Rajasthan High Court - Jodhpur
Municipal Board vs General Public Merta on 23 November, 2023
Author: Rekha Borana
Bench: Rekha Borana
[2023:RJ-JD:39565]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 48/2023
1. Municipal Board, Merta Through Executive, Officer
Ramratan Choudhary S/o Shri Shibhu Ram, Age 35 Yrs.,
Merta, District Nagaur.
2. Municipal Board, Merta Through Chairman, Gautam Tak
S/o Shri Heera Lal Tak, Age About 56 Yrs., Merta, District
Nagaur.
----Petitioners
Versus
1. General Public Merta, Through Members Of District Bar
Association, Merta City- 1- Jagdish Saraswat S/o Shri
Ramdev Saraswat, Resident Of Chippon Ki Pole, Merta
City, District Nagaur. 2- Surendra Dadhich S/o Shri
Bherulal Dadhich, Residnet Of Jalwana, Tehsil Merta,
District Nagaur.
2. State Of Rajasthan, Through District Collector, Nagaur.
3. State Of Rajasthan, Through Sub Divisional Officer, Merta.
4. Tehsildar, Merta.
----Respondents
For Petitioner(s) : Mr. Vishal Sharma
For Respondent(s) : Dr. Harish Purohit
HON'BLE MS. JUSTICE REKHA BORANA
Order
23/11/2023
1. Matter comes up on an application for clarification of the
interim order dated 21.04.2023 whereby further proceedings in
the pending civil suit were directed to be stayed. It has been
prayed in the application that it may be clarified that the stay of
further proceedings in the suit would not be deemed to be a stay
of the proceedings in the application for temporary injunction.
However, at the request of learned counsel for the parties,
the petition itself has been heard finally.
[2023:RJ-JD:39565] (2 of 8) [CR-48/2023]
2. The present revision petition has been preferred against
order dated 23.02.2023 whereby the application under Order VII
Rule 11 of the Code of Civil Procedure as preferred by defendant
Nos.4 & 5 the Municipal Board, has been rejected.
3. The facts are that a suit was preferred by the members of
the Bar Association of Merta City as representatives of the General
Public of Merta City for declaration, permanent and mandatory
injunction with the relief for allotment of the land in dispute for
the purposes of residential houses of judicial officers and further
for declaring the said land to be reserved for judicial officers
colony. An injunction against the Municipal Board that it be
restrained from taking over possession or allotting the said land,
has also been prayed for.
4. In the said suit, application under Order VII Rule 11, CPC
was filed by the Municipal Board on the following grounds:
i. The plaint be rejected as it does not disclose any cause of
action as the relief for allotment of the land as prayed for in
the suit cannot be granted by the Court. Allotment of land
for the purpose as prayed for can be made only in terms of
the Rajasthan Land Revenue (Allotment of Unoccupied Govt.
Agricultural Lands for the Construction of Schools, Colleges,
Dispensaries, Dharamshalas & Other Buildings of Public
Utility) Rules, 1963 (for short, hereinafter referred to as 'the
Rules of 1963). Hence, when no relief as prayed for can be
granted, the suit itself cannot be maintained.
ii. No decree for declaration as prayed for can also be granted
as it is not the case of the plaintiffs that the land in question
has been used for the said purpose since time immemorial.
[2023:RJ-JD:39565] (3 of 8) [CR-48/2023]
iii. The land had been transferred to the Board way back in the
year 2006 and it being the rightful owner of the land in
question, cannot be termed to be a trespasser/encroacher
and hence, no relief of injunction can be granted against it.
iv. The Municipal Board being the owner of the land in question
was essentially to be served with a notice in terms of Section
304 of the Rajasthan Municipalities Act, 2009 (for short,
hereinafter referred to as 'the Act of 2009'). In absence of
the mandatory notice, the suit cannot be maintained.
v. A relief for allotment of the land in question has been sought
and hence the suit ought to have been valued on the market
value of the said land and proportionate Court fees ought to
have been paid. The same having not been done, the plaint
deserves to be rejected.
vi. No resolution of the Bar Association has been placed on
record so as to show that the suit has been filed by the
plaintiffs as representatives of the Bar Association. Therefore
also, the plaintiffs having no locus standi to prefer the suit,
the plaint deserves to be rejected.
5. The Court below, while dealing with all the issues raised by
the defendants, proceeded on to dismiss the application vide the
order impugned dated 23.02.2023 against which the present
revision petition has been preferred.
6. Learned counsel for the petitioners submitted that
admittedly, the reliefs as prayed for are essentially against
defendant Nos.4 & 5 and hence, the notice in terms of Section 304
of the Act of 2009 was a mandate which having not been served,
the plaint ought to have been rejected. Secondly, a bare reading
[2023:RJ-JD:39565] (4 of 8) [CR-48/2023]
of the plaint makes it clear that the reliefs as prayed for are not
within the domain of a civil court as no civil court can grant decree
for allotment of any public land. The allotment, if any to be made,
is only within the domain of the authorities as prescribed under
the Rules of 1963. Once it is held that the reliefs cannot be
granted, the suit for the said reliefs cannot be maintained.
Consequently, it cannot be held that any cause of action accrued
to the plaintiffs against the defendants and hence, the plaint
deserves to be rejected being bereft of any cause of action.
Learned counsel further submitted that reliance of the Court below
on the case of Municipal Council, Barmer vs. State of
Rajasthan & Ors., (2018) 1 WLN 387 is totally misplaced as
the present one was not a suit simplicitor for injunction but a relief
for allotment and declaration had also been prayed for. Therefore,
the finding of the Court below that the relief of injunction only
having been prayed for against the Municipal Board, the notice in
terms of Section 304 of the Act of 2009 was not essential, is
totally erroneous.
In support of his submissions, learned counsel for the
petitioners relied upon the judgment of Coordinate Bench of this
Court in the case of Murli Ram & Ors. vs. The State of
Rajasthan & Ors., S.B. Civil First Appeal No.174/2014
decided on 16.07.2014.
7. Per contra, learned counsel for the respondent submitted
that while adjudicating the application under Order VII Rule 11,
CPC, the Court is required to consider only the
pleadings/averments as made in the plaint. The plaint could be
rejected if the same is barred by any law. The defendants have
[2023:RJ-JD:39565] (5 of 8) [CR-48/2023]
not been able to point out as to by which law, the suit in question
is barred. Secondly, from a bare perusal of the reliefs as prayed
for, it is clear that the only relief prayed for against the Municipal
Board is of injunction. Therefore, in terms of Section 304 of the
Act of 2009, no notice was required to be served on the Municipal
Board. Further, the notice in terms of Section 304 of the Act of
2009 is essential only if the Municipal Board or the
officer/employee of the Board acts in its/his official capacity. So
far as the present matter is concerned, the Board is not acting in
its official capacity and therefore also, no notice was required to
be served in terms of Section 304 of the Act of 2009. Further, as
the relief for allotment and declaration had been prayed for
against the State Authorities, an application under Section 80 (2)
of CPC had very well been filed for exemption of service of notice
in terms of Section 80, CPC. Therefore, the suit was very much
maintainable and the plaint could not have been rejected on the
ground of non-service of notice in terms of Section 304 of the Act
of 2009.
So far as the ground that the relief as prayed for cannot be
granted by the Court is concerned, counsel submitted that if it be
so, the suit would ultimately be dismissed but the same cannot be
a ground for rejection of the plaint under Order VII Rule 11, CPC.
With the said submissions, learned counsel submitted that
rejection of the application by the Court below is perfectly in terms
of law and hence the present revision petition deserves to be
dismissed.
8. Heard learned counsel for the parties and perused the
material available on record.
[2023:RJ-JD:39565] (6 of 8) [CR-48/2023]
9. In the present suit, following reliefs have been prayed for by
the plaintiffs:
"20+- ;g gS fd oknhx.k dk okn izfroknhx.k ds fo:) Lohdkj
fd;k tkdj fuEuor~ fMØh ikfjr djkosa %&
a. ;g gS fd dLck esM+rk dh lhek esa fLFkr [kljk ua- 1752
jdck 1-6200 gSDVs;j Hkwfe dks U;kf;d vf/kdkfj;ksa ds
vkoklksa gsrq vkoafVr dj U;kf;d vkokl dh Hkwfe ?kksf'kr dh
tkosaA
b. ;g gS fd LFkkbZ fu'ks/kkKk bl vej dh tkjh QjekbZ tkosa
fd dLck esM+rk dh lhek esa fLFkr [kljk ua- 1752 jdck
1-6200 gSDVs;j ij izfroknhx.k fdlh izdkj dk vfrØe.k]
dCtk o fuekZ.k dk;Z] vkoaVu] fu;eu bR;kfn u rks Lo;a
djsa vkSj u gh vU;ksa ls djokosaA vxj nkSjkus nkok
izfroknhx.k fdlh izdkj dk uktk;t fuekZ.k dk;Z dj ysosa
rks mls tfj;s vkKkid fu'ks/kkKk ds gVok;k tkosaA
c. ;g gS fd [kpkZ o gtkZ oknhx.k dks izfroknhx.k ls fnyk;k
tkosa o vU; dksbZ vuqrks'k tks oknh ds i{k esa mfpr gks]
iznku fd;k tkosaA"
10. In the application under Order VII Rule 11, CPC it has been
submitted by the defendants as under:
"mijksDr bLrnqvk ekuuh; U;k;ky; ls oknhx.k us dkuwu
ds foijhr ekax dh gS] fdlh Hkh lEifr ds vkoaVu gsrq jktLFkku
ljdkj ds fu;e cus gq, gS vkSj ;g fu;e jktLFkku ljdkj ds
jsosU;w ¼xqzi&6½ foHkkx ds fu;e ,Q- 5¼9½@jsosU;w@60 fnukad
20-07-1963 dks tkjh gq, ftlesa vkoaVu ds leLr izko/kku dk
mYys[k gS] ftlesa dgha Hkh bl ckr dk mYys[k ugha gS fd
U;k;ky; ds }kjk Hkh dksbZ Hkwfe vkoaVu dh tk ldsxh] tc Hkwfe
vkoaVu dh bLrnqvk ekuuh; U;k;ky; ls oknhx.k izkIr gh ugha
dj ldrs rks ,slh ifjfLFkfr;ksa esa Hkwfe ds vkoaVu gsrq nkok ykus
dk Hkh oknhx.k dks dksbZ gd vf/kdkj izkIr ugha gS] ,slh
ifjfLFkfr;ksa esa oknhx.k dks izfroknhx.k ds fo:) dksbZ fcuk;nkok
gh iSnk ugha gksrk gS] ftlls oknhx.k dk nkok dkfcy pyus ds
ugha gS] lks nkok dkfcy [kkfjt ds gSA"
Meaning thereby, the specific ground raised by the
defendants was that the allotment, if any, of any land for public
utility can be made only in terms of the Rules of 1963. Rule 2 of
the Rules of 1963 provides for allotment of a government land for
public utility/government office building. Rule 4 of the Rules
prescribes the allotting authorities for the said purposes. As per
[2023:RJ-JD:39565] (7 of 8) [CR-48/2023]
the said rule, the allotting authority for both the above purposes is
Sub-Divisional Officer/Collector/the State Government. Meaning
thereby, it is the State Authorities who are competent to allot the
land for any such purpose. As submitted by defendant-Municipal
Board itself, the allotment can be made only in terms of Rules of
1963 and as per the said rules, the allotting authority is the State
Authority only. It is nowhere the case of Board that it is the
allotting authority. Meaning thereby, the relief of allotment could
not have even been prayed for against the Municipal Board and
could have been prayed for against the State authorities only. A
bare perusal of the reliefs as prayed for in the plaint also makes it
clear that the relief for allotment of the land has been prayed for
against the State Authorities, that is, defendant Nos.1 to 3 only.
In view of the same, the conclusion as arrived by the Court
below that the relief for injunction only was prayed for against the
Municipal Board and hence, no notice in terms of Section 304 of
the Act of 2009 was required, cannot be interfered with.
Therefore, the reliance of the Court below on the case Municipal
Council, Barmer (supra) cannot be said to be misplaced. As held
in Municipal Council, Barmer (supra), a suit wherein the relief
for injunction only has been prayed for against the Municipal
Board, it cannot be said to be barred by 304(1) of the Act of 2009.
11. So far as the issue whether the relief as prayed for can be
granted by the Court or not is concerned, as held in the case of
Gurdev Singh vs. Harvinder Singh [SLP(C) 19018/2022]
decided on 09.11.2022, the fact that the relief as prayed for
cannot be granted by the Court cannot be a ground for rejection of
the plaint at its threshold. Therefore, the Court below rightly held
[2023:RJ-JD:39565] (8 of 8) [CR-48/2023]
that the same was a mixed question of fact and law and could be
decided only after adjudication of the issue concerned.
12. So far as the ground raised by the Municipal Board that it
was the rightful owner of the land in question is concerned, a
perusal of the record shows that the case of defendant Nos.1 to 3
is that the land continues to be recorded as gair mumkin gochar
and further that the land was never allotted by the Collector for
any other purposes. Therefore, the fact of the Board being the
rightful owner of the land in question becomes disputed and any
finding qua the same could be given only after an issue being
framed and adjudication being made on the said issue after
recording of evidence. The finding of the Court below hence,
being totally in consonance with law, deserves no interference.
13. So far as the ground of deficit court fee is concerned, as
rightly held by the Court below, the same was also a mixed
question of fact and law and the plaint could not have been
rejected on the said ground.
14. In view of the above analysis, this Court does not find any
ground to interfere with the order impugned and the revision
petition is hence, dismissed.
15. Stay petition and all pending applications, if any, stand
disposed of.
(REKHA BORANA),J
161-T.Singh/-
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