Omprakash vs Municipal Board
2021 Latest Caselaw 19154 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 386/2021

1. Omprakash S/o Madanlal, Aged About 70 Years, Ward No. 9, Ratangarh, District Churu, Rajasthan.

2. Pramod Kumar S/o Hari Ram Chamdiya, Aged About 57 Years, Ward No. 28, Ratangarh, District Churu, Rajasthan.

3. Dhanraj Choudhary S/o Shanker Lal, Aged About 58 Years, Ward No. 24, Ratangarh, District Churu, Rajasthan.

----Appellants Versus

1. Municipal Board, through Chairman, Municipal Board, Ratangarh, District Churu, Rajasthan.

2. Municipal Board, Ratangarh, through Executive Officer, Municipal Board, Ratangarh, District Churu, Rajasthan.

3. Ratangarh Pinjrapol Gaushala Samiti, Ratangarh, through President & Secretary, Ratangarh Pinjrapol Gaushala Samiti, Ratangarh, Rajasthan.

(a) President Vasudev S/o Laxminarayan, R/o Ward No. 27, Lohiya Bhawan Ke Pas, Agune Bazar, "Kamal Store", Ratangarh, District Churu, Rajasthan.

(b) Secretary Anajanikumar S/o Sitaram, R/o Ward No. 23, Shetalaghora, Ratangarh, District Churu, Rajasthan.

4. Tehsildar, Tehsil Office, Ratangarh, District Churu

----Respondents

For Appellant(s) : Dr. Sachin Acharya & Mr. Rakesh Chotiya For Respondent : Mr. S.L. Jain.

No.1, 2, 3(b)
For Respondent          :     Mr. Vikas Bijarnia.
No.3(a)
For Respondent No.4
                        :     Mr. L.K. Purohit.



           HON'BLE MR. JUSTICE SUDESH BANSAL

                               Judgment

16/12/2021

This miscellaneous appeal is being preferred under Order 43

Rule 1 read with Section 151 CPC assailing the order dated

01.04.2021, whereby the Additional District Judge, Ratangarh,

Churu declined to grant ad-interim injunction to the appellants,

(2 of 10) [CMA-386/2021]

during the course of hearing of the application for temporary

injunction.

Relevant facts of the case as culled out from the plaint are

that the land of Khasra Nos.623, 639, 655, 848, 850, 851, 863

and 865 total measuring 82 bighas and 14 biswas at village

Ratangarh are recorded in the name of Gaushala Kasba Ratangarh

in the revenue record and few of lands are recorded in the name

of Pinjarapole Gaushala Ratangarh Charity Society. These lands of

Gaushala are being managed by the Ratangarh Charity Samiti,

which is said to be a registered society having Registration

No.25/11/27 since 1927. The officiating members of the society

were elected on 14.08.2015 and the then Secretary of this society

got registered another society in the name of "Ratangarh

Pinjarapole Gaushala Samiti" before the Registrar under Rajasthan

Societies Registration Act, 1958. The newly constituted society

viz., Ratangarh Pinjarapole Gaushala Samiti, has transferred a

piece of land measuring 6000 square mtrs. (100 X 60 mtrs.) out

of the land of Khasra No.639 total measuring 9.99 hectares, which

is recorded in the name of Gaushala Kasba Ratangarh. A lease-

deed dated 03.04.2019 has been executed in favour of Municipal

Board, Ratangarh. The Municipal Board, Ratangarh being lessee

took this piece of land for the purpose of construction of Sewerage

Treatment Plant (STP). The construction and establishment of STP

was started and, at that juncture, the appellants woke up and

instituted a civil suit for permanent injunction on 04.03.2021 for

and on behalf of the public of Ratangarh alleging, inter alia, that

the lease-deed is void ab-initio as the land recorded in the name

of Gaushala cannot be transferred for any other purposes. Along

(3 of 10) [CMA-386/2021]

with the suit an application for temporary injunction was also filed,

which is yet pending and has not been decided finally.

Counsel for the appellants argued that it is not in dispute

that the piece of of land measuring 6000 square mtrs., which is

part of Khasra No.639 measuring 9.99 hectare is recorded in the

name of Gaushala Kasba Ratangarh in the revenue record of

Jamabandi and the respondent No.3 society, viz., Ratangarh

Pinjarapole Gaushala Samiti has transferred the said piece of land

to respondents No.1 & 2, Municipal Board, Ratangarh by way of

lease-deed. This lease-deed is illegal and void ab-initio and stands

in violation of the Rajasthan Land Revenue (Allotment of Land To

Gaushalas) Rules, 1957 (hereinafter referred to 'as the Rules of

1957'). Sub-rule (4) and (5) of Rule 8 of the Rules of 1957 have

been pressed in support of his contention.

The counsel for the appellants has argued that the piece of

land is recorded in the name of Gaushala and it is reserved for the

benefit of cattle, animals and birds for their enjoyment of natural

environment and for their grazing purposes, therefore, transfer of

a piece of land of Gaushala is against the interest of public and

cattle/animals/birds.

It has also been argued that respondent No.3, Samiti, is not

authorized to execute the lease-deed and transfer the said piece

of land of Gaushala to respondents No.1 & 2 for the STP purposes

is without jurisdiction and void. The construction of STP by

respondents No.1 & 2 on the land of Gaushala would be against

the interest of animals/cattle/birds, therefore, be stopped.

The counsel for the appellants has contended that the

application for temporary injunction has not yet been decided

finally and the reply from the respondents No.1, 2, 3(b) as also for

(4 of 10) [CMA-386/2021]

respondent No.4 were not filed, yet the trial Court committed

jurisdiction error in not passing the ad-interim injunction to stay

the on-going construction/establishment of STP on the piece of

land of Gaushala. Therefore, the impugned order dated

01.04.2021 be set aside and the ad-interim injunction be granted

at least until the trial Court decides the application for temporary

injunction finally on merits.

Respondent No.4, Tehsildar, has filed reply to the stay

application before this Court. As per reply of the Tehsildar, the

disputed land is agriculture and is part of Khasra No.639, which is

recorded in the name of Gaushala Kasba town of Ratangarh in the

revenue record of Jamabandi. It is contended that the land has

not been allotted to Gaushala under the Rules of 1957 hence

provisions of said Rules are not applicable on the disputed land.

However, since the Gaushala is having the tenancy rights over the

land according the Rajasthan Tenancy Act, 1955, therefore,

agriculture land cannot be used for non-agriculture purpose and

any improvement over the agriculture land can be made only after

seeking due permission from the revenue authorities from the

revenue authorities under the relevant provisions of law. Lastly,

the appeal and stay application of the appellants have been

prayed to be dismissed.

The respondents No.1, 2 and 3(b) are vehemently opposing

the present appeal and justifying the decision of ad-interim

injunction vide impugned order on some additional grounds also

but at the same time, respondent No.3(a) does not oppose the

prayer to grant ad-interim injunction to the appellants.

As far as respondent No.1, 2 and 3(b) are concerned, the

counsel has raised preliminary objection that in view of Sections

(5 of 10) [CMA-386/2021]

20-A of the Specific Relief Act, 1963 (as amended) (in short, 'the

Act'), a civil suit for permanent injunction relating to infrastructure

project itself is not maintainable before the civil court and only the

special courts constituted under Section 20-B of the Act can

entertain and decide the disputes relating to infrastructure

projects. Counsel for the respondents submits that they have

raised this objection before the trial Court by way of filing a

separate application, which is yet pending and has not been

decided.

Respondents have vehemently raised objection that the

Rules of 1957 are not applicable to the land in question as the

land in question was not allotted to the Gaushala under the Rules

of 1957, therefore sub-rules (4) and (5) of Rule 8 of the Rules of

1958 do not apply to the lease-deed in question and the ex-parte

order dated 09.04.2021 passed by this Court to maintain status

quo is liable to be vacated.

Counsel for the contesting respondents has strenuously

urged that before filing of the present suit for permanent

injunction in representative capacity on 04.03.2021, the

appellants preferred a public interest litigation before Division

Bench of this Court and in the said PIL and a specific was made to

quash and set aside the lease-deed dated 03.04.2019 in question,

but the said PIL bearing No.555/2021 has been dismissed as

withdrawn vide order dated 04.02.2021 and the appellants were

given liberty to pursue the representation before the appropriate

authority, if so advised, in accordance with law. He submits that

the appellants instead of pursuing the representation before the

appropriate authorities have filed the present suit which is not

bonafide and tainted with malafide as also suffers from

(6 of 10) [CMA-386/2021]

suppression of material facts. Firstly, the appellants have not

even whispered in their suit and T.I. application before the trial

Court about filing of PIL challenging the lease-deed and dismissal

of PIL vide order dated 04.02.2021 prior to filing of the suit on

04.03.2021 and further the appellants deliberately have not

impleaded the State of Rajasthan, the District Collector, Churu

who were made party in the PIL. The trial Court while deciding

the ad-interim injunction considered this aspect and therefore

appellants are not entitled to get any interim injunction in garb of

filing representative suit as they are not fair and cannot ask for

equitable relief in any manner.

He contends that the construction/establishment of STP is

also for the benefit of public at large and crores of rupees have

already been invested in the project and stoppage of STP in the

middle would not in public interest rather it would be against the

public interest. For the benefit and use of cattle/animals/birds a

chunck of land of 82 bighas and 14 biswas is for Gaushala and

6000 square meters piece of land is being used for STP purpose,

after taking on lease for some stipulated period of ten years. The

land of Gaushala will remain continuing to be Gaushala and shall

not be divested/transferred further. The Ratangarh Charity

Society, which is managing the Gaushala has not objected and the

appellants, in order to achieve some ulterior motive, want to stall

the STP of Government taking shelter of public interest of public

at large is considered vis-a-vis the interest of cattle/animals/birds,

it is in the larger and greater interest of public of Ratangarh to

continue the project of STP which would ultimately for the benefit

of public at large. Therefore, there is no scope to grant injunction,

much less ad-interim injunction in favour of the appellants.

(7 of 10) [CMA-386/2021]

During the course of arguments, following points have

emerged for consideration by this Court:

(a) The appellants have tried to take resort of the Rule 8(4) and

(5) of the Rules of 1957 to contend that the lease-deed is in

violation to the said Rules but this point was not raised before the

trial Court. The respondents vehemently dispute that Rule 8(4)

and (5) of the Rules of 1957 are not at all applicable to the land in

question as this land is not allotted on lease to the Gaushala. The

trial Court may consider this objection independently without

being influenced by the ex-parte interim order dated 09.04.2021

passed by this Court.

(b) As per respondents, suit for permanent injunction and

application for temporary injunction filed by the appellants are not

maintainable at all before the civil court in view of Section 20-A of

the Act, which has been inserted as special provision for contract

relating to infrastructure project in the Specific Relief Act.

(c) As per the respondents, the Ratangarh Charity Society, which

is a registered body since 1927 and managing the affairs of the

land of Gaushala, has not objected to the lease-deed. The action

of the appellants to stall the project of STP may not be treated as

bona fide and in the interest of public.

(d) As per respondents, the project of STP launched by the

Municipal Board is also in the larger interest of public and stopping

its construction in the middle would be against the public interest.

(e) As per the respondents interest of public of Ratangarh would

greater and served by operation of STP, which is larger public

interest vis-a-vis the interest of cattle/animals/birds and if out of

82 bighas and 14 biswas land of Gaushala, a piece of land of

6000 square meters is used for construction/establishment of STP,

(8 of 10) [CMA-386/2021]

same may not be treated in violation of the interest of

cattle/animals/birds.

(f) As per respondents, appellants firstly filed PIL to quash the

lease-deed in question and when could not get any relief in the

PIL, has filed the present suit before the civil court wherein the

factum of filing PIL has been suppressed and the State Govt. and

the Collector have not been made party, therefore, the appellants

have not approached the civil court with clean hands and their

action is highly tainted with mala fides and belated as well.

(g) As per respondents that trial Court has rightly declined to

grant ad-interim injunction in favour of appellant, yet for all above

stated additional grounds also no injunction can be granted to

stop the project of STP and T.I. itself is liable to be dismissed. The

ex-parte interim order of status quo dated 09.04.2021 passed by

this Court deserves to be vacated and appeal be dismissed.

Heard learned counsel for the parties in detail.

It is well clear that while passing the impugned order dated

01.04.2021 declining to pass ad-interim injunction order, all the

points raised by both the parties during the course of hearing of

this appeal were not raised before the learned trial Court and as

such were not considered by trial Court. During the course of

appeal, the appellants have raised new points as regards the

lease-deed in question being violative of Rule 8(4) and (5) of the

Rules of 1957. Similarly, the contesting respondents have also

raised several new points, which have been raised first time before

the appelalte Court. This Court does not want to express any

opinion on merits on the new points raised by both the sides

during the course of appeal first time and feels that it is

appropriate to relegate the parties to raise their all objections

(9 of 10) [CMA-386/2021]

before the trial Court during the course of hearing of the

application for temporary injunction finally. As the application for

temporary injunction is yet to be heard and decided finally,

therefore, trial Court may consider all the points on merits.

This Court during the course of appeal vide order dated

09.04.2021 has directed the respondents to maintain status quo

as it exists today and such interim stay is in operation till date.

During the course of hearing of the appeal, a query was put

for the respondent Municipal Board that before starting the

construction of STP on the land in question, which is indisputably

an agriculture land of Gaushala, whether any land used was

changed and permission from the concerned authorities was

taken? There is no answer from the side of the respondent

Municipal Board to this query, nor any such order of change of

land use and any permission giving sanction regarding

construction of STP has been placed on record. Thus, this Court is

of the opinion that without obtaining permission of change of land

use and without sanction of construction plan, the construction

work on the agriculture land is not permissible in law. Therefore,

only for this reason, this Court is continuing the interim order of

status quo dated 09.04.2021, whic shall remain continue until the

trial Court decides the application for temporary injunction finally.

If the respondent Municipal Board submits any order of change of

land use and sanction for permission, the trial Court will consider

the same.

Thus, without expressing any opinion on merits and without

setting aside the impugned order of the trial Court dated

01.04.2021, this appeal is disposing of this appeal with a direction

that the leaned trial Court that shall hear and decide the

(10 of 10) [CMA-386/2021]

application for temporary injunction finally on merits, after due

appreciation of all the points mentioned hereinabove and all other

arguments/objections raised by the parties, within a period of two

months from the date of receipt of copy of this order and without

being prejudiced by the extension of interim stay order dated

09.04.2021 by this Court.

The parties are expected to complete their pleadings before

the trial Court at least in relation to application for temporary

injunction, if not already done, within thirty days from today in

order to hear and decide the application for temporary injunction

finally within the prescribed time as mentioned hereinabove.

The stay application and all other pending applications, if

any, are also disposed of.

(SUDESH BANSAL),J 145-a.asopa/-

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