Rajasthan High Court - Jaipur
Municipal Board vs R.R. Solanki on 29 September, 1986
Equivalent citations: 1986WLN(UC)528
JUDGMENT Kanta Bhatnagar, J.
1. This appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 has been filed against the order passed by the learned Single Judge of this Court on June 26, 1986, by which the writ of respondent-petitioner in connection with a plot purchased by him at the auction conducted by the appellant Municipal Board was allowed.
2. Appellant Municipal Board Mount Abu (hereinafter to be referred as 'the Board') under took sale of several plots by auction under the scheme 'near the Tourist Bungalow'(for short 'the Scheme'). On October 14, 1973 plots were auctioned and respondent R.R. Solanki being the highest bidder for plot No. 13 measuring 222. 14 sq. metre, was called upon to deposit 1 /4th price, which he deposited. The sale was confirmed by the Collector Sirohi by the order dated December 9, 1974 (Annexure 2). Thereafter the respondent deposited the remaining 1 /4th amount as well as the charges for demarcation. The respondent request the Board twice to give him the allottment Patta but there was no response. Then on July 2, 1976 respondent was asked to attend the office He complied with the directions but in vain. On January 22, 1977 the Executive Officer of the Board again informed the respondent to contact him on February 2, 1977. That meeting also was fruitless. He was thereafter informed that the matter has been placed in the meeting of the Board and the decision would be communicated. The respondent approached the Board time and again but to no effect. Vide letter (Annexure 9), dated August 1. 1978 the respondent was informed that by a resolution the Board has cancelled the Scheme and he may, therefore, collect the amount of Rs. 4331.73. The respondent made several representations and approached the higher authorities for the redress of his greviance. On September 5. 1980 respondent was informed that in the meeting held on July 25, 1980, it had been decided that a plot in exchange to this plot may be allotted to the respondent in Ida Lakha Scheme in case he was prepared to accept it. The respondent was directed to meet the Chairman on June 6, 1981. The respondent requested the Chairman to hand over the possession of his plot to him. At the direction of the Authorities to whom the respondent had approached, the S.D.M. asked the Executive Officer to submit the matter within three days. Ultimately on September 4, 1984 the respondent was asked by the S.D.M. to appear before him on September 12, 1984. He was then informed that if he was prepared to accept any plot in other Scheme the same may be allotted to him. It being finally decided by the Board that the only relief" that can be given to the respondent is to give in exchange another plot in another Scheme, the respondent approached this Court under Article 226 of the Constitution of India. In reply to the writ petition the appellant Board submitted that by resolution it was decided that the land in the Scheme should not be allotted to any private individual and the same should be reserved for offices and official buildings of the Government. The learned Single Judge agreed with the contention of the respondent-petitioner that the Board could not have arbitrarily cancelled by any resolution the sale of the plot which has been confirmed by the competent authority.
3. In view of his conclusion the learned single Judge allowed the writ petition as stated earlier and directed the appellant Board to hand over the possession of the plot No. 13 measuring 222.14 sq. meter to the petitioner within a period of one month from the date of the order passed by the learned single Judge. The learned single Judge however made it clear that the order passed by him would not preclude the Board to acquire the plot, if needed, in accordance with law. The petitioner was held entitled to costs Rs. 1000/-from the Board.
4. Notice was issued to the respondent. Mr. M. Mridul put in appearence on behalf of the respondent. At the request of the learned Counsel for the parties the matter was heard for final disposal at the admission stage.
5. The grievance of the appellant Board is that the learned single Judge has not taken into consideration the fact that the Scheme was cancelled for the betterment of the City. The resolution about the land not to be allotted to the private individuals and being kept for the specific purpose of constructing Government offices and buildings cannot be said to an arbitrary action. It has been emphasized that the petitioner was time and again offered another plot in exchange but he was adament to have the same plot, which it was beyond the powers of the Board to give him in view of the aforesaid resolution.
6. We heard learned Counsel for the parties and gave our anxious consideration to the material on record and the relevant law cited by the parties.
7. Mr. Mardia assailed the order the learned single Judge first of all on the ground that when the alternative remedy of filing the revision petition was available to the respondent, the writ petition should not have keen entertained. Mr. Mardia referred to Section 285 of the Rajasthan Municipal Act, 1959 (hereinafter to be referred as 'the Act') and submitted that if there was any grievance to the respondent he should have filed the revision. Mr. Mridul controverted this contention and submitted that the provisions of Section 285 of the Act are not applicable in this case because that section relates to the power of suspending the execution of the order etc. of the Board and not to matters where action has already been taken. It has also been submitted that the act being without jurisdiction the question of alternative remedy would not arise. To substantiate this contention reliance has been placed on the principles enunciated in the case of Rajnhmal v. The State 1957 RLW 370 wherein discussing the question of alternative remedy to the aggrieved petitioner it was observed that if the authority acts without laying down foundation for jurisdiction, existence of alternative remedy has no bar to issue of writ.
8. Similar principle was enunciated in the case of Collector of Customs Cochin v. A.S. Baba AIR 1961 SC 18 and it was held that it is settled that the existence of remedy by way of revision under Section 36 did not bar jurisdiction of High Court to entertain the petition under Article 226 of the Constitution. In that case the petitioner had alleged that the Collector had no jurisdiction to demand deposit as the Notification applying Section 139 was bad. It was held that it was not necessary for the petitioner to file revision.
9. Applying this principle to the facts of the present case we are inclined to hold that the learned single Judge has committed no error in entertaining the writ petition.
10. Mr. Mardia, learned Counsel for the appellant next argued that since the Town Planner and the State Government had not given sanction in accordance with law and the Municipal Board Mount Abu was required to reserve that land for Government Offices, the resolution dated July, 31, 1976 was passed and the sale of the said land to any private individual was restrained.
11. Mr. Mridul controverted this contention on the ground that the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 had come into force from December 19, 1171, while the auction had taken place on October 14, 1974, and as such the Old Rules would be applicable in this case and the sanction of the Town Planner was not required. Mr. Mardia could not convince as to bow the Rules, not in force at the time of the auction, could be made applicable in the case.
12. Mr. Mardia, next argued that the resolution of cancellation of the allottment Annexure-9 has been Passed on August 1, 1978 and the respondent, despite being informed of it in time, filed the writ petition as late as in the year 1984 and therefore, the writ petition should have been rejected outright on the ground of delay itself.
13. The point of delay was not raised before the learned single Judge and Mr. Mridul rightly urged that it being a question of fact need not be looked into in Special Appeal. Apart from it the facts of the case clearly reveal that the respondent was pursing his remedy before the Board. It is also evident that he had approached the higher authorities and directions were issued to the Board to redress his grievance. The letters by the SDM seeking information also show that the matter was in active consideration before the Board and the concerned authorities. On September 4, 1984 the respondent was asked to appear before the SDM on September 12, 1984. When the respondent was ultimately informed that in no circumstance he can be given possession and patta of the plot purchased by him in auction and all that can be done was to give him another plot in some other scheme in exchange, he having been unsuccessful at that level invoked the extraordinary jurisdiction of the Court under Article 226 of the Constitution in the year 1984. Such facts do not make the respondent guilty of laches.
14. Mr. Mardia vehmently argued that apart from the cancellation of the Scheme even the respondent was not entitled to the possession and patta because the sale was hit by Section 80 of the Act. The ground taken in the return filed to the writ petition by the Board is that the sale was hit by Section 80 of the Act and the non-petitioner appellant had the authority to cancel the allotment.
15. It is pertinent to note that that Annexure-9 only speaks of the cancellation of the Scheme. It does no where montion that the respondent was asked to get refund of the money because of noncompliance of any condition of sale or the auction not being in accordance with law. When there was no resort to Section 80 in the resolution, it does not lie in the mouth of the appellant to come with a case that the denial to entrust the possession and give the patta was not only because of the cancellation of the scheme but also because of the sale being hit by Section 80 of the Act.
16. If a document unambiguously speaks a particular fact, or action taken or the reason for taking such an action, any subsequent document or statement cannot be taken help of to show that the intention though, not expressed in the original document, was otherwise.
17. In the case of Commissioner of Police v. Gordhandas Bhanji AIR 1952 SC 86, the question arose as to whether the order passed by the authorities could be construed in the light of explanation specifically given by the officer making the order as to what he meant or was in his mind when the order was passed. In that case an attempt was made by referring to the Commissioner's affidavit to show that it was really an order of cancellation made by him and that the order was his order and not that of the Government. Their Lordships observed that public orders publicly made in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or of what was in his mind, or what he intended to do. It was further observed that public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
18. Relying on the principle enunciated in that case, their Lordships of the Supreme Court again in the case of Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi held as under:
When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.
Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.
19. The contents of Annexure-9 are specific that in consequence of the Scheme being cancelled the Board has taken the decision that the amount deposited by the respondent in connection with the plot may be refunded.
20. This being the position, we are to confine to the point as to whether it was within the power of the Board to cancel the Scheme and ask the respondent to get the refund of the money instead of the possession of the plot and the patta thereof.
21. With the confirmation of the sale the respondent had become owner of the plot in question. If the Scheme was cancelled and the Board wanted to utilise the land for any other purpose the cancellantion of the allottment was not the proper way to get back the auctione land. The learned sidgie Judge had justly made it clear that the order passed by him would not preclude the Board to acquire the plot if needed, in accordance with law.
22. Mr. Mardia could not point out any provision under which the allottment once made by way of auction and the sale having been confirmed, could have been cancelled by any resolution of the Board. The resolution Annexure-9 has therefore no validity.
23. Mr. Mridul brought an important fact to the notice of the Court in reply to the stay application filed along with this appeal. It has been slated by the respondent that whereas in Para-8 of the Special Appeal appellant has come with a case that the Board by its resolution dated July 31, 1977 resolved not to sell the land under the Scheme to any private individual, the fact is that as on December 4, 1978 a piece of land measuring 2200 sq-yds. has been allotted to the Gujrati Samaj.
24. Mr. Mardia did not dispute the fact but has tried to justify this transaction on the ground that what resolved by the Board was not to allot the land to any private individual and therefore, any sale to the Gujarati Samaj would not be in contravention of the resolution. The argument is fantastic. In Para-8 of the special appeal the case put up is that the State Government directed the Municipal Board, Mount Abu to reserve this land for Government offices and therefore, vide its resolution dated July 31, 1976 the appellant resolved not to sell this land to any private individual. In Para 10 of the return to the writ petition same stand had been taken and it was stated that on July 31, 1976 the Board took the decision that all the plots under the Scheme should not be sold private individual and the possession of these plots should not be given to any individual and that the area of land was required for Government offices and buildings.
25. If the Board is coming with a specific case that the area of land was to be reserved for Government offices and buildings, allotment to the Gujarati Samaj can not be said to be an allotment for the purpose of construction of Government Offices and buildings. In such a situation Mr. Mridul emphatically urged that the appeal should be dismissed on the ground of mis-conduct of the appellant in concealing true facts from the Court. Reliance has been placed in this connection on the principle enunciated in the case of New India Steel Industries v. V.D. Steel Industries and Anr. AIR 1968 SC 211. The misstatement of material fact by the appellant was one of the reasons for revoking the special leave petition granted earlier and dismissing the appeal arising out of that SLP.
26. In the present case the appellant Board has throughout taken the stand that the land was reserved for Government Offices and buildings and has concealed the fact of the allottment of piece of land to the Gujarati Samaj after the resolution. It is only when this fact was brought on record in reply to the stay application that Mr. Mardia, learned Counsel for the appellant admitted the fact to be true.
27. From the above discussion, it is clear that the appellant Board has not come with true facts before the Court. Apart from it, as observed above, the learned Counsel for the appellant could not convince the Court as to under what provision the Board had retained the right to cancel the allottment of the plot purchased by the respondent petitioner in auction and the sale having been confirmed.
28. We therefore concur with the conclusion arrived at by the learned Single Judge. The special appeal has no force and is hereby dismissed with costs. The costs of the appeal is fixed to Rs. 500/-.