Kamal Kishore Agarwal And Anr vs State And Ors on 23 October, 2018

[Cites 9, Cited by 0]

Rajasthan High Court - Jodhpur

Kamal Kishore Agarwal And Anr vs State And Ors on 23 October, 2018

1. This petition is directed against order dated 16.11.15 passed by the Director, Local Bodies, Rajasthan, Jaipur, whereby the revision petition preferred by the State Government questioning the legality of order dated 16.11.11 issued by the Executive Officer, Municipal Board, Nagaur (now Municipal Council, Nagaur), granting permission to the petitioners herein for raising construction of a hotel, has been allowed and the permission granted as aforesaid, has been cancelled.

(2 of 10) [CW-14441/2015]

2. The facts relevant are that the petitioners applied for conversion of their agriculture land ad measuring 3.10 bighas comprising khasra no.54/1148, situated in Nagaur, for commercial use, which was approved by the competent authority vide order dated 20.12.10. After conversion of the land, as aforesaid, the petitioners made an application to the Executive Officer, Municipal Board, Nagaur seeking permission for raising construction of a hotel as per the layout plan. The permission applied for was granted by the Executive Officer vide order dated 16.11.11 subject to the conditions incorporated therein. After obtaining the permission, the petitioners started construction of the commercial complex.

3. The petitioners' land is located near the Airstrip and thus, considering the safety issues likely to arise on account of construction of high rising building, vide order dated 16.7.12 issued by the District Collector, Nagaur, the petitioners were directed not to proceed with the construction any further till the position with regard to permissibility of the construction of high rising building near the Airstrip is clarified. Aggrieved by the said order, the petitioners preferred a suit for injunction in the Court of Additional District Judge, Nagaur accompanied by an application seeking temporary injunction. The trial court vide order dated 15.10.12 granted injunction in favour of the petitioners. Aggrieved thereby, the State preferred an appeal which was dismissed by this Court vide order dated 27.11.12. During the pendency of the suit, vide order dated 20.5.14, the District Collector, Nagaur proceeded to withdraw the order dated 16.7.12. Thereafter, an application was preferred on behalf of the State before the trial court seeking rejection of the plaint under Order VII Rule 11 CPC.

(3 of 10) [CW-14441/2015] The application was allowed by the trial court vide order dated 11.2.15, the legality whereof was questioned by the petitioners by way of an appeal being Civil First Appeal No.45/15, wherein vide order dated 12.2.15, this court granted injunction in favour of the petitioners in the following terms :-

"In the meanwhile and until further orders, the status quo as it exists today at the site about the construction of hotel building shall be maintained by the parties and the defendants shall not interfere with the construction and working of the said hotel in any manner without the leave of this Court."

The interim order passed as aforesaid, has been confirmed vide order dated 10.8.15 till the disposal of the appeal.

4. During the pendency of the appeal before this Court, the State preferred a revision petition under Section 327 of the Rajasthan Municipalities Act, 2009 ("the Act") before the Director, Local Bodies, Government of Rajasthan, questioning the legality of permission granted by the Municipal Board, Nagaur in favour of the petitioners for raising construction vide order dated 16.11.11. The revision petition has been allowed by the revisional authority vide order dated 16.11.15 and accordingly, the sanction issued in favour of the petitioners by the Municipal Board under Section 194 (5) of the Act has been cancelled, however, it is observed that the compliance of the order may be made subject to the orders passed by the Courts from time to time. Hence, this petition.

5. Learned counsel appearing for the petitioners contended that the order issued by the Municipal Board under sub-section (5) of Section 194 of the Act is appealable under sub-section (12) of Section 194 of the Act within 30 days from the date of order and therefore, the revisional jurisdiction is impliedly barred. It is (4 of 10) [CW-14441/2015] submitted that the revision petition preferred by the State Government was accompanied by an application under Section 5 of the Limitation Act, however, without issuing notices to the petitioners of the application under Section 5 of the Limitation Act, the delay was condoned by the revisional authority. It is submitted that though, no limitation is provided for exercise of the power under Section 327 of the Act, but the same has to be exercised within reasonable time and thus, the exercise of the power by the revisional authority after a lapse of 4 years of grant of permission is highly arbitrary and unreasonable. In this regard, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of State of Gujarat Vs. Patil Raghav Natha, 1969 (2) SCC 187. Drawing the attention of the Court to the injunction granted by the trial court and affirmed by the appellate court, learned counsel submitted that the petitioners had already completed the construction raised as per the sanctioned plan and therefore, the exercise of the revisional jurisdiction is ex-facie illegal and arbitrary. Learned counsel submitted that the provision regarding obtaining permission from the Town Planning Department is the matter between the Local Authority and the Department of Town Planning, Government of Rajasthan and the petitioners have no control over the same and therefore, the permission granted could not have been cancelled on the ground that before issuing the sanction, the mandatory provision regarding obtaining the approval of the Department of Town Planning is violated. In support of the contention, learned counsel has relied upon a Bench decision of this Court in Shiv Lal Vs. The Jalore Central Cooperative Bank Limited, Jalore (D.B.Special (5 of 10) [CW-14441/2015] Appeal No. 303/1985 and other connected appeals), decided on 8.9.87.

6. On the other hand, Mr. Rajesh Panwar, Additional Advocate General, contended that the order granting permission to raise construction issued by the Municipal Board, Nagaur besides being violative of provisions of sub-section (5) of Section 194 of the Act on account of the Municipal Board not obtaining the approval of the Regional Town Planner before granting permission, the order granting permission issued by the Executive Officer is illegal also for the reason that the location of building being near Airstrip, the "No Objection Certificate" (NOC) was required to be obtained from the designated authority of Airport Authority of India, which was admittedly not obtained. Learned counsel submitted that the sanction for raising construction issued beyond the permissible limit of the height of the building has rightly been set aside by the revisional authority and therefore, no interference by this Court in exercise of its extra-ordinary jurisdiction is warranted. Learned counsel submitted that the petitioners have constructed the building with 23 meters height without obtaining clearance certificate from the competent authority which is threat for safety and regularity of aircraft operation and therefore, the action of the State Government in setting aside the permission granted is absolutely justified.

7. I have considered the rival submissions and perused the material on record.

8. Indisputably, the construction of buildings in the municipal area is governed by the provisions of Rajasthan Municipalities Act, 2009 and the Building Byelaws framed by the concerned Municipality. At the same time, the construction to be raised must (6 of 10) [CW-14441/2015] conform to the Master Development Plan, Zonal Development Plan and the Layout Plan in operation in the concerned municipal area. That apart, the norms laid down, if any, putting restriction on construction of building in the specified area under the law applicable is also required to be adhered to strictly. The Municipality concerned is not empowered to sanction the building plans violating the norms laid down.

9. In the instant case, as per the averments made in the petition, the petitioners got converted their khatedari land in order to establish a commercial complex, however, according to the respondents, the land was converted for the purpose of construction of a hotel. A perusal of the sanction letter dated 16.11.11 (Annexure-1) issued by the Executive Officer, Municipal Board, Nagaur also reveals that the sanction was accorded for construction of a hotel. The order of conversion of land from agriculture to commercial use or for construction of hotel is not placed on record. Be that as it may, the fact remains that the petitioners proceeded with the construction of the building as per the plan sanctioned by the Municipal Board, Nagaur vide sanction letter dated 16.11.11.

10. It is also not in dispute that the construction of high rising building sought to be raised by the petitioners nearby the Airstrip was ordered to be stopped by the District Collector, Nagaur, till the position regarding permissible limit of height of the building as per the norms laid down by Airport Authority of India is clarified. It is also the common ground between the parties that pursuant to the injunction granted by the trial court, affirmed by the appellate court, and after dismissal of the suit, by this Court in the first appeal preferred by the petitioners against the decree passed by (7 of 10) [CW-14441/2015] the trial court, the petitioners continued with the construction of the building. According to the petitioners, the order impugned cancelling the permission granted, has been passed by the revisional authority after completion of the construction of the building as per the sanctioned plan.

11. In the first instance, the petitioners have questioned the maintainability of the revision petition preferred by the State on the ground that the order granting permission to raise construction issued by the Municipal Board under sub-section (5) of Section 194 is appealable under sub-section (12) of Section 194 of the Act and therefore, the revisional jurisdiction is apparently barred.

12. It is true that a person aggrieved by an order of the Municipality or the Committee empowered by it, or an order of the Prescribed Authority may file an appeal before the State Government or any officer authorized by it under sub-section (12) of Section 194 of the Act. But then, the State Government, if aggrieved by the order issued by the Municipal Board under sub- section (5) of Section 194 of the Act, obviously, cannot prefer the appeal under the said provision, inasmuch as, the appeal is required to be decided by the State Government itself, as appellate authority. As a matter of fact, Section 327 of the Act takes care of such situation, whereunder the State Government or any officer authorized by it in this behalf, is empowered to examine the correctness, legality or propriety of any order or resolution passed by or purported to have been passed under the Act by or on behalf of the Municipality, its Chairman, Vice Chairperson and any member or officer. Further, as per sub- section (2) of Section 327, on examining the record, the State (8 of 10) [CW-14441/2015] Government or the officer authorized may rescind, reverse or modify such order or resolution and the order of the State Government or the Officer authorized as aforesaid, shall be final and binding on the Municipality. Thus, the State Government as a revisional authority, is empowered to examine the correctness, legality and propriety of the order issued by the Municipality under sub-section (5) of Section 194 of the Act in exercise of the power conferred under Section 327 of the Act even suo-moto. In this view of the matter, the contention raised by the learned counsel for the petitioners that in view of the appellate power conferred upon the State Government under sub-section (12) of Section 194 of the Act, the revisional jurisdiction is impliedly barred in the instant case, is devoid of any merit.

13. The State Government being empowered to examine the correctness of the order in exercise of the revisional jurisdiction even suo-moto, nothing turns on the question that the revisional proceedings in the instant case were initiated on the basis of the revision petition filed by the State Government through the Executive Officer.

14. A perusal of the revision petition filed on behalf of the State Government reveals that the correctness and legality of the order granting permission to raise construction was questioned on various grounds, which were contested by the petitioners herein by filing a reply thereto. The petitioners besides contesting the matter on merits, had raised various objections regarding the maintainability of the revision petition including the objection regarding exercise of the revisional jurisdiction against the order after inordinate delay.

(9 of 10) [CW-14441/2015]

15. Having gone through the order impugned, this Court is of the considered opinion that the order impugned passed by the revisional authority is a non speaking order inasmuch as while noticing the various contentions raised on behalf of the parties, the order impugned has been set aside solely on the ground that before granting permission for raising construction for a multi- storied above the height of 15 meters, the advice of the Regional Town Planner of the State Government was not obtained, which is violative of the mandatory provision of sub-section (5) of Section 194 of the Act. The objection raised by the petitioners regarding the maintainability of the revision petition inter-alia on the ground of inordinate delay has not even been dealt with by the revisional authority. Moreover, the basic ground for non permissibility of construction of high rising building near the Airstrip beyond the height specified has also not been considered and decided by the revisional authority. In this view of the matter, in the considered opinion of this Court, the order impugned passed by the revisional authority is liable to be set aside and the matter deserves to be remanded to the revisional authority for decision afresh after due consideration of the record and the rival submissions in accordance with law.

16. Accordingly, the writ petition is allowed. The order impugned dated 16.11.15 passed by the Director, Local Bodies, Jaipur is set aside. The matter is remanded to the Director, Local Bodies, Jaipur for decision afresh after due examination of the record and rival submissions in accordance with law. The revisional authority shall conclude the proceedings by passing a speaking order, after giving an opportunity of hearing to the petitioners, expeditiously, in any case, within a period of four months from the date of receipt of (10 of 10) [CW-14441/2015] certified copy of this order. Needless to say that while deciding the matter, the revisional authority shall also take into consideration the orders passed by the Courts in the pending litigation between the parties. No order as to costs.

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Rajasthan High Court - Jodhpur