Rajasthan High Court - Jodhpur

Shailesh Kumar And Ors vs Dist.Collector,Sirohi And Ors on 15 December, 2021

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13126/2017

1. Shailesh Kumar Son Of Shri Praveen Kumar, By Caste Jain, Resident Of Rajmata Dharamshala Road, Sirohi

2. Mohan Mali Son Of Shri Nathuji Mali, By Caste Mali, Resident Of Rajmata Dharamshala Road, Sirohi.

3. Narendra Son Of Shri Jaisaram Mali, By Caste Mali, Resident Of Rajmata Dharamshala Road, Sirohi.

4. Lalit Kumar Son Of Shri Amritlal Mali, By Caste Mali, Resident Of Rajmata Dharamshala Road, Sirohi.

5. Mahendra Kumar Son Of Shri Jethalal Sagarwanshi, By Caste Sagarwanshi Mali, Resident Of Rajmata Dharamshala Road, Sirohi.

6. Dhularam Son Of Shri Devaji Mali, By Caste Mali, Resident Of Rajmata Dharamshala Road, Sirohi.

----Petitioners Versus

1. District Collector, Sirohi

2. Municipal Council, Sirohi Through-Commissioner, Municipal Council, Sirohi

3. Smt. Pankhu Bai Wife Of Shri Hansaramji Mali, By Caste Mali, Resident Of Rajmata Dharamshala Road, Sirohi.

                                                                        ----Respondents


     For Petitioner(s)             :    Mr. Rajesh Shah
     For Respondent(s)             :    Mr. C.S. Kotwani
                                        Mr. Rajesh Parihar, AGC

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

Reportable

15/12/2021

1. This writ petition has been preferred claiming the following

reliefs:

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"(a) by an appropriate writ, order or direction, this petition may kindly be allowed with costs and the impugned judgment dated 29.03.2017 (Annexure-5) passed by the learned District Collector, Sirohi passed in Revision Petition under Section 327 of the Rajasthan Municipalities Act, 2009 may kindly be set aside and the Revision Petition of the petitioners may kindly be allowed and accepted as prayed for and consequence thereof, the allotment of land in question called as strip of land as allotted to the respondent no.3 and execution of sale deed under bearing number npasi/bhoomi/2014-15-217 dated 21.10.2014 (Annexured-2) may kindly be cancelled and set aside and the construction if any has been raised over this strip of land in question may kindly be demolished and the same may kindly be make free for use it as part of the public chowk."

2. That the parties are residing in a very densely populated

cluster of residential houses situated at Rajmata Dharamshala

Road in Sirohi, and there is a small passage between the

residential houses for free movement of the residents, which has

been allotted as a strip of land to the present respondent No.3;

furthermore, such a small public place in between the high density

cluster of residential houses is the breathing space.

3. That the petitioners have filed a revision petition under

Section 327 of the Rajasthan Municipalities Act, 2009 for

cancellation of allotment of the aforementioned strip of land, as

also the sale deed dated 21.10.2014, which was dismissed by the

District Collector, Sirohi vide order dated 29.03.2016 on the

ground that the nature of the land in question - whether it was an

old time possession or it was a land of public space or not - could

only be determined by the competent civil court.

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Rule 327 of the Rajasthan Municipal Act, 2009 reads as follows -

327. Power to call for records.-

(1) The State Government or any officer authorized in this behalf by the State Government, may, for the purpose of being satisfied as to the correctness, legality or propriety of any order or resolution passed or purporting to have been passed, under this Act by or on behalf of a Municipality, its Chairperson, Vice- Chairperson, any member or officer, call for the relevant record, and may, in doing so, direct that pending the examination of such record, such order or resolution shall be kept in abeyance and no action in furtherance thereof shall be taken until such examination by the State Government or by the officer authorized in this behalf by the State Government and the passing of order under sub-section (2).

(2) On examining the record the State Government or the officer authorized as aforesaid 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.

4. That the civil proceedings were also initiated, which have

culminated into passing of the following order by this Hon'ble

Court in Civil Writ (CW) No.9400/2016 on 19.10.2016 (Annexure-

6):

"Mr. Rajesh Shah, learned counsel for the petitioners after arguing the matter at some length requests that he may be allowed to withdraw the writ petition so that the petitioners can pursue their application for cancellation of allotment of the disputed land pending before the District Collector, Sirohi.

Accordingly, the writ petition as well as the stay application are dismissed as withdrawn. It is expected

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that the Collector shall consider and decide the petitioners' application as per law."

5. That while the aforementioned writ petition was dismissed as

withdrawn by this Hon'ble Court on 19.10.2016, the petitioners

were not aware about the fact that the District Collector has

already dismissed their claim under Section 327 of the Act of

2009.

6. Learned counsel for the petitioners cited the following

judgments at the Bar in support of their claims -

(a) Chiman Lal Vs. State of Rajasthan & Ors., reported in

(2000) 2 WLC 1; wherein this Hon'ble Court in Para. 25,

observed as under:

"25. The common law doctrine of public policy can be enforced wherever an action affects/offends the public interest or where harmful result of permitting the injury to the public at large is evident. In such types of cases, revisional powers can be exercised by the authority at any time either suo moto or as and when such orders are brought to their notice."

(b) Nagar Parishad, Bikaner Vs. Megh Raj Choudhary,

reported in (2006) 10 RDD 5209; wherein in Para. 6 this

Hon'ble Court observed as under:

"The trial court held that the plot cannot be auctioned on objection of defendant no.2 but in case there is any objection of the adjoining plot holder then the plot is required to be sold by public auction."

Jodhpur, reported in (2006) 0 Supreme (Raj.) 24914;

wherein this Hon'ble Court, in Paras. 113 and 114, observed as

under:

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"113. ... if in the opinion of any such officer the execution of any order or resolution of a board or doing of anything which is about to be done or is being done by or on behalf of a Board is causing or is likely to cause injury or annoys to the public or a bread of peace or is unlawful, he may by order in writing under his signature suspend the execution or prohibit the doing thereof.

114. ... I also perused the site map of the land in question, a perusal of which clearly shows that it is part of public way and is used for public purposes ...

115. ... For the sake of argument even it is accepted that the land in question is not part of public way and is a strip, then too the physical conditions of the site clearly shows that transfer of land will effect thorough fare of traffic adversely."

(d) Chandra Prakash Vyas Vs. State of Rajasthan & Anr.

(D.B. Civil Special Appeal No.924/2012, decided by a Division

Bench of this Hon'ble Court on 26.04.2013); wherein it was

observed as under:

"... The condition precedent for treating the land as strip land is not its size but the fact that it cannot be put to an independent use ..."

(e) Shri Paresar Vs. Municipal Board - Mount Abu, reported

in 1997 1 RLW 125; wherein this Hon'ble Court, in para 13,

observed as under:

"13. ... the alleged sale deed dated 2.12.86, Anx.2, is ab-initio void within the meaning of Section 23 of the Indian Contract Act. Section 23 of the Indian Contract Act covers cases in which the consideration or object of an agreement is forbidden by law or a public policy at the time when agreement is entered into or is of such a nature that if the

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contract is permitted it would defeat the provisions of any existing statute, public policy or any existing policy decision taken by the State."

(f) Ram Kumar Dhaka Vs. State of Rajasthan & Ors., reported

in 2013 1 DNJ 177; and

(g) Suresh Gupta Vs. State of Rajasthan, reported in (2007)

0 Supreme (Raj.) 28822.

7. In vehement opposition of the aforesaid submissions made

on behalf of the petitioners on the ground that the impugned

order was a well - considered order, learned counsel for the

respondent referred to the communication dated 21.09.2015 in

pursuance of the enquiry being conducted by the Sub Divisional

Officer, Sirohi, whereby the learned Authority has categorically

found that the allotment of strip of land in question was made in

accordance with law.

8. Relied upon the judgment rendered by a Division Bench of

this Hon'ble Court in State of Rajasthan & Anr. Vs. Smt.

Parvati Devi & Ors. (D.B. Special Appeal Writ No.899/2017,

decided on 01.11.2017) wherein it was observed that a

registered sale deed could have not been set aside in revisional

jurisdiction.

9. Section 23 of the Rajasthan Improvement Trust (Disposal of

Urban Land) Rules, 1974 deals with the allotment of strips of land.

Section 23 reads as follows: -

23. Strips of land.- [(1) Strips of land to be sold at double the reserve price-Small strips of land which are not fit to be disposed of as plots shall be sold to the owners of the adjoining plots at the rate of double the reserve price. Such strips of land shall be disposed of on an out-right sale if the

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adjoining property is free hold, and leased out if the adjoining property owner has only lease-hold rights].

(2) Auction.- Where two or more persons are interested in the strip, there shall be auction only between those whose plots or building adjoining the strip of land provided that before auctioning such strip of land a public notice shall be issued. (3) Land use.- These strips of land may be sold for such purpose as is permissible under the rules, regulating sale of land in the area and for such construction as is permissible under those rules; provided that before disposing any strip of land, building line shall be demarcated which shall be maintained.

Explanation.- (1) Definition.- A strip of land shall mean a piece of land adjoining an existing plot which cannot put to independent use and which shall in no case exceed 1 GO sq. yds. in area. No strip of land shall be sold:

(i) if it endangers public safety or is against traffic regulation; and

(ii) if is to be used for a purpose other than the building to which such strip is adjacent;

(iii) until a building line is established. Explanation.- (2) disputes and decisions of Government.- A particular area whether or otherwise is a strip of land shall be decided by the particular Trust in consultation with the Chief Town Planner and Architectural Adviser or his nominee not below the rank of Asstt. Town Planner. In case of difference of opinion, the decision of the State Government shall be final.

10. Under Rule 23 of the Rules of 1974, under sub rule (2), an

Auction must be conducted when 2 or more persons are interested

in the said strip of land. The petitioners in the present case, raised

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objections when a notice was issued for allotment of patta, and

the petitioners registered a complaint but were not afforded an

opportunity of hearing.

11. After hearing learned counsel for the parties as well as

perusing the record of the case, along with the judgments cited at

the Bar, this Court is of the firm opinion that in a clustered densely

populated colony, where houses have tiny places as breathing

spaces, a strip of land cannot be allotted to any person by

respondent-Council, as it would be against the interest of the

general public residing in that area.

12. The comprehensive photographs of the site have been shown

to this Court by the learned counsel for the parties and the

conscience of this Court is shocked to see the miserable failure of

urban vision of a local body, as in a densely populated old town

type place, a small breathing space has been visualized as a strip

of land. By no stretch of imagination, any Planner can term it as a

strip of land, as located between the densely clustered houses.

13. This Court further observes that the petitioner parties reside

in a densely populated cluster of residential houses which has a

very small public space (breathing space) for the residents, and

thus, in case the allotment in question is held to be valid and

allowed to continue, it would not only be prejudicial to the

easementary rights of the petitioner parties as under the

Easements Act, 1882 but also would amount to deprivation of

their basic rights to have access to sunlight, fresh air, ventilation,

etc.

Section 4 of the Indian Easements Act, 1882 reads as follows -

"4."Easement" defined. - An easement is a right which the owner or occupier of certain land possesses, as such,

(9 of 10) [CW-13126/2017] for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritages and owners. -The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.

Explanation. -In the first and second clauses of this section, the expression "land" includes also things permanently attached to the earth; the expression "beneficial enjoyment" includes also possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.

Section 7 of the Easements Act, 1882 reads as follows -

7. Easements restrictive of certain rights.- Easements are restrictions of one or other of the following rights (namely) -

a. Exclusive right to enjoyment- the exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto. b. Rights to advantages arising from situation- The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation. Illustrations of the Rights above referred to - ... (d) the right of every owner of land to so much light and air as pass vertically thereto ..."

14. Furthermore, upon seeing the precedent case laws by the

Hon'ble Supreme Court of India and this Hon'ble Court, cited on

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behalf of the petitioners, this Court is persuaded to quash the

impugned order dated 29.03.2016 passed by the District Collector,

Sirohi and the allotment of the strip of land vide order, dated

21.09.2015, alongwith all the consequential proceedings, and the

same are hereby quashed.

15. As a consequence of this order, the private respondent No.3

shall be entitled for refund of the amount paid towards the

allotment of the aforementioned strip of land from the Municipal

Council, Sirohi.