. Government vide notifications of 21.6.67 and 19.12.68 has mandated that 15 meters land on either side of State Highway, passing through a town is held by the Municipality as trustee and that it has to be maintained by P.W.D. The land in question is admittedly within this prescribed limit and hence on this plot, the Municipality was a trustee and the 10 P.W.D. was responsible for its maintenance and upkeep. As trustee, it was incumbent on the Municipality to perform duties as per the trust reposed in it. It is the duty of Municipality to ensure that the roads are kept open for people to use conveniently and that due to construction hazards are not caused to those using the public highways. By selling the land within the prescribed limit, the Municipality has committed a breach of trust which had been reposed in it on behalf of the society by the government. It can by no strech of imagination be inferred that this land was exclusive property of the Municipality because by the trust clause, a duty had been cast on this body to ensure its upkeep and the right of disposal had been scrupulously denied. Accordingly, the Municipality had no right to dispose of the land as it did not have any legal title to the same. Any action committed, therefore, in disposing of the land is void and does not confer any legal title on the purchaser. Since the P.W.D. were required to ensure maintenance of road within the prescribed limits, the action taken by the Asstt. Engineer is in accordance with the duty cast on his department."
The above finding recorded by the Board cannot be faulted.
In view of the above discussion, the judgment passed by the Board does not call for any interference by this Court.
Consequently, there is no substance in the writ petition and the same is, therefore, dismissed.
No order as to costs.
(ARUN BHANSALI), J.
PKS