Rajasthan High Court - Jaipur
Ramesh Chandra And Ors. vs State Of Rajasthan And Ors. on 28 January, 1999
Equivalent citations: 2000(1)WLC447, 1999(1)WLN156
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. The instant writ petition has been filed for quashing the orders dated 25.1.1988 (Annex. 4 and Annex. 5) passed by the Collector, Churu whereby the allotments made in favour of the petitioners were disapproved and the appeal against the order dated 27.5.87 filed by Durga Dutt under Sub-section (12) of Section 170 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as the Act of 1959) was allowed.
2. Briefly stated the facts as averred in the writ petition are that the State Government in exercise of the powers conferred under the Rajasthan Land Revenue Act, placed Nazul lands lying within Churu City at the disposal of the Municipal Council, Churu vide Notifications dated 8.10.1959 and 8.3.1961. In pursuance of the aforesaid notifications after demarcating the Nazul lands situated towards the east of the Government Rest House and towards the south of Lohia College ground, the Municipal Council, Churu sold 24 plots for shops shown in the plan Ex. 1, by way of public auction. The public auction was conducted on 28.8.1969 in which the petitioners were the highest bidders of their respective plots. After auction the Municipal Council, Churu executed registered sale deeds in favour of the petitioners in respect of their respective plots. Thereafter the petitioners applied for permission for construction of shops before the Municipal Council which was granted to them vide order dated 27.5.1987 (Annex. 3).
3. Against the order dated 27.5.1987 (Annex.3), granting permission to the petitioners to construct their shops, one Durga Dutt (respondent No. 4) filed an application under Sub-section (12) of Section 170 of the Act of 1959 before the Collector, Churu which was allowed as indicated above.
4. After service of notice a joint reply has been filed on behalf of answering respondents No. 5 to 10 denying the averments made in the writ petition. It is categorically stated in paragraph 3 of the reply that the disputed land is a part of public way situated near Government Rest House and towards the South of Lohia College Ground. The aforesaid Lohia College Ground is the public place where all big and general meetings are held including the election meetings and all big public functions. Out of total area of disputed land, 60 ft. of land is used for egress and ingress of the general public for all ceremonial purposes like Dashehara, 15th August, Republic Day functions and Goga fair. Besides the above, it is averred in the reply that this ground is used as a regular play ground and tournaments are also held. Therefore, every members of public passes and repasses over this whole 60 ft. width way and with the increasing population, sometimes congestion does take place on this road. It is also averred in the reply that a pucca stage has also been constructed by the PWD on this ground. It is averred in the reply that looking into these necessities the Municipal Council has no right to put this land for auction and thereafter to hold the auction without approval of the Collector as envisaged under Section 80 of the Act of 1959.
5. It is further stated in the reply that when some of the persons, who participated in the bidding held by Municipal Council, Churu, for settlements of lands for shops after getting patta started to raise construction it was objected and it necessitated respondent No. 9 namely Ram Chandra along with four other transferees to file a civil suit for permanent injunction before the learned Munsif and Judicial Magistrate 1st Class, Churu which was dismissed on 23.11.1993. A copy of the judgment dated 23.11.1993 has been filed along with the reply and marked as Annex. R/7.
6. I have heared learned Counsel for the petitioners Mr. N.S. Acharya and learned Senior Advocate Mr. D.S. Shishodia assisted by Mr. H.L. Kela appearing for answering respondents No. 5 to 10 as also Additional Govt.-Advocate Mr. D.R. Bohra, appearing for respondents No. 1 and 2 and carefully gone through with the materials available on the record.
7. At the first instance, it is urged by learned Counsel for the petitioners Mr. Acharya that the Collector Churu has no jurisdiction to disapprove the allotments and sales made by Municipal Council, Churu in favour of the petitioners.
8. The aforesaid argument of learned Counsel for the petitioner is liable to be rejected in view of the averments made in paragraph 2 of the writ petition itself to the effect that the disputed land was Nazul land, lying within the Churu city and by the notifications dated 8.10.1959 and 8.3.1961 it was placed at the disposal of the Municipal Council. It is to be imbibed that under Section 80 of the Act of 1959 there is a description of two kinds of land, one belonging to the Municipal Council and another belonging to the State Government but placed at the disposal of the Municipal Council. Since in the present case, land in dispute was a Nazul land belonging to the State Government and it was simply placed at the disposal of Municipal Council, Churu therefore, the Municipal Council Churu is not entitled to transfer the land in dispute without approval of the Collector, Churu. To my mind any transfer made by Municipal Council, Churu of Nazul land belonging to the State without approval of Collector is void ab initio.
9. The next contention of learned Counsel for the petitioners is that the land in dispute is not a public street as held by the Collector, Churu in his impugned orders Annex. 4 and Annex. 5. Suffice it to say in this regard that whether the land in dispute is a part of public way or it is a land used for many public purposes as averred in the reply is disputed question of fact which cannot be gone into under the limited scope of Article 226 of the Constitution.
10. Taking into account the totality of the facts and circumstances of the present case, I am of the view that where public interest is pitted against individual interest, it is public interest which is to be given top priority.
11. It is pertinent to observe here that along with the reply the answering respondents have placed on record Annex. R/10, a certified copy of the judgment dated 5.10.1995 passed by Additional Commissioner, Bikaner Division which reveals that against the impugned order passed by the Collector, Churu on 25.1.1988, two revisions bearing revision number 43/92 and 44/92 were filed in which the present petitioner No. 1 was arrayed as respondent No. 8, petitioner No. 2 was arrayed as respondent No. 5, petitioner No. 3 was arrayed as respondent No. 15 whereas petitioner No. 4 was arrayed as respondent No. 7. It is borne out from perusal of the order passed by Additional Commissioner, Bikaner Division that after hearing both the parties, the orders impugned Annex. 4 and Annex. 5 were affirmed by him in exercise of his powers under Section 300 of the Act of 1959. It is shocking to note that the petitioners in the present writ petition did not disclose this fact that the orders dated 25.1.1988 Annexures 4 and 5 passed by Collector Churu which are being challenged in the present writ petition were challenged by way of filing two revisions mentioned hereinabove before Additional Divisional Commissioner, Bikaner under Section 300 of the Act of 1959 after impleading them as parties. Thus judgment dated 5.10.1995 (Annex.R/10) has also attained finality against the petitioners which they have deliberately and wilfully avoided to disclose in the present writ petition.
12. Lastly, it is contended by learned Counsel for the petitioners that the power of cancellation of transfer was conferred on all the Collectors of Rajasthan State under Section 80 of the Act of 1959 vide Amendment Act No. 21 of 1974 published in the Rajasthan Gazette Extraordinary Part IV (ka) dated 21.9.1974 therefore, in the present case the Collector has no jurisdiction to pass the impugned order, canceling the transfer and allowing the appeal filed under Sub-section (12) of Section 170 of the Act of 1959. It is also urged by Mr. Acharya learned Counsel for the petitioners that once the petitioners had participated in the auction and they were held to be highest bidders, a right had accrued to them which cannot be taken away from them otherwise than in accordance with law.
13. The aforesaid argument of the learned Counsel for the petitioners has no substance. A close scrutiny of legislative history of Section 80 of the Act of 1959 leads towards an irresistible conclusion that on the relevant date prior to amendment of Section 80 of the Act of 1959 all the Collectors of Rajasthan were empowered to approve or disapprove a transfer made by a Municipal Council of Nazul land belonging to Government. Any transfer of Nazul land belonging to State Government without approval of Collector is held to be void ab initio. It goes without saying that in the present case Municipal Council had transferred the Nazul land in favour of the present petitioners without approval of Collector, Churu, therefore, after disapproval of transfer by Collector, Churu under Section 80 of the Act of 1959 it cannot be argued that the petitioners are being deprived of their rights of property otherwise than in accordance with law. In fact, property right has been dethrone from fundamental rights after the Forty Second amendment in the Constitution. In the present case no property right accrued to the petitioners simply because they were the highest bidders of the plots allotted to them by Municipal Council, Churu for constructing shop without approval of Collector, Churu within the meaning of Section 80 of the Act of 1959 as is stood on the date of auction. The transfers made in favour of petitioners by Municipal Council, Churu in contravention of Section 80 of the Act of 1959 is held to be void ab initio.
14. It is held that wherever any person in a writ petition is found to be guilty of concealment of material facts, such petitions are liable to be dismissed without further ceremony on the ground of material concealment itself. Here in the case on hand against the impugned orders Annex. 4 and Annex. 5 dated 25.1.1988 two revision petitions under Section 300 of the Act of 1959 were preferred in which the present petitioners were arrayed as respondents which were dismissed by the Additional Commissioner, Bikaner Division on 5.10.1995 (Annex.R/10) but this fact has not been disclosed by the petitioners in their writ petition and as such they are held to be guilty of conealment of material facts.
15. As regards cancellation order Annex. 4, suffice it to say in this regard that the Collector, Churu, has declined to approve the transfers of Nazul land in favour of the petitioners for 99 years. Once Collector, Churu declined to give his approval to the lease for 99 years executed by the Municipal Council, Churu its conciliation follows as a consequence.
16. This Court takes judicial notice of the fact that nowadays filing of false affidavits and concealing material facts in affidavits filed in support of writ petitions are gaining grounds. This tendency deserves to be curbed with iron hands by dismissing the writ petition on this ground alone with special costs. As the petitioners are found in the present case guilty of willful and deliberate material concealment, therefore, they deserve to be saddled with special costs amounting to Rs. 20,000/- to curb the tendency of deliberate and willful material concealment of facts in a writ petition. Out of Rs. 20,000/- of costs assessed in the present petition, each of the petitioner is to pay Rs. 5,000/- as costs to contesting respondents No. 5 to 10.
17. For the reasons stated hereinabove the instant writ petition lacks merit and it is hereby dismissed with special costs assessed at Rs. 20,000/-making it payable as indicated in the preceding paragraph of this order.